R v Haydon (No 8) - [2005] SASC 22

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v HAYDON (No 8)
Reasons for Ruling of The Honourable Justice Sulan
21 January 2005
EVIDENCE - PROHIBITION OF PUBLICATION OF EVIDENCE
SUPPRESSION ORDER
Accused charged with two counts of murder and six counts of assisting offenders - application by accused seeking an order to suppress from publication reasons for the decision of leave to appeal applications made by applicants Bunting and Wagner - whether there is a significant danger if the reasons for applications for leave were published there would be a substantial risk to the accused receiving a fair trial - prejudice to the proper administration of justice - balancing competing public interests.
Evidence Act (1929), s 69A, referred to.
Advertiser v V (2000) 211 LSJS 100, considered.

R v HAYDON (No 8)
[2005] SASC 22

SULAN J On 11 August 2004, Perry J delivered reasons for his decision to refuse applications for leave to appeal by John Justin Bunting (“Bunting”) and Robert Joe Wagner (“Wagner”) against their convictions for murder. Bunting had been convicted of eleven counts of murder and Wagner, who had pleaded guilty to three counts of murder, was found guilty of a further seven counts of murder. Both applied for leave to appeal against the convictions.
Wagner sought to argue eighty four grounds of appeal and Bunting, who was unrepresented, sought to raise a number of other grounds.
Perry J delivered extensive reasons and concluded that none of the grounds put forward by either Bunting or Wagner were reasonably arguable.
Mark Ray Haydon (“Haydon”) was jointly charged with Bunting and Wagner. The trial judge made orders permanently staying nine counts of murder alleged against Haydon, and ordered a separate trial in respect of the three remaining counts of murder.
The Director of Public Prosecutions (“Director”) laid an Information charging Haydon with two counts of murder and six counts of assisting offenders. All the alleged offences arose out of the discovery by police of six barrels containing eight bodies in a bank vault at Snowtown on 20 May 1999.
When Perry J published his reasons on 11 August 2004, counsel for Haydon sought an order that the reasons for decision be suppressed. Counsel informed Perry J that the trial of Haydon was currently proceeding before a jury and submitted that publication of the reasons may prejudice Haydon’s trial. Perry J made an order, pursuant to s 69A of the Evidence Act (1929), that the detailed reasons published by him be suppressed from publication until 5 p.m. on Thursday, 12 August 2004. He referred the matter to me for further consideration. He considered that, as I was the trial judge in the trial of Haydon, it was more appropriate for me to consider the application. He excluded from the order a separate document headed “Summary of Reasons for Decision” and part 6, paras. 699-706 of his reasons, which contained his conclusions.
I heard the application on 12 August 2004.
Counsel for Haydon submitted that the reasons for the decision of Perry J contains material that goes outside the subject matter of the proceedings now before the jury, and that publication of such material would be highly prejudicial to Haydon obtaining a fair trial. The reasons include allegations against Haydon that are no longer being pursued, including information that he was at one time charged with the murder of Clinton Trezise. The Crown case had been that Bunting, Wagner and Haydon had jointly committed eleven murders, and that Bunting and Haydon had committed a further murder. The facts of the murders are set out in detail in the reasons for judgment.
Counsel submitted that, although it is conceded that there had been a great deal of publicity about the original trial, including the joint charges of murder against Bunting, Wagner and Haydon, there had been a considerable time lapse since the trial of Bunting and Wagner, and the prejudice to Haydon which may have arisen from that earlier publicity had sufficiently subsided so that his trial could proceed. Counsel argued that if that publicity was revived by publishing the reasons for decision by Perry J, then that would result in an application for the discharge of the jury. It was submitted it would not be possible for Haydon to receive a fair trial if the detail of the earlier allegations were published during his trial.
It was submitted that, in order to prevent prejudice to the proper administration of justice, the order should be made.
No submissions were made by representatives of the media.
The Director agreed that there are a number of paragraphs in the judgment which ought to be suppressed, for the reasons put forward by counsel for the applicant. She submitted that only those paragraphs should be suppressed.
Discussion
In the reasons for decision, there were numerous references to Haydon and to the allegations of his involvement in murders which are not the subject of charges before me. The reasons set out in detail the factual background, and included in that summary a table which particularises each count and relevant details about each count.
Examples of the references to Haydon include a reference to the long-standing relationship between Vlassakis, Bunting, Wagner and Haydon; that property belonging to victims was taken by Bunting, Wagner and Haydon; that bodies were stored in barrels at Blackham Crescent where Haydon lived; the movement of barrels in Haydon’s Land Cruiser; references to Bunting’s hatred of paedophiles and discussions about paedophiles, some of which is not to be led at the Haydon trial. Haydon was mentioned in reference to the murder of Trezise, with which he is not charged. I have not attempted to deal with every reference to Haydon.
As to some of the evidence referred to, that evidence is either not being led or has been ruled inadmissible in the trial before me. It is difficult to separate the references which may cause prejudice from other parts of the reasons. I conclude that it would not be practical to try to sever from the reasons those parts to which counsel objected.
It is clear that the notion of “prejudice to the proper administration of justice” encompasses a situation where the publication of material would impede a fair trial.[1]
[1] See Advertiser Newspapers v V (2000) 211 LSJS 100
Although all the material which is contained in the reasons for decision is in the public domain, the reasons provide a convenient summary of the facts of a very long and complex trial. There is a significant danger that if the reasons for decision were published in whole or in part, that would contain material which is either not being led or has been ruled inadmissible in the Haydon trial. There would be a real risk that publication of such material could result in a mistrial.
The trial of Haydon commenced on 4 May 2004, with a lengthy voir dire hearing. The trial itself commenced on Thursday, 29 July 2004, and is likely to continue for at least three months. A jury of fifteen members has been empanelled, and significant cost has already been incurred. Additionally, Haydon has now been in custody for over five years awaiting trial. If the trial were to miscarry on the grounds of publicity which prejudices a fair trial, it would be some time before he could be presented for trial. It is not in the interests of the administration of justice that there be long delays in presenting accused persons for trial. There is a significant risk that publication of the reasons may cause a mistrial.
I order that the reasons for the decision of Perry J in the matter of R v Bunting & Wagner, delivered on 11 August 2004, be suppressed. Once the trial of Haydon has concluded, application can be made to lift the order for suppression.
I exclude from the order the “Summary of Reasons for Decision” and part 6, paras. 699-706 of the reasons.