R v Bunting & Wagner (No 8) No. Sccrm-01-205

R v BUNTING & WAGNER (NO 8)
[2003] SASC 256
Criminal: Reasons for Rulings

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.
The facts are set out in detail in R v Bunting and Others(No 3) [2003] SASC 251. The Crown proposes to lead statements by two of the deceased, Barry Lane and Thomas Trevilyan. The accused objected on the basis that the evidence is inadmissible or, if admissible, is so unreliable and unfairly prejudicial that it should be excluded in the exercise of the discretion. I now set out my reasons for rulings I gave in respect of the statements.
Statements by Lane
It is the Crown case that Lane was murdered in October or November 1997. Ms Michelle Bihet was Lane’s fiancée. She said that in about 1996 Lane confessed to her that Wagner had told him to get rid of some garbage bags which were supposed to contain the remains of the deceased Trezise. He said he was told to get rid of them “up north somewhere” and did so. Only Wagner’s name was mentioned, but Ms Bihet has a memory that Lane also spoke of a friend of Wagner without identifying that friend.
During cross-examination at the preliminary examination, Bihet said that Lane told her he did not know what was in the bags. He guessed that they contained human remains and that they were the remains of Trezise.
As will appear later in these reasons, in my opinion other statements by Lane are admissible for the purpose of establishing Lane’s knowledge of the murder of Trezise. However, the statement by Lane to Bihet does not establish knowledge of that or any other murder. The facts of which Lane spoke cannot be related to any murder. In those circumstances, in my opinion the statement to Bihet is inadmissible.
Ms Krystal Spencely-Smith is Lane’s sister. She says that in November 1995 she had a conversation with Lane in which he asked if he could come to live with her in Brisbane because he was afraid for his life. He said he was afraid of Wagner. Spencely-Smith asked what was going on. Lane replied that he witnessed Wagner and two other men murder “Clinton” [Trezise] and that they forced him to help dispose of the body under a bridge. The body was later moved to another location. Lane said that because of this they thought he knew too much and he was scared they were going to kill him.
Spencely-Smith says the conversation occurred in the front yard of the premises at which Lane was living with Wagner. While they were talking Wagner came out the front door and said something to the effect “what are you talking about out here, what have you been saying to them, get back inside”. Wagner appeared to be furious with Lane.
The deceased’s mother, Mrs Sylvia Lane, says that the deceased mentioned a murder and a bridge to her. Her statement reads:
“Barry [Lane] told me that Robert Wagner had done this lad in, something about under a bridge, and that Robert had forced Barry to get rid of his body and that this big John was also involved.”
Mr Mark Townsend was a friend of both Lane and Wagner. He describes an occasion when he spoke with Lane at the house occupied by Lane and Wagner. He said that Lane was under the influence of marijuana. Townsend says that Lane told him that Bunting had come to the house and said he needed a car. Lane went to Bunting’s home from where Lane and Wagner took Bunting somewhere and picked up a body. The body was put in the back of “the gold Fairlane”. Lane drove to an area off Port Wakefield Road and they put the body in a grave that had already been dug. According to Townsend, the conversation came to a halt when Wagner returned to the premises.
Ms Veronica Tripp lived with Bunting. She describes an occasion when she and Bunting visited Wagner and Lane at a house not far from the house occupied by Bunting and Tripp. During the evening the three men left Tripp at the house and appeared to walk towards the house occupied by Bunting and Tripp. Some hours later they returned. A few days later Tripp was at home by herself when Lane visited. He told her that he had helped dispose of a body.
Subsequently Lane again spoke to Tripp about disposing of the body. He told her that Bunting had killed somebody at the house occupied by Bunting and Tripp and had killed “it” by hitting “it” on the back of the head with a shovel. He told Tripp that they disposed of the body at Lower Light.
According to Tripp, during the conversations Lane said the deceased was a person called Colin Trezise. That name did not mean anything to Tripp. Lane told Tripp not to mention the conversation to Bunting.
Although the timing is vague, Tripp says that she told Bunting what Lane had said to her. She asked Bunting what Lane was talking about. Bunting told her that Lane was making it up and to ignore him. Tripp says that in subsequent conversations Bunting told her that he had killed a person called Clinton Trezise and buried him at Lower Light.
The Crown does not seek to lead the statements by Lane as evidence of the truth of the contents of those statements. To admit the evidence for that purpose would infringe the rule against hearsay evidence. There is no recognised exception to the hearsay rule that would admit the evidence for such a purpose. In particular, the law of this State does not recognise a statement by a deceased person against penal interest as an exception to the hearsay rule: Question of Law reserved (No 3 of 1997) (1998) 70 SASR 555.
The Crown seeks to lead the evidence of the statements as proof that Lane possessed knowledge of the murder of Trezise and of the involvement of the accused in the murder and disposal of the body. Future references in these reasons to the involvement of the accused in the murder of Trezise encompass the disposal of the body and the limited role alleged against Wagner.
If the knowledge or state of mind of a deceased is relevant, generally speaking evidence of statements made by a deceased from which such knowledge or intention can be inferred is admissible. Used for this purpose, the statements are original evidence and no question of hearsay is involved: Hughes v National Trustees Executors and Agency Company of Australasia Limited (1979) 143 CLR 134; Walton v The Queen (1988) 166 CLR 283.
The Crown argued that Lane’s knowledge is relevant to the motive possessed by the accused to kill him. Although the accused may also have wanted to kill Lane because he had sexually assaulted Wagner and because they believed him to be a paedophile, nevertheless part of the motivation to kill him was the fact that he possessed knowledge of the murder of Trezise and of the involvement of the accused in that murder. From the perspective of the accused, there was a risk that Lane would expose the murder and implicate the accused in it.
The evidence concerning Lane’s knowledge and a possible motive is to be considered in conjunction with the Crown case that Bunting admitted to Vlassakis that he and Haydon murdered Trezise and that he had used Lane and Wagner to assist in burying the body. As to Wagner, Vlassakis says that Wagner told him that Bunting had asked Lane and Wagner to assist and that they had been involved in burying the body. In addition, against the background of the evidence of Tripp that she told Bunting of Lane’s statements to her, Vlassakis says that Bunting told him that Lane had a big mouth.
Lane’s statements cannot be used as evidence of the involvement of the accused in the murder of Trezise. To use the evidence for that purpose would infringe the rule against hearsay evidence. Similarly, Lane’s statements cannot be used as proof that Lane assisted in disposing of the body. Proof of the involvement of the accused in the murder and of Lane’s role must be achieved by other evidence. In addition, the Crown must prove by other evidence that Bunting and Wagner were aware that Lane possessed knowledge of the murder and of the disposal of the body. The only evidence of those facts is the evidence of Vlassakis that Bunting and Wagner made admissions to him of their involvement. In other words, it is only if the jury accept that the admissions to Vlassakis were made and that they were true that the jury could find those facts proven. Acceptance of the truth of the admissions of involvement would almost inevitably be accompanied by a finding that Lane had a role in helping the accused dispose of the body.
In my opinion, proof that Lane possessed knowledge of the murder of Trezise, including knowledge of the involvement of the accused in that murder, is admissible because it is capable of bearing upon a motive possessed by the accused to kill Lane. Statements by Lane from which such knowledge can reasonably be inferred are admissible for that limited purpose.
As to the exercise of the discretion to exclude admissible evidence, counsel for Bunting identified two aspects of reliability which she urged should lead to the exercise of the discretion. First, reference was made to matters associated with the witnesses who will give evidence of the statements by Lane. It is unnecessary to canvass those matters. In my opinion, they were either mere speculation or matters to be considered by a jury if advanced as reasons why the jury should not accept the evidence of the witnesses as reliable.
The second aspect related to the reliability of what was said by Lane. Counsel pointed out that the witnesses did not believe Lane. He was known to tell stories that were not true or could not be believed. However, as I have said the murder of Trezise must be proved by evidence other than the statements made by Lane. Once the murder is proved by other means, the critical question is whether the statements by Lane can reasonably be viewed as demonstrating a knowledge of that murder. When the statements to the witnesses are considered in their cumulative affect, in my opinion the only reasonable conclusion that could be drawn is that Lane possessed knowledge of the murder of Trezise. At the time of the conversations, the murder had not been discovered. Lane spoke to Spencely-Smith of witnessing the murder of “Clinton”. The jury would be entitled to infer that Lane was referring to the murder of Trezise. Lane told Townsend of burying a body in a grave in an area off the Port Wakefield Road. That is an accurate description of the general area in which the body of Trezise was found. Lane told Tripp that the deceased was a person called Colin Trezise and that the deceased had been killed by being struck on the back of the head with a shovel. Fractures to the rear of the deceased’s skull were consistent with having been caused by blows from a blunt object to the back of the head.
Lane’s statements demonstrate that he possessed knowledge of facts associated with the murder of Trezise that are confirmed by other evidence. In my view, there is no basis upon which I could properly exclude the evidence because the witnesses did not know whether to believe Lane or because he was known to make up stories.
There is an additional basis upon which the evidence is admissible. As I have indicated, the statements by Lane were made before the fact of the murder of Trezise or any of the circumstances associated with it became public knowledge. As the evidence currently stands, it would be open to a jury to infer that Lane gained knowledge because he was involved in either the murder or the disposal of the body or because he had been given the information by an offender or offenders. Vlassakis says that the accused admitted that Lane was involved in the disposal of the body of Trezise. On the basis that the facts of the murder such as injuries to the skull and place of burial are proven by evidence other than statements by Lane, the fact that Lane possessed knowledge of these facts before they were known to the public is a circumstance that is capable of providing some support for the evidence of Vlassakis.
In urging that I should exclude the evidence in the exercise of my discretion, the accused drew attention to the danger of the jury misusing the evidence. In particular, emphasis was placed upon the danger that the jury will improperly use the statements that Bunting and Wagner were involved as evidence of their involvement thereby supporting the evidence of Vlassakis that the accused made admissions to him.
While facts associated with the murder of Trezise such as skull fractures and the place of burial are proved by evidence other than admissions to Vlassakis, the only evidence connecting Bunting to the murder and Wagner to the disposal of the body is the evidence of Vlassakis that the accused made relevant admissions to him. In these circumstances, the statements by Lane as to the involvement of the accused in the murder can only demonstrate knowledge of their involvement if the evidence of Vlassakis as to the admissions is accepted and the admissions are found to be true. Circular reasoning that involves impermissible use of Lane’s statements must be avoided. Those statements cannot be used as evidence of the involvement of the accused. The fact of which the statements demonstrate knowledge, namely, the involvement of the accused in the murder of Trezise, must be proved by other evidence.
It follows that the credit of Vlassakis is of critical importance. Without regard to the statements by Lane, the jury must first be satisfied that the admissions were made to Vlassakis and that those admissions were true.
Against that background, the accused submitted that if the full content of the statements by Lane is before the jury, there will be an obvious temptation to use the statements that the accused were involved as evidence of their involvement. Counsel urged that statements as to the involvement of the accused are not essential for the unfolding of those parts of the statements which demonstrate that Lane possessed a knowledge of the murder of Trezise. If the evidence of the witnesses is limited to statements disclosing knowledge of relevant facts associated with the murder as opposed to the involvement of the accused, the risk of misuse is reduced.
From the perspective of the Crown case, the significant aspect of the evidence is the possession by Lane of knowledge of facts associated with the murder of Trezise. Murder by Bunting and assistance in disposing of the body by Wagner having been proved by other evidence, it would obviously assist the Crown case if the full content of Lane’s statements is admitted because that content demonstrates the nature of Lane’s knowledge of the involvement of the accused. However, as I have said, if the jury accept the evidence of Vlassakis as to the admissions made by the accused concerning their involvement in the murder and accept that those admissions were true, it is highly unlikely that the jury will not also be satisfied that the accused made admissions to Vlassakis as to the involvement of Lane. In those circumstances, the statements by Lane as to the involvement of the accused, which cannot be used as evidence of that involvement, are not of particular significance in proving his knowledge nor in proving that the accused were aware that Lane had such knowledge.
Having regard to these matters, and bearing in mind that the critical issue is centred on the credit of Vlassakis and that a misuse of the evidence would bear directly on his credit in a manner adverse to the accused, in my opinion the preferable course is to err on the side of caution and to limit the evidence of Spencely-Smith, Mrs Lane and Townsend to statements disclosing knowledge of the murder, the movement of the body and the burial. In essence, the evidence of Spencely-Smith is to be limited to statements by Lane that he witnessed the murder of “Clinton”, that he was forced to help dispose of the body under a bridge and that the body was later moved to another location. Mrs Lane’s evidence is to be limited to Lane’s statement that he had been forced to get rid of a body and that there was some reference to it being under a bridge. Townsend is able to give evidence of a statement by Lane that a body was put in the back of a gold Fairlane and that Lane and others drove to an area off Port Wakefield Road where they put the body in a grave that had already been dug.
The evidence of Tripp is in a different category. She does not say that Lane mentioned Wagner. She says that Lane’s statements included a statement that Bunting had killed Colin Trezise. She also says that when she first told Bunting of Lane’s statements, Bunting said that Lane was making it up and that she should ignore him. However, according to Tripp, in subsequent conversations Bunting told her that he had killed a person called Clinton Trezise and buried him at Lower Light. In these circumstances, the content of Lane’s statements to Tripp which she conveyed to Bunting should be before the jury. The precise use to which the evidence can be put will be determined after the evidence has been given. However, as the evidence currently stands, it is capable of supporting findings that Bunting falsely denied the truth of Lane’s statements and that he subsequently admitted their truth. Those statements also provide an essential context in which Tripp says that the admissions were made by Bunting that he had killed Clinton Trezise.
For these reasons, I rule that the statements are admissible. I decline to exclude the statements in the exercise of my discretion except to the extent that the evidence of Spencely-Smith, Mrs Lane and Townsend is not to include any reference to Lane’s statements as to the involvement of the accused.
There is a further aspect of statements by Lane to which objection was taken. As mentioned, Spencely-Smith says Lane told her that he was afraid for his life. He said he was afraid of Wagner. Tripp says that on one of the occasions when Lane told her of helping to dispose of the body, he was shaking and expressed fears that Bunting and Wagner would take it out on him. She describes Lane as being paranoid that Bunting and Wagner would find out that he had told Tripp.
The Crown is entitled to anticipate that the accused will challenge both the reliability of the statements made by Lane and the Crown case that the statements disclose that Lane possessed a knowledge of the murder of Trezise. This view is reinforced by the submissions that the evidence should be excluded in the exercise of the discretion because Lane was in the habit of telling stories and the evidence was, therefore, unreliable. Lane’s demeanour at the time that he made the statements and the state of his relationship with the accused at that time are facts capable of bearing upon the reliability of the statements. If the evidence is capable of supporting an inference that Lane was in fear of Bunting and Wagner, such fear is capable of being viewed as tending to support an inference that Lane had knowledge of the murder of Trezise and of the involvement of the accused in that murder.
In my opinion, the statements by Lane about his fear are admissible for the purpose of proving that Lane was afraid of the accused. This use does not involve an assumption that the statements were well founded. It is the fact that the statements were made, coupled with Lane’s demeanour at the time, that is capable of supporting an inference that Lane would not have made the statements unless he was in fear of the accused.
The Crown also argued that the evidence was admissible because it was evidence of the relationship between the accused and the person that the accused are alleged to have murdered. Generally speaking, such evidence is relevant and admissible. However, while the attitude of the accused to Lane is plainly relevant, in the particular circumstances of this matter the deceased’s view of the accused is of marginal relevance. For example, there is no issue as to the deceased’s likely reaction when confronted by the accused.

I am required to balance the probative value of the evidence against any unfair prejudice that accompanies the evidence. There is an obvious risk of misuse of statements by Lane that he was afraid that the accused would kill him. However, evidence of Lane’s demeanour and that he did not want the accused to know that he had told Tripp of the murder does not carry with it the same degree of risk of misuse.
As I have said, the critical issue is whether the statements by Lane disclose knowledge of the murder of Trezise. The content of the statements is highly probative of that relevant knowledge, but the probative value of Lane’s fear that the accused would kill him is marginal.
In all the circumstances, and again erring on the side of caution, in the exercise of my discretion I exclude statements by Lane from which it might be inferred that he was afraid for his life at the hands of the accused. I decline to exclude the evidence of Tripp that Lane did not want the accused to know that he had told Tripp of the murder. I also decline to exclude evidence of Lane’s demeanour at the time that he made the statements.
The Crown proposes to lead evidence that Lane and Wagner lived together, but that the relationship ended in about January 1996. Lane and Wagner were living together in premises leased from the South Australian Housing Trust (“Housing Trust”). On 22 January 1996, Lane sought a priority transfer of his housing. Notes in the Housing Trust records record the following:
“Applicant [Lane] has had a volatile and frequently violent relationship with her/his ex partner Robert Wagner. The relationship has recently broken down permanently after a period of ten years. Robert has threatened Vanessa [Lane] and she had to have police intervention to remove her belongings from the property at 1 Bingham Road, Salisbury North.”
The Crown seeks to lead evidence of the statement by Lane that he wanted to get away from a volatile and frequently violent relationship with his ex-partner, Wagner. The Crown seeks to use the evidence not as evidence that the relationship was volatile and frequently violent, but as evidence from which the jury can infer that Lane possessed a particular attitude or state of mind, namely, that the relationship with Wagner was finished.
Evidence that the relationship between Lane and Wagner was finished is relevant and admissible. Lane’s statements are original evidence of his state of mind in respect of that relationship. The critical feature from the Crown perspective is the fact that the relationship ended in January 1996. A statement by Lane that the relationship had been volatile and violent might explain, from his perspective, why he ended the relationship, but the reasons for ending the relationship are not relevant. Lane was not murdered until late 1997. In addition, there is a risk of the jury misusing the evidence in a narrative manner as evidence that Wagner was violent towards Lane.
The accused did not object to evidence that Lane sought a priority transfer in his housing to get away from Wagner as the relationship had ended. That evidence will be admitted. However, in the exercise of my discretion I exclude evidence that Lane described the relationship as volatile and frequently violent.
The other aspect concerns Lane’s request that police attend at the premises while Lane removed his personal belongings. Lane expressed concern for his safety. In the exercise of my discretion, I have excluded other statements by Lane that he feared for his life at the hands of the accused. However, evidence from which it could be inferred that Lane was concerned for his safety at the time that he removed his belongings and that he sought police assistance bears more directly upon the state of the relationship at that time and the terms on which Lane and Wagner parted. In those circumstances, I decline to exclude the evidence in the exercise of my discretion.
In giving my rulings to exclude some of Lane’s statements, I sounded a note of caution with counsel for the accused. As I have said, the Crown intends to lead general evidence of the nature of the relationship between the accused and Lane. This includes evidence that the relationship between Lane and Wagner had ended. The evidence I have excluded in the exercise of my discretion was relevant to that relationship. I do not know whether the accused will challenge the evidence concerning their relationship with Lane. At the time of my ruling I indicated that if, for example, the accused cross-examine witnesses to suggest that they had a close and friendly relationship with Lane, I will reconsider my rulings. I also indicated that if counsel was in doubt as to the possible consequences of a line of cross-examination with respect to this or any other topic, the issue could be raised with me in advance of the cross-examination.
The Crown also seeks to lead evidence that Lane expressed fear of the deceased Trevilyan. This evidence is to be considered in the context of the Crown case that Trevilyan was involved in the murder of Lane. According to Vlassakis, the accused bragged together about the murder of Trevilyan and told him that they had used Trevilyan to “get” Lane.
Evidence of Lane’s professed fear of Trevilyan is given by a friend of Lane, Mr Bruce Balmer. He says that not long after Lane and Trevilyan started living together at Hectorville, Lane telephoned and told him that he was scared because Trevilyan had pulled a knife on him after an argument. In a subsequent call, Lane complained of a second incident in which Trevilyan had pulled a knife on him. Balmer also says that during an evening on about 12 October 1997 he received a telephone call from Lane who was extremely distressed and frightened. Lane was expressing fear as a consequence of Trevilyan having threatened to kill Lane. At Lane’s request, Balmer went to the premises, arriving at about 10.20 pm. Lane appeared to be distressed, but Trevilyan was quiet. After about twenty minutes of casual discussion, Lane left the premises. In the absence of Lane, Trevilyan told Balmer that he liked Lane, but was sick of Lane’s sexual advances. Lane returned at about 11.00 pm and Trevilyan went for a walk. In the absence of Trevilyan, Lane asked whether Trevilyan had mentioned threatening Lane. He then expressed fears for his life. Lane pleaded with Balmer to stay the night, but Balmer declined.
The Crown argued that in the context of the case that Trevilyan was used to assist in the murder of Lane, the relationship between Trevilyan and Lane is relevant. To the extent that the statements reflect a fear of Trevilyan by Lane, the existence of that fear bears upon the state of the relationship.
In my opinion, evidence of the relationship between Trevilyan and Lane is relevant and admissible. For example, evidence from Spencely-Smith that a few weeks before Lane disappeared he rang her and asked if he and Trevilyan could come and stay with her in Queensland is admissible. Similarly, her evidence that in another telephone conversation Lane told her he was not sure if Trevilyan would be coming because they had fought is admissible as reflecting a possible change in the relationship. It is doubtful whether the second conversation can be used as evidence that Lane and Trevilyan had fought because, although Spencely-Smith says she could hear Trevilyan in the background and he sounded angry and upset, the evidence is probably not capable of supporting an inference that Trevilyan heard and adopted Lane’s statement to his sister.
Spencely-Smith also says that during the second telephone conversation Lane said to her “the bloody idiot’s got a knife”. She heard him say “put it down” and “don’t be stupid”. Lane then terminated the call saying that he would call her later. As the evidence stands, in my view those statements are admissible as evidence from which the jury might infer a deterioration in the relationship because Lane referred to Trevilyan as a bloody idiot and was telling him to put something down and not to be stupid.
While evidence of the relationship is admissible, in my opinion the first statement by Lane to Balmer to the effect that Lane was scared because Trevilyan had pulled a knife on him after an argument is not admissible as proof of the state of the relationship. Unless the statement is used as truth of the assertion that Trevilyan pulled a knife on Lane, the statement says little about the state of the relationship. That statement is also well removed in time from Lane’s murder.
The later conversations between Balmer and Lane occurred on about 12 October 1997 within a week or two of Lane’s murder. Bearing in mind that, after the telephone call, Balmer visited Lane and Trevilyan, in my opinion evidence that Lane sounded distressed and frightened during the telephone call is admissible. However, Lane’s assertion to Balmer that Trevilyan threatened to kill Lane is not admissible. The evidence of Lane’s condition is linked to Balmer’s observation on arrival at the premises that Lane was distressed and later pleaded with Balmer to stay the night. Lane’s distress was apparent to Balmer in the presence of Trevilyan. In that context, in my opinion the fact that Lane expressed fears for his life is also admissible as evidence of Lane’s state of mind. That state of mind bears upon the relationship between Lane and Trevilyan.
In my opinion, therefore, evidence of Lane’s distress and statements to Balmer while Balmer was at the premises is admissible. This evidence does not directly implicate the accused. Bearing in mind that the jury will hear that Lane and Trevilyan were living together at the time of Lane’s murder, Balmer’s evidence is potentially significant because the jury might otherwise be left with an incorrect impression of the state of the relationship between Lane and Trevilyan. In these circumstances, balancing the probative value against the prejudicial value, I decline to exercise my discretion to exclude the evidence of Balmer concerning Lane’s condition and Lane’s statements to Balmer while Balmer was at the residence.
Statements by Trevilyan
The body of the deceased Trevilyan was found hanging from a tree on 5 November 1997. On 30 October 1997, Trevilyan spoke with his cousin, Ms Lenore Penner. She made the following note in her diary:
“Tommy came over tonight. He swore me to secrecy. He told me that he and two other friends killed Barry because Barry had abused them.
They wrapped him in tape and in a garbage bag and left him there for four days.
Then they came back and put his body in the trunk of the car – killed his dogs and cats and put their guts in the trunk as well.
Then they drove somewhere and put Barry’s body in a 40 gallon drum and left it.
Now they have to dispose of the drums.
He’s thinking either to dig a hole and bury the drum or get a speedboat and drop it in the ocean.”
In addition to that entry, Penner says in her statement that Trevilyan told her they had tortured the deceased so that he would tell them his Social Security Number. He said that the money would then be withdrawn and divided. This was done so that police would not find out what had happened to the deceased and everything would seem normal. Penner’s statement continues:
“They regarded it as a payback for what he had done to them. Thomas was very agitated as he thought that the police were after him, the other boys and his dad were all after him.
Thomas said that Barry had sexually abused the other two boys that were killing Barry and that Thomas would have been the next and what else could he have done other than to help the other two kill Barry.”
The admissibility of the statement by Trevilyan is to be considered in the context of the Crown case that the accused admitted to Vlassakis that they used Trevilyan in the murder of Lane.
As to the circumstances accompanying Trevilyan’s death, he was living temporarily with Wagner and Wagner’s partner, Ms Veronica Mills. On 4 November 1997, Trevilyan threatened to kill a puppy being carried by a child of Mills. He chased the child with a knife in his hand. Subsequently, Wagner and Bunting came to the house and Mills told them what had happened. According to Mills, that evening Bunting and Wagner took Trevilyan for a drive. Later that night when Wagner returned home he told Mills that they had dropped Trevilyan off at Gawler. The following day Trevilyan’s body was found hanging in a tree in the Kersbrook area.
Vlassakis says that Bunting told him that Trevilyan had started to “fuck up” and “go mental”. Bunting said Trevilyan had a big mouth and would tell people about Lane. According to Vlassakis, Bunting told Vlassakis that he and Wagner had hung Trevilyan out of a tree. Bunting pointed out the location to Vlassakis.
Vlassakis says that Wagner was present for one or two of the conversations about Trevilyan. He says that Wagner made a few laughs and jokes about the killing when it was mentioned by Bunting. In addition, evidence will be led that during the day after the discovery of the body Detective Bell spoke with Wagner by telephone. Wagner told Bell that during the day before Trevilyan’s body was found, Wagner told Trevilyan he did not want Trevilyan to visit anymore. According to Wagner, Trevilyan threatened to hang himself in the backyard. Wagner again told him to leave. That was the last occasion on which Wagner had seen Trevilyan. The version given by Wagner to Bell is in conflict with the evidence of Mills that Bunting and Wagner took Trevilyan for a drive that night.
Bearing in mind the evidence of Vlassakis from which a jury could infer that Bunting was concerned that Trevilyan would expose the murder of Lane, evidence of Trevilyan’s knowledge of the murder of Lane is probative and admissible. The statements of Trevilyan to his cousin are admissible for that purpose. Some of the details in the statement concerning facts associated with the murder of Lane are consistent with other evidence. In a general way the use of tape, a garbage bag and a 40 gallon drum are consistent with other evidence. However, during evidence at the preliminary examination Penner said that Trevilyan spoke of cutting off Lane’s finger. That statement is contrary to the objective evidence.
In my opinion, the statements by Trevilyan to Penner are admissible for the limited purpose of proving that Trevilyan possessed knowledge of the murder of Lane. To the extent that the statements disclose such knowledge, I decline to exclude the statements in the exercise of my discretion. I reject the Crown’s submission that the evidence also bears upon whether Trevilyan would have willingly gone for a drive or whether the death was murder or suicide.
Parts of the statements relate to who killed Lane, their reasons for doing so and the fact that Lane was tortured so that he would tell the accused his social security number. There is evidence that Lane abused Wagner, but not Bunting. Vlassakis says that Lane was tortured. Lane’s social security benefits were accessed.
As with the statements by Lane, care must be taken not to avoid circular and impermissible reasoning. The statements are not admissible as evidence of the truth of their contents concerning who killed Lane, their reasons for doing so or the fact of torture. Those matters must be proved by evidence independent of statements by Trevilyan. Once those matters are independently proved, the fact that Trevilyan had knowledge of those matters is relevant. Possession of that knowledge would disclose that Trevilyan was aware of significant details associated with the murder at a time when the fact of the murder had not been discovered.
The only evidence that Lane was tortured is the account by Vlassakis of an admission to that effect. There is an obvious risk of the jury misusing the statement by Trevilyan as evidence that Lane was tortured. There are obvious risks of misuse of the statements concerning who killed Lane and their reasons for doing so.
The details under consideration are not required for the purposes of conveying to the jury the essential matters disclosed by Trevilyan which demonstrate that Trevilyan had knowledge of the murder of Lane. The risk of misuse can be greatly reduced by excluding evidence of these matters. In my opinion, and again erring on the side of caution, the preferable course is to limit the evidence in this manner. In the exercise of any discretion, I will restrict the evidence of Penner to those statements which disclose knowledge of the murder of Lane.

[2003] SASC 256

29 October 2003