R v Haydon (No 7) - [2005] SASC 21

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v HAYDON (No 7)
Reasons for Ruling of The Honourable Justice Sulan
21 January 2005
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - COURSE OF EVIDENCE, STATEMENTS AND ADDRESSES - ADDRESSES - GENERALLY
MISTRIAL APPLICATION - CROWN OPENING
Accused charged with two counts of murder and six counts of assisting offenders - at conclusion of Crown opening accused sought order for mistrial - whether nature and content of Crown opening was such that accused cannot receive a fair trial - whether Crown invited the jury to reason in an impermissible way by propensity reasoning - whether Crown failed to identify what matters are being alleged as facts - discussion of contents of Crown opening - whether opening was fair to the accused - application refused.
R v Bunting & Wagner (No 3) (2003) 230 LSJS 410, discussed.
Deriz v R (1999) 109 A Crim R 329; R v Armstrong (1989) 53 SASR 25, considered.

R v HAYDON (No 7)
[2005] SASC 21

SULAN J Mark Ray Haydon (“Haydon”) is charged with two counts of murder and six counts of assisting offenders. The charges resulted from the discovery by police of eight bodies contained in six barrels in a bank vault at Snowtown on 20 May 1999.
Background
John Justin Bunting (“Bunting”), Robert Joe Wagner (“Wagner”), James Spyridon Vlassakis (“Vlassakis”) and Haydon were charged with a number of murders. It is not necessary to trace the history of events after the four men had been charged. When they were presented for trial, Martin J ordered that Bunting and Wagner be separately tried from Haydon. Vlassakis, by that time, had pleaded guilty to four counts of murder and was a key Crown witness in the case. Bunting was convicted by a jury of eleven counts of murder. Wagner, who had pleaded guilty to three counts of murder, was found guilty by a jury of a further seven counts of murder.
Haydon was presented on an Information charging him with two counts of murder and six counts of assisting offenders. After a lengthy voir dire, the trial commenced before a jury on 29 July 2004. Haydon pleaded not guilty to all counts.
The circumstances leading to the arrest of the four men were that police were investigating the disappearance of a number of persons, including Haydon’s wife, Elizabeth Haydon. During the course of the investigations, the police received information which caused them to look for a four-wheel drive Land Cruiser. That vehicle was located parked in a driveway at Snowtown. Further investigations led the police to a disused bank premises in Snowtown. In the vault of that bank they discovered six barrels containing eight bodies. Some of the bodies had been mutilated. There were body parts, a well as whole bodies in the barrels.
Post-mortem examinations established the identities of the bodies in the various barrels. During some of the time when it is alleged that murders occurred, Bunting was living at 3 Burdekin Avenue, Murray Bridge. The Crown case was that some of the deceased had been murdered at 3 Burdekin Avenue, Murray Bridge, and at least four bodies had been stored in a shed at that residence.
When Bunting moved house, the Crown alleged bodies which were being stored in barrels were transported to the premises of Haydon, and stored in his shed at 4 Blackham Crescent, Smithfield Plains. Haydon lived there with his wife, Elizabeth Haydon, and her sister, Jodie Elliott. It is the prosecution case that Elizabeth Haydon was murdered by Bunting and Wagner, and her body was stored in a barrel at Blackham Crescent. In total it is alleged that, for some time, seven bodies were stored in six barrels at Blackham Crescent.
It is the prosecution case that when police commenced to investigate the disappearance of Elizabeth Haydon, the barrels were removed from Blackham Crescent. Five of the barrels were stored in the four-wheel drive at premises at Hoyleton, and one barrel was stored in a Sigma motor vehicle at premises occupied by Vlassakis.
It is the prosecution case that after the bank had been leased by Bunting and Haydon, the barrels were moved and stored in the vault of the bank where they were discovered by police.
The Crown alleges that Haydon was involved in two of the murders. He was directly involved in the murder of Troy Youde in which it is alleged that Bunting, Wagner, Vlassakis and Haydon murdered Youde at 3 Burdekin Avenue, Murray Bridge. His body was placed in a barrel that was stored at Burdekin Avenue with two other barrels, one containing the bodies of Barry Lane and Michael Gardiner and, in a separate barrel, the body of Gavin Porter. The Crown allege that those barrels were eventually transported to Blackham Crescent.
The prosecution case is that Elizabeth Haydon was murdered by Bunting and Wagner, and that Haydon was a party to the murder in that he was aware that his wife was to be murdered. His role was to keep Elizabeth Haydon’s sister, Jodie Elliott, away from Blackham Crescent to enable Bunting and Wagner to carry out the murder. Elizabeth Haydon’s body was also stored in a barrel at Blackham Crescent.
When Haydon and Jodie Elliott returned to the house after it is alleged that Bunting and Wagner had murdered Elizabeth Haydon, Jodie Elliott was told that her sister had become upset when Bunting rejected an approach she had made to him, and that she was in her room. Haydon said that he saw and spoke to Elizabeth Haydon in her bedroom that night. The Crown say that she had already been killed by this time.
It is the prosecution case that Bunting, Wagner and Haydon told similar stories to Jodie Elliott about Elizabeth Haydon’s movements after she had been murdered.
It is further alleged by the prosecution that the motive for Elizabeth Haydon’s murder was that Haydon had told her about the murder of a person known as “Happy Pants” and that Bunting, therefore, knew that she was aware of a previous murder.
The bodies of two other victims, Gary O’Dwyer and Fred Brooks, were, the Crown say, eventually stored in barrels at Blackham Crescent. Both had been murdered at premises at Murray Bridge.
The eighth victim, David Johnson, was allegedly murdered at Snowtown in the bank building, and his body was stored there in a barrel.
The Crown opening
On 2 August 2004, Ms Abraham opened the case for the Crown. At the conclusion of the prosecution opening, Mrs Shaw, for Haydon, sought an order for a mistrial.
Defence submissions
Mrs Shaw submitted that the nature and content of the Crown opening was such that the accused cannot receive a fair trial. Her submission was based on a number of grounds. She submitted that the prosecution had invited the jury to reason in an impermissible way by propensity reasoning, and by suggesting guilt by association with Bunting and Wagner. She contended that Ms Abraham had not delineated what facts the Crown seek to establish from the witnesses, nor did she identify the witnesses, nor had she identified what conclusions the Crown seek to draw from the facts the Crown seek to establish. She submitted that the Crown had failed to identify to the jury what matters were being alleged as facts. She submitted that the accused was faced with an impossible task in attempting to answer a case based upon a general opening with “everything thrown into the melting pot”, and without the prosecution properly distinguishing how the Crown intended to go about proving its case. She submitted that the prosecution was presenting a case based upon an ongoing enterprise, that being the very theory which had been rejected by Martin J in R v Bunting & Wagner (No 3)[1].
[1](2003) 230 LSJS 410 at [374]
Mrs Shaw claimed that there were factual errors in the opening. She suggested that the following parts of the Crown opening were unsupported by evidence:
1.     That Bunting and Haydon were friends, and the friendship between Bunting, Wagner and Haydon developed, and they became an exclusive group.
2.     That property in the vault was placed in the Land Cruiser after the Troy Youde murder.
3.     That items found in the shed at Haydon’s residence at Blackham Crescent, Smithfield Plains, were items from the Troy Youde murder.
4.     That property of some of the deceased was removed from Blackham Crescent in November 1998. As a consequence, it is open to the jury to infer that other property of the deceased was at the premises.
5.     That the benefits of Brooks were paid into a joint account with his mother, Jodie Elliott.
6.     That Bunting and Haydon were away together for extended periods of up to twenty days.
7.     That, unbeknown to Jodie Elliott, Haydon had been living at Murray Bridge, that he then moved to Bunting’s house at Bundarra Court, Craigmore, and eventually returned to Blackham Crescent when Vlassakis moved into Bundarra Court.
8.     That there were bodies in the shed at Blackham Crescent in garbage bags. She submitted the evidence is that only Fred Brooks’ body was in a garbage bag.
9.     That, as to Elizabeth Haydon’s disappearance, it is inappropriate for the Crown to use the expression “false story” or “false alibi” in respect of the statements of Haydon, Bunting and Wagner, because the falsity of those statements depends upon proof that she was murdered at the time that it is alleged Haydon was away from the house with Jodie Elliott. That is, there is no independent evidence that the stories were false. The falsity of the story depends upon the prosecution proving that Elizabeth Haydon was murdered by Bunting and Wagner at the time that Haydon took Jodie Elliott away from the house at Blackham Crescent. Therefore, to allege false stories is misleading, as the reasoning is circular.
10.    That, in relation to Elizabeth Haydon, Haydon told false stories which matched stories told by Bunting and Wagner. That it was incorrect when Ms Abraham had said:
“Mark Haydon, John Bunting and Robert Wagner told stories to explain her whereabouts in an attempt to conceal her death initially, from Jodie Elliott, and then from others, including police”.
She further submitted that the suggestion by Ms Abraham that Garion Sinclair, Elizabeth Haydon’s brother, was suspicious about Elizabeth Haydon’s disappearance was objectionable. Further, she claimed that the evidence did not support the allegation in the opening that when Jodie Elliott told Bunting that a report had been made that Elizabeth Haydon was missing, both Bunting and Haydon became angry and aggressive. She said the evidence is that only Bunting became aggressive and angry.
She also complained that the opening in relation to the discussions between Haydon and Bunting about the murder of “Happy Pants” overheard by Vlassakis was inaccurate, in that it suggested that Bunting was concerned about Elizabeth Haydon’s knowledge of the murder, whereas the evidence is that Bunting told Haydon that it did not matter.
Mrs Shaw also submitted that the reference to Bunting’s motive for killing cannot be attributed to Haydon. She suggested that the Crown had done so.
Crown submissions
Ms Abraham took issue with a number of the submissions. She rejected the submission that the opening put the Crown case in terms of an overarching joint enterprise. She said it is clear from her opening that the Crown case against Haydon was that he was involved in the murders of Troy Youde and Elizabeth Haydon. As to the other six bodies that were found in barrels in the bank vault at Snowtown, the Crown must establish in each case that Haydon knowingly assisted in concealing the bodies.
She agreed that she had not specifically told the jury that they must consider each count separately, but she submitted that it was clear from her opening. In any event, there was no requirement to do so. Ms Abraham agreed that she would make clear to the jury they must be satisfied of Haydon’s guilt in respect of each count which must be considered separately.
She also submitted that the prosecution does not have to identify each witness that is going to be called. The Crown is entitled to open on inferences to be drawn from the evidence and, in opening, the prosecution, does not have to spell out, chapter and verse, how the Crown will seek to ask the jury to draw those inferences.
Ms Abraham submitted that a proper reading of the Crown opening makes it clear that there was no attempt by the Crown to ask the jury to reason impermissibly. She submitted that nothing in the opening could be interpreted as “propensity reasoning”. She said that the opening was in the usual style of a Crown opening. On many occasions, she repeated that it was the prosecution’s case or that the prosecution were alleging certain facts and asked the jury to draw inferences based upon the Crown’s allegation.
Turning to the specific criticisms, she submitted that it is clear from the evidence of Vlassakis, Jodie Elliott and Vicki Mills that the relationship between Bunting, Wagner and Haydon developed, and that their friendship became more exclusive as time passed. She rejected the criticism of Mrs Shaw and submitted that there is evidence from which the jury could draw the conclusion that the three men had a close relationship.
As to the property placed in the Land Cruiser, she submitted that the evidence of the police of what was found in the Land Cruiser supports the Crown contention. Similarly, with items found at Blackham Crescent. She conceded that she had made an error as to what items were found in the pit inside the shed, and what was found in the shed. She agreed to correct that error.
As to the complaint about the removal of property in November 1998 from Blackham Crescent, she said she did not invite the jury to draw the conclusion that other property was at the premises.
As to the benefits of Fred Brooks, she submitted it is not of any relevance or probative value whether the monies were paid into a sole account or a joint account.
As to Haydon and Bunting being away for extended periods, she submitted that will come from the evidence of Jodie Elliott and Vlassakis.
She submitted that Vlassakis will give evidence about Haydon’s movements.
As to the complaint that there was only one body in a garbage bag, she submitted that there is evidence that Troy Youde was in a garbage bag after his murder, or at least that he was wrapped in garbage bags.
As to the criticism about her allegations that Haydon, Bunting and Wagner used a false story, she said that a proper reading of the opening made it clear that it was necessary for the prosecution to establish by independent evidence that Elizabeth Haydon was murdered at the time Haydon and Elliott were away from the house. The suggestion of false stories was only correct if the jury concluded that Elizabeth Haydon was murdered at that time. She submitted that that was clear from her opening.
In respect of the allegation that Bunting, Wagner and Haydon’s stories matched, she said that she was referring to the stories told to Jodie Elliott. She agreed that if there is any ambiguity about what she said, she was prepared to clear up the ambiguity. Mrs Shaw said that any attempt to clear up the ambiguity would only exacerbate the error, and submitted that the error was incurable. She submitted that she preferred the matter to be left. As to the suggestion that it was objectionable for Ms Abraham to say that Garion Sinclair was suspicious about Elizabeth Haydon’s disappearance, Ms Abraham submitted that Garion Sinclair had reported Elizabeth Haydon missing. She said he had obviously done this for a reason, but that she did not believe this to be of any great significance.
Mrs Shaw declined to have Ms Abraham correct her statement to reflect that she meant he became ‘concerned’.
As to the suggestion that Haydon became aggressive when told that Elizabeth Haydon’s disappearance had been reported, Ms Abraham agreed to tell the jury that the evidence was that Bunting became aggressive and angry.
As to the suggestion that she had attributed Bunting’s motives to Haydon, Ms Abraham submitted that a correct reading of her opening did no such thing. She said that the Crown will be asking the jury to infer from all the surrounding circumstances, including the fact that Haydon was there, armed and ready to go, that he must have been told and must have known the reason for the attack upon Youde. She said that there is ample evidence from which the jury can conclude that Haydon was aware of the motive for killing Youde, and that he joined in.
Crown opening
There is no fixed formula that must be followed by Crown counsel in opening a case for the prosecution. There is a duty not to mislead or to make assertions which are not supported by the evidence which is proposed to be led. If the prosecutor opens on facts which are not established by the evidence, then that can lead to a mistrial or the overturning of a conviction if an appeal court concludes that the prejudice was such that the defendant could not obtain a fair trial.[2] A mistrial in these circumstances will be exceptional as, in the majority of cases, any failure of the Crown case to live up to the opening can be cured by a direction from the trial judge.
[2] See R v Armstrong (1989) 53 SASR 25 at 26
In opening a case, Crown counsel should not embark upon argument or comment. Language likely to excite undue prejudice or emotion should be avoided.[3] Although Crown counsel cannot be expected not to point out the strengths of the case for the Crown, the opening should be balanced and fair. If there are weaknesses in the case, then Crown counsel should not try to disguise them.
[3] See Deriz v R (1999) 109 A Crim R 329 at 338-339
The main purpose of the Crown opening is to make the case clear so that the judge, jury and defence counsel are able to comprehend the Crown case and understand the evidence as it unfolds. The opening must be fair to the accused, but that does not mean that the Crown cannot identify and highlight the strengths of its case. The jury should be given an explanation of the relevant law. It should be made clear that the final directions on the law will be given by the judge. The jury should be told that the final arbiter on the law is the judge.
At the conclusion of the opening, the judge and jury should be able to understand the issues in the case and how the Crown will present its case. It is then a question whether the case has been proved.[4]
[4] See Wells W.A.N., Evidence and Advocacy(NSW: Butterworths Pty Limited, 1988) at 124-125
The opening in this case
Ms Abraham, in opening the prosecution case, made it clear from the outset that the Crown case is that Bunting and Wagner committed the murders of eight people whose bodies were found in barrels at Snowtown. She also told the jury that Vlassakis, a witness in the case, had pleaded guilty to four of those murders. As to Haydon, she said it was the Crown case that he was involved in two of the murders and that he assisted in concealing six bodies of other victims. She told the jury that Haydon’s involvement commenced with the murder of Troy Youde and that he was present and participated. He then became involved in actively concealing bodies. She referred to the charges and the elements that the Crown must prove to establish the charges. She also referred to the manner in which a person can be complicit in the offence of murder.
In opening the case of assist offenders, she told the jury that the acts alleged by the Crown were those of storing or concealing the bodies of the victims or permitting the bodies to be stored. She made it clear that in each case, Haydon had to know the body of a person was being stored and had to know or believe the person had been murdered.

Ms Abraham outlined how the relationship between Bunting, Wagner, Vlassakis and Haydon developed. She made reference to Vlassakis, and that he will give evidence. She made it clear to the court that he had been convicted of four murders.
She then summarised the case in respect of each count. The allegations relating to the Troy Youde murder were given in detail. It was clear from the opening that the Crown relied on the direct evidence of Vlassakis. Ms Abraham gave a summary of the evidence to be led in respect of each count. She identified the basis upon which the Crown would contend that Haydon was guilty of Troy Youde’s murder. She said:
“It is the Crown case that Mark Haydon is guilty of the murder of Troy Youde because he was a party to an understanding or agreement to murder Troy Youde or at the very least a party to an assault in which he foresaw the possibility that Youde would be murdered or he aided and abetted that murder. As a consequence whilst all four play different roles, the law says it doesn’t matter which role each played but each involved are equally responsible in the eyes of the law”.
She stated what inferences the Crown sought to draw from the facts which the Crown proposed to establish.
After outlining the Crown case in respect of Troy Youde, she dealt with the movement of barrels from Murray Bridge to Haydon’s premises at 4 Blackham Crescent, Smithfield Plains. She said that the Crown sought to draw the inference that Haydon knew the contents of the barrels and agreed to store them.
She spoke of the movement of the body of Brooks and the evidence upon which the Crown relies to establish Haydon’s knowledge of the body of Brooks and storage of that body. She made it clear that the Crown relies upon Vlassakis’ description of the barrels in the shed. She dealt with evidence that the Crown allege demonstrates Haydon’s involvement. She referred to the finding of relevant documents and other property in the Land Cruiser.
Ms Abraham then outlined the O’Dwyer murder. The Crown sought to infer that the storage of his body at Blackham Crescent could not have happened without Haydon being aware and permitting it to happen.
She opened in respect of the murder of Elizabeth Haydon. She outlined the basis of the Crown case. She told the jury that there was no direct evidence implicating Haydon, Bunting or Wagner. She gave the detail of various people’s movements on the relevant day and night. It was obvious from her opening that the prosecution intended to prove Elizabeth Haydon’s murder from circumstances surrounding her disappearance, and that there was no eyewitness account of Elizabeth Haydon’s murder. Ms Abraham said that it was necessary for the prosecution to establish that Elizabeth Haydon was murdered on the Saturday night. She referred to the evidence from which the Crown will ask the jury to draw that conclusion. She did not, as Mrs Shaw suggested, rely on the falsity of any statements to establish when the murder took place.
She referred to other facts, including the storage and movement of barrels, and the inferences that the Crown ask the jury to draw from those facts. She referred to the movement of the Land Cruiser. She described the bank premises and the storage of the barrels at the bank. She referred to access to the bank, and the evidence that the Crown will call to establish that Haydon and Bunting were lessees of the bank. She dealt with the various items found at the bank.
Conclusion
The Crown case was opened without emotive language, and without the Crown arguing its case. Any summary of the allegations in this case would create feelings of revulsion in any jury. However, Ms Abraham kept to the facts. There was nothing unfair about the manner in which Ms Abraham opened the Crown case.
In respect of the specific complaints made by Mrs Shaw, which had some justification, I invited Ms Abraham to correct them. Insofar as there was no objection from Mrs Shaw, those corrections were made.
Having heard the opening and then read the transcript, I conclude that the opening was not unfair. The Crown opening was not unbalanced. It did not seek to anticipate what might be the defence case. It simply set out the facts and inferences that the Crown will be asking the jury to draw. It did not seek to go into the detail of how the jury should approach the evidence in respect of each count. The Crown was not required to do so. It is not the function of an opening to deal with questions of admissibility of evidence, and what evidence may be cross-admissible in respect of various counts. There was nothing in the opening from which it could be said that the jury were invited to reason by way of propensity reasoning.
At the conclusion of the evidence it will be necessary for the jury to be given detailed directions about how the evidence can be used, and what evidence is admissible in respect of each count. If it transpires that there are matters upon which the Crown opened on which there is no evidence, then the jury will be directed accordingly.
In my view, the Crown opening was not unfair or improper.
I refuse the application.