R v Haydon (No 9) - [2005] SASC 23

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v HAYDON (No 9)
Reasons for Ruling of The Honourable Justice Sulan
21 January 2005
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - WITNESSES - RE-EXAMINATION
Accused charged with two counts of murder and six counts of assisting offender - ruling in relation to objections made by counsel for the accused to Crown re-examining witness on certain topics.
The Queen v Szach (1980) 23 SASR 504; R v Martin (No 2) (1997) 68 SASR 419; Nominal Defendant v Clements (1960) 104 CLR 476, considered.

R v HAYDON (No 9)
[2005] SASC 23

SULAN J The accused, Mark Ray Haydon (“Haydon”), is charged with two counts of murder and six counts of assisting offenders. At the trial of Haydon, James Spyridon Vlassakis (“Vlassakis”) gave evidence. He was cross-examined over a number of days. Counsel for the prosecution sought to re-examine Vlassakis on a number of topics. Counsel for Haydon objected. I made numerous rulings. These reasons deal with a number of the rulings.
Background
On 20 May 1999, police attended at bank premises at Snowtown. The vault of the bank was locked, but was able to be opened by a handcrafted key. Upon opening the vault, police discovered six barrels which contained bodies and body parts of eight victims. The victims were Michael Gardiner, Barry Lane, Gavin Porter, Troy Youde, Fred Brooks, Gary O’Dwyer, Elizabeth Haydon and David Johnson. The vault also contained items of clothing, plastic bags, surgical and rubber gloves and other paraphernalia.
On the following day, John Justin Bunting (“Bunting”), Robert Joe Wagner (“Wagner”) and the accused were arrested and subsequently charged with the murder of all the persons discovered in the barrels. They were also charged with further counts of murder. It is not necessary to detail all the charges.
On 24 May 1999, Vlassakis was interviewed by the police and, during the course of the interview, amongst many topics discussed he made certain admissions about his involvement and the involvement of the other three accused in the murders and the storage of the bodies at the bank premises. The interview was conducted on the understanding that Vlassakis’ statements would not be led at any trial if he was subsequently charged with offences.
Vlassakis was originally presented jointly with the accused on five of twelve counts of murder. On 13 December, Bunting, Wagner, Haydon and Vlassakis jointly appeared in the Adelaide Magistrates Court for committal. Prior to and whilst the committal proceedings were being heard Vlassakis, through his solicitors and counsel, was engaged in discussions with the Director of Public Prosecutions (“Director”). During the committal hearing, the Director agreed to accept pleas of guilty by Vlassakis to four counts of murder. One count of murder of Gavin Porter was to be withdrawn. On 21 June 2001, prior to the conclusion of the committal, Vlassakis appeared in the Supreme Court, and pleaded guilty to four counts of murder. A nolle prosequi was entered on the fifth count. As part of the discussions with the Director, Vlassakis had agreed to provide a further statement and, if required, to give evidence at any subsequent trial of the other three defendants.
Following his pleas of guilty, a lengthy interview was conducted by police with Vlassakis, which comprises almost 2000 pages. A decision was made by the Director that he should be called as a witness at the trials of Bunting, Wagner and Haydon.
Bunting and Wagner were tried jointly. Bunting was convicted of eleven counts of murder. Wagner was convicted of seven counts of murder. He had earlier pleaded guilty to three counts of murder. During the trial, Vlassakis gave extensive evidence.
The trial judge in the Bunting and Wagner case had made an order that Haydon be separately tried. He was then presented on an Information charging two counts of murder and six counts of assisting offenders. The two counts of murder alleged that he, together with Bunting, Wagner and Vlassakis, murdered Vlassakis’ step-brother, Troy Youde, and that he, together with Bunting and Wagner, murdered his wife, Elizabeth Haydon. The six counts of assisting offenders related to the other six bodies discovered in barrels in the bank vault at Snowtown.
Prior to Vlassakis giving evidence, counsel for the Crown indicated that the Crown intended to lead evidence from Vlassakis about his relationship with Bunting, when he had first met Bunting, and how their relationship had developed. She sought to lead the evidence to explain Vlassakis’ conduct over a period of years. In particular, it explained how and why he had become involved in committing murders and in assisting Bunting and Wagner in the concealment of bodies. The Crown submitted that, in order for the jury to properly understand the Crown case, the Crown should be permitted to lead evidence of the relationship which existed between the four men, how that relationship developed prior to and during the time that the murders occurred.
Counsel submitted that evidence of conversations and conduct between Bunting, Wagner and Vlassakis in the absence of Haydon was relevant to establish that relationship, and explain the conduct of Vlassakis throughout the relevant period. It was the Crown case that Vlassakis was first introduced to Bunting when Vlassakis was about fourteen years of age, at a time when Bunting developed and became involved in a relationship with Vlassakis’ mother, Elizabeth Harvey. He became a father figure to Vlassakis. Shortly after the two were introduced, Vlassakis was exposed to Bunting’s hatred towards homosexuals and paedophiles. The two spent a great deal of time together. The prosecution sought to lead evidence of conversations between Vlassakis and Bunting dating back to 1994, which conversations were in the absence of Haydon and related to individuals who Bunting alleged were paedophiles or homosexuals. Bunting had an obsessive hatred of these people, and there was constant discussions about them. Various people were named. Not only were there conversations, but Bunting had prepared a chart on which names were included and added from time to time of those whom he regarded as paedophiles. Those named were verbally abused in conversations between Bunting and Vlassakis. Suggestions were made as to their worth and that they should be either bashed or killed. The conversations at first referred to bashings and then led to suggestions that people ought to be killed. The conversations also led to various actions against persons who were perceived to be paedophiles or homosexuals, including acts of vandalism against their property, and abusive phone calls to them. All of this conduct occurred over a number of years, commencing in about 1994. Vlassakis was continuously exposed to the views of Bunting.
Vlassakis spoke to Bunting about his own experiences. He told Bunting that Troy Youde, one of the deceased victims who is Vlassakis’ stepbrother, had sexually abused him. There were suggestions by Bunting that Youde should be bashed for his conduct.
A great many of the conversations took place between Bunting and Vlassakis in the absence of Haydon and Wagner. There were some conversations at which Wagner was present, and others at which Vlassakis said Haydon was present.
The discussions led to statements to Vlassakis by Bunting that some people who had been mentioned in earlier conversations had been killed. According to Vlassakis, these statements were made to him when he and Bunting were alone. Vlassakis said that, at first, he did not believe what he was being told about murders until, in about 1998, he was shown the body of Gavin Porter in a shed at the rear of 3 Burdekin Avenue, Murray Bridge. At the time, he and Porter were living at 3 Burdekin Avenue with Bunting, Elizabeth Harvey and Vlassakis’ two brothers. Vlassakis had come home from being out at the drive-in picture theatre and Bunting, who was at the house with Wagner, took Vlassakis to the shed and showed him the body of Porter. There was a barrel in the shed, and it contained the bodies of two people who had been spoken of as paedophiles. They were Michael Gardiner and Barry Lane. Bunting opened the barrel and showed Vlassakis their bodies.
Mrs Shaw, for Haydon, objected to the Crown leading evidence of the relationship between Bunting and Vlassakis. She objected to all evidence of conversations between Vlassakis and others in the absence of Haydon.
I concluded that, in the case of most conversations between Bunting and Vlassakis and/or Wagner in the absence of Haydon relating to the matters I have earlier discussed, that the evidence was inadmissible. I admitted evidence of conversations between Bunting and Vlassakis in the absence of Haydon about the murders of Troy Youde, Fred Brooks, Gary O’Dwyer and David Johnson for the purpose of establishing Bunting’s motives for murder. In the cases of Brooks, O’Dwyer and Johnson, the evidence was not led because after my ruling it was agreed that Bunting had murdered them. In the case of Troy Youde, there was no agreement about his murder, so the evidence was admitted. Evidence about Bunting’s attitude towards paedophiles was admitted. My rulings are the subject of separate reasons.
I rejected the submission of the Crown that certain evidence could be led generally to establish the relationship between Vlassakis and Bunting, and to explain Vlassakis’ involvement in the offending and conduct. Conversations in the absence of Haydon of Bunting’s statements to others about paedophiles was excluded. Evidence that Bunting constructed a chart, referred to as “the spider wall”, on which names of people nominated as paedophiles, was excluded. Evidence of vandalism by Bunting and Vlassakis towards people considered to be paedophiles was excluded. Evidence of threatening and abusive phone calls by Bunting in the presence of Vlassakis to people nominated as paedophiles, was excluded.
Vlassakis’ evidence at trial
Vlassakis gave evidence. He gave evidence of his relationship with Bunting, and how it developed over the period from 1994 until the time of the arrests. He gave evidence of his extensive drug taking over that period and of the events surrounding the murder of Troy Youde. He gave evidence of the events surrounding the murders and subsequent concealment of the bodies of the other victims.
Cross-examination
Vlassakis was extensively cross-examined by Mrs Shaw. During the course of the cross-examination, he was referred to interviews that he had conducted with the police. Many statements were put to him which he conceded were inconsistent with the evidence that he had given in court. Also put to him was evidence he had given in the Bunting and Wagner trial, which was inconsistent with evidence that he had given during this trial. It was suggested to him that he had told deliberate lies on occasions. He admitted to having lied to the police during the course of his first interview, at a time when he was attempting to negotiate an immunity, and at a time when he had undertaken to tell the police the truth. There was a sustained attack upon his honesty and reliability. It is not necessary, for the purpose of these reasons, to give detailed references to the cross-examination. It is sufficient to observe that counsel for Haydon cross-examined Vlassakis extensively about statements he had made to the police about his role, and the role of others, in the murders of Youde, O’Dwyer, Brooks and Johnson. The cross-examination was aimed at throwing doubt upon his honesty and reliability in respect of evidence which implicated Haydon. There was cross‑examination about his drug taking, with one of its purposes to challenge his reliability. There was detailed cross-examination about the circumstances surrounding his pleas of guilty to four murders, his negotiations with the Director to obtain a benefit from his pleas, and his co-operation and agreement to give evidence.
Re-examination
Ms Abraham, for the Crown, sought to re-examine Vlassakis about anti-paedophile conversations generally in the absence of Haydon, about details of the spider wall and discussions relating thereto, about conversations about murders generally in the absence of Haydon, including evidence of Bunting having told Vlassakis about the murders of others who Bunting had regarded as paedophiles. In respect of a number of those murders, there is no evidence that Haydon had any involvement or knew about them, either at the time of their commission or subsequently.
In respect of the murders with which Haydon is charged with assisting offenders, the Crown sought to lead conversations between Bunting and Vlassakis about the commission of those murders by Bunting and Wagner. The Crown further sought to re-examine Vlassakis about acts of vandalism performed by he and Bunting towards people who were regarded as paedophiles. Further, it was sought to lead evidence about acts of harassment and threatening telephone conversations towards those individuals.
Ms Abraham submitted that the evidence was made relevant and admissible by the manner in which Vlassakis had been cross-examined. She submitted that the questions which had been put to Vlassakis in cross-examination portrayed him in a particular light, without the jury having the benefit of understanding how the relationship between Vlassakis and Bunting had developed and the influence which Bunting had had over Vlassakis. It was submitted that, for the jury to properly understand how and why Vlassakis acted in the way in which he did and made the statements that he had made, it was necessary to understand the background and relationship which he had had with Bunting, and how that had influenced him. It was submitted that it was relevant for the jury to understand how, at the age of fourteen, Vlassakis had been introduced to Bunting who had become a father figure. Vlassakis was exposed to Bunting’s obsessive hatred of people who he regarded as paedophiles and homosexuals, or sexual molesters of others. He was obsessed about the treatment that those people should receive. This eventually led to discussions with Vlassakis about assaulting and then killing those individuals. Bunting then introduced Vlassakis to actual killings which Bunting and Wagner had committed.
Ms Abraham submitted that the whole tenor and tone of the cross‑examination of Vlassakis was to paint a picture of him which was distorted. She submitted that the jury should have an opportunity to understand how he first became involved in this conduct.
Ms Abraham relied upon the following statements of principle in The Queen v Szach.[1] Wells J, the trial judge, discussed the principles which applied to re-examination. He said:
“But to say that re-examination must arise out of cross-examination is not the same as saying that all that the trial judge can look at in order to determine the limits of re-examination, is a passage in cross-examination, considered alone and artificially disengaged from the context of the witness’s evidence as a whole. The trial judge is entitled and, indeed, bound to look, not only at the passage in cross-examination that lies at the heart of the application to re-examine, but also at the evidence of the witness as a whole, for the purpose of discerning what are, or may be, the implications of that passage. (Compare Dixon CJ (supra) at page 479).
The matter does not, however, rest there. An answer given in cross-examination may, read in isolation, be clear and unequivocal, and yet it may, having regard to the use that will or may be made of it by cross-examining counsel, justify extensive re-examination, in order to explain, or to place in true and fair perspective, the answer given in cross-examination. The leading case of Prince v. Samo, for example, provides authority for the proposition that where a witness acknowledges in cross-examination that he made a statement with respect to a specified subject matter, counsel calling him may elicit from him the whole of the conversation relative to that subject-matter. The ruling given by the Court of Kings Bench in that case, after hearing argument upon a rule to show cause, is clearly derived from the wider principle.”[2] (Citation omitted)
[1] (1980) 23 SASR 504
[2] Ibid at 512
On appeal, King CJ, with whom Mohr J agreed, considered whether Wells J was in error in allowing the Crown prosecutor to re-examine. He said:
“Re-examination is permitted for the purpose of explaining matters arising out of the cross-examination. It is to be permitted “whenever an answer or answers given by a witness in cross-examination would, unless supplemented or explained in the manner proposed by the re-examiner, leave the Court with an impression of the facts, derived from the witness, that is capable of being construed unfavourably to the side responsible for calling the witness, and that represents a distortion, or an incomplete account, of the truth as the witness is able to present it”: Reg. v. Lavery, per Wells J. at p.451. In re-examination a party may in many cases “adduce evidence which would otherwise be inadmissible, for the purpose of explaining away or qualifying matters which have emerged in cross-examination and from which inferences adverse to that party’s case could otherwise be drawn.” Reg. v. Clune (No. 1). It is probably impossible to devise a formula which would set the bounds of re-examination for every case. The variety of circumstances in which re-examination may be legitimate is too great. The fundamental requirement is that re-examination must in some way arise out of the cross-examination. Commonly re‑examination is allowed to clear up ambiguities in answers given in cross‑examination, to enable a witness to give his version fully of a topic which has been touched upon but left incomplete by the cross-examiner, and to re-establish the credit of a witness where answers given in cross‑examination could be used to affect adversely the Court’s view of the truthfulness or reliability of the witness.
The purpose of the controversial question in re-examination was to re-establish in the eyes of the jury the reliability of the witness’s identification of the accused. The answer which the witness admitted giving in the Magistrates Court was capable of affecting in the minds of the jury the reliability of his evidence that the man who left the Greenhill Road premises at 6.40 p.m. was the accused. In these circumstances re-examination was clearly permissible to enable the witness to put forward any explanation of his previous statement which would tend to re-establish or confirm the jury’s faith in the evidence of the witness given at the trial.
Mr Borick, for the appellant, argued that where it is sought by re-examination to explain a witness’s answers as to a previous statement, the type of explanation which might be elicited in re-examination is limited to facts external to the witness and did not include an explanation consisting of the recounting of the witness’s own mental state. No authority was cited to support such a limitation, and I am unable to see how it can be justified in principle. The purpose of permitting re-examination in those circumstances is to enable the jury to assess the effect of the answers in cross-examination as to the previous statement. If the questions in re-examination are designed to elicit explanations material to that assessment, they should be allowed. An explanation of the previous statement consisting of the witness’s state of mind when he made the statement might be most material. A witness might wish to explain that he made the statement because he was fearful or suspicious or distraught or for a variety of other subjective reasons. I can see no reason in principle why such subjective explanations should be excluded. The rule as to re-examination relating to former inconsistent statements is stated in Phipson on Evidence, 11^th ed. (1970), p. 664, par. 1558 as follows: “Thus, if the witness has admitted making a former inconsistent statement, he may in re-examination explain his motives for so doing.” The Queen’s Case is cited by Phipson in support of that proposition. In that famous case, a witness in cross-examination stated that “he told A that he was one of the witnesses against the defendant”. Re-examination was permitted to elicit from the witness “what induced him to mention this to A”. Abbott C.J. said:
“But the conversation of a witness with a third person is not in itself evidence in the suit against any party to the suit. It becomes evidence only as it may affect the character and credit of the witness, which may be affected by his antecedent declarations, and by the motive, under which he made them; but when once all which had constituted the motive and inducement, and all which may shew the meaning of the words and declarations has been laid before the Court, the Court becomes possessed of all which can affect the character or credit of the witness, and all beyond this is, in my opinion, irrelevant and incompetent.”
I am unable to see in this passage, or in any of the authorities, any warrant for limiting the scope of re-examination to motives for making a previous statement which consist of facts external to the witness. In my opinion, the re-examination permitted by the learned trial Judge was within the proper limits of re-examination.”[3] (Citations omitted)
[3] Ibid at 568-570

In R v Martin(No. 2),[4] Doyle CJ, with whom Lander and Bleby JJ agreed, accepted the principles stated in Szach. In Martin’s case, a witness had given evidence that Martin had told her that he had shot his father. In cross-examination it was suggested to her that her evidence was false, and that she had been motivated by two factors, the first being that Martin, who had been in a sexual relationship with her had terminated the relationship. Secondly, it was put to her that she faced the prospect of imprisonment for unrelated offences and she wanted to get favourable treatment from the police. She rejected the suggestions. The Crown was permitted to re-examine her about the circumstances leading to her approaching the police about the disputed confession. The trial judge ruled that she was permitted to give the evidence to establish her motives in approaching the police. He permitted her to give evidence about conversations that she had had with others before she reported the matter to police. She gave evidence that, within a few hours of Martin speaking to her, she spoke to her fiancé about it. She later spoke to a friend and to her mother, and then to a counsellor at Crisis Care from whom she obtained advice. She then telephoned the police. The trial judge permitted evidence to be called from her fiancé, her friend and the counsellor at Crisis Care to recount the conversation with them to establish that she had been fearful of going to the police. The trial judge directed the jury that they could only use the evidence of what the witness had told others to assist them in determining her motivation in going to the police and to assess the witness’ state of mind, in order to rebut the suggestion that she had fabricated the confession out of vindictiveness or to save her own skin.
[4] (1997) 68 SASR 419
Doyle CJ in discussing the evidence said:
“[it] was no more and no less than evidence of repetitions by Ms F [the witness] of the alleged admission coupled with evidence about her manner and appearance at the time. It was ultimately relied upon to support the submission that her behaviour at the time of the repetitions was not the behaviour of a vindictive and self-seeking liar but the sort of behaviour one would expect from a person to whom such a serious disclosure had been made by a friend. It simply tended to support in a general way her denial that she was influenced by the suggested motives.”[5]
[5] Ibid at 440
He concluded that, although it could be argued that the evidence was relevant and arose out of cross-examination, the evidence was inadmissible because it was evidence of the state of mind of the witness when she gave her testimony or when she approached the police, and that was not a matter to be proved by the prosecution to secure a conviction. It became a relevant matter because it bore upon her credibility, but it was not a matter to be proved in the case. He was reinforced in his view because he considered that the rule which generally excludes evidence of out-of-court statements by a witness and out-of-court conduct by a witness when that evidence is led simply to support credibility applied.
The Chief Justice considered the decision of the High Court in Nominal Defendant v Clements[6], which is authority for the admission of evidence of out-of-court statements to rebut a suggestion of invention of some material fact by a witness if the evidence at the time of making the out-of-court statement logically tends to rebut the suggestion of invention made by the cross-examiner. He regarded that decision as an exception to the general principle, and one to be applied with great care.
[6] (1960) 104 CLR 476
In Szach, Wells J was of the opinion that what Dixon CJ said in Nominal Defendant v Clements, with respect to re-examination designed to rebut the suggestion of recent invention or recent construction applied generally to re-examination of all kinds (see p.512). King CJ did not refer specifically to the decision in Clements, but affirmed that in re-examination a party may often be entitled to adduce evidence which would otherwise be inadmissible for the purpose of rebutting inferences which may be adverse to the case for that party. He affirmed that it was not possible to formulate a rule, other than the most general rule, that the re-examination must, in some way, arise out of the cross‑examination. He considered that re-examination was permissible to re‑establish the credit of a witness where answers given in cross-examination could be used to adversely affect the court’s view of the truthfulness or reliability of the witness.
The court in Martin held that evidence of previous consistent statements of a witness were inadmissible to reinforce the credit of the witness. The evidence of the witnesses in that case simply reaffirmed what had been said by the witness in the witness box. The Chief Justice considered that evidence was not admissible. He regarded the evidence as no more and no less than evidence of repetitions by the witness of the alleged admission by the accused, coupled with evidence about her manner and appearance at the time.
The evidence sought to be led by the Crown is evidence of conversations and conduct in which Vlassakis was involved to explain his subsequent conduct when he became involved in the murder and concealment of bodies.
Mrs Shaw submitted that such evidence was inadmissible on the same basis as the evidence which had been rejected in Martin’s case. I consider that evidence of out-of-court conversations and conduct may be admissible to explain a witness’ subsequent conduct and statements. A witness is entitled to give evidence of the surrounding circumstances which may explain the witness’ conduct. That evidence may include statements made to that witness by third parties which explains why the witness acted in a particular way. The statements are not relevant to prove the underlying facts relied upon, but may be relevant to establish the conduct of the witness and the state of mind of the witness.
Nevertheless, I concluded that the prejudicial effect of the evidence sought to be led from the witness in re-examination outweighed its probative value. I concluded that, no matter how the jury were directed, they could not use the evidence as proof to establish the underlying facts. The effect of the evidence upon the jury would be highly prejudicial to Haydon. An important part of the Crown case relies upon Haydon’s presence, together with Bunting and/or Vlassakis, at the bank vault, and upon conversations at which it is said Haydon was present when there was discussion about some of the murders. Further, the Crown relies upon evidence that Haydon participated in the obtaining of benefits of deceased people, and that he was involved in that conduct, together with Vlassakis and Bunting. It follows that his association with Bunting in that conduct and in those conversations is a significant feature of the Crown case. Conversations between Bunting and Vlassakis about other murders, when Haydon was not involved or did not participate in any way would, in my view, have the potential of substantially prejudicing Haydon receiving a fair trial.
I therefore rejected the application to re-examine generally about conversations and conduct of Bunting and Vlassakis in the absence of Haydon.
Ms Abraham then sought to re-examine Vlassakis in respect of specific matters that were put to him in cross-examination.
The first matter upon which the Crown sought to re-examine Vlassakis related to the circumstances in which he made his first statement to the police. Bunting, Wagner and Haydon were arrested on 21 May 1999. Vlassakis, who was not arrested at that time, was extremely concerned about his position, and he spoke to two friends, Wally Fitzgerald and Frances McGrath. They referred him to a solicitor, Mr Vadasz, from whom Vlassakis sought and obtained advice.
On 24 May 1999, Vlassakis attended at the police station and was there interviewed by Detective Constables Stone and McCoy. That interview proceeded on the condition that it was agreed that anything Vlassakis told the police could not be used in evidence against him if he were subsequently charged. The interview was conducted over many days, on many different topics.
During the cross-examination of Vlassakis, Mrs Shaw invited Vlassakis to refresh his memory from the transcript of the interview. She put to him statements which he had made about various events which were inconsistent with the evidence he gave to the court. Further, she cross-examined him about the circumstances that led him to attend at the police station and to speak to the police. Prior to and subsequent to 24 May 1999, the police had installed telephone intercepts at various premises, including premises at which Vlassakis was residing. Telephone conversations which Vlassakis had with Ms McGrath, and others, were recorded.
During cross-examination, Mrs Shaw made reference to statements made by Vlassakis during various telephone conversations. These included conversations with Frances McGrath and with a Ms Amanda Warwick, who had been the girlfriend of the victim, David Johnson. Vlassakis was invited to refresh his memory from the transcripts of those telephone interviews, and he was referred to certain statements he made in the course of those telephone conversations, and asked to confirm and, in some cases, explain them.
There was lengthy cross-examination about the background to Vlassakis subsequently pleading guilty to four counts of murder, and the background to the Director agreeing to enter a nolle prosequi in respect of one count of murder, being that of Gavin Porter. There was cross-examination about Vlassakis’ decision to plead guilty and to provide a further lengthy detailed statement to the police, and his decision to give evidence. Towards the conclusion of the cross-examination, Mrs Shaw tendered television footage of Vlassakis after he had been arrested and charged with five counts of murder.
It is unclear when the footage was taken, but it was obvious from the film that it was taken at a time when Vlassakis was being transported to court at the Adelaide Magistrates Court. There is also some footage of Bunting being led across a yard, handcuffed. In the film, Vlassakis is seen to be yelling out, swearing, addressing abusive remarks to a cameraman, and calling that cameraman a paedophile. His general behaviour could lead to a conclusion that he was treating the whole affair flippantly, that he was abusive to authority, and that he presented at that time as a very different individual from the individual portrayed in court when he gave his evidence.
As to the cross-examination relating to the first statement, Ms Abraham seeks to re-examine the witness about his general state during the time of the interview, the detail of the length of the interview, whether, at the time of the interview, he was taking drugs and, if so, what drugs.
Mrs Shaw cross-examined about a conversation with Frances McGrath on the evening of the first day of the interview. The conversation was recorded, and has been referred to as call No. 1925 (transcript marked for identification MFI D6). Mrs Shaw cross-examined about parts of the conversation which lasted for almost one hour. Ms Abraham submitted that the jury is entitled to hear the whole conversation so that the statements to which Vlassakis had been referred could be put in context. She also submitted that, if the jury were to hear the conversations, they would be in a position to make an assessment about Vlassakis and whether he was thinking rationally and making rational decisions and judgments at that time.
Mrs Shaw objected to the conversation being played on a number of grounds. Firstly, she submitted that there were topics discussed during the conversation which related to murders which were not relevant to her client, and in which her client is not alleged to have been involved. She submitted that reference to those murders and references to conversations in which Bunting speaks of those murders, would have the effect of permitting the prosecution to introduce evidence which I had earlier rejected, and would result in prejudice to her client obtaining a fair trial.
Further, she submitted that, because she had referred Vlassakis to some identified topics, that did not permit the introduction of everything that had been discussed between Vlassakis and McGrath. She submitted that there were essentially three topics upon which he was cross-examined which related to what he was telling the police, and how that conflicted with what he was telling Frances McGrath.
Mrs Shaw submitted that the cross-examination simply identified statements made by Vlassakis to Ms McGrath which were inconsistent with statements he had made to the police.
I listened to the recording of the telephone conversation. I rejected the Crown’s application to play the recording. I did so, firstly, because I considered that the references to conversations with Bunting about murders which are not the subject of the charges, was highly prejudicial and of little probative value. Secondly, I agreed with Mrs Shaw’s submission that, merely because she had referred the witness to certain statements that he had made to Ms McGrath, that did not justify the introduction of the whole conversation. I accept that there are circumstances when part of the conversation, when put to a witness, will result in it being permissible to re-examine the witness so that the whole of the conversation can be considered, but it does not follow that in every case that would be the position.
I indicated that I would permit the Crown to re-examine Vlassakis about the interview with the police which commenced on 24 May 1999 including details of how he felt during the course of the interview, if he suffered from mood changes and, if so, what were those changes. Further, I indicated I would permit re-examination of Vlassakis about his drug taking during the time that the interview was continuing.
Ms Abraham sought to lead a conversation which occurred on 30 May 1999 between the witness and his mother. In that conversation, Vlassakis telephoned his mother not long after he had overdosed on heroin. During the conversation, he spoke of the incident. Listening to the tape of the interview, Vlassakis appears to be genuinely distressed. The conversation took place at a time during which Vlassakis was being interviewed by the police, although there had been no interview on the two days prior to that date. There was a break of a number of days between the days when he was interviewed and this event occurred during a three-day break.
Ms Abraham submitted that the jury were entitled to have regard to Vlassakis’ mood and his demeanour from listening to the conversation. She submitted that the whole tenor of the cross-examination had been to demonstrate Vlassakis in a particular light, and to show that he was more involved in the criminal conduct than he had been prepared to admit, in court and to the police. She submitted that the playing of the television footage at the conclusion of the cross-examination was to show Vlassakis as an aggressive person who appeared to have little regard for authority. That raised the issue whether that was typical of his attitude throughout, or whether there were different sides to him at different times.
Mrs Shaw submitted that the purpose of playing the television footage was to elicit from Vlassakis that he referred to people whom he did not like as paedophiles, whether they were or not, and that he was a person who was not overawed by authority. She refuted the submission of the Crown that the purpose of her cross-examination was to demonstrate Vlassakis in a particular light, as a person who was aggressive towards authority, who acted irresponsibly, even at a time when he was seeking to effect a deal with the Crown.
In my view, the effect of the playing of the video footage was to show Vlassakis in a particular light, and to challenge his evidence about his attitude to demonstrate a very different person from the impression a jury might gain from seeing him in the witness box. In my view, it was relevant for the jury to be aware that Vlassakis’ moods changed from time to time and that, at one point in time during the course of the police first interview, he was so emotionally unstable that he overdosed. However, the playing of the tape of the telephone intercept bears very little relevance to the time when he is shown on the videotape. A jury may be able to discern something of his mental state and his mood on 30 May 1999 from hearing the telephone intercept. However, that is far removed in time from the videotaped incident. There is a real risk that the issue of his drug taking and mood swings, which are collateral issues, may have overtaken the central issues of the case. I determined to exercise my discretion to exclude the evidence.
The prosecution also sought to lead a recording of a conversation between Vlassakis and Amanda Warwick on 24 May 1999 at 1.09 a.m. During his cross‑examination, it was put to Vlassakis that he had lied to Amanda Warwick, and had not told her about his involvement in the murder of David Johnson. During the conversation with Amanda Warwick, he told her that he had spoken to lawyers who had told him to remain silent. He then discussed a number of matters with her. During the course of the conversation, he told her that David Johnson was “gone”.
Mrs Shaw objected to the whole conversation being played. The conversation related to a number of topics which had not been the subject of cross-examination.
I concluded that he could be re-examined on the subject of what he told Amanda Warwick about David Johnson, the fact that he had spoken to his lawyers, and exactly what he told her about David Johnson and why.
There was considerable cross-examination about Vlassakis’ belief and anticipation as to whether, by co-operating with the police, he could obtain an immunity. There was also cross-examination of him that once he had been advised that he would be charged, there were further communications by his lawyers with the Director, during which it was finally agreed that he would plead to four counts of murder, and that he would provide a further statement in order for the Director to determine whether he would be called as a witness at the forthcoming trial of Bunting, Wagner and Haydon. Ms Abraham sought to re-examine him about those factors which were of importance to him in making his decision to plead guilty and to co-operate.
Mrs Shaw objected to the re-examination. She submitted that the topics had been fully covered in cross-examination, that the witness had been given adequate opportunity to explain those matters, and the Crown should not be permitted to re-visit those questions.
I considered that, even though the cross-examination was wide-ranging and the witness took a long time before giving his answers to a number of questions, and he could have raised some of those matters in his answers but failed to do so, that is not a reason to disallow re-examination to complete his answers, and to put in proper context the matters that were playing on his mind, the advice he had been given, and the factors that were of primary importance to him.
These are all matters which, in my view, the jury was entitled to consider when they made an assessment of Vlassakis’ evidence, and whether they were prepared to believe him and rely upon his evidence in respect of facts surrounding the murder and concealment of bodies and the involvement of Haydon.
In relation to other topics of re-examination which I had ruled upon, I indicated I would not give detailed reasons.