R v Bunting & Wagner (No 7) No. Sccrm-01-205

[2003] SASC 255

R  v  BUNTING & WAGNER (NO 7)
[2003] SASC 255

Criminal:  Reasons for Rulings

1. MARTIN J           John Justin Bunting and Robert Joe Wagner are jointly charged with eleven counts of murder alleged to have been committed between December 1995 and May 1999.  In addition, Bunting is charged with a further count of murder alleged to have been committed in 1992 with Mark Ray Haydon and Wagner is charged with Assisting Offenders in connection with that crime of murder.  Haydon has been granted a separate trial with respect to that and other charges of murder.

2. The facts are set out in detail in R v Bunting and Others (No 3) [2003] SASC 251. The accused objected to the evidence of a number of individual witnesses who purport to identify the accused or to give evidence of similarities between the accused and persons seen by the witnesses. I now set out my reasons for my rulings.

3. During submissions, frequent reference was made to the dangers associated with this type of evidence and the lack of probative value attaching to it.  Particular emphasis was given to the lapse of time between the observations and the witness viewing photographs.

4. In Festa v The Queen (2001) 76 ALJR 291, the High Court had occasion to consider the principles governing the admissibility of identification evidence. The appellant was charged with armed robbery. Four witnesses gave evidence of their observations of a female person near the scene at the time of the robbery who, although disguised, was of physical appearance consistent with the appellant. As Gleeson CJ observed, that evidence was plainly admissible because it showed that the appearance of the female who was involved in the robbery was consistent with that person being the appellant. His Honour said it was “only identification evidence in the loosest sense of that term” (293).

5. Three of the witnesses attended at a courthouse on the day fixed for the hearing of committal proceedings against the appellant.  They were asked to advise police if they saw anybody fitting the description of the woman seen on the day of the robbery.  Each witness “identified” the appellant.  One said he recognised the woman and that features of size and height attracted his attention.  The second witness said the appellant “looked familiar”.  The third said he recognised her voice and her gait and that he was about “75 per cent sure” it was the woman seen at the robbery.

6. The fourth witness was shown a photoboard containing a number of photographs.  He said persons depicted in three of the photographs had the same hair and skin type as the woman seen at the time of the robbery.  The appellant was depicted in one of the three photographs.  Gleeson CJ noted that this was “some evidence that the appearance of the appellant was consistent with the appearance of the female seen at Paradise Point participating in the robbery.”

7. The primary thrust of the objections to the “identification” evidence in Festa related to alleged deficiencies in the quality of the evidence.  After observing that as positive identification of the appellant the evidence of the witnesses was weak, Gleeson CJ expressed the view that the fact that the appearance of the appellant was consistent with the female involved in the robbery the evidence was of “some probative value”.  His Honour said (294):

   “If evidence is of some, albeit slight, probative value, then it is admissible unless some principle of exclusion comes into play to justify withholding it from a jury’s consideration.  It is not enough to say that it is “weak”, and, as already mentioned, whether it is weak might depend on what use is made of it.  The totality of the evidence may be such as to render a conviction unsafe.  But that does not affect admissibility.  And a jury may need to be warned that evidence, if accepted, only shows consistency of appearance between the person and the offender; a fact which may or may not be of much significance depending upon other matters.”

8. Gleeson CJ identified two principal dangers associated with the use of photographs.  First, there is “the inherent risk of error associated with suggestibility, and what is sometimes called the displacement effect”.  That risk affects the probative value of the evidence.  Secondly, because police have photographs of the accused, there is a risk that the jury might be given the message that the accused is a person with a criminal history.  This is a risk that involves unfair prejudice to an accused.  His Honour said (296):

   “[22] …But prejudice does not arise simply from the tendency of admissible evidence to inculpate an accused.  It is unfair prejudice that is in question.  Where evidence is relevant and of some probative value, prejudice might arise because of a danger that a jury may use the evidence in some manner that goes beyond the probative value it may properly be given.  If there is relevant prejudice of that kind, it lies in the risk of improper use of the evidence, not in the inculpatory consequences of its proper use.  If it were otherwise, probative value would itself be prejudice.  All admissible evidence which supports a prosecution case is prejudicial to an accused in a colloquial sense; but that is not the sense in which the term is used in the context of admissibility.

   [23]  The evidence of the four witnesses named in grounds one and two was of some probative value.  However, the trial judge had a discretion to reject it, in the interests of fairness to the appellant, if he concluded that its probative value was outweighed by the danger of unfair prejudice to the appellant.”  (Footnote omitted)

9. After describing the evidence identifying the appellant as “weak”, and after noting that the identifications were obtained in circumstances “marked by the absence of the precautions usually taken in the identification of suspects”, McHugh J said (300):

   [51]  But the weakness of relevant evidence is not a ground for its exclusion.  It is only when the probative value of evidence is outweighed by its prejudicial effect that the Crown can be deprived of the use of relevant but weak evidence.  And evidence is not prejudicial merely because it strengthens the prosecution case.  It is prejudicial only when the jury are likely to give the evidence more weight than it deserves or when the nature or content of the evidence may inflame the jury or divert the jurors from their task.”

10. McHugh J drew a distinction between positive identification where a witness claims to recognise the accused as the person seen on the occasion in question, and evidence in which a witness does not claim to recognise the accused but describes characteristics or the general appearance of the accused as similar to the person observed.  Hayne J agreed that it may sometimes be convenient to distinguish between positive identification and evidence of similarities.  Kirby J disagreed with the distinction.  His Honour also reached the view that the dangers associated with the evidence of identification at the courthouse were such that the evidence was “virtually valueless” in terms of probative weight and was highly prejudicial to the appellant.  His Honour noted, however, that the evidence of observations at the time of the incident was in a “somewhat different class”.

11. The dangers identified by Kirby J in connection with the courthouse identifications in Festa do not exist in connection with the evidence of the individual witnesses to which objection has been taken.  I have given my reasons for finding that the criticism of the investigators in connection with the issue of the identification parade is not well founded.  In those circumstances, in my opinion it is not appropriate to approach the evidence from the point of view that it should be excluded unless the prosecution persuades me that I should exercise my discretion to admit the evidence.  If the evidence has some probative value, it is admissible unless the accused persuade me that I should exclude the evidence because its unfair prejudicial value outweighs its probative value or because, on some other ground, to admit the evidence would be unfair to the accused.  It is against the background of those principles that I considered the objections of individual witnesses.

12. In respect of each witness, I have had the assistance of both a statement of the witness and a transcript of the identification process.  This has enabled me to take into account the terms of the request made to the witness and the precise words of the witness in response to the examination of the photographs.

13. Mr and Mrs Barnett were the lessees of a caravan park at Tailem Bend.  On 27 September 1997, a person giving the name of the deceased, Ray Davies, rented an on-site caravan for a period of one week.  He was travelling in a vehicle registration number MFL-846.  On 3 October 1997, the same person paid a further amount of $95.  He was driving a vehicle registered number VSV-866.

14. Mrs Barnett spoke to the person giving the name Ray Davies on several occasions.  She gave a description to the police that matched Bunting.  Two years after the renting of the caravan to the person known as Ray Davies, Mrs Barnett viewed four sheets each containing twelve photographs of heads and shoulders.  On the first sheet, she identified a photograph of Bunting saying “it’s similar features to this man here”.  The photograph depicted the accused wearing glasses.  Mrs Barnett said she did not see the man wearing glasses.

15. The primary thrust of the objection was that a jury would experience a strong temptation to treat the evidence as affirmative identification evidence.  In other words, there is a danger that the jury would elevate the probative value of the evidence to positive identification.  I do not agree.  It is circumstantial evidence and possesses some probative value.  It identifies the person who gave the name Ray Davies as a person who has similar features to the appearance of the accused as illustrated in the photograph.  In my opinion, given appropriate directions, there is no reason to doubt that the jury will use the evidence properly.  It is circumstantial evidence to be used in conjunction with other evidence tending to prove that the accused rented the caravan using the name Ray Davies.  The evidence of Mrs Barnett will be admitted.

16. Mrs Barnett had given a description to the police of the person Ray Davies some months prior to viewing the photographs.  Mr Barnett did not give a statement to the police before viewing the photographs.  He was referred to the statement of his wife about the renting of the caravan to a person giving the name Ray Davies.  Looking at the photograph of Bunting, Mr Barnett said “I would be inclined to look at number six”.  On a second sheet of photographs, Mr Davies referred to a photograph of another person saying “yes, number two I would think”.  He added:

    “A little difficult with everyone having beards, put it that way, but still, it’s – I’m thinking of – and I have in mind a thick set – pretty chubby type of person, so that would – receding hair.”

17. Mr Barnett also indicated persons depicted in two additional photographs on the remaining two sheets as having some resemblance to the person he recalled giving the name Ray Davies.

18. The Crown did not advance the evidence of Mr Barnett as a positive identification.  The words “I would be inclined to look at number six” are close to equivocal.  In all the circumstances, in the exercise of my discretion, I exclude the evidence of Mr Barnett concerning the photographic identification process undertaken on 25 November 1999.  Mr Barnett will, of course, be able to give evidence of his memory of the features of the person giving the name Ray Davies.

19. Ms Rowe was an employee of the Australian Central Credit Union in a branch situated at Tea Tree Plaza.  Records establish that on 21 April 1999 a person purporting to be Ray Davies withdrew $340 over the counter.  Ms Rowe conducted the transaction.  It was not until 9 March 2000 that Ms Rowe was shown four sheets of photographs.  She indicated a photograph of Bunting saying “I sort of vaguely remember the guy, so – maybe number seven, I’m not sure”.  On another sheet she indicated a photograph of another person saying “maybe number three, I can’t pick two can I?”.  She added that she could not really be sure.

20. Ms Rowe would have conducted many transactions in the intervening twelve months.  She had no particular reason to recall the transaction or the person involved.  There is always the possibility that she had seen the accused on other occasions in the area.  In all the circumstances, I exclude the evidence of Ms Rowe as to her viewing of the photographs on 9 March 2000.

21. Ms Sloman was a neighbour of the deceased Lane.  She gives an account of persons removing a vehicle from Lane’s premises.  That vehicle ended up with Mr and Mrs Freeman.  Evidence will be lead from the Freemans establishing that Bunting took the car to their premises.

22. The removal of the car took place in late 1997.  Two years later on 7 December 1999, Ms Sloman examined four sheets of photographs and indicated two photographs.  The first was of Bunting.  Ms Sloman said “number ten looks familiar”.  The second was of an unknown person.  Ms Sloman said “he could have been the brother, or one of the …”.  She also made reference to the size of the people involved.

23. In objecting to the admissibility of Ms Sloman’s evidence, counsel referred to the fact that after Ms Sloman saw a photograph of the deceased Elizabeth Haydon in the media, she told police that Elizabeth Haydon was one of the persons who was present when the car was removed.  The Crown agrees that that identification cannot be correct.  Mrs Freeman was the female person present.

24. Notwithstanding the infirmities, the evidence has some probative value.  However, in all the circumstances, I direct that the Crown not open on the evidence of Ms Sloman.  A decision as to the admissibility of her examination of the photographs is deferred until Mrs Freeman has completed her evidence.  In particular, a decision is deferred until the defence case becomes apparent through the cross-examination of Mrs Freeman.

25. Ms Alvarado was employed at the Salisbury office of Centrelink.  She spoke to a person giving the name of the deceased Brooks on three occasions in September and October 1998.  On the third occasion, Brooks was accompanied by a person giving the name Gavin Porter who generally answered the questions.  A third person giving the name Robert Wagner and the address of 36 Mofflin Road, Elizabeth Grove attended later in the interview.  Vlassakis said he impersonated Brooks and Bunting impersonated Porter.  He said Wagner was the third person.  Ms Alvarado gave descriptions of the three persons which, generally speaking, matched the appearances of Vlassakis and the accused at that time.

26. On 6 March 2000, Ms Alvarado was shown three sheets of photographs.  The first sheet contained a photograph of Bunting.  Indicating that photograph, Ms Alvarado said “the only person that I have got some resemblance of one of them would be this person, number two”.  She said that the photograph resembled Porter saying “that’s the only person that has some resemblance in terms of his face”.

27. On another sheet containing photographs of Vlassakis and Wagner, Ms Alvarado indicated both photographs.  As to the photograph of Vlassakis, the transcript reads:

    “Mmm - number three has again, some resemblance to the person who identify Frederick Brook, some resemblance, but I am not 100 percent sure”.

28. Indicating the photograph of Wagner, Ms Alvarado said “there is something with number eight that reminds me of something, but I don’t know, I can’t – I really – I see so many customers or clients, that I couldn’t”.  She added that, with a different hairstyle, the photograph had some resemblance to Wagner.

29. The photograph of Wagner indicated by Ms Alvarado depicted Wagner with glasses and full facial growth.  The third sheet contained a different photograph of Wagner under different lighting and without glasses.  In addition, the facial growth was also noticeably less.  The appearance of Wagner on the third sheet is quite different.  Ms Alvarado said of that photograph “number ten has some similarities as the person according to this as Robert Wagner but that’s all”.  She also indicated that a person depicted in another photograph had some familiarities, but she could not be 100 percent sure.  On a fourth sheet, Ms Alvarado indicated two further photographs of unidentified persons indicating they had some similarity to Wagner.  Viewed objectively, the shapes of the faces of the persons depicted in the last two photographs bear some similarity to the shape of Wagner’s face.

30. In my opinion, the evidence proposed to be lead from Ms Alvarado is not positive identification evidence.  It is circumstantial evidence that possesses some probative value.  In my view there is no danger of misuse by a jury.  However, I will defer a decision until the defence case has been made clear through the cross-examination of Vlassakis.

31. Mr Vines was employed by a hire company.  In May 1999 he was conducting his annual review of earnings and dockets.  While he was examining the dockets, the name Bunting came to mind because of what he had read in the papers.  The following week he saw a reference to Murray Bridge in the media.  He searched the computer records for the Bunting docket and saw that the address was 3 Burdekin Avenue, Murray Bridge.  From the records it appears that a person giving the name Bunting and the address 3 Burdekin  Avenue, Murray Bridge hired a truck on 30 June 1998.  The truck was returned on 2 July 1998.  Mr Vines first viewed photographs on 3 August 2001.

32. Mr Vines indicated a photograph of Bunting on the third of the four sheets of photographs that he examined.  Asked if he was identifying a person, he said he had a “vision in his head” and that it was the person in the photograph.  Asked how positive he was, he said:

    “Yes, just from someone walking out of the van on the return day.  I had a picture in my head and it was close to that.”

33. Mr Vines did not examine the photographs until approximately three years after the transaction.  The statement does not disclose any reason why Mr Vines should remember that particular transaction.  Details as to the extent of the contact between Mr Vines and the person renting the truck are not provided nor does the statement deal with how Mr Vines linked the image in his mind to that particular rental.  Finally, no mention is made as to whether Mr Vines saw any media images of the accused.

34. At my suggestion, Mr Vines gave evidence in the absence of the jury.  He said that he dealt with the customer and completed the paperwork at the time of hiring.  The vehicle was returned a day late.  Mr Vines greeted the customer and ushered him into the office where the paperwork was completed by another person.

35. Mr Vines was not asked by police to give a description of the customer.  The first occasion on which he was asked to identify a photograph was 3 August 2001.  Mr Vines said that prior to 3 August 2001 he had no need to recall the image of the customer and he had not attempted to do so.  Asked what he meant by his statement during the identification process that he had a vision in his head, Mr Vines replied:

    “AI knew I had the photograph identification in the afternoon, and driving to work that morning I don’t know what it was, but in my head I saw a face and it just stuck with me the whole day and when I went into the room to view the photographs that was so vivid, when it came to that, the photograph that was the same, it was just automatic.”

36. Mr Vines was questioned about the possibility that he had seen an image of the accused in the media.  An image was shown on the ABC television news service on 26 February 2001.  Mr Vines said that he would be lucky to watch a television news service once a fortnight.  When he did, on 50 per cent of the occasions he watched the news service on the ABC at 7.00 pm.  Asked if he had seen any images of the accused in the media before undertaking the photographic identification, Mr Vines responded “no”.  Pressed in cross-examination as to whether it was possible he may have seen an image on the television news service, in a manner demonstrative of confidence that he had not seen an image, Mr Vines said:

    “A     I seriously don’t think it was.  I don’t think I have ever seen anybody.”

1. Asked if he would concede it was possible that he had seen an image and did not specifically recall the occasion, Mr Vines agreed it was possible.

2. In my opinion, the evidence is admissible.  Mr Vines was an impressive witness.  I accept his evidence concerning the possibility of seeing an image of Bunting.  While it is possible that he saw an image prior to the photographic identification, in my view it is highly unlikely that he saw such an image.  There are dangers associated with this type of evidence which must be explained to a jury, but those dangers are not such as to lead me to exercise my discretion to exclude the evidence.  For these reasons the evidence of Mr Vines will be admitted.

3. Ms Arthur lived next door to the deceased Allen.  In late 1996, she observed persons removing property from the deceased’s premises.  Approximately three years later on 24 November 1999, Ms Arthur was shown four sheets of photographs each containing twelve photographs.  It is the Crown case that both Bunting and Wagner were involved in the removal of the property, but Ms Arthur did not select Bunting’s photograph from the first sheet.  On the third sheet she indicated a photograph of Wagner saying “I can’t be sure about number ten”.  Ms Arthur failed to pick a different photograph of Wagner on the fourth sheet.

4. The statement by Ms Arthur indicates she was not sure that the person depicted in the photograph was one of the persons involved in the removal of the property.  There is no reference to features or similarities in her statement.  In the circumstances, I decided  that Ms Arthur should give evidence in the absence of the jury  before determining whether her evidence would be admitted.  In her evidence Ms Arthur said she was not 100 per cent sure, but she was “fairly sure” that the person depicted was involved in the removal.

5. The evidence of Ms Arthur is admissible.  She gave evidence in a frank manner and I accept her evidence as to her state of mind at the time she viewed the photographs.  Bearing in mind her opportunity to see the persons involved, the dangers accompanying the evidence are not such as to lead me to exclude the evidence.  For these reasons, the evidence of Ms Arthur will be admitted.

6. Ms Michael and her husband were the owners of the bank building at Snowtown.  In January 1999, following a telephone conversation with a person identified as John, Ms Michael met two men and showed them through the bank.  The men were identified as John and Mark.  Ms Michael said that John did all the talking.  He paid her two weeks rent in advance.  Although other communication occurred, Ms Michael did not see Mark again.  Her next direct contact with John did not occur until 29 April 1999.  He came into the Post Office at Snowtown with another man whom Ms Michael had not previously seen.  He paid three weeks’ rent.

7. In her statement, Ms Michael says that she was watching a news item on television following the arrest of Bunting and others (21 May 1999).  Three men were shown with their faces blacked out.  She said she recognised the body shape and features of Bunting and the other man who came into the Post Office.  She linked the other man with the name Robert Wagner that was given in the news report.

8. On 2 December 1999, Ms Michael examined four sheets of photographs.  On the first sheet she indicated a photograph of Bunting by saying “number eight”.  On the second sheet which included one of the photographs of Wagner, Ms Michael commented “I couldn’t be 100 per cent sure on anybody on that one, I don’t think”.  Asked to sign that sheet, Ms Michael added “mmm mmm, should I say, I’m not – I’d like it to be the one here but I – know I’m just not sure, just leave it”.  Ms Michael did not indicate which photograph she was considering.

9. The third sheet included a photograph of Haydon.  Ms Michael did not indicate any photograph on that sheet.  Similarly, she did not indicate a photograph on the fourth sheet which included a different photograph of Wagner.

10. According to her statement, Ms Michael told police that she was not 100 per cent sure, but was “pretty sure” that she had recognised one of the persons as being with Bunting in the Post Office on the occasion when the rent was paid.  As a consequence, the photographic identification process was repeated on 17 February 2001.  On this occasion, one sheet of photographs was shown to Ms Michael which contained one of the photographs of Wagner.  She indicated that she was not 100 per cent sure.  Asked if there was anyone who looked similar to the person who came to the Post Office when the rent was paid, indicating the photograph of Wagner Ms Michael said “number three maybe, he would be the – the only one, but that’s all”.  Later she added that “it could be him”.  Asked in percentage terms, she said she was 70 per cent sure.  Between the two identifications, Ms Michael had not seen any photograph or other image of the accused.

11. In my opinion, evidence is admissible from Ms Michael that she was not 100 per cent sure, but that the photograph was similar to the person who had entered the Post Office with Bunting and she was 70 per cent sure.  I indicated to the Crown that the Crown should obtain instructions as to any similarities that Ms Michael recalls between the person in the Post Office and the photograph.  The appropriate form of a direction to the jury can only be determined after Ms Michael has given evidence.  I decline to exclude the evidence in the exercise of my discretion.

12. Ms Warwick was a friend of the deceased Johnson.  Two nights before the murder of Johnson she attended a party at which Johnson also attended.  She says that at about 2.00 am Vlassakis arrived with a friend that he introduced as Robert Wagner.  She says that Vlassakis and Wagner stayed at the flat for the remainder of the night.  There was talk between Vlassakis and Johnson about a hot computer.  Wagner was present.  This evidence is significant because it tends to implicate Wagner and to confirm the evidence of Vlassakis as to the manner in which he lured Johnson to Snowtown.  Ms Warwick’s statement also refers to Vlassakis, Wagner and Johnson leaving the premises for approximately one and a half hours.

13. Approximately five weeks later on 19 June 1999, Ms Warwick gave a statement to the police in which she described the person introduced as Robert Wagner.  Generally speaking, her description is consistent with Wagner’s appearance at that time.  Almost ten months after the occasion in question, Ms Warwick viewed the four sheets of photographs.  She indicated one of the two photographs of Wagner saying “I think that’s number five, I can’t remember – this one –”.  She added “I can’t remember what he looks like” and “I think that’s Robert”.

14. The evidence of Ms Warwick is particularly tenuous.  She says she cannot remember what the person looks like.  In those circumstances, I exclude the evidence.