R v Haydon (No 3)

Case [2005] SASC 17

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 17

SULAN J

Introduction

  1. 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…

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AGLC
R v Haydon (No 3) [2005] SASC 17
Case
[2005] SASC 17
Decision Date

CaseChat Overview and Summary

The case of R v Haydon (No 3) involved the accused, Haydon, who was charged with two counts of murder and six counts of assisting offenders. The accused sought a ruling that the murder charges and the assisting offender charges be tried separately. The Crown opposed this, arguing that the charges were inextricably linked and that a joint trial was appropriate. The central legal issue was whether a joint trial would result in impermissible prejudice to the accused, preventing a fair trial.

The court considered several factors, including the risk of prejudice, the ability of the jury to understand and apply directions in a single trial, the volume of material and length of the trial, the risk of guilt by association, and the admissibility of relationship evidence. The court concluded that the evidence of Haydon’s participation in one of the murders was cross-admissible on the counts of assisting offenders, and that there was a risk of prejudice if the charges were tried together. The court also noted that there was a need for a corroboration warning regarding the evidence of one of the co-accused. Therefore, the court ruled that the charges should be tried separately to avoid any potential prejudice to the accused.

The final orders included that the charges of murder and assisting offenders be tried separately, and that appropriate directions be given to the jury to prevent any misuse of corroborated evidence. The court also noted that the issue of corroboration would need to be addressed further during the trial.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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 relyItems 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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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”.”