R v Haydon (No 3)
[2005] SASC 17
•21 January 2005
SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v HAYDON (No 3)
Reasons for Ruling of The Honourable Justice Sulan
21 January 2005
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - JOINDER - JOINT OR SEPARATE TRIAL - GENERALLY
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS - GENERALLY
Accused charged with two counts of murder and six counts of assisting offenders – accused sought an order that the counts of murder and counts of assist offenders be tried separately – Crown case that counts are inextricably linked – whether joint trial appropriate – whether there will be impermissible prejudice to the accused if charges tried together – application for permanent stay of proceedings – application to quash information – whether there is a risk of prejudice that accused will not obtain a fair trial – ability of jury to understand and apply directions in single trial on all counts – whether volume of the material and length of trial is so great that jury would be unable to assess the evidence – risk of guilt by association and propensity reasoning – relationship evidence admitted – whether evidence of the accused’s participation in murders is cross-admissible on the counts of assisting offenders – corroboration – whether it is an abuse of process if counts tried together – application for further particulars in respect of assist offender counts.
Criminal Law Consolidation Act 1935 (SA) s 241, s 278(1), referred to.
De Jesus v The Queen (1986) 61 ALJR 1; Harriman v The Queen (1989) 167 CLR 590; Pfennig v The Queen (1995) 182 CLR 461; R v Broderick (1933) 30 NSWLR 510; R v Bunting & Wagner (No 3) (2003) 230 LSJS 410; R v Demirok [1976] VR 244; R v Gibb & McKenzie [1983] 2 VR 155; R v Jones (1991) 55 A Crim R 159; R v Long & McDonnell (2002) 224 LSJS 193; R v McDonald (1979) 21 SASR 198; R v Nieterink (1999) 76 SASR 56; R v Palaga (2001) 80 SASR 19; R v Smith (1998) 71 SASR 543; Rogers v The Queen (1994) 181 CLR 251; Garrett v R (1988) 50 SASR 392; R v Hissey (1973) 6 SASR 280; R v Liddy (2002) 81 SASR 22; R v Lock (1997) 91 A Crim R 356; R v Olasiuk (1973) 6 SASR 255; The Queen v Miller (1980) 25 SASR 170; Wilson v R (1970) 123 CLR 334, considered.
R v HAYDON (No 3)
[2005] SASC 17SULAN J
Introduction
Mark Ray Haydon (“Haydon”) was presented upon information dated 19 April 2004 alleging the following offences:
First Count
Statement of Offence
Assisting Offenders (Section 241 of the Criminal Law Consolidation Act, 1935).Particulars of Offence
Mark Ray Haydon between the 31st of August 1997 and the 21st of May 1999 at Smithfield Plains, Snowtown or other places, knowing or believing that John Justin Bunting and Robert Joe Wagner had murdered Michael James Gardiner did an act or acts with the intention of assisting the said John Justin Bunting and Robert Joe Wagner to escape apprehension or prosecution.Second Count
Statement of Offence
Assisting Offenders (Ibid).Particulars of Offence
Mark Ray Haydon between the 15th of October 1997 and the 21st of May 1999 at Smithfield, Snowtown or other places, knowing or believing that John Justin Bunting and Robert Joe Wagner had murdered Barry Wayne Lane did an act or acts with the intention of assisting the said John Justin Bunting and Robert Joe Wagner to escape apprehension or prosecution.Third Count
Statement of Offence
Assisting Offenders (Ibid).Particulars of Offence
Mark Ray Haydon between the 3rd of April 1998 and the 21st of May 1999 at Smithfield Plains, Snowtown or other places, knowing or believing that John Justin Bunting and Robert Joe Wagner had murdered Gavin Allan Porter did an act or acts with the intention of assisting the said John Justin Bunting and Robert Joe Wagner to escape apprehension or prosecution.Fourth Count
Statement of Offence
Murder. (Section 11 of the Criminal Law Consolidation Act, 1935).Particulars of Offence
Mark Ray Haydon together with John Justin Bunting, Robert Joe Wagner and James Spyridon Vlassakis between the 25th of August 1998 and the 8th of September 1998 at Murray Bridge or another place, murdered Troy William Youde.Fifth Count
Statement of Offence
Assisting Offenders (Section 241 of the Criminal Law Consolidation Act, 1935).Particulars of Offence
Mark Ray Haydon between the 16th of September 1998 and the 21st of May 1999 at Smithfield Plains, Snowtown or other places, knowing or believing that John Justin Bunting, Robert Joe Wagner and James Spyridon Vlassakis had murdered Frederick Robert Brooks did an act or acts with the intention of assisting the said John Justin Bunting, Robert Joe Wagner and James Spyridon Vlassakis to escape apprehension or prosecution.Sixth Count
Statement of Offence
Assisting Offenders (Ibid).Particulars of Offence
Mark Ray Haydon between the 27th of October 1998 and the 21st of May 1999 at Smithfield Plains, Snowtown or other places, knowing or believing that John Justin Bunting, Robert Joe Wagner and James Spyridon Vlassakis had murdered Gary O’Dwyer did an act or acts with the intention of assisting the said John Justin Bunting, Robert Joe Wagner and James Spyridon Vlassakis to escape apprehension or prosecution.Seventh Count
Statement of Offence
Murder (Section 11 of the Criminal Law Consolidation Act, 1935).Particulars of Offence
Mark Ray Haydon together with John Justin Bunting and Robert Joe Wagner between the 20th of November 1998 and the 26th of November 1998 at Smithfield Plains or another place, murdered Elizabeth Haydon.Eighth Count
Statement of Offence
Assisting Offenders (Section 241 of the Criminal Law Consolidation Act, 1935).Particulars of Offence
Mark Ray Haydon between the 8th of May 1999 and the 21st of May 1999 at Snowtown or other places, knowing or believing that John Justin Bunting, Robert Joe Wagner and James Spyridon Vlassakis had murdered David Terrence Johnson did an act or acts with the intention of assisting the said John Justin Bunting, Robert Joe Wagner and James Spyridon Vlassakis to escape apprehension or prosecution.On 4 May 2004, the accused pleaded not guilty to all counts. Prior to a jury being empanelled, I heard various applications. Orders were also sought seeking that the information be quashed on the ground that the counts are not properly joined pursuant to s 278(1) of the Criminal Law Consolidation Act 1935 (SA). In the alternative, orders were sought for separate trials of the murder counts and assist offender counts. The accused also sought a stay of proceedings. Orders were sought seeking the exclusion of certain evidence.
On Monday 5 July 2004, I refused the applications. I made the following rulings:
1.In respect of the application for a permanent stay, I refuse that application.
2.I have concluded that the counts are properly joined and I, therefore, decline to quash the information.
3.I conclude that all charges can be heard together, and I decline to exercise my discretion to order that there be separate trials on any count.
4.The Crown has, in providing the draft opening and in its outline of argument and, in the oral submissions, provided sufficient particulars in respect of the counts of murder. I decline to make any order in respect of the murder counts.
5. As to the counts of assisting an offender, I am of the view that the Crown should specifically identify the act or acts upon which the prosecution relies to establish the offence in respect of each charge.
I indicated that I would publish my reasons at a later date. I now provide those reasons.
Background
In order to understand the applications and my rulings, it is necessary to have regard to the background which resulted in the information presented before me.
On 20 May 1999, police who were carrying out investigations into the disappearance of Elizabeth Haydon, the wife of the accused, were directed to bank premises at Snowtown. Snowtown is located approximately 140 km from Adelaide. The premises were no longer used for banking purposes. They were being rented by John Justin Bunting (“Bunting”), and the accused, Haydon. Robert Joe Wagner (“Wagner”) was a friend of Bunting, and James Spyridon Vlassakis (“Vlassakis”) is the son of Bunting’s de facto partner, Christine Johnson. The Crown case is that the persons who had access to the bank were Bunting, Wagner, Vlassakis and Haydon. I will deal with the detail of how the police gained entry to the vault inside those premises later in my reasons.
In the vault of the bank, police observed six large barrels with screw top lids. There was a pungent smell emanating from the vault. Eventually, the barrels were opened and each barrel contained human remains. It is the Crown case that in the barrels were the bodies of Michael James Gardiner, Barry Wayne Lane, Gavin Allan Porter, Troy William Youde, Frederick Robert Brooks, Gary O’Dwyer, Elizabeth Haydon and David Terrence Johnson. Some bodies had been mutilated, and parts of some bodies were found in more than one barrel.
I will return to a detailed description of other items discovered in the vault at the bank premises later. The Crown case is that the persons who had access to the bank were Bunting, Wagner, Vlassakis and the accused, Haydon.
Shortly after the discovery of the bodies, Bunting, Wagner and Haydon were arrested and charged with the murder of those persons discovered in the barrels and two further murders, they being the murders of Ray Allan Peter Davies and Suzanne Phyllis Allen.
Vlassakis was later charged with five murders, they being the murders of Youde, Brooks, O’Dwyer, Johnson, and Porter. During the preliminary examination, Vlassakis agreed to plead guilty to four counts of murder. He negotiated the plea with the Director of Public Prosecutions (“the Director”). As part of the negotiations, he had agreed to provide a statement to the police with the view that he may be requested to give evidence for the Crown. He was presented in the Supreme Court on an information charging him with four counts of murder. He pleaded guilty. The Crown discontinued the fifth count, that being the murder of Porter. Bunting, Wagner and Haydon were committed for trial on 4 July 2001 on all counts.
Police conducted two lengthy interviews with Vlassakis, which comprise almost 2000 pages of transcript. The first interview commenced in May 1999 and concluded in early June 1999. The second interview was conducted between July 2001 and September 2001. After Vlassakis had pleaded guilty, and prior to the conclusion of the police interviews, the Crown decided to call him as a witness in the trial against Bunting, Wagner and Haydon. After the interview had been completed, the Crown filed a fresh information in the Supreme Court charging Bunting and Haydon with two additional counts of murder, being the murders of Clinton Trezise and Thomas Trevilyan. Wagner was charged jointly in respect of the murder of Trevilyan and charged with assisting offenders in connection with Trezise’s murder. The information then before the court alleged twelve counts of murder against Bunting and Haydon. Wagner was jointly charged with eleven counts and charged separately with assisting offenders in respect of the twelfth count. All counts except Count 2 charged the crime of murder. Bunting and Haydon were charged with Count 1 and Wagner charged with Count 2. All three were jointly charged on the remaining counts. The counts, dates alleged and victims were as follows:
Count 1: 9 July 1992 – 31 August 1992: Clinton Douglas Trezise.
Count 2: 9 July 1992 – 31 August 1992: Assisting Offenders with respect to the crime charged in Count 1.
Count 3: 25 December 1995 – 21 January 1996: Ray Allan Peter Davies.
Count 4: 20 November 1996 – 10 December 1996: Suzanne Phyllis Allen.Count 5: 31 August 1997 – 17 September 1997: Michael James Gardiner.
Count 6: 15 October 1997 – 15 November 1997: Barry Wayne Lane.
Count 7: 3 November 1997 – 6 November 1997: Thomas Eugenio Trevilyan.
Count 8: 3 April 1998 – 8 April 1998: Gavin Allan Porter.
Count 9: 25 August 1998 – 8 September 1998: Troy William Youde.
Count 10: 16 September 1998 – 19 September 1998: Frederick Robert Brooks.
Count 11: 27 October 1998 – 14 November 1998: Gary O’Dwyer.
Count 12: 20 November 1998 – 26 November 1998: Elizabeth Haydon.
Count 13: 9 May 1999: David Terrence Johnson.
Before the jury was empanelled, the three accused made various applications, including applications that each be tried separately from the other, and further applications that there be a severance of the counts. The trial judge made orders that Bunting and Wagner be tried separately from Haydon. He determined that Bunting and Wagner be tried together on all counts. On 27 September 2002, before the jury trial proceeded, Wagner pleaded guilty to the murders of Barry Lane, Fred Brooks and David Johnson.
Applications before the trial judge in R v Bunting & Wagner
The Crown had contended that Haydon was a party to an overarching joint enterprise that had as its object the killing of persons considered appropriate or necessary to kill. The trial judge concluded that the evidence was incapable of establishing the existence of such an enterprise. He determined that the decision of whether each of Bunting, Wagner and Haydon were guilty of individual murders was dependent upon their knowledge of and involvement in each murder. In so deciding, it was relevant to consider whether there was a continuing relationship or association between Bunting, Wagner and Haydon within which one or another may have shared a knowledge or contemplation that persons would be killed from time to time.
Having rejected the Crown contention of an over-arching joint enterprise, the trial judge said:
“In my opinion, independently of implication based on the over-arching joint enterprise relied upon by the Crown, the evidence is not capable of implicating Haydon in the murders of any deceased other than Trezise, Youde and Elizabeth Haydon.”[1]
[1] R v Bunting & Others (No. 3) (2003) 230 LSJS 410 at 468 [372]
He ordered that Haydon be tried separately from Bunting and Wagner. The Crown elected to proceed against Bunting and Wagner. After a trial lasting approximately thirteen months, on 8 September 2003, Bunting was found guilty by a jury of eleven of the twelve counts of murder and Wagner was found guilty of seven counts of the eight counts of murder. The jury was undecided in respect of Count 4 relating to Suzanne Phyllis Allen.
The trial of Haydon
The Director laid a fresh information against Haydon alleging two counts of murder and six counts of assisting offenders.
In order to determine the applications for severance of the counts, it is necessary to consider the proposed evidence and its likely cogency in some detail. Further, it is necessary to consider not only the evidence to be presented but also the decision and findings of the trial judge in R v Bunting & Wagner. He concluded that nine counts of murder with which Haydon was originally charged be stayed.
In my assessment of the evidence, I have considered the evidence given by a number of the witnesses at the trial of Bunting and Wagner, together with statements made by them and statements made by Vlassakis in interviews with the police. It is also necessary to address questions of admissibility and the risk of misuse and potential prejudice to Haydon that might be caused if all counts are heard together.
Background to the applications before this court
Mrs Shaw, who appeared for Haydon, submitted that by electing to charge Haydon with six counts of assisting offenders, the trial in respect of the murder charges would become unnecessarily complex, and that the effect of the Crown’s decision was to re-introduce evidence of the murders in respect of those counts, a great deal of which is highly prejudicial and of little or no probative value in respect of Haydon. Counsel for Haydon submitted that the trial would be unduly complex because directions as to admissibility of evidence would be so complicated that a jury would be unable to apply the directions, given the prejudicial effect of the evidence. She submitted that the Director was seeking to re-introduce evidence in the murder trials which the trial judge in the previous trial had determined was inadmissible against Haydon. This would result in such prejudice to him that he was entitled to separate trials on the counts of murder. She submitted that the Director was attempting to re-visit decisions made in the previous trial under the umbrella of now having charged Haydon with six counts of assisting offenders. She submitted that, on that basis, there was an abuse of process and a stay of the information should be ordered.
In the alternative, Mrs Shaw submitted that there was no basis upon which the offences should be tried jointly, and that the joinder did not satisfy the requirements of s 278 of the Criminal Law Consolidation Act 1935 (SA). Further in the alternative, counsel for Haydon submitted that the murder counts should be severed, as failure to do so would result in Haydon not achieving a fair trial. She further submitted that each murder charge should be heard separately.
I now turn to the evidence upon which the prosecution rely.
Addresses
Reference is made by witnesses to a number of addresses. Bunting lived at various addresses, including 203 Waterloo Corner Road, Salisbury North; 3 Burdekin Avenue, Murray Bridge; 26 Burdekin Avenue, Murray Bridge; and 49 Bundarra Court, Craigmore. I will refer to those addresses as Waterloo Corner, 3 Burdekin Ave, 23 Burdekin Ave, 26 Burdekin Ave and Bundarra Court. Wagner lived at 36 Mofflin Road, Elizabeth Grove and Haydon lived at 4 Blackham Crescent, Smithfield Plains. Haydon had previously resided at Catalina Drive, Elizabeth. I will refer to those addresses as Mofflin Road, Blackham Crescent and Catalina Drive.
James Spyridon Vlassakis
Much of the evidence upon which the Crown seeks to rely is the evidence of Vlassakis. The evidence of Vlassakis is pivotal to the Crown case. At the trial of Bunting and Wagner, Vlassakis gave extensive evidence, and it is that evidence to which I will refer when considering what it is intended to lead from Vlassakis in Haydon’s trial. I will, on occasions, refer to statements he made to the police and, in particular, the lengthy interviews to which I have earlier referred.
Vlassakis was present at the murders of Youde and Brooks. He was present just prior to the murders of O’Dwyer and Johnson. I will come to the detail in due course. Vlassakis had close contact with Bunting, and he engaged in many conversations with Bunting. He regarded Bunting as a father figure.
Vlassakis is the son of Christine Johnson and Spyridon Vlassakis. Christine Johnson was also known as Elizabeth Harvey. Vlassakis’ father died when he was seven years of age. His mother then entered into a relationship with Marcus Johnson, the father of David Johnson. After a relationship of some years, they separated. They continued to keep in contact. At the time the family was living at 7 Kilsby Street, Elizabeth Park. Vlassakis had two younger brothers, Kristoffer and Adrian. Across the road from their home lived Mr Jeffery Payne. According to Vlassakis, he and his brothers used to visit Payne, who sexually assaulted them. Vlassakis met Wagner at Payne’s house. At the time, Wagner was with a man named Barry Lane. Wagner and Lane were homosexual partners. This was in 1994, when Vlassakis was fourteen years old. Vlassakis saw Wagner and Lane on occasions. They visited Vlassakis’ mother at Kilsby Street. Vlassakis recalls meeting Bunting at Kilsby Street, in the company of Wagner and Lane. Bunting became a regular visitor at Kilsby Street. On many occasions, he was accompanied by Haydon. On occasions, Marcus Johnson would also visit.
About that time, there were conversations about paedophiles and what should happen to them, including that they should be bashed. Vlassakis recalls Christine Johnson and Bunting being present. He can recall Haydon being present, but cannot recall what he said, other than that he appeared to agree with what was said. Vlassakis said Bunting referred to paedophiles as “faggots”, “dirties”, “rock spiders” and other derogatory terms. Bunting expressed an intense hatred of paedophiles. Vlassakis says that Haydon and Wagner were present during some of those conversations. Vlassakis’ evidence is not specific at which conversations Haydon and the others were present.
Vlassakis and Bunting talked from time to time. Vlassakis told Bunting about Payne, and what had happened. Bunting told Vlassakis that he had also been sexually assaulted in the past.
Prior to Easter 1995, Vlassakis, his mother and brothers moved to an address at 20 Richardson Road, Elizabeth South. They lived there until Christmas 1995. Whilst they were there, Bunting and Haydon would visit from time to time. During that period, there were further paedophile discussions. At the time, Bunting was living at Waterloo Corner, with a woman named Veronika Tripp. Veronika Tripp met Bunting in about 1988. At the time, she was eighteen years of age. They married on 16 September 1989. They eventually lived at Waterloo Corner. Vlassakis would visit them on occasions. He moved in to live with them after Easter 1995. Whilst they were living at Richardson Avenue, a relationship developed between Bunting and Christine Johnson. Bunting and Vlassakis visited Wagner and Barry Lane on occasions. During those visits, paedophile discussions took place. Bunting asked Lane about paedophiles Lane knew, and asked for their names and addresses.
When Tripp and Bunting were living at Waterloo Corner, Haydon would visit on an average of about once per week. At some stage, Christine Johnson and her sons moved in and lived at Waterloo Corner. Veronika Tripp eventually moved out. She moved back to live at Waterloo Corner when Bunting moved to a house near Swan Reach in August 1995. Throughout that time, she kept in contact with Bunting. Bunting would visit Tripp at Waterloo Corner. She said that Bunting moved to Bakara and, after that, she did not see Haydon.
About a month or so after Vlassakis’ mother moved to Waterloo Corner with her three sons, Vlassakis moved out and lived with a Mr and Mrs Freeman at 5 Greenwood Crescent, Smithfield Plains. Angela Freeman and her husband, Deren, knew Vlassakis, Bunting, Wagner and Haydon. Mrs Freeman first met Vlassakis in 1994 when he was about 14 years of age. Vlassakis lived with the Freemans for some time, and he then moved back to Waterloo Corner. Vlassakis speaks of a number of house moves before Bunting and his mother moved to Bakara. At some stage, Troy Youde, who was Vlassakis’ half brother, also lived with them.
When Vlassakis was about sixteen, he lived at premises at Salisbury North with a woman, Roslyn Gee. He lived with her for over a year, and he then moved to a flat at Humphries Terrace, Woodville Gardens where he lived with Gavin Porter. Vlassakis and Porter then moved to another address. They then moved to 3 Burdekin Avenue, where they lived with Christine Johnson, Bunting and Vlassakis’ brothers, Adrian and Kristoffer.
In November 1996, Bunting and Christine Johnson left Bakara and Christine Johnson leased premises at 10 Lohmann Street, Murray Bridge. She relinquished that lease in May 1997, and commenced to live at 3 Burdekin Avenue. For a period, Vlassakis lived there with Youde. In September 1998, Christine Johnson leased premises at 26 Burdekin Avenue. Vlassakis moved to 23 Burdekin Avenue. Later, he moved to Strathalbyn. He lived there until April 1999, and then moved to Bundarra Court. Bunting, Christine Johnson, his brother, Kristoffer, and Haydon were living at Bundarra Court, when Vlassakis first lived there.
During the first period when Vlassakis lived with Bunting, there was an occasion when he and Bunting committed acts of vandalism towards property of people Bunting identified as paedophiles. As to Haydon, when Bunting was living at Bakara, the relationship between Haydon and Bunting appeared to cease. Haydon and his wife had moved to Queensland for a period of time in 1997. Upon their return to South Australia in June 1998, they moved to Blackham Crescent. Their relationship with Bunting commenced again.
When Vlassakis was about sixteen, Bunting told him that he had killed a person named Ray Davies, also known as Jimmy Davies. The conversation took place at Waterloo Corner. It occurred at a time when a caravan had turned up at Haydon’s premises at Catalina Drive. Vlassakis, Haydon and Vlassakis’ mother assisted Bunting to clean the caravan, which Bunting was selling. During a conversation, Bunting told Vlassakis that he had killed Davies. The topic of Davies was discussed on a number of occasions. Bunting told Vlassakis that Davies had been killed because he was a paedophile. The evidence of the conversations about Davies is inadmissible against Haydon. There is no evidence that Haydon was present at any conversations about Davies or the caravan. The fact that the caravan was stored at Haydon’s premises does not establish Haydon’s knowledge of Davies’ murder, or how the caravan came into the possession of Bunting.
Between 25 August 1998 and 8 September 1998, it is alleged that Youde was murdered. I will come to the detail of that alleged murder later. When Youde was being killed, Bunting said in the presence of Wagner and Haydon that they had done it before. Bunting said to Youde, “We’ve done this before. There were so many”. He then listed various names, including “Jimmy”. Wagner repeated the names. Vlassakis said he did not think Bunting had forgotten any. Vlassakis said he cannot recall Haydon saying anything.
Mrs Shaw submitted that this evidence does not establish Haydon’s knowledge about other killings, or the killing of Davies. She argued that, because of the failure of Haydon to acknowledge or repeat the names, no inference can be drawn that he was aware or believed that any of those mentioned had been killed.
Ms Abraham, for the Crown, submitted that the evidence is admissible as relevant to Haydon’s knowledge that others had been murdered by Bunting and Wagner. I agree with Ms Abraham’s submission. It is open to a jury to infer from this evidence, if accepted, that Haydon was one of the group to whom Bunting was prepared to disclose earlier killings. It could be inferred that he was a trusted member of the group, and that he had knowledge of earlier killings. It is evidence from which a jury could infer that he knew about bodies, and about the storage of bodies. It is evidence which goes to the association between those who the Crown allege were involved in the storage of bodies.
In June 1998, Haydon and Mrs Haydon lived at Blackham Crescent. Prior to that, Haydon, Mrs Haydon and Mrs Haydon’s sons had lived in Queensland for some months. When they returned to South Australia, Bunting and Haydon did not associate a great deal. It was after Haydon moved to Blackham Crescent that he and Bunting were again associating regularly. When they were living at Blackham Crescent, Vlassakis met Jodie Elliott. She was Elizabeth Haydon’s sister, and she lived in a shed at Blackham Crescent.
Returning to the period when Vlassakis and Porter were living at 3 Burdekin Avenue, Vlassakis states that he and Porter were close friends. They had lived together at various addresses prior to moving to 3 Burdekin Avenue. They were on the methadone program. They moved to Murray Bridge because they could live there without paying rent.
After they had been living there for some weeks, there was an occasion when Vlassakis attended the drive-in with his two brothers. When they returned later that evening, Bunting and Wagner were there. Christine Johnson was also in the house. Bunting took Vlassakis to the shed at the back of the house and showed him the body of Porter. There was a barrel in the shed. The lid was taken off and Vlassakis was told that Michael Gardiner and Barry Lane were in the barrel. The shed had a lock, and Bunting had the key. Vlassakis described a rotting smell in the shed. Porter’s body had a rope around his neck. A few days later, Vlassakis and Bunting travelled to Adelaide. Bunting purchased a barrel. They returned to Murray Bridge and Vlassakis assisted Bunting to put Porter’s body in the barrel, which was stored next to the other barrel.
Michael Gardiner (Count 1) - assist offender
Gardiner’s body was found in a barrel in the bank vault in Snowtown. The barrel also contained the remains of Barry Lane. When Gardiner’s body was removed from the barrel there was a rope tied around his neck. His foot had been severed from his body. Dr James, a pathologist, was of the opinion that the probable cause of death was strangulation. Gardiner’s body was identified by his dental records.
Prior to his death, Gardiner had lived at the home of Ms Nicole Zuritta. She was the cousin of Ms Vicki Mills, who was Wagner’s de facto partner. Zurritta’s house was located around the corner from Mofflin Road, where Wagner and Vicki Mills lived. Wagner had access to a key to Zurritta’s house.
Gardiner was openly homosexual. The Crown case is that Bunting knew that Gardiner was homosexual. It is the Crown case that Nicole Zuritta was away from her house when Gardiner was murdered. When Zuritta returned to her house, not only was Gardiner gone but also her property had been taken. The Crown case is that the inference that can be drawn from this is that it was made to look like Gardiner had run away and taken her property. The Crown case is that there is evidence from which a jury can infer that the murder was planned. This evidence includes recorded messages made to Vicki Mills’ house. Two weeks after the disappearance of Gardiner, Mills received a message on her answering machine. Mills played the recording to Zuritta over the telephone. Mills and Zuritta identified the voice as that of Gardiner. He was talking in a tone that was stern. The Crown case is that it is open to a jury to infer that Michael Gardiner was dead when the message was placed on the voice message. The Crown case is that it was tape-recorded while he was still alive and made in preparation of his murder. It is the Crown case that Bunting told Vlassakis that he and Wagner had killed Gardiner. Bunting asked Vlassakis to recover a wallet of Gardiner’s from Zuritta’s home. Vlassakis complied. Items from the wallet were found in a Ford Marquis motor vehicle which was parked at Mofflin Road. Other items of property that were found included an exercise book with Gardiner’s handwriting which was located under a bed at Bundarra Court. It is the Crown case that after the murder of Gardiner, Wagner in the presence of Bunting, told Mills and Zuritta that he had seen Gardiner at a servo. He was asked why he did not stop him. His response was that he did not want trouble.
It is the Crown case that Haydon helped Bunting and Wagner store the barrel which contained the body of Michael Gardiner. The Crown alleges that Haydon knew of the murder, or believed Gardiner had been murdered by Bunting and Wagner and he assisted them to avoid apprehension in that he stored and moved the barrel containing Gardiner’s body. The barrel containing the bodies of Gardiner and Lane was stored at Blackham Crescent, and later moved to Hoyleton and then Snowtown in Haydon’s four-wheel drive motor vehicle. It was finally stored at the bank premises at Snowtown.
Barry Lane (Count 2) - assist offender
It is the Crown case that Lane disappeared on 16 or 17 October 1997. Barry Lane’s body was found at the bank in the same barrel as Gardiner. His legs had been severed from his torso but both were in the same barrel. Found in his mouth was a large gag. The gag was a long piece of bandage rolled up with adhesive tape around it. There was adhesive tape around his head and mouth. A rope was tied around his neck. Dr James was of the opinion that the cause of death was strangulation. He considered that the gag itself could have been fatal. Lane’s body was identified by fingerprints and dental records.
Lane and Wagner had been in relationship between 1985 up until early 1996. Wagner then began a relationship with Vickie Mills. Lane and Wagner had met Bunting when Bunting lived at Waterloo Corner. At the time Lane and Wagner were living at 1 Bingham Road, Salisbury North. It is the Crown case that Bunting thought Lane was a paedophile. However, he put up with his hatred of Lane because Lane was providing information to Bunting about other paedophiles.
It is the Crown case that discussion about Lane occurred on occasions. On occasions, when these conversations took place, Haydon was there. Whenever discussions took place, Wagner, Bunting and Haydon, were very careful not to speak in the presence of Elizabeth Haydon or Jodie Elliott, Vlassakis said that Lane was not a major topic of conversation.
There were also discussions about Lane after Vlassakis had been shown Lane’s body in the barrel. Bunting told Vlassakis that Lane had been killed. There were conversations about Lane when Wagner was present. Bunting spoke about Lane being a paedophile.
It is the Crown case that Krystal Spencer-Smith, Barry Lane’s sister, received a call after Lane had been murdered. Spencer-Smith picked up the phone and heard, “Hello, this is your brother Barry”. The Crown submits that this is a recording of Barry Lane’s voice. The recording gives rise to an inference of a planned premeditated murder. A blanket identified by Lane’s mother as belonging to Lane was found in the Toyota Land Cruiser belonging to Haydon. Property of Lane was found at Bundarra Court and at Mofflin Road. A bum bag was found in the Ford Marquis which was parked at Mofflin Road. Personal items of Lane were found in the bum bag. Also located in the house occupied by Vicki Mills was a Bank SA Easy card in the name of Barry Lane. Found in the ceiling at Bundarra Court were personal documents belonging to Barry Lane.
At the time of his murder, Lane was in receipt of Centrelink benefits. After his disappearance there are surveillance and banking records that show withdrawals made from his account. Wagner’s fingerprints were identified on one of the ATM receipts for a withdrawal from Lane’s account.
It is the Crown case that Haydon helped Bunting and Wagner store the barrel which contained the body of Barry Lane. It is the Crown case that Haydon knew of Lane’s murder. The prosecution contends that the jury could draw an inference that because Haydon stored and moved the barrel containing Lane’s body and that he, together with Bunting, rented the bank in which that barrel was found, he is guilty of doing an act or acts to assist Bunting and Wagner knowing or believing that they had murdered Lane, and with the intention of them avoiding apprehension or prosecution.
Gavin Porter (Count 3) - assist offender
Gavin Porter last collected his methadone on 4 April 1998. It is the Crown case that he was murdered shortly thereafter. His body was found in a barrel in the bank. Dr Gilbert, a pathologist, was unable to establish a cause of death. A blue nylon rope was found on the counter of the bank at Snowtown. When it was examined, the rope had red brown staining on various areas that gave a positive presumptive test for blood. There were also hairs found along the rope. The areas tested for DNA gave a typing consistent with Gavin Porter.
Vlassakis and Porter were friends. They had met in 1997 and lived together at various places including, Humphries Terrace, Woodville Gardens and 3 Burdekin where they lived with Bunting, Christine Johnson and Troy Youde in late January 1998.On occasions when Porter and Vlassakis were living at Humphries Terrace, Woodville Gardens, Bunting and Haydon would visit them. At the time, Vlassakis was using heroin. Prior to moving to 3 Burdekin Avenue, Vlassakis commenced a methadone program. Porter was also on the program. Both were receiving Centrelink payments. Bunting and Porter spoke about how Porter could change his benefits. It was suggested that Porter pretend to be a schizophrenic. Bunting helped Porter. Vlassakis observed Bunting taking down details of Porter’s benefits. These events occurred approximately three months before Vlassakis saw Porter’s body on the floor in the shed at 3 Burdekin Avenue. Vlassakis saw a red purple mark around Porter’s neck which the Crown submits is consistent with him having been strangled. It was on this occasion that Vlassakis was shown another barrel.After Vlassakis had been shown Porter’s body in the shed, he and Wagner loaded Porter’s clothes into the back of Porter’s car and Vlassakis drove the car to Mofflin Road. Wagner drove his car. Porter’s clothes and personal documents were found in the car. Vlassakis and Wagner stopped overnight at Birdwood because Porter’s vehicle was low in petrol, and they had to wait for a petrol station to open. When they arrived at Mofflin Road the next day, Vicki Mills was there. Bunting arrived shortly after. Later, Bunting told Vlassakis that he and Wagner had murdered Porter.
Vlassakis says that some time later at Murray Bridge, Bunting brought a barrel in the back of a Ford Marquis. Vlassakis helped take the barrel to the shed, and he and Bunting put Porter into the barrel. The barrel was placed next to the barrel in which Gardiner and Lane were stored.
Porter’s Centrelink benefits were accessed by Vlassakis for about one month. This commenced in April 1998. He then gave a key card for Porter’s bank account to Bunting. In 1999, when he was at Haydon’s home, he observed Haydon take a dole form in the name of Porter from the back of the four-wheel drive.
Property was found in the ceiling at Bundarra Court. A page from a book containing personal details relating to Porter written in Bunting’s handwriting was found there. Property linked to Porter was also found at Blackham Crescent. Two Centrelink letters post-dating Porter’s murder were found in the shed. Haydon’s fingerprints were identified on the letters. In the main bedroom two ATM account receipts from Porter’s bank account dated after Porter’s death were found. A Centrelink letter written after Porter’s death was also found in Haydon’s Landcruiser.
Troy Youde (Count 4) - murder
It is the Crown case that Troy Youde was murdered in about the last week of August 1998. Dismembered parts of his body were found in two barrels in the bank vault. Fractures to the throat structures identified strangulation as the cause of death.
Troy Youde was Vlassakis’ stepbrother. At the time of the murder they both lived at 3 Burdekin Avenue with Bunting. Vlassakis gave evidence that when he was about thirteen, Youde, who was three years older, sexually interfered with him. Vlassakis told Bunting. Bunting referred to Youde as a “waste”. Wagner and Haydon were present on occasions when Bunting referred to Youde in that way.
The Youde murder occurred at 3 Burdekin Avenue. On the day of the murder, Christine Johnson was not at home. Vlassakis’ said that he was sleeping in the lounge room of the house, where he normally slept. He was awakened by Bunting, Wagner and Haydon. All three of them were armed with jack handles. Vlassakis was handed a pair of handcuffs and a wooden club that appeared to be the leg of a piece of furniture, and told that they wanted to give Youde a bashing. All four of them entered a bedroom in which Youde was asleep on the floor. Bunting yelled ‘now’ and all four began hitting him. Youde was handcuffed. Vlassakis describes in detail the attack on Youde. Bunting and Wagner put Youde in the bathroom. Youde was assaulted by them. Haydon was outside the bathroom door. At times, he was also inside the bathroom. Youde was required to refer to Bunting as “Lord Sir”, Wagner as “God” and Haydon as “Chief Inspector”. Vlassakis was referred to as “Master”. Vlassakis described how Youde was asked about his personal details, including his PIN number. A tape-recorder was used, and Youde was required to repeat statements suggested to him by Bunting about Youde leaving and going to Perth. The purpose of requiring Youde to make these statements was to use the recordings after Youde’s death to give the impression that he was still alive.
Youde was gagged and a rope placed around his neck. He was required to apologise to Vlassakis. During this time, names were repeated. Bunting repeated the names of Michael, Barry, Jimmy, Gavin and Happy Pants. He repeated those names as people who had previously been murdered. Bunting asked Wagner, Haydon and Vlassakis if he had left any names out because there were so many. Wagner repeated some of the names.
Vlassakis noticed that there was a bag in the lounge room. It contained various types of tape and gloves. Youde’s T-shirt was cut off him. The rope used around Youde’s neck came from the bag. Youde was strangled whilst in the bath. Vlassakis gave evidence that during the time when Youde was in the bathroom, Haydon stayed in the lounge room for much of the time. During the course of this murder, Bunting asked Vlassakis to play a CD “Throwing Copper” by the band Live. The music was played. After Youde died, Bunting asked Haydon and Vlassakis to go to the shops to get some gloves and rubbish bags. They drove to Woolworths at Murray Bridge in Haydon’s Landcruiser, and they purchased gloves and bags and returned to 3 Burdekin Avenue.
Bunting told Wagner to make sure that Youde was dead and Wagner put his foot on Youde’s chest causing a noise to come out. Wagner and Bunting laughed. Both Haydon and Vlassakis were present when this was happening. Youde was eventually carried to the shed by the four men. Vlassakis said that Youde was left in the shed in the same area as Porter. At some stage whilst all four men were present, Bunting said that Youde had ‘gone too quickly’ and ‘there wasn’t enough pain’ and that ‘he had been made good’. After his death, there were discussions by Bunting and Wagner about how Youde had died. During these discussions, Haydon said nothing. The group then went to McDonald’s. On returning to 3 Burdekin Avenue, Bunting and Vlassakis cleaned up the bedroom and bathroom. Some of Youde’s personal items, including some paperwork, clothes and other items were placed in a Triple M bag and then placed in Haydon’s Landcruiser.
When Christine Johnson returned, Bunting told her that Youde had left after an argument. Subsequently, Bunting and Vlassakis travelled to Adelaide and purchased a barrel. It was placed in the Ford Marquis, and eventually into the shed at 3 Burdekin Avenue. Vlassakis was present when Youde was placed in the barrel. The barrel was placed with the other two barrels containing the bodies of Lane, Gardiner and Porter. At that time, the other two barrels were opened, and the contents discussed.
Personal documents belonging to Youde were found in the shed at Blackham Crescent. Documents belonging to Youde were also found at Bundarra Court together with a book which contained forged signatures of Porter and Youde. Various financial documents relating to Youde were found in a green garbage bag appearing to contain rubbish. The rubbish bag was in the ceiling at Bundarra Court. The fingerprints of Haydon and Bunting were located on some of the documents.
The body of Youde and the garbage bags containing debris, cleaned up from the bathroom after Youde’s murder, were found in the vault at Snowtown. In particular, in one of the bags with the property and blood stained clothing of Youde, were a number of disposable gloves. On one of these gloves was DNA, the DNA typing consistent with that of Haydon. Other gloves had a DNA typing consistent with Bunting.
It is the Crown case that Haydon was a party to a plan to murder Youde, or at the very least assault him, and that he foresaw that Youde might be murdered. The Crown submits that it is open to a jury to draw this inference because when Vlassakis was awakened Bunting, Wagner and Vlassakis were all there and armed. It is the Crown case that Haydon was involved in the beating and whilst he was not always present in the bathroom, he watched and was a party to what was occurring. Once Youde was dead he was immediately involved with Bunting, Wagner and Vlassakis in cleaning up and storing the body.
Fred Brooks (Count 5)
Brook’s body was found in a barrel in the bank vault. Thumb cuffs were found in the barrel with his body. Brook’s wrists were tied behind his back with handcuffs. A gag was found in his mouth and duct tape had been taped across his mouth and over his head. His body was identified by dental records.
Fred Brooks was last seen alive on 17 September 1998. He was last seen alive in the company of Haydon, Bunting and Wagner. At the time he was living at Blackham Crescent with Haydon, his wife, Elizabeth Haydon, her children and his mother, Jodie Elliott, the sister of Elizabeth Haydon. At the time Bunting was in a relationship with Jodie Elliot. Jodie Elliot is also known as Gail Sinclair. Vlassakis met Fred Brooks in 1998 before Youde was killed. They met at Blackham Crescent. Vlassakis had heard of Brooks from Bunting, who had referred to him as a “dirty”. Bunting was alleging that Brooks had interfered with little girls. Vlassakis met Brooks regularly at Haydon’s place. Vlassakis had moved from 3 Burdekin Avenue to 26 Burdekin Avenue in about September 1998. Bunting and Christine Johnson had also moved to 26 Burdekin, but retained the lease at 3 Burdekin for about three weeks after the move.
Jodie Elliot last saw her son alive on 17 September 1998. He went out that evening telling his mother that he was going to a party. Jodie Elliot expected Brooks back the next day. She never saw him again. It is the Crown case that on an occasion in September 1998 Vlassakis was asked by Bunting to come to 3 Burdekin Avenue. At the time, Vlassakis had been working on his car at 26 Burdekin Avenue. When he arrived, Brooks was there playing with a set of handcuffs. Those handcuffs were then put on Brooks as part of a game. Thumb cuffs were also used. Brooks was grabbed from behind. Vlassakis saw Bunting and Wagner pull Brooks into the bathroom. A tape-recorder was produced, and Brooks was required to speak into the tape. He was required to abuse his mother. He was forced to disclose his PIN number, and details of his bank accounts. Brooks was tortured using a cigarette lighter and an electric impulse machine called a “variac”. He was gagged and taped. During the time of the killing, music from the album titled “Throwing Copper” was played. That CD had been played during the killing of Youde. He was required to call Bunting “Lord Sir”, and Wagner “God” and Vlassakis “Master”.
After Brooks was murdered, he was wrapped in a black garbage bag and placed in the boot of a white Torana. The Torana had belonged to Haydon, then to Christine Johnson, then to Wagner, but when Wagner took Porter’s car it went back to 3 Burdekin Avenue. At the time of Haydon’s arrest the Torana was registered in the name of Mark Haydon and was found at Blackham Crescent.
Within a few days, Vlassakis saw Haydon’s Landcruiser at 3 Burdekin Avenue. A trailer was attached to his car. The Torana was loaded onto the trail and was towed away by Haydon. Bunting accompanied Haydon. Within a week, Vlassakis saw the car at Haydon’s shed at Blackham. He and Bunting visited Haydon, and he observed Haydon working on the Torana. Bunting asked Haydon whether Fred was happy, and Haydon responded to the effect that “he’s going alright; he’s alright”.
Bunting and Haydon went to the shed where the barrels were stored. Vlassakis was told that Brooks was in the pit in the shed. He saw Bunting and Haydon enter the pit. He could smell a pungent odour. Vlassakis looked into the pit and saw Bunting and Haydon. He was told that Brooks was in the pit. On later occasions, Vlassakis saw barrels in the corner of Haydon’s shed. On these occasions, both Haydon and Bunting were present.
Vlassakis gave evidence that he saw three barrels at 3 Burdekin Avenue, which were being moved by Bunting and Wagner in the truck which had been hired at the time that Bunting was moving house from 3 to 26 Burdekin. He later saw those barrels in the corner of Haydon’s shed. Brooks’ body was later moved from the pit and stored in a fourth barrel in the shed.
At the time of his murder, Brooks was in receipt of a Youth Training Allowance. Vlassakis also gave evidence of impersonating Brooks for the purpose of ensuring his social security benefits continued to be paid. It is the Crown case that whilst Vlassakis was the person who actually impersonated Fred Brooks, this was because Vlassakis was closest in age to Brooks. Vlassakis went to various places and impersonated Brooks. Haydon drove Vlassakis and Bunting to various offices, including a doctor’s surgery, where Vlassakis impersonated Brooks. There were discussions in the presence of Haydon about the story that Vlassakis was to tell the doctor in order to get medical support to be used to support the payment of Centrelink benefits.
Initially, the benefits were paid into Gavin Porter’s Commonwealth bank account, which was already being controlled and accessed by Bunting. At a later stage, a new bank account in the name of Fred Brooks was opened at the CPS Credit Union and, from then on, the benefits were paid into that account. It is the Crown case that Haydon used that account to get money. On one occasion, they attended the CPS Credit Union when Vlassakis withdrew money and handed about $280 to Haydon. It is the Crown case that it was Haydon who was given access to these benefits. Two ATM balance enquiry receipts relating to the access of Gavin Porter’s accounts were located by the police in the main bedroom of Haydon’s home at Blackham Crescent. The first relates to an occasion prior to Brook’s money being credited on 8 October 1998. The second receipt is dated 16 October 1998, the day Brooks’ money was first credited to Porter’s account. In addition, mail generated as a result of continuing access to Brooks’ benefits was found in the shed at Blackham Crescent and in a vehicle belonging to Haydon.
It is the Crown case that at the time Haydon was accessing the benefits of Brooks and Porter, he was also storing both of their bodies in his shed. The Crown submits that Haydon must have known, at the very least, from his involvement in the Youde murder, that the details of these accounts and their social security members’ cards necessary to access the victims’ benefits were obtained from them prior to them being murdered. The Crown submits that Haydon knew that after Bunting and Wagner murdered Brooks, their benefits were accessed. The Crown case is that it is reasonably open to a jury to infer that from Haydon accessing accounts in the name of Porter, and later Brooks, that Haydon must have known that both these people had been murdered. It is submitted that Haydon assisted Bunting and Wagner in escaping apprehension and prosecution by storing and moving their bodies.
It is the Crown case that it would be open for a jury to infer that, not only was Haydon aware of the identity of bodies in the shed where there was direct evidence of him having been told, but also a jury could infer that he would have been told and would have been aware, firstly, that there were bodies in the other barrels, the number of bodies, and the identity of those in the barrels.
Gary O’Dwyer (Count 6)
It is the Crown case that O’Dwyer was last seen alive on 28 October 1998. His body was located in a barrel in the bank vault at Snowtown. The pathologist could not establish a cause of death. The post-mortem showed a number of marks on the left upper arm and chest consistent with alligator clips having been used. These alligator clips, which were located in the bank, could be attached to the variac machine. O’Dwyer’s body was identified by dental records, fingerprints and tattoos.
The deceased lived alone at 23 Francis Street, Murray Bridge. Francis Street intersects Burdekin Avenue. At the time Vlassakis was living at 23 Burdekin and Bunting was living at 26 Burdekin. O’Dwyer had a mental and physical disability as a result of an accident. His finances were managed by the Public Trustee.
The circumstances of the murder are provided by Vlassakis. He knew Gary O’Dwyer. Bunting had referred to O'Dwyer as a “dirty” and a “fag” and said that he need to “go to the clinic”. This was Bunting’s way of saying that he needed to be murdered. There is no evidence that Haydon was present during these conversations.
Vlassakis got to know O'Dwyer and at Bunting’s request had obtained information from him about his personal and financial circumstances, including that he was on a pension. On the day in question at Bunting’s request, Vlassakis took Bunting and Wagner to O'Dwyer’s place and introduced them. Bunting had purchased a carton of beer. They were drinking and Vlassakis, at Bunting’s request, was encouraging O'Dwyer to scull a drink known as Mississippi Moonshine. O'Dwyer drank a considerable amount. At some stage during the evening, Wagner grabbed O'Dwyer from behind and placed handcuffs on him. Bunting told O'Dwyer to call him “Lord Sir” and to call Wagner “God”. During the evening, Vlassakis went to the car which was outside, and obtained shopping bags and a variac machine from the Ford Marquis motor vehicle. Physical violence and torture followed. The variac machine was used. Vlassakis observed and heard Bunting obtaining family details from O'Dwyer. During the course of the assaults upon O'Dwyer, Vlassakis said he had to leave as he was expected to be met by friends. Vlassakis left the premises while O’Dwyer was being tortured.
The following morning, Vlassakis and Bunting went to O'Dwyer’s home. They took various items of property, including a lounge suite. Other property was taken on subsequent days and removed. Vlassakis saw the lounge suite at Haydon’s place at Blackham within about a week of loading it on to a trailer. Personal documents belonging to O’Dwyer were found under the carpet in the main bedroom and in the ceiling at Bundarra Court. Marcus Johnson, the father of the deceased David Johnson, found a document at Bundarra Court on which Bunting had written personal details relating to O’Dwyer. Vlassakis’ mother, Elizabeth Harvey, was found to be in possession of a fridge belonging to O’Dwyer. O’Dwyer’s television was found at Mofflin Road.
O’Dwyer’s bankcard was found by Vlassakis under a carpet in the main bedroom at Bundarra Court. His account was accessed on a number of occasions in the Murray Bridge, Salisbury, Hillbank and Smithfield areas. It is the Crown case that Bunting accessed this account when he was living in Murray Bridge and upon his subsequent move to Bundarra Court accessed the account from the Salisbury areas.
It is the Crown case that O’Dwyer’s body was stored in a barrel at Blackham Crescent before being moved and eventually being stored in the bank vault at Snowtown.
Elizabeth Haydon (Count 7)
The accused was married to Elizabeth Haydon. Elizabeth Haydon was last seen alive in the period from 20 to 22 November 1998. At the time of her murder, Haydon and his wife were living at Blackham Crescent. Her body was found in a barrel in the bank. A sock was in her mouth and tape had been placed around her mouth and head. A rope was loose around her neck, with a slipknot on the left side.
Jodie Elliott, Elizabeth Haydon’s sister, was living in a shed at Blackham Crescent. Elizabeth Haydon’s two children were also living at that address. On Saturday, 21 November 1989, the children were staying with the brother and sister-in-law of Elizabeth Haydon, Mr Garion Sinclair. A summary of the circumstances of Elizabeth Haydon’s disappearance is contained in the judgment of Martin J, R v Bunting & Others (No 3).[2] I adopt that summary and repeat it:
[2] (2003) 230 LSJS 410
“During the evening of 21 November 1998, Haydon and Elliott left the premises. Bunting, Wagner and Elizabeth Haydon remained in the premises. It is the Crown case that Haydon and Elliott left the house as part of a pre‑arranged plan between the accused to remove Elliott from the premises and that Elizabeth Haydon was murdered by Bunting and Wagner during their absence.
Elliott says that Elizabeth Haydon asked her to take Haydon away from the house for about two hours because Haydon’s birthday present was due to arrive. At the suggestion of Elliott, Elizabeth Haydon asked Bunting to identify an appropriate place which would take Haydon out of the premises for about two hours. He suggested that Elliott take Haydon to Reynella. Elliott asked Haydon if he would take her to McDonald’s at Reynella where she wanted to look at a dog. Bunting gave Haydon twenty dollars for fuel. Haydon agreed and he and Elliott drove to Reynella where they waited at McDonald’s. When no‑one arrived, Elliott suggested that they return home and commented that when they got home it would be too late for eating. Haydon suggested that they purchase something on the way home and they pulled into a service station for that purpose. Haydon said that he would ring home and let the others know that they were not far away.
According to Elliott, when Haydon returned to the car he said that “all hell” had broken loose at home. Elliott said that when she travelled to Reynella with Haydon, he behaved in his normal quiet manner. He did not seem edgy. However, after the telephone call on the way home, Haydon was quite disturbed and aggravated.
On arrival at Blackham Crescent, Bunting told Haydon and Elliott that Elizabeth Haydon had made sexual advances to him and he had turned her down. Elliott offered to talk to Elizabeth Haydon, but Bunting told her to leave Elizabeth Haydon alone. Bunting said he was going to Hungry Jacks to purchase something to eat and asked if Elliott wanted to accompany him. She left the house leaving Haydon and Wagner in the premises. She had not seen Elizabeth Haydon and presumed that she was in the bedroom sulking.
In response to the Crown case that Elizabeth Haydon was murdered while Elliott and Haydon were absent from the premises, counsel for Haydon drew attention to initial statements by Elliott that when she and Bunting left to go to Hungry Jacks, she saw Elizabeth Haydon at the curtain of Elizabeth Haydon’s bedroom. However, during evidence at the preliminary examination, Elliott said that she only saw fingers on the curtain and someone at the window. She could not say who was at the window. It was very dark. As they left, Bunting spoke foul language at the window. Elliott also said that she did not see Elizabeth Haydon in the bedroom and there was no indication by noise or otherwise of the presence of anyone in that bedroom.
Elliott says that when Bunting and Elliott returned from their trip to Hungry Jacks, Haydon told them that Elizabeth Haydon had grabbed a bag or something and had gone off with her boyfriend. There was no mention of the name of the boyfriend. The suggested behaviour by Elizabeth Haydon did not seem out of the ordinary to Elliott because there were times that Elizabeth Haydon was prone to keeping a boyfriend secret and disappearing with the boyfriend.
The following day, Sunday 22 November 1998, Elliott and Bunting drove to the beach. Elliott says that on their return Haydon told her that Elizabeth Haydon had arrived home at about 5.00 am “blind rotten” drunk. Elliott did not check the bedroom. She left the house and on her return Haydon, who she understood had also been absent from the house, said that Elizabeth Haydon must have left while they were absent.
Later that Sunday, Haydon went to the home of Mr and Mrs Sinclair to collect the sons of Elizabeth Haydon. He told them that he had been involved in an argument with Elizabeth Haydon as a result of her accusing him as having slept with Elliott. He said that Elizabeth Haydon had come home drunk at 2.00 am and that she was currently in bed asleep. On their return home late that Sunday afternoon the children did not see Elizabeth Haydon.
On Monday 23 November 1998 the children were supposed to have walked to school. They walked to the Sinclair’s. They were upset because they had not seen their mother. William Sinclair says that he and his brother were told by Haydon that their mother was in the bedroom, but they were not to disturb her. Christopher Sinclair says that Haydon told them that their mother would not be home until Monday.
During the afternoon of 23 November 1998 Haydon again attended at the home of the Sinclair’s. He said that Elizabeth Haydon had come home drunk at about 4.30 am on Sunday morning and had slept it off. She had then packed her bags and telephoned her boyfriend. The boyfriend turned up with his friends and she left. Haydon also said that Elizabeth Haydon had cleared out the bank accounts of Haydon and his father.
On Tuesday, 24 November 1998 Haydon gave further information to Mr and Mrs Sinclair. He said he had been visiting his father on Sunday morning and when he returned home he found that Elizabeth Haydon had left. He said Elizabeth Haydon had seen Elliott coming out of Haydon’s bedroom and had misunderstood the circumstances.
On Wednesday, 25 November 1998, Mr Sinclair reported Elizabeth Haydon missing. A police investigation commenced. On 26 November 1998 Haydon provided to the police a written account of the circumstances of his wife’s disappearance. He referred to the “day of our marriage break-up”. Haydon said that on his return home from the trip to Reynella, Bunting told him that Elizabeth Haydon had made a pass at Bunting and had become upset when he declined her advance. Haydon told the police that he went into the bedroom to speak with Elizabeth Haydon and she had accused him of sleeping with Elliott. He said that while Bunting and Elliott were absent from the premises, Elizabeth Haydon had come out of the bedroom and had abused him in the presence of Wagner. She said she was leaving and was intending to ring her boyfriend to pick her up. Haydon said that he went to bed at about 2.00 am. Elizabeth Haydon returned home at approximately 4.00 am. She was drunk. She got into bed and passed out. At about 11.30 am Elizabeth Haydon got up. Haydon said he asked her where she had been and who she had been with, but she would only tell him that she was with someone he did not know. He asked her why she had done that and she again accused him of sleeping with Elliott. She told Haydon that he should visit his father at the nursing home and she would wait until he returned. However, when he returned at about 4.00 pm she was not at the premises. He said he had not seen her since that Sunday.
Bunting and Wagner were interviewed by the police on 30 November 1998. Bunting said that Elizabeth Haydon told him she had bought a new computer for Haydon and she wanted to surprise him. She said she asked Elliott if she could get Haydon out of the house. While Haydon and Elliott were absent, Elizabeth Haydon made a sexual advance to him which he rejected. Bunting said that Elizabeth Haydon was upset by the rejection and sulked in her bedroom.
According to Bunting’s statement, when he and Elliott left the premises to go to the shops, Elizabeth Haydon stared at them from the window. He said he was later told by Haydon that Haydon and Elizabeth Haydon had argued and she had left the premises.
Bunting also told the police that Elizabeth Haydon’s children should not be at the home of Garion Sinclair as Elizabeth Haydon’s brother, Tony, had told Bunting that Garion Sinclair was a “child molester”. The Crown sought to link that statement with evidence suggesting that the voice of Elizabeth Haydon had been recorded accusing Garion Sinclair of being a child molester.
Wagner told the police that Elizabeth Haydon had made an advance towards Bunting. He said that the others were at the house when he had left the premises.
It is the Crown case that Bunting and Haydon also gave a false story to Mrs Angela Freeman. As appears later in these reasons, premises occupied by the Freemans was used to store barrels containing bodies. According to Mrs Freeman, after the disappearance of Elizabeth Haydon she was involved in a conversation with Bunting and Haydon when they were discussing the problems being experienced with police. It was said that the police were trying to involve Haydon in Elizabeth Haydon’s disappearance and that they felt that if anything had happened to Elizabeth Haydon it would be her brother who was involved. Mrs Freeman suggested to Haydon that he seek legal help. It was mentioned that Elizabeth Haydon had been seen in Melbourne. In her evidence at the preliminary examination, Mrs Freeman explained that when the group was together talking, Bunting did the bulk of the talking while Haydon sat quietly, but everybody had something to say in the conversation.
Ms Sharon Ball was a friend of Elizabeth Haydon. She says that on Thursday 26 November 1998 she found out that Elizabeth Haydon was missing. On Monday 30 November 1998 she attempted to ring the number of Elizabeth Haydon’s mobile telephone, but on about four occasions she only succeeded in reaching a message bank. However, Elizabeth Haydon’s voice was not the voice of the message bank. On about the fifth try, Ball thought she was talking to Elizabeth Haydon. She asked Elizabeth Haydon to talk to her. She received a reply to the effect of “leave me alone, I’m alright; fuck off.” Elizabeth Haydon had never spoken to Ball in that manner previously.
A few minutes later, Ball again telephoned Elizabeth Haydon’s mobile number. She heard a voice that sounded like a recording on a tape. It said “you’re a slut; you’re nothing but a dirty slut”. There was the voice of a male and it sounded distant.
A tape of Elizabeth Haydon’s voice was found by police in the ceiling at Bundarra Court. A number of statements are heard on the tape abusing Elizabeth Haydon’s mother, Elliott and Haydon. There is reference to finding someone else and leaving her alone. The statements also include an allegation that Garion Sinclair is a child molester. The Crown says that the tone of Elizabeth Haydon’s voice on the tape clearly demonstrates that she was under stress. Mr Vlassakis says that recordings of a similar nature were made during the murders of Youde, Brooks and Johnson.
In respect of the phrases that Elizabeth Haydon was made to repeat, counsel for Haydon pointed out that the phrases included abuse of Haydon. She suggested that as the phrases were intended to be heard by the named recipient, the existence of abuse of Haydon suggested that Haydon was not involved in the murder of Elizabeth Haydon. However, counsel acknowledged that recordings of statements by deceased were played to answering machines or services of intended recipients. It could be said, therefore, that in order to give credibility to the deception that Elizabeth Haydon had voluntarily left and wanted no more to do with those who were close to her, it was necessary to include phrases that abused Haydon.
Vlassakis says he was first told of the murder of Elizabeth Haydon when Bunting came to Murray Bridge with a barrel in the back of the Ford Marquis. The barrel was placed into a Sigma parked at the home of Vlassakis. Bunting said that he and Wagner had killed Elizabeth Haydon, but the conversation was mainly about the police being “onto him”. Bunting told Vlassakis that there were barrels in Haydon’s four‑wheel drive vehicle and on a trailer. There was also the barrel that had to come to Vlassakis.
According to Vlassakis, it was some time before Bunting again spoke about Elizabeth Haydon. He told Vlassakis that Haydon was supposed to take the children to school, but had dropped them off and saw them walking down the road but not into the school. Bunting told Vlassakis that he and Wagner grabbed Elizabeth Haydon and put her in the bathtub. Vlassakis says he does not know if the murder actually happened at that time or not. Subsequently Bunting showed Vlassakis a barrel in the bank vault which he said contained the body of Elizabeth Haydon. Haydon was not present during the conversations between Vlassakis and Bunting about the death of Elizabeth Haydon.
As to a motive, Vlassakis says that he overheard Haydon telling Bunting that he, Haydon, had told Elizabeth Haydon about the murder of Trezise. The details are set out earlier in these reasons. In addition, as mentioned Vlassakis says that Bunting often said that he hated Elizabeth Haydon.
According to Vlassakis, Haydon and Elizabeth Haydon still had compassion for each other. In the presence of Vlassakis, Haydon spoke to Harvey in terms of “how could she run away” and said that he missed Elizabeth Haydon. However, Vlassakis says Haydon was present in the vault when the lid of the barrel containing Elizabeth Haydon’s body was removed. Bunting and Wagner were making jokes about Elizabeth Haydon and laughing. Haydon had a laugh under his breath. Vlassakis says they left the vault soon after that incident and Haydon told him that he couldn’t stomach it.
On 26 November 1998 Haydon and Elliott each gave a statement to the police. Elliott says that later on 26 November 1998 the three accused were at 4 Blackham Crescent. They seemed edgy for some reason that she was unable to work out. She was told that they had stuff which had to be moved. Elliott was instructed to stay in the family room and keep an eye out in case the police came back. Haydon’s Landcruiser was reversed towards the shed. Although she could not see what was happening, Elliott also heard movement into the ceiling of the house and the removal of property from the ceiling. Items were wrapped in old blankets and put into the Landcruiser. A trailer was obtained. The Landcruiser was put onto the trailer and Wagner’s vehicle was used to tow the trailer away from the premises. This occurred between about midnight and 3.00 am.
It is the Crown case that property of victims or associated with victims was removed from the ceiling at Blackham Crescent because the police had become involved in investigating the disappearance of Elizabeth Haydon. Property belonging to or associated with victims was subsequently found in the ceiling of premises occupied by Bunting at Bundarra Court. Elizabeth Haydon’s visacard was found by Mills on top of a cupboard at Mofflin Road.
It is also the Crown case that barrels containing bodies had been stored in the shed at Blackham Crescent. The evidence by which the Crown sought to prove that fact is discussed later. It is the Crown case that the barrels were loaded into the Landcruiser during the evening while Elliott was keeping a look‑out for the police. The Landcruiser was then towed on a trailer to the property of Mr and Mrs Freeman at Hoyleton.
The Crown says that a combination of circumstances leads to the inevitable inference that Elizabeth Haydon was killed while Elliott and Haydon were absent from Blackham Crescent. The proposed evidence is capable of supporting such a finding.”[3]
[3] Ibid at 440-445 [199-227]
I agree with Martin J’s observations, that if a finding is made that Elizabeth Haydon was killed before Jodie Elliott and Haydon returned to Blackham Crescent, it would follow that Haydon knowingly made false statements about Elizabeth Haydon’s behaviour. Against the background of Haydon’s knowledge that Bunting and Wagner had murdered a number of people, and that bodies were stored in barrels in Haydon’s shed, the Crown case is that he was a party to Elizabeth Haydon’s murder.
The evidence of Haydon’s presence and participation in the murder of Youde is relevant evidence in respect of Elizabeth Haydon’s murder, as it is evidence from which a jury could infer that Haydon was aware when he left Elizabeth Haydon with Bunting and Wagner that she was going to be killed.
Counsel for Haydon submitted that it is open to conclude that Elizabeth Haydon was alive when Haydon and Elliott returned and that she disappeared on the Sunday, not the Saturday evening as alleged by the prosecution.
The Crown case is that there was a sophisticated plan to deceive Jodie Elliott into believing that she was taking Haydon from the premises in order for Bunting and Elizabeth Haydon to organise a surprise present for him. It is suggested by the Crown that the idea was put into the mind of Elizabeth Haydon by Bunting as part of a plan to get Elliott out of the premises while Elizabeth Haydon was murdered. As to the suggestion that there was insufficient evidence from which a jury could conclude that Elizabeth Haydon was murdered on the Saturday night, it is Crown response that the only time at which Elizabeth Haydon was together with Bunting and Wagner in the absence of others was the Saturday night. It is not, in the Crown’s submission, open to suggest that Elizabeth Haydon could have been murdered other than at Blackham on the Saturday evening.
I agree with the conclusions of Martin J that the evidence is capable of supporting an inference that at the time Haydon and Jodie Elliott left the premises, leaving Elizabeth Haydon with Bunting and Wagner in the premises, Haydon was aware that Bunting and Wagner were intending to kill her. Ultimately, whether the evidence is sufficient to support a conviction is a matter for the jury.
David Johnson (Count 8)
David Johnson was the stepbrother of Vlassakis. He was not a homosexual, however, Bunting, in the presence of Haydon, had referred to Johnson as a “faggot”. Johnson was killed by Bunting, Wagner and Vlassakis at the bank at Snowtown on 9 May 1999. Johnson’s body was then placed in the same barrel as Troy Youde in the bank vault. The pathologist was unable to determine the cause of death.
Some days before Johnson was killed, Vlassakis observed Bunting, Wagner and Haydon at Bundarra Court. Bunting was in the ceiling and came down with some handcuffs. There was a discussion in the laundry about Vlassakis getting Johnson to come to the bank. There was a further discussion in a bedroom when Bunting demonstrated to Wagner, Haydon and Vlassakis a sound forge program on his computer which enabled voices to be recorded and later manipulated. In the bedroom, Bunting spoke about taking Johnson to Snowtown that night.
Vlassakis describes how Johnson was lured to the bank by him, and there he was killed by Bunting. Johnson was grabbed from behind, Wagner grabbed him by the neck. The computer was set up in the bank and a recording was made of his voice. Details of his key card were obtained. Vlassakis and Wagner left the bank to check whether the details Johnson had given were correct. When they returned Johnson was dead. Wagner and Vlassakis then put Johnson’s body in a barrel.
After the murder, Bunting, Wagner and Vlassakis went to Haydon’s home in Johnson’s Nissan EXA motor vehicle. Haydon was present when Bunting offered to sell the car to Jodie Elliott. Subsequently, Haydon was also present when Bunting asked Jodie Elliott to receive a telephone call from Johnson’s girlfriend and to tell his girlfriend that Johnson could not come to the phone. The SIM card for the mobile phone that was used on that occasion was found in one of vehicles at Bundarra Court.
A large amount of property was collected by the police. Items in the bank were later located. An exercise book was found between the gap in the vault door and the black plastic. Inside the book in the handwriting of Bunting was a script. The voice recording of David Johnson was found on Bunting’s computer which was found at Bundarra Court. A large amount of Johnson’s property was found at Mofflin Road and Bundarra Court.
David Johnson’s Centrelink benefits were accessed on one occasion only. His PIN number is written in Bunting’s handwriting on the inside of the book that was found in the vault at the bank. The number was also programmed into Wagner’s mobile phone.
It is the prosecution case that Haydon must have known, or realised, that Johnson had been murdered. Haydon was leasing the bank, and it is the Crown case that Haydon must have known that bodies were stored at the bank in the vault.
Storage and movement of the barrels in the bank
I have earlier referred to the police entering the vault in the bank at Snowtown and discovering six barrels. Police and forensic experts removed the contents of each barrel and post mortem examinations were carried out. It was during this process that it was established that there were eight bodies in six barrels. Evidence independent of Vlassakis establishes that the bodies were those of Michael Gardiner, Barry Lane, Gavin Porter, Troy Youde, Fred Brooks, Gary O’Dwyer, Elizabeth Haydon and David Johnson.
Vlassakis provides the earliest reference to the barrels. Vlassakis says that his first knowledge of barrels was in about March or April 1998 when he was shown the body of Gavin Porter in the shed at 3 Burdekin Avenue. He was shown a barrel which contained two bodies, that being Gardiner and Lane. Vlassakis assisted Bunting in placing Porter’s body into a barrel. Vlassakis was present when Youde was murdered. According to Vlassakis, Haydon was also present, and after Youde had been killed at 3 Burdekin Avenue, his body was removed to the shed and put into a barrel. Haydon was present when this occurred. There were two barrels in the shed, and Youde was placed in a third barrel. The Crown submitted that it is open to infer that Haydon had knowledge that there were three barrels in the shed, and that those barrels contained bodies.
The next murder was that of Fred Brooks. He was placed in the boot of a white Torana. The Torana was towed away on a trailer attached to Haydon’s Landcruiser. Vlassakis next saw the barrels in Haydon’s shed at Blackham Crescent. It is the Crown case that shortly after the murder of Youde, the barrels containing the bodies of Lane, Gardiner, Porter and Youde, that had been stored at 3 Burdekin Avenue, had to be moved. Bunting was moving house from 3 Burdekin Avenue to 26 Burdekin Avenue, Murray Bridge. There was no shed at the new premises and so somewhere had to be found to store the bodies. The Crown submitted that the place was Blackham Crescent. Vlassakis and Bunting visited Haydon within a week of Vlassakis seeing the Torana on the trailer. Vlassakis saw the barrels in the back left corner of the shed. Brooks’ body was in the pit, and later in a barrel in the shed. It is the Crown case that after Brooks’ body was put in the shed. A few weeks later O’Dwyer’s body was taken and stored with the other victims.
Mrs Shaw submitted that it was not open to a jury to infer that Haydon was aware that there were bodies in the barrels stored in his shed. She submitted that for the Crown to prove its case by asking a jury to draw inferences from facts about the movement of bodies and barrels and from conversations was impermissible propensity reasoning, and to admit the evidence was contrary to the decision in Pfennig’s case. I do not agree, for the reasons I have given.
The Crown case is that after Elizabeth Haydon was murdered, she was also placed in a barrel at Blackham Crescent. The Crown case is that she was killed at Blackham Crescent. If a jury accepted that she was killed at Blackham Crescent, then it would be open to conclude that her body had also been stored in a barrel at Blackham Crescent. That inference is more likely to be drawn when the evidence of the movement of the barrels from Blackham Crescent to the Freeman’s premises at Hoyleton is considered.
The Crown case is that barrels were moved in a trailer that was attached to Haydon’s Landcruiser. Bunting had told Vlassakis that Elizabeth Haydon had been murdered, that her brother Garion Sinclair had reported her missing to the police, that the “shit had hit the fan” and the police were asking questions. A decision was made to move the barrels from Blackham Crescent. It is the Crown case that it would be open for a jury to conclude that, when police started to make inquiries and investigate the disappearance of Elizabeth Haydon, that a decision was made to move the barrels and bodies from Haydon’s premises to other premises of which the police were unaware.
The Crown submitted that the Landcruiser, containing five barrels was moved to the Freeman’s property at Hoyleton in about November 1998. The Landcruiser was parked at the bottom of the Freeman’s property, some distance from the house. A strong stench similar to that of rotting meat emanated from the car. The Freeman’s were told that there were drums in the Landcruiser which contained kangaroo carcasses. The Crown submitted that the sixth barrel, which was found in the bank at Snowtown, was taken by Bunting to Vlassakis house in Murray Bridge. It is submitted that the barrel was placed in the back of the Sigma in the backyard of Vlassakis’ home at 23 Burdekin Avenue. The Crown case is that it is possible to have stored five barrels in the Landcruiser, and it is open to a jury to conclude from the fact that six barrels were discovered at the bank, that those barrels were moved from Blackham Crescent at a time when the police started to make inquiries about Elizabeth Haydon. It is also open to the jury to conclude that Haydon would have known the contents of barrels which were in his Landcruiser, and which had been in his shed and removed from it.
In January 1999, the Freemans moved to 25 Railway Terrace, Snowtown. Bunting asked the Freeman’s whether he could store the Landcruiser at their new premises. They agreed. The disused State Bank is situated at 30 Railway Terrace, Snowtown and is on the opposite side of the road from the Freeman’s home, but some distance away because the road is divided by a large tract of land. It is the Crown case that in January 1999 Bunting and Haydon rented the bank. The rental agreement for the premises was in the names of John Bunting and Mark Lawrence of 4 Blackham Crescent, Smithfield Plains. Lawrence was Mark Haydon’s name before he married Elizabeth Haydon. At the time of renting the bank, no key had been provided to the vault. Bunting wanted to be able to lock the door so Deren Freeman assisted in fashioning a piece of wire to be used as a key. A similar shaped wire was found in the shed at Haydon’s home at Blackham Crescent.
On a number of occasions Haydon was seen at the bank and was present when the barrels were opened and inspected. Vlassakis’ evidence is that Haydon was present on two occasions when Vlassakis went to the bank. One of these occasions was when Bunting and Wagner mutilated the body of Youde.
I consider that it is open to a jury to infer that Haydon was aware of the contents of the barrels prior to the barrels being brought to the bank. It is open to infer that he assisted Bunting and Wagner by storing bodies in barrels at Blackham Crescent, transporting them in his vehicle to Hoyleton, and finally moving barrels to the bank, storing them there, which included the barrel from the Sigma, with the knowledge that they contained bodies of persons who had been murdered by Bunting and Wagner and that, at the time, he had the intention that Bunting and Wagner avoid apprehension or prosecution.
Other evidence upon which the Crown seeks to rely
Items in the bank
It is the Crown case that only four people accessed the vault, they being Bunting, Wagner, Vlassakis and Haydon. As to Haydon, there is evidence that his fingerprints were located on items both in the bank, outside the vault and on items inside the vault. There were five separate fingerprints on the counter in the bank and one on the internal doorframe. His fingerprints were found on a plastic garbage bag found inside the vault. Also inside the vault were disposable gloves. Gloves were found within a bag (BPM 44) in the vault, and one glove had a DNA profile consistent with Haydon. Also found in this bag was debris that the Crown say was collected up after the murder of Youde. Another garbage bag (BPM 59) contained amongst other items five disposable gloves with a DNA profile which matched Haydon’s DNA profile.
Property at Blackham Crescent
A Commonwealth Bank ATM balance inquiry receipt for Porter’s account which relates to a transaction at the Quik Service Station, Hillbank, on 8 October 1998 was found in the main bedroom at Blackham Crescent. An ANZ Bank ATM balance inquiry receipt relating to a transaction at BP Express, Munno Para, on 16 October 1998 was also found there. Both of these receipts post-date the date it is alleged that Porter was murdered. In addition, a lounge suite belonging to Gary O’Dwyer was found at Blackham Crescent. David Johnson’s vehicle was parked at the premises.
The shed at Blackham Crescent
In the garage at Blackham Crescent were located a number of letters and items. There was a Centrelink letter addressed to Porter at Post Office Box 387, Elizabeth, dated 19 August 1998, a Centrelink letter addressed to Porter at the same address, dated 14 August 1998 and a Centrelink concession card in the name of Porter with the address 14 Ferguson Street, Salisbury North. There was also a key which was found at Blackham Crescent in the shed which was fashioned to open the bank vault at Snowtown. A handcuff key was found in the pit at Blackham Crescent. A pair of disposable gloves, similar to disposable gloves found at the bank, were also found at Blackham Crescent.
The pit in the shed at Blackham Crescent
A Centrelink concession card in the name of Porter with the address 14 Ferguson Street, Salisbury North, was located in the shed at Blackham Crescent. A Medicare card in the name of Troy Youde, a health care card in the name of Troy Youde dated 4 April 1997, a doctor’s letter and appointment card for a CT scan in the name of Troy Youde, dated 4 September 1998, and a set of X-rays in Troy Youde’s name were also found in the shed and in the pit.
The Crown case is that it is open to infer from this evidence that there is a connection between Haydon and the bank at Snowtown. It is open to infer that Haydon was aware of what had been stored in the shed and pit, and he was aware of what had been stored at the bank.
Mrs Shaw submitted that it is not open to infer from this evidence, either alone or together with other evidence, that Haydon would have had knowledge of the contents of the barrels, and that he would have assisted Bunting and Wagner by agreeing to store the bodies at Blackham Crescent and move them to Hoyleton and, later, to Snowtown. Mrs Shaw submitted that to reason in that way amounts to impermissible propensity reasoning.
I do not agree.
Haydon’s Landcruiser
A number of items were located in Haydon’s Landcruiser, including a pair of disposable gloves and a strand of yellow nylon rope. Also found in the Landcruiser was a blanket identified as belonging to Barry Lane, a Centrelink letter addressed to Gavin Porter dated 23 April 1998, which post-dated the date of his alleged murder.
Motor Vehicle found in the garage at Blackham Crescent
In a motor vehicle in the name of Haydon, were found a number of items relating to Fred Brooks. In the glove box of the car was a notepad with the name Fred Brooks, and the date 7 March 1981. This was the date of birth of Brooks and his PIN number for his mobile phone. A Centrelink letter dated 12 April 1999, being a confirmation of a concession card entitlement in the name of Brooks at 26 Mofflin Road, Elizabeth, with Vlassakis’ fingerprints was located in the car. An appointment card in the name of Dr Khoo for 2.15 p.m. on 27 April was also found, as was a CPS Credit Union cardboard folder containing various paperwork in the name of Frederick Brooks, with an address of 36 Mofflin Road, Elizabeth. These documents post-dated the disappearance of Brooks.
In the front area of the car was found a health care card in the name of Fred Brooks, with the address of 36 Mofflin Road, Elizabeth, dated 26 February 1998 to 27 April 1998. Also found was a CPS Credit Union cash deposit printout in the name of F. Brooks, dated 27 April 1999, upon which Vlassakis’ fingerprints were located. A CPS Credit Union withdrawal slip in the name of F Brooks for $240, dated 14 May 1999, a handwritten poem signed Fred Brooks and addressed to “Helen”, a Centrelink account payable form in the name of Fred Brooks, dated 9 April 1999 and upon which Haydon’s fingerprints were located in the shed. A Farmer’s Union iced coffee carton containing a torn up Medicare form in the name of Fred Brooks, and three reconstructed Medicare assignment forms labelled Medicare 1, 2 and 3 in the name of Fred Brooks were also located in vehicles and in the shed.
Mrs Shaw submitted that to reason that Haydon would have known or would have been told of the contents of barrels within his shed, because of his knowledge of other killings, either of which he had direct knowledge, such as Youde or where he had been told, such as in the case of Brooks, is propensity reasoning and impermissible. I do not agree. In my view, it is open to a jury to infer from the fact that Haydon was storing barrels in his shed, from the fact that he was present at various conversations involving killings, and that he was involved in accessing benefits, that he had knowledge of the contents of barrels stored in his shed.
In my view, it is open to infer that Haydon was aware of and connected with the hiding of the bodies of Barry Lane, Gavin Porter, Troy Youde and Fred Brooks. It is also open to infer that there was a relationship between Bunting, Wagner, Brooks and Haydon from which it could be concluded that Haydon would have been made aware of the contents of barrels stored in the shed.
Anti-paedophile conversations in the presence of Haydon
Vlassakis gave evidence at the trial of Bunting and Wagner. He spoke of conversations when Haydon was present. Bunting would speak of his hatred of paedophiles and that they should be bashed. The conversations occurred when Vlassakis was aged about 14, and continued over the years. Vlassakis spoke of moving to an address at Richardson Avenue, Elizabeth South. Haydon would visit with Bunting from time to time. Bunting was, at that time, living at Waterloo Corner Road. Whilst Vlassakis was living at Richardson Avenue, Bunting commenced a relationship with Vlassakis’ mother, Christine Johnson. He and his mother moved to Waterloo Corner Road. The conversations about Bunting’s hatred of paedophiles continued during this period. During this time, Haydon would visit Bunting at Waterloo Corner Road. After Bunting moved from Waterloo Corner, the family lived at 3 Burdekin Avenue, Murray Bridge. Conversations continued about paedophiles and Bunting’s attitude towards them. On occasions, Haydon was present when Bunting expressed his hatred of paedophiles. Bunting would refer to paedophiles as “dirties” and “waste”.
Angela Freeman knew Vlassakis, Bunting, Wagner and Haydon. She first met Vlassakis in 1994 when he was about 14 years of age. She also met his mother, Christine Johnson. Mrs Freeman had gone to a house at Elizabeth to speak to Vlassakis about employing him. Whilst she was there, Bunting and Wagner arrived and she was introduced to them by Christine Johnson. She agreed to employ Vlassakis. From time to time she picked Vlassakis up and dropped him off. In late 1995, she and Christine Johnson had a disagreement, and she did not see Vlassakis again until Christmas 1997 when he came to the Freeman’s home. She then did not see him again until early 1999. She saw Bunting in January 1998 when he came to the Freeman’s home, accompanied by Wagner. She said that they would visit on occasions.
I reject the submission that to admit the evidence in respect of each count would invite the jury to reason in an impermissible way.
Cross-admissibility
The Crown contends that the facts in relation to each count are inextricably linked to one another. It is submitted that the evidence relating to each count is admissible in respect of other counts. The Crown case is that in relation to the charges of assisting offenders, the evidence is cross-admissible for the following purposes. The evidence is admissible to establish the relationship which existed between Bunting, Wagner, Vlassakis and Haydon in order to explain Haydon’s involvement, and to prove his knowledge and intention at the time it is alleged he was involved in the offending. It is also relevant to explain his reactions and his conduct. In order to establish the relationship it is submitted by the Crown that the evidence of association, conversations with Bunting, Wagner and Vlassakis on paedophile topics and about murders is relevant. Haydon’s presence at the Youde and Elizabeth Haydon murders is relevant. Evidence linking Haydon to property of victims, to accessing Centrelink benefits, to the storage of bodies and to his access to the bank vault is relevant to his involvement in the offences charged. Evidence of Haydon’s knowledge at the time of the Youde and Elizabeth Haydon murders is relevant. Haydon’s knowledge of other offences before and after each offence is relevant to establish the assisting offender counts.
It is submitted that the evidence in respect of the Youde count is admissible in respect of the Elizabeth Haydon count. The Crown accepted the Elizabeth Haydon evidence is not relevant to the Youde count. As to the Elizabeth Haydon count, it is submitted that his knowledge of previous murders is relevant to his intention and foresight. The evidence that Haydon told Bunting that he had spoken of the murder of Happy Pants to Elizabeth Haydon is relevant to a possible motive of Bunting to kill Elizabeth Haydon.
Counsel for Haydon submitted that the prosecution is raising a number of false issues. In considering whether the evidence in respect of one count should be permitted to be led in respect of other counts, it is necessary for the court to have regard to the real and substantial issues in the case. I agree that the court is required to consider the issues in the case in determining questions of admissibility. If the issue in the case was, for example, identity, and the evidence sought to be led is propensity evidence which demonstrates that the same person is likely to have committed offences in respect of different victims, but the evidence of the identity of the offender is weak then, in those circumstances, separate trials ought to be ordered.
The presence of Haydon at the murder is in issue. Also in issue is his state of knowledge and intention. I accept that the evidence as to his involvement in the Youde murder is the direct evidence of Vlassakis.
The evidence of Haydon’s participation in the Elizabeth Haydon murder is circumstantial, and depends upon the jury being satisfied that Elizabeth Haydon was murdered on the evening when Haydon took Jodie Elliott away from the house for several hours. The question of Haydon’s knowledge and intention is in issue. In that respect, his knowledge and participation in the Youde murder is relevant.
Counsel for Haydon submitted that the evidence of Haydon’s involvement in the Youde murder is not probative of the prosecution case that Haydon was a party to a plan to kill Elizabeth Haydon. It is submitted that knowledge of the murder after it was committed is not sufficient. It is put that false statements made to create the impression that Elizabeth Haydon was alive after she was killed are not sufficient to establish that Haydon was a party to a plan to kill her. Further, it is submitted that, in order for the statements to be treated as false statements, the prosecution need to establish that Elizabeth Haydon was killed by Bunting and Wagner whilst Haydon was absent with Jodie Elliott. It is submitted that the Crown argument is, therefore, circular. I reject the submission.
If a jury was satisfied that Elizabeth Haydon was murdered and, after her murder, Haydon knowingly made false statements about her disappearance, then that is evidence from which it could be concluded that he was a party to a pre-existing plan to kill her. The knowledge of Bunting and Wagner’s role in the Youde murder would be relevant and probative of Haydon’s state of knowledge and foresight when he left Elizabeth Haydon alone with Bunting and Wagner.
Counsel submitted that the counts of murder should not be heard together, as evidence of the Elizabeth Haydon murder is not cross-admissible in respect of Youde. On the assumption that her submission about cross-admissibility is correct, I do not accept the submission that before the counts can be tried together there must be cross-admissibility in respect of each. It is sufficient if the evidence of the Youde murder is cross-admissible in respect of the Elizabeth Haydon murder.
Counsel for the Crown submitted that the issue of cross admissibility is not essential to whether the Troy Youde and Elizabeth Haydon murders are properly joined. The Crown submitted that the Court in R v Liddy[29] recognised that cross-admissibility would be sufficient but not an essential element for joinder. The Crown referred the Court to the decision in R v Smith[30] where the Court held that the charges had been properly joined. One of the matters considered by the court was whether charges of assault occasioning actual bodily harm, robbery with violence in a premises and one count of rape committed on three different elderly women were a series of offences and were properly joined on one information. Fingerprint evidence was found at two of the premises where offences occurred, and at the third premises DNA evidence was found.
[29] (2002) 81 SASR 22 at [119]
[30] (1998) 71 SASR 543
The Court in Smith held that the counts were properly joined. The appeal succeeded in respect of two counts on other grounds. The Crown submitted that the DNA evidence in this case illustrates that it is not essential that there be cross-admissibility both ways. In this respect Perry J, with whom the members of the Court agreed, said:
“Putting it another way, where may not have been a strong case for cross-admissibility of the evidence of the Taylor and Wallace counts vis-à-vis the trial of the White count absent the DNA evidence tending to implicate the appellant in the White count, notwithstanding Mrs White’s albeit fleeting description of her assailant, and the similarities in the circumstances of each of the three offences. But given those items of evidence and the DNA evidence, it seems to me that it was within the discretion of the learned trial judge to permit a joint trial of all the counts associated with the three incidents in question.”[31]
[31] Ibid at 553-554
The evidence of Haydon’s participation in the Youde murder is cross-admissible on the counts of assisting offenders. In my view, if a jury were satisfied that he participated in the Youde murder, that would be relevant to his knowledge and belief about the deaths of Gardiner, Lane, Porter, Brooks, O’Dwyer and Johnson.
Corroboration
Counsel for Haydon submitted that, in respect of Vlassakis’ evidence, there will need to be a corroboration warning. I agree.
She contended that in directing the jury as to what evidence is capable of corroborating Vlassakis’ evidence in respect of one count, if all counts are joined there is a danger that the jury will misuse that evidence in respect of the evidence of Vlassakis’, on counts where his evidence is uncorroborated.
It is unnecessary for me to determine at this stage whether there is evidence capable of corroborating Vlassakis and in respect of which counts that evidence might exist. Until the evidence has been addressed, it is not possible to finally conclude what evidence is capable of corroborating Vlassakis’ evidence, and in respect of which count.
For the purpose of this ruling, I will assume that in respect of a number of the assisting offender counts there is corroboration of Vlassakis’ evidence. As I understand counsel’s submission, if the counts are heard together then Haydon will be prejudiced, because there is a real risk that, in relation to counts where Vlassakis’ evidence is not corroborated, or the evidence is weak, the jury may misuse evidence which corroborates his evidence on other counts to support his evidence on those counts, where there is no corroboration.
Counsel for Haydon put her submission as follows:
“Then the question of corroboration of Vlassakis’ proposed evidence; Martin J separated Mr Haydon primarily on the basis that Vlassakis’ evidence was critical to implicating him in the Troy Youde murder because of course, he doesn’t implicate my client in the other murder – that’s a massive difference between the two murder cases – and the jury would hear Vlassakis being corroborated when he implicates Bunting and Wagner in a number of counts, but Martin J considered that as far as Vlassakis saying that Haydon was implicated in the Youde count, he was not implicated in the sense of corroboration as the law knows it. At law, uncorroborated in relation to Youde. If he is corroborated in relation to other counts against Bunting and Wagner, how can Haydon receive a fair trial, because the jury will have had this reinforcement of his credibility in relation to charges where Haydon is not implicated. We address the issue of corroboration. We say that’s a critical issue that must be considered in relation to joinder, because in relation to the various counts on the charge of murder of Troy Youde we say Vlassakis is not corroborated. In relation to the murder of Elizabeth Haydon, Vlassakis’ evidence, is in effect that Haydon was not involved in the murder of Elizabeth Haydon. He tells the interviewer that his understanding is the murder happened on the Monday, and according to the Crown case, it happened on the Saturday. So if anything Vlassakis’ evidence assists Haydon on the Elizabeth Haydon count. I say that because it demonstrates the diametrically different issues in relation to Youde and in relation to Haydon. In Youde the issue is is Vlassakis telling the truth, is he corroborated when he says Haydon was there at the time of the Youde murder? In relation to Elizabeth Haydon the Crown says, “We say circumstantially he must have been a party to a plan, we have got no direct evidence he was”.”
The characterisation of the issues in each case overlooks the fact that in both cases the issue is whether Haydon was a participant with Bunting and Wagner, and his knowledge of the involvement of Bunting and Wagner in other murders, and his intention in each case.
Counsel for Haydon referred to the decision of Martin J in R v Bunting & Others (No 3), where he said:
“Even if the Crown was permitted to lead all the evidence that the Crown argued is admissible against Haydon on two counts of murder, in a joint trial the jury would be faced with a large volume of evidence relating to ten other murders which would not be admissible against Haydon. That evidence includes gruesome details of some of the murders including torture, methods of killing and dismemberment of bodies. Notwithstanding that evidence in connection with Youde would involve evidence of torture and dismemberment, the impact of the volume of gruesome evidence not admissible against Haydon must be carefully considered.
The Crown will lead evidence against Bunting and Wagner designed to establish that they were in the business of killing and of reaping financial rewards from the murders. As I have indicated, I am tentatively of the view that the Crown will be entitled to invite the jury to reason by way of propensity to kill in respect of Bunting and Wagner. However, that line of reasoning is not available in the case against Haydon. The difficulty for a jury of isolating that line of reasoning and limiting it to Bunting and Wagner would be exacerbated by the fact that the jury would be invited to find that Haydon was trusted with knowledge of murders, was involved in committing two murders with Bunting and Wagner, was involved in the movement and storage of bodies and was involved in the activities at the bank. The difficulty of avoiding reasoning to guilt by association or propensity is obvious.
There is a further feature that is to be considered in conjunction with the matters to which I have referred. It concerns the evidence of Vlassakis. His evidence is critical in the case against Haydon with respect to the murder of Youde. Vlassakis has admitted committing four crimes of murder. He sought to use his co-operation with the authorities as a factor in mitigation of penalty. He has admitted knowledge of all murders and admitted engaging in numerous frauds and deceptions in respect of a number of deceased. The credit of Vlassakis is critical in the cases against all accused. An accomplice warning and corroboration directions will be necessary.
The evidence of Vlassakis implicating Bunting and Wagner in all of the murders is supported in a number of respects. It is unnecessary for present purposes to canvass the details of the support with respect to each count. Nor is it necessary to identify how much of that supporting evidence amounts to corroboration. It is sufficient to observe that there is a considerable volume of evidence which, if accepted, provides corroboration and general support for significant parts of the evidence that Vlassakis will give against Bunting and Wagner. In this context it is to be remembered that Vlassakis is giving evidence concerning twelve murders and associated events occurring over a period of approximately seven years.”[32]
[32] (2003) 230 LSJS 410 at 482-483 [445-448]
Counsel submitted that Martin J’s comments are relevant to a joint trial in respect of counts where Vlassakis may be corroborated on some counts but not on others, particularly in the case of Youde where the Crown case relies on Vlassakis who, it is submitted, is uncorroborated.
Counsel for the Crown takes issue with Mrs Shaw’s contention that there is no evidence capable of corroborating Vlassakis in respect of the Troy Youde murder. For the moment, I will assume that Vlassakis’ evidence in respect of the Youde murder is uncorroborated.
As to Martin J’s reasons, the case presented against Haydon is not comparable with the circumstances with which Martin J was dealing. Martin J was faced with a lengthy and complex trial, and with evidence against Bunting and Wagner which was not admissible against Haydon, and about which Martin J was required to give detailed directions. In particular, as to Vlassakis’ evidence, the question of whether his evidence was corroborated in respect of Bunting and Wagner’s involvement in many of the murders of which Haydon was not charged was an issue, particularly when considering only two charges of murder against Haydon. Further, as to the murder of Youde, there may have been evidence which corroborated Vlassakis’ evidence as to Wagner and Bunting’s involvement, which did not corroborate Vlassakis in respect of Haydon’s involvement.
Martin J referred to R v Demirok and observed that the existence of the difficulty does not necessarily mean that separate trials should be ordered. Martin J observed:
“The matter under consideration is quite exceptional. I have already referred to the horrific nature and volume of evidence inadmissible against Haydon that would be led against Bunting and Wagner on a joint trial. As I have indicated, the evidence of Vlassakis is not confined to a single incident or a relatively short period of time. It covers a period of approximately seven years and deals with twelve murders and associated events. Propensity reasoning might be applicable to Bunting and Wagner, but not to Haydon. In the particular circumstances, it would be extraordinarily difficult if not impossible for a jury to ignore the enhancement of the credit of Vlassakis through evidence inadmissible against Haydon when considering the credibility of the version given by Vlassakis that Haydon was present at the murder of Youde and participated in the beating of Youde.”[33]
[33] Ibid at 485 [459]
The decisions in R v Demirok,[34] R v Gibb & McKenzie,[35] and R v Jones[36] referred to by Martin J were all cases of trials of two accused in which inadmissible evidence against an accused implicating that accused in the crime was led. In each case, the court concluded that there had been a miscarriage of justice because the inadmissible evidence was of such significance that the appellant in each case could not have received a fair trial. The cases were distinguishable from the present case, as they dealt with evidence in respect of one accused which was not admissible against another. Although it is necessary to consider the evidence in respect of each count separately and the jury will have to consider Vlassakis’ evidence in respect of some counts where there is no corroboration and in respect of others where there is corroboration, the situation is, in my view, different and distinguishable.
[34] [1976] VR 244
[35] [1983] 2 VR 155
[36] (1991) 55 A Crim R 159
Martin J, being faced with a joint trial, only separated the trial of Haydon after considerable hesitation. It was a combination of factors, coupled with the complexity of the directions, that finally persuaded Martin J to separate Haydon’s trial from that of Bunting and Wagner.
The difficulties faced by Martin J are far less complex in the trial of Haydon alone. There are a lesser number of offences and one accused. I do not suggest that the issues may not be complex, but I consider that a jury can be directed about the evidence and what evidence may be capable of corroborating Vlassakis’ evidence and in respect of which charges, and how that evidence can be used. The jury can be directed, and I am confident will understand, not only how evidence can be used, but also how it is impermissible to use evidence in respect of one count as evidence to support another count.
Counsel for Haydon submitted that in a trial in which all the counts are joined, evidence of the murders of victims when Haydon was not involved in those murders, and evidence of his involvement in assisting to place bodies in barrels, and the evidence of the involvement of others in conduct in which Haydon played no part, will result in a real risk that Haydon will be convicted as a result of his association with Vlassakis, Bunting and Wagner. In other words, evidence which will be led to prove the murders in cases in which Haydon is not alleged to have participated in the murder will so infect the jury that it will be impossible for Haydon to receive a fair trial in respect of the two murder counts. It was submitted that the directions necessary in a trial of all charges would be so complex that it would not be possible for Haydon to receive a fair trial. I do not agree.
The relationship between Bunting, Wagner, Vlassakis and Haydon is, in my view, relevant when considering each count. The evidence is relevant to explain the conduct of Vlassakis and explain how the relationship between Bunting, Wagner, Vlassakis and Haydon developed and their respective roles in the offences alleged against Haydon.
I am confident that a jury will be capable of understanding a direction as to how to use evidence, and will not misuse evidence nor reason in an impermissible way. I am reinforced in my view, having regard to the fact that in the Bunting and Wagner trial the counts were heard together, that trial being a lengthy, complex trial involving two accused and involving the consideration of more counts than those with which Haydon is now faced.
Abuse of process
Counsel for Haydon submitted that in proceeding with the six counts of assisting offenders, together with the two counts of murder, that amounts to an abuse of process. The submission is that Martin J, having decided to order separate trials in respect of the murder counts, the Crown was now introducing six further counts of assisting offenders which relate to the original murder charges with which Haydon was charged, and which Martin J permanently stayed. In effect, it is put that Martin J, having made that determination, the Crown were subverting his ruling by including the charges of assisting offenders.
Counsel for Haydon relied upon Rogers v The Queen.[37] That was a case where, in a trial in 1989 charging four counts of armed robbery, the trial judge excluded evidence of three records of interview on the ground that they had not been made voluntarily. Subsequently, the accused was indicted on a further eight counts of armed robbery. The Crown sought to lead the records of interview which had previously been excluded. The High Court by majority (Mason CJ, Deane and Gaudron JJ) held that the tender of the records was a direct challenge to the earlier ruling and, therefore, amounted to an abuse of process. Mason CJ said:
“ … The tendering of the confessions by the prosecution was vexatious, oppressive and unfair to the appellant in that it exposed him to re-litigation of the issue of the voluntariness of the confessional statements in the records of interview. This issue had already been conclusively decided in the appellant’s favour because the confessions sought to be tendered – although relating to different crimes – were made at the same time and in exactly the same circumstances as the confessions that were the subject of the voir dire. Re-litigation in subsequent criminal proceedings of an issue already finally decided in earlier criminal proceedings is not only inconsistent with the principle that a judicial determination is binding, final and conclusive (subject to fraud and fresh evidence), but is also calculated to erode public confidence in the administration of justice by generating conflicting decisions on the same issue …”[38]
[37] (1994) 181 CLR 251
[38] (1994) 181 CLR 251 at 256-257
Deane and Gaudron JJ agreed. They said:
“Strictly, the 1989 ruling on voluntariness was concerned only with those parts of the records of interview relevant to the offences for which the appellant then stood trial. However and as already indicated, the statements which the prosecution wishes to tender in the appellant’s forthcoming trial are, so far as voluntariness is concerned, exactly the same as those tendered in the 1989 proceedings. In the circumstances, tender of the records of interview constitutes a direct challenge to the 1989 determination which was a final determination, or became so, once verdicts were returned. The challenge is one which invites “the scandal of conflicting decisions” (37). And it jeopardises public confidence in the administration of justice: in a context where the onus of proof would be the same and where there is no claim of “fresh evidence” or fraud, a determination that the confessions were made voluntarily would undermine the incontrovertible correctness of the verdicts of acquittal returned in 1989; equally, there would be a shadow over any conviction on the charges in the present indictment if confessional statements are admitted in evidence notwithstanding the earlier judicial determination that the circumstances in which they were made did not support a finding of voluntariness.
The course proposed by the prosecution amounts to an abuse of process …”[39]
[39] Ibid at 280
There is no such abuse in this case. Martin J made no determination as to the propriety of a trial on the information now before the court. Counsel for the Crown accepted that it was open to have submitted to Martin J that the trial against Haydon should have proceeded on the alternative counts of assist offenders in respect of the counts of murder which he ordered to be stayed. No such submission was made. Therefore, Martin J did not consider whether charges of assist offenders could proceed jointly with the Youde and Elizabeth Haydon murder counts. He specifically determined that it was unnecessary to decide whether a single trial of the Youde and Elizabeth Haydon counts is permissible; see: [461] of Martin J’s Ruling No. 3. I reject the submission.
The request for further particulars in respect of the assist offender counts
The accused sought orders that the Crown provide further particulars of what act or acts the accused is alleged to have performed which constitute the actus reus of each count, and that the Crown provide further particulars of what mens rea it contends the accused had in relation to the commission of each count, the factual basis of that contention, and the evidence the prosecution will rely upon to support these contentions.
Counsel for Haydon submitted that the Crown should provide the factual basis of its contention and identify the evidence upon which the prosecution relies to support its contention. Sections 241(1) and (2) of Criminal Law Consolidation Act provides:
“(1) Subject to subsection (2), a person (“the accessory”) who, knowing or believing that another person (“the principal offender”) has committed an offence, does an act with the intention of –
(a) impeding investigation of the offence; or
(b) assisting the principal offender to escape apprehension or prosecution or to dispose of proceeds of the offence,
is guilty of an offence.
(2)An accessory is not guilty of an offence against subsection (1) –
(a) unless it is established that the principal offender committed –
(i)the offence that the accessory knew or believed the principal offender to have committed; or
(ii)some other offence committed in the same, or partly in the same, circumstances; or
(b) if there is lawful authority or a reasonable excuse for the accessory’s action.”
In order for the offence to be established, the Crown must prove:
(1) That the principal offender or offenders committed the offence, or some other offence that the accessory knew or believed the principal offender or offenders had committed.
(2) And having that knowledge or belief, the accused did an act or acts with the intention in this case of assisting the principal offender or offenders to escape apprehension or prosecution.
The Crown must therefore establish in respect of each count that Bunting and Wagner murdered the person referred to in the particulars relating to that count. As to Haydon, the Crown must prove that he knew or believed the person had been murdered. It is not necessary, in my view, that he had to have knowledge of the identity of that person. Haydon must then do an act with the intention of assisting the principal offender or offenders.
It follows that, at the time of doing the act, Haydon must have knowledge or belief that a murder has been committed and he must possess the requisite intent to assist the offender to avoid apprehension or prosecution. Counsel submitted that the accused is entitled to particulars of the act and when it is alleged to have occurred.
In response, counsel for the Crown submitted that for the Crown to establish the offence, it does not have to say at what minute or day the accused gained knowledge and formed the intention of committing the offence. I agree. However, in order to prove the offence, the act or acts which constitute the offence and the time at which such act or acts are said to have occurred, will need to be identified. A jury is required to consider the intention of the accused at that point in time and, therefore, the jury must be satisfied that when the act or acts took place the accused had the requisite knowledge or belief and intention.
The Crown has provided the accused with sufficient detail of the evidence upon which the Crown relies. That detail has been provided both in the outlines of argument and the oral argument. In my view, it is necessary for the Crown to identify the act or acts in respect of each count of assisting offender upon which the prosecution relies. In the case of some counts, the act or acts may have occurred over a period of time. For example, the prosecution may allege that, in respect of Gardiner, Lane, Porter, Brooks and O’Dwyer, that the act or acts was storage of the bodies in barrels at Blackham, or it might be alleged that it was storage of the barrels at Snowtown in the vault or the act of leasing the bank, or the act of moving barrels from Blackham to Hoyleton, or any combination of those acts. As to Johnson, the act may not be the same act as in respect of the other counts. In my view, particulars of the act or acts in respect of each count of assisting offenders should be provided, and I therefore direct that to be done.
As to the various applications, I conclude that the counts are properly joined, and I therefore decline to quash the information. I have considered whether, in the exercise of my discretion, the trials on each or any of the counts should be heard separately. In particular, I considered whether the trials of the counts of murder should be separately heard from one another and from the assisting offender counts. I also considered whether the assisting offender counts should be heard separately from the counts alleging murder.
In considering my discretion, I had regard to a number of other matters that were put to me by counsel, both for the accused and the Crown relating to the length of the trial, the inconvenience to witnesses having to give evidence on more than one occasion, and the length of time that Haydon had been held in custody awaiting trial.
I conclude that all charges should be heard together, and I decline to exercise my discretion to order separate trials.
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