R v Haydon (No 6)
[2005] SASC 20
•21 January 2005
SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v HAYDON (No 6)
Reasons for Ruling of The Honourable Justice Sulan
21 January 2005
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - AVERMENTS - UNCERTAINTY, DUPLICITY AND AMBIGUITY
PRACTICE AND PROCEDURE - TRIAL - DUPLICITY - GENERAL RULE
Accused charged with two counts of murder and six counts of assisting offenders - accused submits that the particulars in the information fail to identify the act or acts that comprise the actus reus in the assisting offender counts - whether actus reus contained in each count are "continuing acts" - whether information is duplicitous.
Summary Procedure Act 1921 (SA), s 224(1), referred to.
R v Zampogna (2003) 138 A Crim R 368; S v The Queen (1989) 168 CLR 266; Walsh v Tattersall (1996) 188 CLR 77; Director of Public Prosecutions v Merriman [1973] AC 584, considered.
R v HAYDON (No 6)
[2005] SASC 20
SULAN The accused, Mark Ray Haydon (“Haydon”) made an application that the trial in respect of six counts of assisting offenders, with which he is charged, be stayed. The basis of the application is that the charges as presented are duplicitous, and the Crown has failed to sufficiently particularise each count. The accused complains that the particulars fail to identify the act or acts that comprise the actus reus.
The information
The accused is charged with two counts of murder and six counts of assisting offenders. He was presented upon information charged with 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.Background
The accused was arrested on 21 May 1999 after police discovered six barrels in a bank vault at Snowtown. The barrels contained the bodies and remains of eight people. Post-mortem examinations established the identifies of the bodies in the various barrels. The bodies were identified as Michael Gardiner, Barry Lane, Gavin Porter, Troy Youde, Fred Brooks, Gary O’Dwyer, Elizabeth Haydon and David Johnson. It is the Crown case that John Justin Bunting (“Bunting”), Robert Joe Wagner (“Wagner”), James Spyridon Vlassakis (“Vlassakis”) and the accused had a role to play in either the commission of each of these murders, or in concealing the bodies of the victims. In relation to the counts of assisting offenders, it is alleged that the accused was actively involved in hiding the victims’ bodies and concealing them with the intention that those who committed the murders avoid apprehension or prosecution.
It is the Crown case that Bunting and Wagner murdered Gavin Porter. His body was stored in a barrel at Bunting’s house at 3 Burdekin Avenue, Murray Bridge. The bodies of Barry Lane and Michael Gardiner, who had been murdered at an earlier time, were already stored together in another barrel in the shed. It is the Crown case that Troy Youde was the next murdered. It is alleged that Bunting, Wagner, Vlassakis and Haydon were jointly involved in his murder. Youde was murdered at 3 Burdekin Avenue and his body was eventually placed in a barrel and stored with the other barrels at 3 Burdekin Avenue.
It is the Crown case that after the Troy Youde murder the three barrels containing the bodies of Barry Lane, Michael Gardiner, Gavin Porter and Troy Youde had to be moved from 3 Burdekin Avenue. Bunting was moving house to 26 Burdekin Avenue, Murray Bridge. There was no shed at the new premises so another location had to be found to store the bodies. The Crown alleges that the new storage place was the accused’s house at 4 Blackham Crescent, Smithfield Plains. It is the Crown case that the accused agreed that the barrels could be stored there.
Some time after the three barrels were moved, Fred Brooks was murdered. It is the Crown case that he was murdered at 3 Burdekin Avenue at about the time that Bunting had moved house. The lease on 3 Burdekin Avenue had not yet terminated. Haydon was not directly involved in Brooks’ murder but he assisted Bunting, Wagner and Vlassakis by removing Brooks’ body from 3 Burdekin Avenue. After Fred Brooks was murdered, Wagner and Vlassakis put his body in garbage bags and then into the boot of his car, a white Torana which was parked at 3 Burdekin Avenue. This vehicle had originally belonged to Haydon. Bunting’s then de facto wife had purchased it, but had only made a part payment. Bunting offered to return it to Haydon. About two days after Brooks’ murder, the accused arrived in his four-wheel drive Land Cruiser towing a car trailer. Bunting and Haydon loaded the Torana, with Brooks’ body in the boot, on to the trailer and they drove the car away. Brooks’ body was then stored in a pit in the shed at 4 Blackham Crescent. The other bodies were being stored in barrels in the shed. Some days later, a fourth barrel was purchased and Brooks’ body was placed in it and stored with the other barrels in the shed.
Within a month of Fred Brooks being murdered, Bunting, Wagner and Vlassakis murdered Gary O’Dwyer. O’Dwyer was murdered in his own house at 23 Francis Street, Murray Bridge. The Crown alleges that his body was taken from Francis Street and stored with the other bodies at Blackham Crescent. It is the Crown case that at the time that his body was stored at Blackham Crescent, there were already five bodies stored there.
The next murder was that of the accused’s wife, Elizabeth Haydon. It is the Crown case that Bunting, Wagner and Haydon were involved in the murder. The Crown case is that she was murdered at Blackham Crescent. It is alleged that Haydon was not present at the time of her murder, but that he was party to a plan to murder her and assisted in the implementation of the plan by taking Elizabeth Haydon’s sister away from the house to enable the murder to take place. It is alleged that her body was stored in the shed at Blackham Crescent and was found in a barrel in the vault at Snowtown.
Elizabeth Haydon was reported as missing by her brother, Garion Sinclair, on 25 November 1998. It is the Crown case that between the police contacting the accused on 26 November 1998 concerning the disappearance of his wife and a search by the police at 4 Blackham Crescent on 1 December 1998, Bunting, Wagner and Haydon removed the bodies of seven victims from the premises at 4 Blackham Crescent. It is alleged that five barrels, which contained six bodies and property of the victims, were loaded into Haydon’s Land Cruiser and the vehicle was placed on a trailer and towed from the premises. One barrel with one victim was taken to Murray Bridge, where it was stored in a Sigma motor vehicle at premises leased by Vlassakis at 23 Burdekin Avenue, Murray Bridge.
The Land Cruiser was stored at the home of friends of Bunting, named Angela and Deren Freeman. The Freemans lived on a farm at Hoyleton and the Land Cruiser was stored at the bottom of the property some distance from the house. In the back of the Land Cruiser were five barrels covered by blankets.
In January 1999, the Freemans moved from Hoyleton to 25 Railway Terrace, Snowtown. The Freemans agreed to store the Land Cruiser at their new premises. Angela Freeman complained about the smell emanating from the Land Cruiser and asked Bunting to move it. That same month, it is the Crown case that Bunting and Haydon approached the owners of the disused bank at Snowtown for the purpose of renting the bank to store the barrels. On 10 February 1999, Haydon and Bunting signed a rental agreement to rent the bank. It is alleged that after the bank was rented, Bunting and Wagner, with the use of a trailer removed the contents of the Land Cruiser and moved them to the bank. The barrels were stored in the bank vault. After that time, Bunting, Wagner, Vlassakis and Haydon were all seen to visit Snowtown and the bank. According to Vlassakis, Haydon went into the vault where the bodies were stored on at least one occasion, when some of the barrels were opened. The Crown case is that Haydon knew of the contents of the barrels.
In May 1999, David Johnson was murdered at the bank in Snowtown. It is the Crown case that Bunting, Wagner and Vlassakis murdered Johnson. The Crown do not allege that Haydon was present at the murder of Johnson, but say that he was aware before the murder that Johnson may be a victim and, after the murder of Johnson, he permitted the bank to be used to store Johnson’s body. Johnson’s body was placed in a barrel with another body.
It is the Crown case that not only was Haydon involved in the concealing and storing of the bodies, and the leasing of the bank at Snowtown, but he was involved in telling false stories, accessing some of the victims’ benefits and storing property of some of the victims.
Bunting and Wagner were also arrested.
Bunting and Haydon were charged jointly with twelve counts of murder alleged to have been committed between December 1995 and May 1999. Wagner was charged jointly with eleven counts of murder and with assisting an offender in respect of the twelfth count. Vlassakis was also charged with a number of murders. After the preliminary hearing, Vlassakis pleaded guilty to the murders of Youde, Brooks, O’Dwyer and Johnson. He agreed to give evidence in the trials of Bunting, Wagner and Haydon. Prior to the empanelment of the jury, each accused sought an order that they be tried separately from the other accused. Martin J ruled that Haydon be tried separately from the other accused. He stayed the trial in respect of all charges of murder alleged against Haydon, other than three murders of Clinton Trezise, Troy Youde and Elizabeth Haydon, which he ordered to be separately tried. The trial against Bunting and Wagner proceeded and resulted in the conviction of Bunting of eleven counts of murder, and the conviction of Wagner of ten counts of murder and one count of assisting offenders. Subsequently, the Director filed an information charging Haydon with the offences with which he now stands charged.
On 4 May 2004, the accused pleaded not guilty to all counts. Prior to a jury being empanelled, I heard various Rule 9 applications. Mrs Shaw QC for the accused made an application that the Crown identify the actus reus of each charge at the point in time when it is said that the knowledge and intention required for proof of the charge coincides with the actus reus. Prior to the trial commencing I made various rulings including an order that the Crown identify the act or acts upon which the prosecution relies to establish the offence in respect of each charge. The Crown provided the following particulars:
“Re: MARK RAY HAYDON – PARTICULARS
COUNT 1
It is alleged that Mark Ray Haydon between the 25th August, 1998 and the 21st May, 1999 at Smithfield Plains, Snowtown or other places knowing or believing that John Justin Bunting and/or Robert Joe Wagner had murdered Michael James Gardiner, did an act or acts namely storing, or permitting the storage of Michael Gardiner’s body with the intention of assisting the said John Justin Bunting and/or Robert Joe Wagner to escape apprehension or prosecution.
COUNT 2
It is alleged that Mark Ray Haydon between the 25th August, 1998 and the 21st May, 1999 at Smithfield Plains, Snowtown or other places knowing or believing that John Justin Bunting and/or Robert Joe Wagner had murdered Barry Wayne Lane, did an act or acts namely storing, or permitting the storage of Barry Lane’s body with the intention of assisting the said John Justin Bunting and/or Robert Joe Wagner to escape apprehension or prosecution.
COUNT 3
It is alleged that Mark Ray Haydon between the 25th August, 1998 and the 21st May 1999, at Smithfield Plains, Snowtown or other places knowing or believing that John Justin Bunting and/or Robert Joe Wagner had murdered Gavin Porter did an act or acts namely storing, or permitting the storage of Gavin Porter’s body with the intention of assisting the said John Justin Bunting and/or Robert Joe Wagner to escape apprehension or prosecution.
COUNT 5
It is alleged that Mark Ray Haydon between the 16th September, 1998 and the 21st May, 1999 at Smithfield Plains, Snowtown or other places knowing or believing that John Justin Bunting and/or Robert Joe Wagner and/or James Spyridon Vlassakis had murdered Fred Brooks did an act or acts namely storing, or permitting the storage of Fred Brooks’ body with the intention of assisting the said John Justin Bunting and/or Robert Joe Wagner and/or James Spyridon Vlassakis to escape apprehension or prosecution.
COUNT 6
It is alleged that Mark Ray Haydon between the 27th October, 1998 and the 21st May, 1999 at Smithfield Plains, Snowtown or other places knowing or believing that John Justin Bunting and/or Robert Joe Wagner and/or James Spyridon Vlassakis had murdered Gary O’Dwyer did an act or acts namely storing, or permitting the storage of Gary O’Dwyer’s body with the intention of assisting the said John Justin Bunting and/or Robert Joe Wagner and/or James Spyridon Vlassakis to escape apprehension or prosecution.
COUNT 8
It is alleged that Mark Ray Haydon between the 8th May, 1999 and the 21st May, 1999 at Snowtown knowing or believing that John Justin Bunting and/or Robert Joe Wagner and/or James Spyridon Vlassakis had murdered David Johnson did an act or acts namely storing, or permitting the storage of David Johnson’s body with the intention of assisting the said John Justin Bunting and/or Robert Joe Wagner and/or James Spyridon Vlassakis to escape apprehension or prosecution.”
Defence submissions
Counsel for Haydon complains that the particulars set out in the document fail to identify the act or acts the accused is alleged to have committed to satisfy the actus reus of the offence of assisting offender in each count. Counsel further submits that the Crown has failed to identify the point in time at which the act or acts coincide with the requisite knowledge, belief or intention required to commit the offence. She submits that the failure by the prosecution to particularise the act or acts prejudices the accused as he remains unable to understand the reasoning process that the prosecution is employing to support its case. It is not possible therefore to determine what evidence is relevant and admissible to prove each charge of assisting offenders. Counsel submits that until the Crown identifies such act or acts then the assist offender counts should be stayed.
DPP submissions
Counsel for the Crown submits that the act or acts that make up the actus reus in each count of assisting offenders is a continuing act over a period of time rather than several separate acts. She submits that it does not follow that because the bodies were moved from one location to another there is more than one continuous act of concealment. For example she contends that if a barrel had been moved from the shed that would not constitute a separate act of concealment. She submits that the word concealment is interchangeable with the act of “storage or permitting to store the barrels”. She submits that the jury would have to be satisfied beyond a reasonable doubt that there was an act of concealment coupled with the requisite knowledge and intention. She submits the jury would not have to be satisfied beyond reasonable doubt that the concealment was in the shed at Blackham Crescent or in a car or in the bank, because it is the act of concealment which is the relevant act and that can be continuous over a period of time.
Counsel submits that the act constituting the actus reus commences upon the accused being a party to receiving a body in each case. She submits that the Crown is not required to prove knowledge or belief on the particular date of receiving the body because it is a continuous act. She submits that if the jury is satisfied that Haydon knew at any time up to and including the time when the bodies were stored at Snowtown that the body the subject of any count was being stored, then that would be sufficient. If the accused knew on 20 May 1999 when the bodies were discovered by police at the bank that the bodies were being stored, and if he knew or believed that Bunting and/or Wagner had murdered the person, then that would be sufficient to satisfy the charge if he intended to assist the murderers to escape apprehension.
In response to these submissions, counsel for Haydon submits that the continuous act identified by the prosecution is only a continuing act at law but not a continuing act in evidence. She submits that the accused, on the Crown case, is performing different acts, which might have a single purpose or single intention but which amount to more than one act.
I do not agree. The alleged act of signing the lease of the bank and the alleged storing of the bodies at the accused’s house is evidence to support the Crown case that the accused continued to assist the offenders, but the act constituting the actus reus is the act of concealing the bodies, and comprises one act.
Counsel for the accused referred to the High Court decision of S v The Queen.[1] In that case the accused was charged with three counts of carnal knowledge of his daughter. Each count charged one act of carnal knowledge on a date unknown within a specified period of twelve months over three consecutive years. The Crown case was that in each of the years there were numerous acts of sexual intercourse, but that it was one act which, in each year constituted the alleged offence. None of the counts were linked to any specific act of sexual intercourse mentioned by the complainant in her evidence. The appellant submitted that there was a latent ambiguity because the count in each case was referrable to a number of acts of sexual intercourse that were indistinguishable from one another. A majority of the court, Dawson, Toohey, Gaudron and McHugh JJ allowed the appeal and quashed the conviction. Gaudron and McHugh JJ explained the rationale of the rule against duplicity:
“One important consideration is the orderly administration of criminal justice. There are a number of aspects to this consideration: a court must know what charge it is entertaining in order to ensure that evidence is properly admitted, and in order to instruct the jury properly as to the law to be applied; in the event of conviction, a court must know the offence for which the defendant is to be punished…The rule against duplicitous counts has also long rested upon a basic consideration of fairness, namely, that an accused should know what case he or she has to meet. ”[2]
[1] (1989) 168 CLR 266
[2] Ibid at 284-285
Dawson J identified one of the injustices that may flow from a failure to identify the actus reus of each offence, namely that one juror might identify different occasions as constituting the relevant offence so that, in effect there was no unanimity in the verdict. Such a result would be tantamount to the conviction resulting from a general disposition on the part of the offender to commit offences of the kind charged.[3] An accused faced with the failure of the Crown to identify the charge sufficiently has the difficulty that he is unable to defend himself because of the generality and ambiguity of the allegations against him.
The difficulty alluded to in S v The Queen does not exist in the present case. In this case the prosecution has particularised and identified the act and each offence. The jury would not be left in any doubt the act or acts upon which the Crown relies to prove the offence of assisting offenders. As long as the jury are satisfied beyond reasonable doubt that at some time along the time line the accused acquired the requisite knowledge, the fact that one juror may think the accused acquired it at one point and another thinks he acquired it at another point in time does not matter, because the requisite knowledge and intention exists at the time of the act, that being the continuing act of concealment.
In R v Zampogna,[4] the Court of Criminal Appeal considered whether the information charging the accused with possession of methylamphetamine for sale was duplicitous. The Court concluded that the possession by the appellant of two parcels of amphetamines and the paraphernalia used for drug trafficking found in his vehicle were composite circumstances relied upon as constituting one offence of being in possession for the purpose of sale. The Court upheld one count of possession for sale.
[3] Ibid at 273
[4] (2003) 138 A Crim R 368
In discussing latent duplicity, Duggan J observed:
“This is not to say that the prosecution is prevented from attempting to prove certain offences by establishing a number of individual acts which can be properly identified as part of the same criminal enterprise or the one criminal activity: Walsh v Tattersall (1996) 188 CLR 77 at 107; 88 A Crim A 496 at 518-519; Hamzy (at 348). By way of example, a single count of supplying a drug can be based on different acts of supply which are capable of being classified as part of the one criminal activity: R v Deng (1996) 91 A Crim R 80 at 87. Again it might be permissible to charge in a single count an offence of possession of drugs when there are separate parcels of drugs, but no relevant separation in the time or circumstances of possession: R v Eades (1991) 57 A Crim R 151.”[5]
[5] Ibid at 373-374
A continuous act
Counsel for the accused submits that the actus reus referred to in each particular is a continuing act at law but not in evidence. She submits that on the Crown case the accused is performing different acts which do not constitute one continuing act. She submits the act of storing and moving the barrels is a separate act from signing the lease of the bank. Although there might be a single purpose or single intention, she contends that these acts cannot constitute one continuous act. Counsel for the Crown submits that there are a number of individual acts that are continuous and that make up one act, that being the act of concealing. She submits that the word “concealing” is interchangeable with the word “storing”. It is alleged that the act of concealment includes, but is not limited to, the movement of the barrels from 3 Burdekin Avenue to the accused’s house at 4 Blackham Crescent, the storage of the barrels by the accused at his house in the shed, the movement of the barrels from the shed in the accused’s four wheel drive Landcruiser, the storage of the barrels in the Landcruiser at the Freeman’s property in Hoyleton and the accused’s joint leasing of the bank at Snowtown with Bunting, where the barrels were eventually found in the vault of the bank on 20 May 1999.
The question of whether acts can be defined as one continuous act has been discussed by the High Court in a number of cases. See Johnson v Miller;[6] Walsh v Tattersall.[7] The issue has been determined on occasions by identifying the statute which creates the offence. In Walsh v Tattersall, the appellant (employee) had been charged with obtaining a payment or benefit by dishonest means. The one count with which the appellant was charged was particularised that between October 1992 and October 1993 he obtained from the Womens and Childrens Hospital payments in benefit being: (i) payments of income maintenance amounting to $21 891.20 and (ii) payment of medical, rehabilitation and like expenses amounting to $6 789.79 by dishonestly pretending that by reason of the effect of alleged injuries namely anxiety and depression allegedly suffered by him in the course of his employment in July 1991…he required and thereby incurred medical and ancillary expenses and was incapacitated for work, whereas he was not so incapacitated. Section 22A(1) of the Summary Procedures Act 1921 (SA) provides:
“Every information complaint, summons, warrant, or other document under this Act in which it is necessary to state the matter charges against any person shall be sufficient if it contains a statement of the specific offence with which the accused person is charged, together with such particulars as are necessary for giving reasonable information as to the nature of the charge.”
[6](1937) 59 CLR 467
[7] (1996) 188 CLR 77
The appellant was convicted. On appeal the appellant contended, for the first time that the complaint and conviction with respect to the count was duplicitous. A majority of the Court, Gaudron, Gummow and Kirby JJ held that the conviction should be quashed. Kirby J held that the conviction should be quashed on the grounds that the count was bad for duplicity.
In the course of their joint judgment, Gaudron and Gummow JJ said:
“A discrete offence is completed upon the receipt of any one payment or benefit, whereas count 1 spoke of “payments or benefits” which were made under the Act and obtained by dishonest means.
In conclusion, it may be observed that the present case is to be contrasted with those dealing with an offence defined in terms of a course of conduct or state of affairs, such as keeping a disorderly house or being a rogue or vagabond (45). There, upon proof of a series of material facts, guilt of the offence may follow, although no particular fact sufficies by itself.”[8]
[8] Ibid at 91
In determining whether the particulars in the count were duplicitous Kirby J considered whether the acts referred to were continuous acts or a course of conduct. He referred to Lord Diplock’s judgment in Director of Public Prosecutions v Merriman.[9] Lord Diplock said:
“Where a number of acts of a similar nature committed by one or more defendants were connected with one another, in the time and place of their commission or by their common purpose, in such a way that they could fairly be regarded as forming part of the same transaction or criminal enterprise, it was the practice as early as the eighteenth century, to charge them in a single count of an indictment.”[10]
[9] [1973] AC 584
[10] Ibid at 607 cited by Kirby J in Walsh at 104
Kirby J referred to Gaudron and McHugh JJ observations in S v The Queen[11] which adopted the same strict rule as the House of Lords in Merriman. He stated that this strict rule adopted by the High Court is desirable for the fair trial of an accused. He indicated that although each case will turn on its facts, there are some indicia which may assist in determining whether a complaint is duplicitous. He said:
“Various indicia are proposed to sustain a single count against the charge of duplicity, notwithstanding that it may permit evidence to be adduced of events which, taken individually, could constitute separate offences. The indicia include: (a) the connection of the events in point in time; (b) the similarity of the acts; (c) the physical proximity of the place where the events happened; and (d) the intention of the accused throughout the conduct (103).”[12]
[11] (1989) 168 CLR 266
[12] (1996) 188 CLR 77 at 108
Kirby J was of the opinion that because the purpose of the Act was to create a separate offence for each payment or benefit the count as laid was duplicitous. Each act of dishonest payment should have been subject to a separate charge as required by the Act.
The circumstances of this case are that it is alleged that there was a systemic murdering of victims by Bunting and Wagner. On occasions, Vlassakis was involved. Once victims had been murdered, their bodies were placed in barrels. Bodies in barrels were allegedly stored at Blackham Crescent, in the Land Cruiser both at Hoyleton and Snowtown and, finally, in the bank vault. One barrel was allegedly stored in a motor vehicle after it had been moved from Blackham Crescent, and prior to it being stored in the bank vault. The period over which this occurred was from November 1998 until about February 1999, by which time all the barrels were in the vault. They remained there until they were discovered by police. The events were all connected. The act or acts of concealment of bodies were the same at various locations. The intention of the accused throughout was to assist Bunting and Wagner by concealing the bodies to enable them to avoid apprehension or prosecution.
The connection of the events, the intention of the accused throughout, and the common thread of concealing the bodies in barrels, albeit that the barrels were moved from one location to another, is sufficient to constitute one continuing act. The particulars of the assisting offender counts are sufficiently clear. If the Crown alleges that the accused was involved in the act of concealment, and that act continued over a period of time, and at any point in time along that time line the accused acquired the requisite knowledge or the belief and has the required intention that is sufficient for constituting one offence of assisting offenders.
I consider that the information in respect of each count is not duplicitous. The application is refused.
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