R v Bunting & Wagner (No 2) - [2005] SASC 185

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v BUNTING & WAGNER (No 2)
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Bleby and The Honourable Justice Gray)
24 May 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL
Applications for leave to appeal and appeal against convictions for multiple counts of murder - a single Judge of this Court refused leave to appeal - this Court refused leave on all grounds except those relating to the length and complexity of the trial for which it heard further argument as the appeal proper - application for leave to appeal granted - appeal dismissed.
R v Bunting & Wagner (No 1) [2005] SASC 45, discussed.

R v BUNTING & WAGNER (No 2)
[2005] SASC 185
Court of Criminal Appeal: Doyle CJ, Bleby and Gray JJ

DOYLE CJ: These reasons are to be read with my reasons in R v Bunting & Wagner (No 1) [2005] SASC 45.
In those reasons I explained why I would refuse leave to Mr Bunting and Mr Wagner to appeal against their convictions for murder, on each of the grounds on which they wished to appeal, with the exception of ground 7 of Mr Wagner’s grounds of appeal and grounds 1, 2 and 3 of Mr Bunting’s grounds of appeal. I said that those grounds should be further argued on the basis that the application for leave to appeal would be treated as the hearing of the appeal: at [176]. Bleby and Gray JJ agreed with my reasons.
We heard further submissions accordingly on 29 April 2005.
Mr Bunting was not represented. He applied for an adjournment, because he was still trying to obtain a grant of legal assistance. We refused the application. There was no indication of when a decision would be made, nor was there any indication that legal assistance was likely to be granted. Mr Bunting had been unrepresented before us on the previous occasion, and before the single Judge who refused leave to appeal. We took the view that there was a substantial public interest in bringing the matter to a conclusion that had to be taken into account. The trial concluded in September 2003. A single Judge refused leave to appeal in August 2004. Our earlier reasons were published in February 2005. The date for further submissions was fixed shortly after that. We were also influenced by the fact that Mr Cuthbertson QC, appearing for Mr Wagner, would be putting submissions that would support Mr Bunting’s proposed grounds of appeal. That, in brief, is why we refused to adjourn the hearing.
Mr Bunting then asked the Court to exclude from the court a person in the body of the court, apparently a police officer, to whose presence Mr Bunting objected. He said that he would not, and could not, put his submissions if that person was present. We declined to direct the removal of that person. Mr Bunting then asked that he be permitted to absent himself from the hearing, and we allowed him to leave.
The matter then proceeded with Mr Cuthbertson putting his submissions. I record our gratitude to Mr Cuthbertson who appeared, yet again, although no grant of legal assistance had been made to Mr Wagner. We understand that two or three weeks prior to the hearing an application was made to the Attorney-General for legal assistance. It is regrettable that no decision had been made by the time of the hearing, and that Mr Cuthbertson had to proceed not knowing the outcome of the application.
The grounds of appeal now under consideration complain, in effect, that the whole case and summing up were so lengthy and complicated as to overwhelm the jury, making it impossible for them to discharge their task satisfactorily. The argument as presented was narrower than that.
Mr Cuthbertson made no complaint about the length of trial as such, about its complexity, about the length or complexity of the summing up generally, or about the ability of the jury to comprehend the summing up generally, or about the ability of the jury to deal with the case.
Rather, he argued that the approach that the Judge took to the admissibility of evidence relevant to one count on another count created a conceptual problem, or a problem of comprehension for the jury, of such difficulty (and here the length and general complexity of the case was relevant) that the Court should conclude that the jury could not have understood or applied the directions the Judge gave them. Accordingly there had been a miscarriage of justice.
It is appropriate to make some general points about the case. It was a long one. I understand that the evidence ran from October 2002 until July 2003, with a break over Christmas, and with shorter breaks along the way. The addresses of counsel occupied 17 days. The summing up occupied 26 days. The jury spent eight days considering their verdict.
For a general description of the case I refer to my earlier reasons at [10] – [12].
I agree with the submission by Ms Abraham QC, counsel for the Director of Public Prosecutions, that the evidence was not intrinsically complex, although there was a vast amount of evidence. A lot of the evidence was repetitive. A lot of the evidence involved proving the details of matters that could be assessed or considered more broadly. It is apparent that the trial Judge, counsel and solicitors did all that could be done to manage the trial in a manner that accommodated the needs of the jurors, and recognised the burden on them. Careful attention was given to sitting times and to giving the jury appropriate breaks. Considerable trouble was taken, especially by the Prosecution, to provide the jurors with summaries, lists, charts and diagrams. The jury room was set up to accommodate the substantial amount of paper that the jurors had to handle. The trial was conducted with the aid of advanced information technology. The summing up was lengthy, but that was because the Judge very carefully summarised the evidence for the jury. He related the evidence carefully to his directions. He gave the jury frequent breaks during the summing up.
This, no doubt, explains why the final grounds of appeal, as argued, returned to the terms of the directions relating to cross-admissibility, rather than focussing on the length and complexity of the case.
I also record at this stage that I dealt quite extensively in my previous reasons with some of the matters relied on by Mr Cuthbertson in his further submissions. I refer in particular to my earlier reasons under the heading “Directions relating to similar fact evidence” at [13] – [36] and under the heading “Directions relating to the taking and sharing of property of the deceased, to the taking of Centrelink benefits payable to the deceased, and to the telling of false stories about the whereabouts of the deceased” at [37] – [52].
The submission by Mr Cuthbertson was as follows.
The decision by the Judge to proceed to try all 11 counts of murder created a problem relating to the cross-admissibility of evidence. Early in the summing up the Judge gave a direction that each count was to be considered separately, and that evidence on another count was to be ignored. The Judge said:
As a general rule, when you are considering the evidence relating to a particular count you must ignore evidence relating to another count. However, it is obvious in a case like this that there must be exceptions to that general rule. For example, all the barrels were together in the vault and Mr Vlassakis says that when he was shown the body of Gavin Porter he was also shown a barrel which Mr Bunting said contained the bodies of Michael Gardiner and Barry Lane. You are not required to ignore those inextricable links.
So there are exceptions and later I will explain how, in restricted ways, the evidence relating to some counts may be used on other counts, but the first and important step is to consider each count and the evidence relating to each count separately from the others.
Then, as the summing up unfolded, the Judge identified a number of other exceptions to the general rule. Mr Cuthbertson submits that the exceptions were so many, so significant, and the difficulty of applying them to the facts so great, that the jury could not have understood them or applied them properly. He made the point that the end result of the Judge’s approach was that the defendants were denied the benefits of the cautionary aspects of a traditional similar fact direction.
Mr Cuthbertson’s submissions are put on a cumulative basis. In other words, he relies on the combined effect of each exception to the general rule, and on the need for the jury to grapple with each exception.
Some preliminary points should be made. In the portion of my earlier reasons referred to above, I have already rejected aspects of the argument that he now puts. Next, at trial counsel for Mr Bunting and Mr Wagner strongly opposed a prosecution submission that most of the evidence on each count was admissible as similar fact evidence on each other count, and should be dealt with in that manner. Now, as Ms Abraham remarked, Mr Cuthbertson is arguing that the Judge should have directed the jury in a manner strenuously objected to by counsel for the accused. Presumably, if the argument succeeds and there is to be a re-trial, counsel for the accused would revert to their original stance. In response to this Mr Cuthbertson repeated the point that the accused had lost something also. They had been deprived of some of the benefits that would come from what I have called the cautionary aspects of a similar fact direction. I am not at all sure that that is correct.
These matters are obstacles to the success of Mr Cuthbertson’s argument, but I move on to deal with the argument on its terms.
The exceptions to the general rule which Mr Cuthbertson says created the unmanageable problem fall under several heads. I propose to identify each head, and at that stage to make a brief comment about each one. Then I will consider them collectively.
The first exception to the general rule is in the passage of the summing up set out above. The Judge identifies it by the concept of “inextricable links”. I consider that the submission that the jury would have had difficulty with this concept is completely lacking in substance. The Judge gives as an example a simple illustration. That is, an item of evidence which, in a very simple and direct way, relates to more than one count. The jury could not have had any difficulty with this concept.
The second exception deals with evidence about the relationship between Mr Vlassakis and the accused. This exception can be illustrated by reference to the following passage from the summing up:
I had finished dealing with the evidence of Mr Vlassakis and I had spoken to you about his relationship with the accused, particularly with Mr Bunting, and the relevance of that relationship at each stage of each death. It may be apparent to you, from what I said last week, that when you come to each death you are entitled to take into account the state of the relationship between Mr Vlassakis and the accused, particularly Mr Bunting, at the time of each death.
In order to do that, of course, you need to take into account everything that has happened between them prior to the particular death. That will include involvement in other murders. For example, when you are considering the evidence concerning the death of David Johnson, you are entitled to take into account the state of the relationship between the accused and David Johnson as at May 1999. How do you assess the nature of the relationship at that time? Obviously, you need to take into account what you know of the development of the relationship over the years to May 1999. You cannot get a true picture of their relationship in some sort of vacuum.
I do not agree that this direction would have presented the jury with any real difficulty. I am confident that the jury would have understood the direction as relating to matters such as the degree of confidence, trust and influence that existed as between Mr Vlassakis and the accused, in light of the extent to which they had involved him in successive murders. There is nothing difficult about that concept. It does not undermine the “general rule” explained by the Judge.
The third exception to the general rule is the Judge’s direction about the taking and sharing of property, the taking of Centrelink benefits and the telling of false stories about the whereabouts of the deceased. I refer to my earlier reasons at [37] – [52]. My focus there was on the correctness of the directions. I accept that the application of this direction was not simple, but I do not accept that, taken in isolation, it would be beyond the capacity of a juror to understand and to apply the direction to the facts.
The fourth exception to the general rule was the Judge’s direction about the way in which the jury could use evidence of recordings of voices of the deceased, and evidence about how those recordings had been used. In my earlier reasons at [28] – [36] I dealt with the correctness of those directions. Taken in isolation I consider these directions to be relatively straightforward. The jury would not have found them particularly difficult.
The fifth exception was a direction relating to evidence that two of the victims were found buried in a hole at a house occupied by Mr Bunting. The following two paragraphs adequately illustrate the nature of the direction given:
If you are satisfied that Mr Bunting was involved in the burial of Ray Davies in the hole at 203, that fact would be a piece of circumstantial evidence that you would be entitled to take into account in deciding whether the Crown has proved that Mr Bunting was involved in the subsequent burial of Suzanne Allen’s body in the same hole.
Similarly with respect to Mr Wagner; if you are satisfied that Mr Wagner was involved in the burial of the body of Ray Davies in that hole, that fact would be a piece of circumstantial evidence that you could take into account in deciding whether Mr Wagner was involved in the burial of the body of Suzanne Allen in the same hole.
In my opinion there is no substance in the submission that this direction would have caused the jury difficulty. It is a simple and straightforward proposition that is put to the jury.
The sixth exception arises from the following passages in the summing up:
Ladies and gentlemen, in connection with the evidence of Mr Vlassakis that when Mr Bunting first spoke about Michael Gardiner he had just shown Mr Vlassakis the body of Gavin Porter and said that Barry Lane’s body was also in the barrel, that evidence involves an exception to the general direction that you cannot take into account evidence relating to another count. In this instance, the evidence relating to the seeing of Gavin Porter’s body and the reference to Barry Lane’s body being in the barrel are part and parcel of Mr Vlassakis’ evidence as to the circumstances in which he first learnt about Michael Gardiner. In addition, you are entitled to take into account evidence, if you accept it, that Mr Lane had been murdered some months earlier in about October 1997 and that his body was found in barrel D together with the body of Michael Gardiner.
Once again, I consider that the jury would have had no difficulty with this concept. The evidence referred to was evidence relevant to the death of Mr Gardiner, but had an obvious relevance also to the death of Mr Porter and Mr Lane. The exception is similar in nature to the first exception.
The next exception to the general rule is not one that was identified by the Judge as such. It is a direction that if the Prosecution proved that Mr Lane had knowledge of the murder of Mr Trezise by the accused, that could be used as evidence that Mr Lane posed a risk to Mr Bunting because he might expose the involvement of Mr Bunting in the murder of Mr Trezise. That also seems to me to be a straightforward direction, that would have caused the jury no difficulty at all.
The next direction relied on by Mr Cuthbertson relates to the evidence relating to the killing of Mr Johnson. It dealt in particular with some evidence of a plan to take him to Snowtown. The Judge said:
When you consider the significance of the plan to take David Johnson to Snowtown, you are entitled to take into account what was at the bank at that time and the purpose for which the bank premises had been rented. This involves an exception to the general rule that you may not take into account evidence relating to another count or counts.
Are you satisfied that with the knowledge of Mr Wagner, Mr Bunting rented the premises for the purposes of storing and concealing the barrels that contained the bodies of Michael Gardiner, Barry Lane, Gavin Porter, Troy Youde, Fred Brooks, Gary O’Dwyer and Elizabeth Haydon? Are you satisfied that barrels containing bodies and rubbish and other items associated with deceased persons and their murders were stored at the bank? Are you satisfied that the premises had been used for the purposes of dismembering the body of Troy Youde?
If you are satisfied that the bank premises were rented and used for some or all of these purposes, and if you are satisfied that there was a plan to take David Johnson to those premises, you would be entitled to ask why the accused, or Mr Vlassakis, would arrange for David Johnson to be taken to premises which contained the bodies of a number of deceased persons and which had no other purpose than purposes associated with deceased persons and their bodies.
Once again, this appears to me to be a straightforward direction. There is nothing in it that I would expect the jury to have any difficulty with.
I return now to the overall submission made by Mr Cuthbertson. As he said, it is necessary to consider the cumulative effect of these exceptions to the general rule. They are not so numerous as to cause confusion. Most of them are, in my opinion, quite straightforward. Although Mr Cuthbertson complained, in relation to some, that the Judge did not give the jury enough guidance, I cannot agree. In my view the explanation given was generally adequate. I agree that the direction relating to property and Centrelink benefits was not easy to apply to the facts, and I agree that the same can be said, but with a good deal less force, in relation to the direction about the recording of voices of the deceased.
I remind myself again of the need to consider the cumulative impact of these exceptions to the general rule, and to do so in the context of the length of the case and the length of the summing up in particular.
But I am not satisfied that the jury would have been unable to follow the Judge’s direction in relation to these exceptions to the general rule, or would have been unable to apply them satisfactorily to the facts. The exceptions did not swallow up the general rule. I do not agree that there is any significant risk of a miscarriage of justice attributable to the jury relying on evidence that they should not have relied upon, because they did not understand how to apply the directions to the facts.
To the contrary of Mr Cuthbertson’s submissions, I consider that each of the exceptions to Judge’s general rule identified a reasonably clear and straightforward concept. I acknowledge that sometimes applying that concept to the facts would have its difficulties, but I would go no further than that.
I also take into account the very great care taken to give the jury as much assistance as possible, and the overall thoroughness and clarity of the directions. I did not overlook the possibility that, with a view to helping the jury, the Judge might have provided them with so much material as to overwhelm them. But, being aware of that risk, I am satisfied that it did not eventuate. Having regard to the manner in which this ground was argued, it is appropriate to repeat some concluding observations from my earlier reasons at [173] – [175]:
Standing back from the case for a moment, my view is that the prosecution case was a very powerful one. There was very strong evidence of a joint enterprise involving Mr Bunting and Mr Wagner, and later, Mr Vlassakis and others. Despite the length of the case, its complexity arose only from the number of counts and from the amount of circumstantial evidence that had to be led. From another point of view, it might be said that the case was relatively straightforward. When all the pieces were put together, there was very clear evidence of a joint enterprise of the kind relied upon by the prosecution.
The large number of grounds of appeal should not be allowed to divert attention from the fact that many of them are ultimately based on the same underlying proposition. And, as my reasons have demonstrated, again and again they come down to the manner in which the Judge explained things to the jury.
The summing up was indeed lengthy. But in my opinion the trial Judge dealt with a large amount of material before him with admirable clarity and balance. That is why I am satisfied, subject to the ground of appeal that raises the impact of the overall length of the trial, that the various criticisms of the Judge’s directions are not reasonably arguable, and that leave to appeal should be refused. I am conscious of the fact that this may seem a surprising outcome after such a lengthy case involving so many counts.

After hearing the further submissions, I am on the view that those observations are applicable to the submissions advanced in support of the remaining grounds.
Conclusion
Having heard full argument on this ground, it is appropriate to grant leave to appeal to Mr Wagner on ground 7 of his grounds of appeal, and to Mr Bunting on grounds 1, 2 and 3 of his grounds of appeal. However, having done so I would dismiss the appeal on each of those grounds.
BLEBY J: I agree that both appeals should be dismissed. I agree with the reasons of the Chief Justice and have nothing to add.
GRAY J: I agree with the orders proposed. I agree with the reasons of Doyle CJ.