John Justin BUNTING
"The Snowtown murders" - "The Bodies in Barrels murders"
Classification: Serial killer
Characteristics: Ringleader of a "degenerate sub-culture" of murderers - Cannibalism - Torture
Number of victims: 11
Date of murders: 1992 - 1999
Date of arrest: May 19, 1999
Date of birth: September 4, 1966
Victims profile: Clinton Trezise, 22 / Ray Davies, 26 / Michael Gardiner, 19 / Barry Lane, 42 / Thomas Trevilyan, 18 / Gavin Porter, 29 / Troy Youde, 21 / Frederick Brooks, 18 / Gary O'Dwyer, 29 / Elizabeth Haydon, 37 / David Johnson, 24
Method of murder: Shooting - Strangulation
Location: Snowtown, South Australia, Australia
Status: Sentenced to eleven consecutive sentences of life imprisonment without the possibility of parole on September 8, 2003
John Justin Bunting (b. 4 September 1966 in Inala, Queensland) is an Australian serial killer from Adelaide, South Australia, currently serving eleven consecutive sentences of life imprisonment without the possibility of parole for his role in the murder of 11 victims of the Snowtown murders.
Bunting, driven to murder by his hatred for pedophiles and homosexuals, has been described as a skilled manipulator of people and "Australia's worst serial killer".
Bunting was the ringleader of a "degenerate sub-culture" of murderers whose victims were people they already knew. Under the instruction of Bunting, the group would prey upon the weak so they could steal their welfare payments. His crimes led to the longest and most expensive investigations and criminal trials in South Australia's history.
Bunting lived in Murray Bridge, South Australia from November 1991, living on Lohman Street until he moved to Burdekin Avenue in May 1997 where he remained until September 1998. Two of his victims were found in the backyard of his former home in Waterloo Corner Road, Salisbury North, a northern suburb of Adelaide, with the remaining eight discovered in a vault of a disused bank rented by Bunting and Haydon in Snowtown, South Australia, 140 km north of Adelaide. Bunting insisted on playing the 1994 Live album Throwing Copper during many of his later murders.
Rock spider wall
Bunting had fashioned a "rock spider wall" on a wall of a spare room in his house. The chart, created using paper notes and wool, was an interconnected web of names of people Bunting suspected to be pedophiles or homosexuals. At times Bunting would randomly select a name from the wall and call them, insinuating they were pedophiles and "would get what's coming to them".
Relationship with James Vlassakis
Bunting was married to Elizabeth Harvey, mother of co-offender James Vlassakis. Bunting spent a lot of time with Vlassakis, assuming the role of a father figure. Bunting regularly communicated to Vlassakis his hatred for pedophiles and homosexuals. Vlassakis confided in Bunting that his stepbrother, Troy Youde, had molested him at the age of 13. Bunting replied by suggesting that Youde be bashed.
Vlassakis later gave evidence against Bunting, Wagner, and Haydon at their criminal trials. Elizabeth Harvey has since died of cancer.
Relationship with Robert Wagner
Bunting met Wagner when he moved to Waterloo Corner Road. Wagner was living with Barry Lane at the time; both men assisted Bunting in disposing of the body of his first victim, Clinton Trezise. Wagner later assisted Bunting in the remaining ten murders.
Murders
Clinton Trezise
Bunting's murder spree began in August 1992, with the murder of Clinton Trezise, 22. Trezise was bashed to death with a shovel in Bunting's living room after being invited inside for a social visit. Bunting accused Tresize of being a pedophile and referred to him in conversations after his murder as "Happy Pants". Trezise was found buried two years after his murder in a shallow grave on 16 August 1994 at Lower Light, South Australia. It was another three years before Bunting murdered again.
Trezise's murder remained unsolved for some time and in 1997 he was the subject of two episodes of the Australian television show Australia's Most Wanted. Bunting watched an episode of the show with Vlassakis and his mother. Bunting boasted to Vlassakis, "That's my handiwork" and revealed to Vlassakis that he had murdered Trezise while living at Waterloo Corner Road, Salisbury, and that he disposed of Trezise's body in Lower Light with Wagner and Lane's assistance.
Ray Davies
Ray Davies was an intellectually disabled man who lived in a caravan behind the house of Suzanne Allen in Salisbury North. Davies, a former lover of Allen, became a target for murder after Allen accused him of making sexual advances to her grandsons.
Davies was murdered by Bunting and Wagner in December 1995 and was never reported missing. Bunting and Wagner were later seen cleaning Davies' caravan. They moved it to a house in nearby Elizabeth, where it was painted and sold two months after Davies' murder. Bunting continued to claim Davies' welfare payments.
Davies' body was later recovered by police buried in the backyard at the former home of Bunting in Waterloo Corner Road, Salisbury North.
Michael Gardiner
Michael Gardiner was an openly gay man murdered by Bunting and Wagner in August 1997. Gardiner shared a house with friends nearby.
Robert Wagner did not like Gardiner due to his open homosexuality.
After Gardiner's murder, Bunting had Frederick Brooks call friends of Gardiner and impersonate him. Brooks demanded from them belongings such as Gardiner's wallet, saying Gardiner required it for identification purposes. Bunting wanted it to gain access to Gardiner's personal funds.
His body was found by police stored in one of six drums in the bank vault in Snowtown. The body of Barry Lane was also located in the same barrel. One of Gardiner's feet had been removed so the lid of the drum could be closed.
Barry Lane
Lane was an open homosexual and crossdresser. Lane had previously been in a relationship with Robert Wagner from 1985 until 1996. The pair shared a house in Bingham Road, Salisbury North near the home of Bunting. Lane's relationship with Wagner began when Wagner was 13. He was last seen alive in October 1997.
Bunting often referred to Lane as being "dirty" and as a pedophile. On the day of his murder, Lane was forced by Bunting to call his mother; he told her he would be moving to Queensland and that he wanted nothing further to do with her.
Bunting had also learned of Lane telling others about the earlier murder of Clinton Tresize. Lane had assisted Bunting to conceal Tresize's body. After Lane's murder, Bunting assumed control of Lane's vehicle and claimed his welfare payments. Thomas Trevilyan was also involved in the murder of Lane. It was alleged Bunting only associated with Lane to gain further information about pedophiles in the area.
Lane's dismembered body was found by police in a drum in the bank vault in Snowtown, along with the body of Michael Gardiner.
Thomas Trevilyan
Thomas Trevilyan was described as having psychiatric problems and wore only army style clothing. He would at times run outside his house with a knife if he heard unfamiliar noises, and was known to regularly travel long distances on foot. He shared a house with Barry Lane for a period of five months from April to October 1997. Trevilyan had assisted Bunting and Wagner in the earlier murder of Barry Lane. Bunting murdered Trevilyan after finding out he told others of his involvement in Lane's murder.
Bunting told others that Trevilyan had started to "fuck up" and "go mental" and that he would be a risk. Trevilyan was driven to Kersbrook in the Adelaide Hills by Bunting and Wagner. He was forced to stand on a box while a noose was fastened around his neck and the box kicked from under him.
Trevilyan's body was found on 5 November 1997. Police initially treated Trevilyan's death as a suicide.
Gavin Porter
Gavin Porter, 31, was a friend of Vlassakis' from Victoria. He moved into the house shared by Bunting and Vlassakis in 1988. Bunting referred to Porter, a heroin addict, as a "waste" who no longer deserved to live. Bunting was angered after being pricked by a used syringe discarded by Porter on the sofa. Porter was murdered by Bunting and Wagner while sleeping in his car in the driveway of Bunting's house after working on his car. Porter's body was stored in a barrel before being moved to Snowtown.
Troy Youde
Troy Youde was a half brother of Vlassakis. Vlassakis had earlier confided to Bunting that Youde had molested him when younger. In August 1998, Bunting, Wagner, Vlassakis, and Haydon visited Youde. Bunting, Wagner and Vlassakis dragged him from his bed and murdered him. Youde's body was dismembered and stored in a barrel and later moved to Snowtown.
Frederick Brooks
Frederick Brooks was the intellectually disabled son of Jodie Elliot and nephew of Elizabeth Haydon. He was murdered by Bunting, Wagner, and Vlassakis on 17 September 1998.
Brooks' body was moved to a car which was later collected by Mark Haydon. The body was later located by police in the disused bank vault in Snowtown. Mark Haydon continued to access the welfare payments of Brooks.
Gary O'Dwyer
Gary O'Dwyer, 29, was an intellectually disabled man who lived alone in Frances Street, Murray Bridge. His disabilities arose from a car accident earlier in life. Bunting had Vlassakis learn personal information about O'Dwyer and whether he had any family. O'Dwyer was seen by Bunting as an easy target and murdered so Bunting could gain from O'Dwyer's welfare payments.
O'Dwyer's body was found by police in the bank vault in Snowtown. His body contained burn marks which were inflicted by using a variac machine to apply electric shocks.
Elizabeth Haydon
Elizabeth Haydon was the wife of Mark Haydon, and shared a house with him at Blackham Crescent, Smithfield Plains, a northern suburb of Adelaide. Elizabeth's sister, Jodie Elliot, who had a brief relationship with Bunting in 1998, lived at the rear of the Haydons' house. Elizabeth was Bunting and Wagner's second-to-last murder victim and the only female victim.
Elizabeth was murdered on 20 November 1998 while Haydon and Elliot were away from the house. Elizabeth was reported missing by her brother Garion Sinclair to police at 3pm the following day. Haydon would later assist in concealing his wife's murder.
Police inquiries into Elizabeth Haydon's disappearance led them to the disused bank in Snowtown, which eventually led to the discovery of eight bodies stored in a vault, including that of Elizabeth Haydon. Police later arrested Bunting, Wagner, Vlassakis, and Elizabeth's husband, Mark Haydon for the murders.
David Johnson
Johnson was lured to the disused bank in Snowtown by his stepbrother, James Vlassakis, on 9 May 1999. Johnson was not homosexual, but Bunting would often refer to him as a "faggot" and say he needed to die.
Vlassakis had earlier told Johnson about a computer for sale near Clare, South Australia. Vlassakis drove him to Snowton to ostensibly look at this computer.
Shortly after Johnson entered the bank building, he was grabbed by Wagner around the throat and strangled. Wagner then applied handcuffs to Johnson and he was forced by Bunting to read a script Bunting had earlier prepared, as well as provide his bank account PIN. Johnson's voice was recorded on a computer equipped with a microphone.
Wagner and Vlassakis drove to Port Wakefield and attempted to access Johnson's bank account, leaving Bunting and Haydon with Johnson in the disused bank. Wagner and Vlassakis were unsuccessful in withdrawing funds from Johnson's account. When they returned to Snowtown, Johnson was dead.
Bunting and Wagner dismembered Johnson's body, then fried and ate parts of his flesh.
Johnson was the final murder victim before the group was apprehended.
Criminal trial
Bunting was tried together with Robert Wagner. On 8 September 2003, Bunting was found guilty and convicted on 11 counts of murder. He was Australia's most prolific serial killer.
Suzanne Allen
The remains of Suzanne Allen were found buried at Bunting's house at Salisbury North, wrapped in 11 different plastic bags. Her death was concealed by the accused and they continued to collect her pension, claiming a total of $17,000. They claimed she had died of a heart attack. Murder charges regarding the death of Allen were eventually dropped by the prosecution due to lack of evidence.
Films inspired by events
In March 2010, Screen Australia announced funding support for Snowtown, a true crime film based on the murders. The film was to be produced by Warp Films Australia. It would be the first full length feature directed by Justin Kurzel.
Wikipedia.org
The Snowtown murders, also known as the Bodies in Barrels murders, were the murders of 12 people in South Australia, Australia between August 1992 and May 1999. The crimes were uncovered when the remains of eight victims were found in barrels of acid located in a rented former bank building in Snowtown, South Australia on 20 May 1999. The town of Snowtown is in the Mid North of South Australia, 145 km north of Adelaide. Though Snowtown is frequently linked with the crimes, the bodies had been held in a series of locations around Adelaide for some time, and were moved to Snowtown in early 1999, very late in the crime spree that had spanned several years. Only one victim was killed in Snowtown; none of the victims or the perpetrators were from that town.
Eight bodies were found in plastic barrels in the disused bank vault on 20 May. Three days later two bodies were found buried in a backyard in Salisbury North, a suburb north of Adelaide. By the end of June, nine of the ten victims had been identified. The discoveries followed a lengthy, covert criminal investigation by South Australian Police. During the investigation two mysterious deaths already known to authorities were found to have been murders perpetrated by the "Snowtown" murderers.
A total of four people were arrested and charged over the murders. All were convicted of the murders or assisting in the murders. This group was largely influenced by ringleader John Justin Bunting. Much detail was not made public with the cases having been subject to over 250 suppression orders, many of which have not yet been lifted.
Perpetrators
John Justin Bunting (b. 1966 in Inala, Queensland) was convicted of murdering all listed victims except Suzanne Allen. He is considered to have been the central figure throughout all of the killings and torture and the one whose personality provided motivation for the other perpetrators. While psychological reports are not available to the public, it has been suggested by forensic psychiatrist Professor Kevin Howells, who has worked at Broadmoor Hospital in the United Kingdom, that Bunting's behaviour suggested he lacks emotion and the capacity to empathise with his victims. Howells believes Bunting fits the profile of a psychopathic killer who derives satisfaction from controlling his victims. When he was young, his favourite pastime was burning insects in acid, and during his teenage years he was a neo-Nazi. During adulthood Bunting developed a deep hatred of paedophiles and homosexuals.
Robert Joe Wagner was befriended by Bunting in 1991. He was encouraged by Bunting to assist him in the various murders, and complied.
Mark Ray Haydon was not convicted of any of the murders, but pleaded guilty to helping the serial killers dispose of the bodies.
James Spyridon Vlassakis, along with his mother and half-brother, lived with Bunting, and was gradually drawn into helping with the murders and torture. Later became the Crown's star witness.
Elizabeth Harvey, Vlassakis' mother, who knew about the murders, and with Bunting's encouragement, assisted in one of them. Died of cancer after the arrests of Bunting, Wagner, Vlassakis, and Haydon.
Thomas Trevilyan assisted in the murder of Barry Lane in 1997, murdered by the other gang members prior to police involvement.
Jodie Elliott, sister of Mark Ray Haydon's wife Elizabeth Haydon, was a woman with below-average intelligence who had become besotted with Bunting. She impersonated a deceased former acquaintance of Bunting's, Suzanne Allen, to collect her social security payments. Elliott's son Frederick Brooks was later murdered by the gang.
The murders
Bunting moved into the Salisbury North home in 1991 and quickly befriended Wagner and his boyfriend Barry Lane, and Mark Haydon, who all lived nearby.
The various victims were mainly chosen on a whim by John Bunting for imagined infractions. He especially hated paedophiles, and some victims were murdered as Bunting suspected them of being a paedophile, usually based on flimsy evidence or rumour. Others were killed due to dislike of obese people, or drug users or because they were gay men. Most of the victims were friends or acquaintances of at least one of the group. Others were relatives, sometimes living in the same house as one of the killers. Others were briefly befriended and drawn into the group as they were picked as easy targets to satisfy Bunting's desire to commit murder. Usually victims' social security and bank details were obtained, and the murderers or their associates impersonated the victims to continue to collect their pensions after their deaths. Although a total of $97,200 was obtained in this manner, social security fraud was not judged to have been the primary motive for the killings.
The final murder was conducted in the bank building after the barrels had been moved there for storage. Of the scene encountered in this building, one Snowtown officer said: "It was a scene from the worst nightmare you've ever had, I don't think any of us was prepared for what we saw." The building was littered with tools used by the killers to torture and murder their victims, including:
Knives
A bloodstained saw
Double barrel shotgun
Coils of rope
Rolls of tape
Rubber gloves
Cloths
A Variac metallurgy tool that the killers used to administer electric shocks to the genitals and other sensitive parts of the victim's body
The pathologists report later revealed that prolonged torture had taken place using everyday tools such as pincers, pliers and clamps — examples of all of these were found in the vault. Wendy Abraham QC, the deputy Director of Public Prosecutions, reported at the Supreme Court of South Australia that the victims were forced to call their torturers 'God', 'Master', 'Chief Inspector' and 'Lord Sir'.
Ray Davies was garrotted with a piece of rope and a tyre lever after being placed in a bath, attacked with clubs, repeatedly beaten about his genitals and having a toe crushed with a pair of pliers.
Frederick Brooks received electric shocks to his penis and testicles, and had a burning sparkler pushed down into his penis; after his toes were crushed and his nose and ears burned with cigarettes, he was allowed to choke to death on his gag.
A piece of the flesh of the eleventh and final victim, David Johnson, was fried and eaten by Bunting and Wagner.
The victims
Clinton Trezise, 22 (d. Aug 1992) was found buried in a shallow grave in 1994 at Lower Light. Was killed in Bunting's living room at his home in Salisbury North, by being bashed with a shovel after being invited in for a social visit.
Ray Davies, 26 (d. Dec 1995), a mentally handicapped man who lived in a caravan in the back yard behind Suzanne Allen's house who became a target after her accusation that he was a paedophile. Harvey assisted in his torture. Davies was never reported missing.
Suzanne Allen, 47. Allen was a friend of Bunting's. She died some time after Davies, and her remains were found buried above his in the garden of the house at Salisbury North. Her remains were wrapped in eleven different plastic bags. Her death was concealed by the accused and they continued to collect her pension, but they later claimed she had actually died of a heart attack. Based on the evidence presented at trial, the jury was unable to decide without doubt that she had been murdered.
Michael Gardiner, 19 (d. Aug 1997) an openly gay man murdered after a suspicion arose that he was also a paedophile.
Barry Lane, 42 (d. Oct 1997), a gay man and cross dresser who had been in a relationship with Wagner at the time Bunting first met them in 1991 when he moved to their neighbourhood. Trevilyan was a later boyfriend of Lane's. Lane had been tortured by having his toes crushed with pliers.
Thomas Trevilyan, 18 (d. 1997) was found hanging from a tree near Kersbrook in the Adelaide Hills, and was initially presumed to have committed suicide. He had helped in the murder of Barry Lane, but was later killed after discussing the crime with others. He was known to his family to have suffered from paranoid schizophrenia and was easily persuaded.
Gavin Porter, 29 (d. Apr 1998), a heroin addict and friend of Vlassakis. After Bunting, Elizabeth Harvey, Vlassakis, and Youde moved to Murray Bridge, South Australia, Porter also moved in. Bunting decided he should be the next victim after he was pricked by a discarded syringe Porter left on the couch in the living room. Porter was strangled in his car parked on the property.
Troy Youde, 21 (d. Sep 1998), Vlassakis' half-brother and son of Elizabeth Harvey who was living with them at Bunting's Murray Bridge house at the time of his death. He was killed in the house after being dragged from his bed while asleep. This was the first murder Vlassakis participated in.
Fred Brooks, 18 (d. Sep 1998). The intellectually disabled son of Jodie Elliott, a woman in love with Bunting, was chosen by Bunting as an easy victim and lured to his house where he was attacked and brutally tortured.
Gary O'Dwyer, 29 (d. Nov 1998), man disabled in an earlier car accident and on a pension, O'Dwyer was a stranger, picked as an easy target. Was killed in his home in Frances Street, Murray Bridge, by Bunting, Wagner and Vlassakis.
Elizabeth Haydon, 37 (d. Nov 1998), Mark Haydon's wife, killed by Bunting and Wagner in her home while her husband was out.
David Johnson, 24 (d. May 1999) Vlassakis' half-brother. Murdered by Bunting in the bank building having been lured there by Vlassakis. He was the only victim to have died in Snowtown.
The investigation began to take shape after Elizabeth Haydon's brother reported her missing within days of her disappearance. Her brother did not believe her husband Mark Haydon's explanations for her disappearance, which seemed to contradict each other in varying versions he gave, and the brother also did not believe she would leave without her two young sons. Police found it suspicious that her husband had not reported her missing, and investigated her disappearance. Elizabeth Haydon was closely affiliated with all of the murderers, so they all fell under close scrutiny once police started their investigations.
The discovery that Trezise and Lane had known each other was one of the first clues in the police discovering that there was more than a routine missing person investigation.
The storage of bodies
The discovery of the barrels in May 1999 in Snowtown was the culmination of five years of criminal investigation. Police involvement with the then unlinked crimes had begun with the discovery of human remains at Lower Light. After Elizabeth Haydon's disappearance, the police installed a listening device in Mark Haydon's house in Smithfield Plains, recordings from which were later used as court evidence.
The remains found at Lower Light were later determined to have been those of Clinton Trezise, who had been murdered in Bunting's living room at Salisbury North, South Australia. Ray Davies and Suzanne Allen were found buried in the back yard of that house.
The bodies in barrels were variously stored in several places before finally being moved to the bank vault in Snowtown. These included a shed behind Bunting's house at Murray Bridge in April 1998; the three barrels were then moved to Haydon's property at Smithfield Plains later in 1998. Then five barrels were stored in a Toyota Land Cruiser at Hoyleton, a locality on the Adelaide Plains near the Clare Valley, with a sixth in a Mitsubishi Sigma back at Murray Bridge. Both of these vehicles were later moved to Snowtown, and afterwards the barrels moved into the bank vault, which had been rented by Haydon, using the name "Mark Lawrence", the name he had used before he married.
The movement of unfamiliar vehicles to Snowtown, a small town where strangers stand out, and loading activity at the old bank led to the bank building being searched. Of the Snowtown location one local police source said, "From what I understand there was no person involved in those murders from within Snowtown or the surrounding district. They were murdered elsewhere and the drums were brought to Snowtown because it was a quiet little town and there was a premises ideal for the persons involved."
Examiners attempting to identify the remains found them mummified rather than dissolved, the latter being the apparent intention of storing the bodies in barrels of acid. The killers had chosen hydrochloric acid which mummified the remains.
Trials
After a series of pre-trial hearings, the first of the accused to be sentenced was Vlassakis, who was given four life sentences on 21 June 2001 after pleading guilty to four murders. Later that summer, Bunting, Haydon and Wagner each pleaded not guilty to 10 counts of murder. Many of the charges against Haydon were later dropped due to insufficient evidence.
The Supreme Court trial for Wagner and Bunting began on 14 October 2002 and within a short space of time the court experienced difficulties with the jury. At least one juror refused to continue due to the horror of the evidence and some sources report that a total of three jurors withdrew from the panel for this reason. Both Bunting and Wagner were found guilty on 8 September 2003. Bunting was convicted of eleven murders and Wagner, who had pleaded guilty to three murders, was convicted of seven; both appealed their convictions. They were each sentenced to imprisonment for life on each count to be served cumulatively; the presiding judge, Justice Brian Martin, stated that the men were "in the business of killing for pleasure" and were also "incapable of true rehabilitation".
The proceedings against Haydon continued into 2004, and on 2 August a trial opened in which he was charged with two counts of murder and six counts of "assisting offenders". Haydon testified that he was not party to the crimes. However, on 19 December, the jury returned from four days of deliberations, convicting Haydon of five counts of assisting in the crimes and reaching no verdict on the two counts of murder and the remaining charge of assistance. Haydon was held in detention as of December 2004 awaiting a possible retrial. In May 2005 the Supreme Court dismissed an appeal by Bunting and Wagner, who have now exhausted their avenues of appeal in South Australia. In September 2005 the murder charges against Haydon were dropped in return for guilty pleas to two new charges of assisting in the killings of his wife, Elizabeth Haydon, and Troy Youde. Prosecutors also agreed to drop an additional charge of assisting offenders in relation to the murder of David Johnson.
The final outstanding murder charges against John Bunting and Robert Wagner, concerning Suzanne Allen, were dropped on 7 May 2007, when a jury was unable to reach a verdict.
Community impact
Bunting and Wagner have been described, alongside backpacker murders killer Ivan Milat as Australia's worst serial killers.
The particulars of the case, especially the manner in which the victims were found, horrified and fascinated the public. The murders garnered Snowtown much unwanted attention, and the town is now best-known for the murders. According to local residents, in the 18 months following the discovery in the disused bank vault, a steady stream of unwelcome visitors would stop to look at and photograph the building.
At the time, the local press reported a suggestion that the town's name be changed to avoid the stigma now associated with the name, although this suggestion was never acted upon. One suggested new name in press reports was "Rosetown".
The house in Salisbury North was owned by the South Australian Housing Trust, and has been demolished. Today units for older people are in its place.
Film
A movie, "Snowtown", regarding the life of John Bunting was released in Australia on 19 May 2011
Books
Snowtown Murders: The Real Story Behind the Bodies in the Barrels Killings, Andrew McGarry, ISBN 0-7333-1482-1
Snowtown: The Bodies In Barrels Murders: The Grisly Story of Australia's Worst Serial Killings, Jeremy Pudney, ISBN 0-7322-6716-1
All Things Bright And Beautiful: Murder In The City Of Light, Susan Mitchell, ISBN 1-4050-3610-9
Wikipedia.org
R v BUNTING & OTHERS (NO 3)
No. SCCRM-01-205 [2003] SASC 251 (29 October 2003)
Supreme Court of South Australia
Criminal: Reasons for Rulings
MARTIN J John Justin Bunting, Mark Ray Haydon and Robert Joe Wagner were charged jointly with 11 counts of murder alleged to have been committed between December 1995 and May 1999. In addition, Bunting and Haydon were charged jointly with a further count of murder alleged to have been committed in 1992 and Wagner was charged with Assisting Offenders in connection with that crime of murder. Prior to the empanelment of the jury, each accused sought an order that they be tried separately from the other accused. In addition there were applications for severance of counts. Following lengthy submissions I made various rulings which had the effect of separating the trial of Haydon from the trial of Bunting and Wagner and of requiring Bunting and Wagner to be tried together on all counts. I now set out my reasons for making those orders.
Charges
It is the Crown case that the murders were committed as part of a joint enterprise between the accused which had as its object or common purpose the killing of persons it was considered appropriate or necessary to kill. The Crown allege that the enterprise began with the intention of killing persons believed to be paedophiles, but developed to encompass others it was considered appropriate to kill for varying reasons.
All counts except Count 2 charge the crime of murder. Bunting and Haydon are charged with Count 1 and Wagner is charged with Count 2. All three accused are jointly charged on the remaining counts. The counts, dates alleged and victims are as follows:
Count 1: 9 July 1992 - 31 August 1992: Clinton Douglas Trezise
Count 2: 9 July 1992 - 31 August 1992: Assisting Offenders with respect to the crime charged in Count 1
Count 3: 25 December 1995 - 21 January 1996: Ray Allan Peter Davies
Count 4: 20 November 1996 - 10 December 1996: Suzanne Phyllis Allen
Count 5: 31 August 1997 - 17 September 1997: Michael James Gardiner
Count 6: 15 October 1997 - 15 November 1997: Barry Wayne Lane
Count 7: 3 November 1997 - 6 November 1997: Thomas Eugenio Trevilyan
Count 8: 3 April 1998 - 8 April 1998: Gavin Allan Porter
Count 9: 25 August 1998 - 8 September 1998: Troy William Youde
Count 10: 16 September 1998 - 19 September 1998: Frederick Robert Brooks
Count 11: 27 October 1998 - 14 November 1998: Gary O'Dwyer
Count 12: 20 November 1998 - 26 November 1998: Elizabeth Haydon
Count 13: 9 May 1999: David Terence Johnson
It is the Crown case that Bunting and Haydon actively participated in the murder of Trezise and that Wagner assisted them after the murder. The Crown says that Bunting and Wagner actively participated in the other murders. As to the involvement of Haydon in the other murders, it is the Crown case that he was present when Youde (Count 9) was killed. There is no evidence to suggest that Haydon was present at the time that any deceased other than Trezise and Youde were killed. However, the Crown says that he was party to a common purpose which encompassed the killing of all the deceased and that on each occasion he was ready, willing and able to assist.
In order to determine the applications for separation and severance, it is necessary to consider the proposed evidence and its likely cogency in considerable detail. Any assessment of the evidence is necessarily provisional as it is based upon statements, limited oral evidence at the preliminary examination and lengthy interviews with Vlassakis and other witnesses. It is also necessary to address questions of admissibility, risk of misuse and potential prejudice that might be caused in a joint trial. In addition, counsel raised questions as to the capacity of a jury to cope with a single trial on all counts. It was argued that the volume of material is so great that a jury would be unable to assimilate, recall and properly assess the evidence such that the accused will be deprived of their right to a fair trial. Counsel contended that the directions as to the proper uses of evidence would be so lengthy and complicated that a jury would not have the capacity to fully understand and apply the directions. Alternatively, the risks in these respects are so great that some form of separation or severance is necessary in order to achieve a fair trial.
James Spyridon Vlassakis
In canvassing the evidence with respect to each count, repeated reference is made to evidence that the Crown intends to lead from Mr James Vlassakis. He was originally presented jointly with the accused on five of the 12 counts of murder. The preliminary examination commenced on 13 December 2000. On 21 June 2001, prior to the conclusion of the preliminary examination, Vlassakis was presented in the Supreme Court on an Information charging him with four of those five counts of murder. He pleaded guilty to those four counts (Youde, Brooks, O'Dwyer and Johnson). The Crown discontinued the fifth count of murder (Porter) in the Magistrates Court.
Police first conducted an induced interview with Vlassakis in May 1999. Following his pleas of guilty, over the period 24 July 2001 to 28 September 2001 a second interview was conducted which comprises almost 2,000 pages of transcript. The content of the second interview is presented by the Crown as containing, in substance, the evidence that the Crown intends to lead from Vlassakis. References throughout these reasons to what Vlassakis says are references to what the Crown, based on the interviews, understands Vlassakis will say in evidence.
Addresses
In these reasons, reference is made to a number of addresses. At different times Bunting lived at 203 Waterloo Corner Road, Salisbury North, 3 Burdekin Avenue, Murray Bridge and 49 Bundarra Court, Craigmore. I will refer to those premises as Waterloo Corner Road, Burdekin Avenue and Bundarra Court. Wagner lived at 36 Mofflin Road, Elizabeth Grove and Haydon lived at 4 Blackham Crescent, Smithfield Plains. I will refer to those premises as Mofflin Road and Blackham Crescent.
In the reasons that follow, under the headings of each deceased I have endeavoured to summarise the main features of the evidence with respect to each count.
Clinton Trezise - (Counts 1 and 2)
A body said by the Crown to be that of Trezise was found buried in a shallow grave at Lower Light on 16 August 1994. A post-mortem examination revealed fractures of the skull which were consistent with having been caused by blows from a blunt object to the back of the head.
Trezise was last seen alive in August 1992. Counsel for Bunting submitted that a real issue exists as to whether the Crown is able to prove that the body found at Lower Light on 16 August 1994 was that of Trezise. Dr Jane Taylor has compared a 1989 X-ray of the deceased's skull with the skull of the body found at Lower Light. She has expressed the opinion that the X-ray is probably a picture of the same skull that was located at Lower Light.
Trezise was known to Bunting and Wagner. At the relevant time Haydon was associating with Bunting. Ms Raelene Brown met Bunting in about August or September 1993. She met Haydon in about January or February 1994. He was introduced by Bunting as a friend. She saw Haydon with Bunting on about four occasions up to April 1994 when she shifted address.
Brown says that Bunting visited her and her fiancé on a few occasions before introducing Haydon. From that time on, Bunting was always in the company of Haydon. She says that from about the second visit onwards, Bunting was always talking about killing and torture. On the occasions that she saw Bunting and Haydon together at her home, she heard them talk about "weird things". Bunting did most of the talking. Haydon was quiet and rarely spoke. Bunting spoke in detail about paedophiles, homosexuals and torturing and killing people, as well as making people disappear. A jury could infer that Bunting displayed a hate for paedophiles and homosexuals. Brown recalls mention of the names Robert Wagner, Barry Lane and Von Einem.
The first statement given by Brown is dated 30 July 1999. In that statement there is no mention of the name Trezise. In a later statement dated 18 December 2000, Brown says that the name Trezise "constantly came up in the conversations" with Bunting and Haydon. She recalls that they said Trezise was gay, but they were not sure whether he was "into the kids as well". Bunting had said that Trezise "didn't deserve to live".
Brown was cross-examined during the preliminary examination about the mention of Trezise. In that evidence she said that the name came up when she first met Bunting and she was not sure if it had been mentioned again.
Trezise and another deceased, Lane, had been homosexual partners. At the time that Trezise disappeared, Wagner and Lane were living together in a sexual relationship.
On 5 May 1997 a television programme called "Australia's Most Wanted" presented a missing persons segment concerning Trezise. On 27 August 1998 the same programme showed footage of the skeleton at Lower Light, but no connection was made by the programme between the skeleton and Trezise. According to Vlassakis, the latter programme was watched by him in company with his mother, Ms Elizabeth Harvey, and Bunting. Harvey, who was then married to Bunting, has died of cancer. Vlassakis says that when reference was made to the body at Lower Light, Bunting said "That's my handiwork". Subsequently Bunting told Vlassakis that he and Haydon murdered Trezise at Waterloo Corner Road. Bunting also said that he had Lane and Wagner assist in burying the body. According to Vlassakis, Wagner told him that Bunting asked Lane and Wagner to assist and that they had been involved in burying the body. On occasions Wagner said "We have buried someone out there".
The above account by Vlassakis was given in his second interview. In the first interview of May 1999, Vlassakis said that he thought Bunting told him that it was just Bunting who killed a person identified as "Happy Pants". In another answer he said he was not sure if he was told that it was Bunting alone or Bunting and Haydon. In the first interview Vlassakis said he thought Bunting told him that he had "lost it" and "smacked" the deceased on the head with a hammer. In the second interview he said he did not think he was told how the deceased had been killed and speculated that there was mention of strangling or hitting with a hammer.
As to why "Happy Pants" was killed, in the second interview Vlassakis says that he was not given a reason, but adds that Bunting said that the deceased was a paedophile. At that time Vlassakis did not know the proper name of the deceased as Bunting referred to him as "Happy Pants". He identified that person as Trezise after reading the post-mortem report and the Crown evidence.
On 25 May 1999, four days after the accused were arrested, Vlassakis participated in a telephone conversation which was recorded on a telephone intercept. He was heard to mention the statement by Bunting to the effect of "that's my artwork" and he made reference to the inability of the authorities to identify the body. Vlassakis then spoke of he and his mother making a statement which would enable the authorities to "pin" the crime on Bunting/"them". On one view the recorded statement could be seen as demonstrating that Vlassakis was preparing to make a false statement to the authorities. On the other view, he was merely commenting on the effect of his knowledge if he spoke to the authorities.
In his second interview on 25 July 2001, Vlassakis initially says that he is unable to remember Haydon saying anything about Trezise. However, in the continuation of that interview on 23 August 2001, Vlassakis spoke of a conversation between Bunting and Haydon about Trezise. The Crown rely on this conversation as an admission by Haydon of his involvement in the murder of Trezise:
"Q Mm. Now, take your time before you answer this question, please, but - and I know you will - can you recall if Mark Haydon was ever present during any conversations regarding Happy Pants.
A Any conversations or - from when - when John Bunting was talking to me about it? No, I couldn't say. Like, I can't remember Mark Haydon being present, no, I think there was a conversation with Mark Haydon and John Bunting - I couldn't actually call it a conversation, like it was more comments made by John Bunting and Mark Haydon about Happy Pants, which is Clinton Trevice - Trezise.
Q Mm'hm.
A There were comments about him made, that I remember by Mark Haydon, but I don't actually remember any - like a conversation when Mark Haydon was present, exactly what happened during the murder. I just remember a few comments about Happy Pants. I remember there was - Mark Haydon said something about the - the clothes he used to wear, the pants. That was also - I can't remember if Mark Haydon was present when John Bunting told me that Mark Haydon had told Elizabeth Haydon about the murder of Happy Pants. I - I'm not sure if he was present on that conversation.
Q Who was that conversation between again.
A I remember myself, John Bunting.
Q Mm.
A [A]t 4 Blackham Crescent, when we were living at 3 Burdekin Avenue, and commuting every day to Adelaide.
Q Mm'hm.
A [A]nd seeing Mark Haydon and Elizabeth Haydon, Gail Sinclair, and before Fred Brooks' murder there was a conversation between John and myself about Elizabeth Harvey - Elizabeth Haydon, and the fact that Mark Haydon had told Elizabeth Haydon about Clint - well, Happy Pants' death, how - the fact that they used Barry Lane and Robert Wagner to take the body and what happened on the day and that, on the actual murder - what happened there. I remember that conversation at the house with John Bunting, but I just can't remember if Mark Haydon was actually talking. No, so Mark Haydon was telling John Bunting, and I was there, that he had told Elizabeth about the murder - or Audrey about the murder. Mark Haydon was telling - I was there, John Bunting, Mark Haydon and Mark Haydon was telling John Bunting of what he said to Elizabeth Haydon, and Mark Haydon and John Bunting were talking - I didn't make any comments. I was just listening to that conversation between them two and then it was after that, I think on the way home, that John Bunting then again told me a few things of what happened on that night, or day - sorry, day - and the fact that Veronica, John Bunting's wife, had to - when she came home there was all the blood on the floor and that, and how she had to clean it up. That's the only conversation that I remember, like a conversation with Mark Haydon and John Bunting about that. That's why I said I can't really call that a conversation because I wasn't talking in that conversation, I was just listening. It was between John and Mark."
A little later in the interview, Vlassakis gave further answers concerning the conversation that he overheard:
"Q Okay. If I can just take you back to the conversation at 4 Blackham which you were - you could hear but you weren't - you didn't take a part in.
A Yeah.
Q It was a conversation between Mark Haydon and
A John Bunting.
Q John Bunting. Do you know why the subject of Happy Pants come (sic) up.
A That's what I said, I can't remember why the subject came up, but it was Mark Haydon talking to John Bunting and telling him the fact that he told Elizabeth Haydon - Audrey - of what happened to Happy Pants.
Q Mm.
A Well, the murder of Happy Pants, that - and he was saying that he - how he was involved and - and had that - you know, he told her everything, that - you know, that Robert and - after John had killed Happy Pants, that they went down the road and they grabbed Robert and Barry - Robert Wagner and Barry Lane - because they were together - living together at that stage - and the fact that they drove out there and the fact that the body had been found and things like that. So they - he was telling John that he told Audrey in that - in conversation between them two."
Vlassakis also relates an event relevant to the murder of Trezise that he says he witnessed during the murder of Youde (Count 9) in late August or early September 1998. He says that shortly before Wagner strangled Youde, Bunting knelt down in front of Youde and started to list the names of the people he had killed. According to Vlassakis, Haydon participated. Vlassakis gave the following descriptions of that episode:
"... just before Robert started to strangle Troy, John Bunting had knelt down and started to say to Troy of the people that he had killed. And Mark Haydon was in there and he would list off the names which were the people that had previously been murdered, which was Happy Pants, then they said Ray - or actually Jimmy, which was Ray Davies - Barry, Michael, Barry Lane and Michael Gardiner, and Gavin Porter. Well, they actually just - just said their first names, and repeated a few of the names and John was saying, 'Oh, there's too many' and then he would - then he asked Mark if he left any out and Mark said a few - a couple of names, and that was it, and that's when Robert started to strangle Troy.
...
Q Okay. Present in the bathroom when Troy was being killed.
A Yeah.
Q [Y]ou've previously mentioned that Mark Haydon was present.
A That's correct.
Q Was Mark reading off anything.
A No, no, he was just - as I said, John Bunting used to tell Mark of everything that happened.
Q Mm'hm.
A Of all the murders, everything he used to tell Mark.
Q Mm'hm.
A When he started listing off the names to Troy, Robert was also saying a few names and he asked Mark did he leave any out, and then he asked Robert if he'd left any out, and then he asked me if he left any out.
Q Mm'hm.
A And Mark is like was thinking and Robert was saying a few names and that, and then Mark said a few and
Q Okay. Do you recall what names Mark Haydon used, or said.
A No, he just repeated the names that John Bunting said already.
Q Okay. And did those names include Happy Pants.
A Yes.
Q Do you actually recall that.
A Yes, that was the first name that was mentioned by John and - by John, Robert and Mark. I do also remember a conversation with Robert about Happy Pants as well, having with Robert about the - when they - when - he used to talk about that all the time actually. It was when John come (sic) down to ask Barry Lane and Robert to take the - Happy Pants to where they buried him and that. He also said about the fact that the ground was like clay and that and they couldn't dig very far and that.
Q This is a conversation you had with Robert Wagner.
A Yes, and John Bunting.
Q Yeah.
A There was (sic) quite a few on that topic.
Q Was Mark Haydon every (sic) present for those conversations.
A Not - not with Robert Wagner, no.
Q Okay.
A There was only that - the only conversation I remember with Mark Haydon was with - with - when he said that he told Audrey.
Q Okay.
A And there was (sic) also some details given, but I can't remember the details."
The Crown also sought to rely upon evidence to be given by Mr Anthony Stewart. Elizabeth Haydon was his sister. He says that during a conversation with Haydon and others in mid-1994, he spoke of difficulties he was experiencing with his brother and commented that he would like to make his brother disappear. Later in the same conversation a female person expressed concern about a male person finding her. In this context, Stewart says that Haydon said words to the effect:
"You don't have to worry about him. I made someone else disappear and the police will not find him."
Ms Tammy McKenzie was Stewart's partner. According to Stewart, she was present during the conversation. McKenzie's statement refers to an occasion which may not be the same occasion to which Stewart refers. She heard a conversation between Stewart and Haydon in which Haydon was upset by a comment made by Stewart and threatened to punch Stewart's head in. She says that as the conversation proceeded, Haydon said something similar to "I murdered someone". She is unable to recall the precise words, but says it was as if Haydon was bragging to Stewart. According to McKenzie, Haydon said that a couple of friends had helped him kill a male person and then get rid of the body. He said that the person had done something to annoy and upset him and, as a result, Haydon and his friends murdered that person. Haydon said something like "That's one body they'll never find".
Ms Veronika Tripp met Bunting in about January 1989. She says that in 1993 she and Bunting had dinner with Wagner and Lane at 1 Bingham Road, Salisbury North. Those premises were occupied by Wagner and Lane. After a discussion between the three men, the contents of which Tripp did not overhear, the men left the premises. Lane locked Tripp inside the house. She saw them walking toward Waterloo Corner Road. It was still daylight. The men arrived home at about 10.00 pm. A few days later Lane spoke to Tripp and told her that he had helped dispose of a body.
On a subsequent occasion, Lane again told Tripp that he had helped dispose of a body. He told Tripp that Bunting had killed someone at Waterloo Corner Road by hitting "it" on the head with the back of a shovel. He said they disposed of the body at Lower Light. During one of the conversations Lane mentioned the name Colin Trezise. Lane told Tripp not to mention the conversation to Bunting.
Tripp says that she told Bunting what Lane had said to her. She asked Bunting what Lane was talking about and Bunting told her that he was making it up and to ignore him. Tripp says that in subsequent conversations Bunting told her that he had killed a person called Clinton Trezise and buried him at Lower Light. He told Tripp to be quiet about it and not to tell anyone.
Lane also made statements to other persons from which a jury could infer that Lane had knowledge of the murder of Trezise.
Counsel for Bunting urged that particular care is needed in considering the reliability of the evidence given by Tripp. From cross-examination at the preliminary examination, it emerged that Tripp has suffered from both physical and mental disabilities. Counsel suggested that when Tripp gave her evidence it was obvious that she is a person of limited capacity.
Ray Davies - (Count 3)
Davies was last seen alive in late 1995. On 26 May 1999 police found the body of Davies buried in a hole at the rear of Waterloo Corner Road. The body of Suzanne Allen (Count 4) was found in the same hole three days earlier. At the times Davies and Allen disappeared, the property was occupied by Bunting.
The cause of Davies' death was not apparent on post-mortem examination.
In about 1993, Davies and Allen had a relationship and lived together. The relationship ended after Allen's grandsons complained that Davies had made sexual advances to them. They remained friends and, immediately prior to his disappearance, Davies was living in a caravan parked at the rear of Allen's home at 3 Ghent Street, Salisbury North. The accused and Vlassakis were associates of Allen. There is evidence of an association involving Davies, Lane and Wagner.
Ms Annette Cannon is the daughter of Allen and the mother of the boys to whom Davies was said to have made the advances. She spent Christmas Day 1995 with Allen and Davies. The following day her seven year old son told her and Allen that Davies had sexually assaulted him and tried to sexually assault another of Cannon's sons. Cannon and Allen reported the matter to the police. On their return to the home, Davies had left. His caravan and belongings were still at the premises.
Cannon did not see Davies again. Subsequently Cannon observed Bunting, Wagner and Allen cleaning out the caravan. Bunting gave Cannon a photo of her two sons which had apparently come from the caravan. Bunting commented that Davies was a paedophile and that was why he had the photograph.
Within approximately two weeks of Davies disappearing, Cannon saw Bunting, Wagner and Lane remove the caravan. The caravan was towed by a vehicle driven by Lane. Vlassakis says that he saw the caravan in the front yard of premises at 14 Catalina Road, Elizabeth. Those premises were occupied by Haydon and Elizabeth Haydon. Harvey also lived at those premises. Vlassakis was involved in cleaning up the caravan and painting it. Bunting and Haydon were also involved.
The caravan was sold while at 14 Catalina Road. It was towed away from the premises on 20 January 1996. A receipt for the sale was subsequently found in a U-Store-It premises rented by Bunting. The signature on the document was written by Bunting. Vlassakis was present and observed Bunting sign the document. The registration papers for the caravan were located in a wallet found in a black "bum bag" in a Ford Marqis at Mofflin Road. The Marquis was registered in the name of Laura Martin. That name was used by Harvey.
Two or three weeks after the caravan was removed from Allen's premises, Cannon overheard a conversation between Allen and Bunting at Waterloo Corner Road. Wagner was present. Cannon's statement reads as follows:
"I heard John [Bunting] say to Chris and Mum [Allen] words to the effect of, 'We took Ray for a drive in the car.' I know they had a white Torana at the time. John said while he was driving, 'Robert [Wagner] was pounding him down and trying to keep him down so that no-one could see what was going on in the back seat.' He made hand movements indicating punching down. It sounded like Ray was on the floor of the car. He said that they 'dropped him off in the middle of the scrub somewhere and made him walk back towards town.' They didn't say if he was hurt or bleeding or anything. John was laughing about it. Robert had a big cheesy smile on his face. He didn't say much apart from saying it was really good. They did not say why they were taking Ray for a 'drive'. I did not tell either of them that Ray had interfered with my children. The only people I told were the police and my mum. My mum looked a bit stunned when Bunting told her this."
As mentioned, the body of Davies was found in a hole at the rear of premises that had been occupied by Bunting at Waterloo Corner Road. Bunting moved into those premises with his partner Tripp in early 1991. Lane and Wagner were visiting next door at 205 Waterloo Corner Road in the premises of Mr Robert Skewes. Those three men helped Bunting and Tripp move into the premises. This was the occasion on which Bunting first met Wagner and Lane. According to Tripp, about a year after they moved in Bunting began digging under a tank stand at the rear of the premises. Tripp understood that Bunting was digging a tunnel. He told her it was going to be a bomb shelter. Bunting began the work on his own. Subsequently Wagner and Haydon assisted him.
According to the neighbour Skewes, the hole was filled in by Bunting, Wagner and Lane. They used bricks and soil. After Bunting vacated the premises, Skewes was aware of the ground in the area of the hole sinking. In late 1998 or early 1999 while the house was vacant, Bunting and Wagner visited Skewes. Bunting asked if the hole was still under the tank stand and commented that if it was the Housing Trust would bill him for it. Bunting and Wagner had a look at the hole under the tank stand. They told Skewes it had sunk a bit and that they would obtain some ready-mixed concrete to put over the top. They left and returned the same day with two bags of cement which they mixed on the driveway of the premises occupied by Skewes. They used two bags and apparently put the mixed cement into the hole.
The Crown also relies upon admissions to Vlassakis. In the first interview he says he was told by Bunting that "they" took Davies from Ghent Street to Bakara, a property approximately 21 kilometres from Swan Reach. He was told that "they" tortured Davies at Bakara and then, while he was still alive, took him to Waterloo Corner Road. Vlassakis says he was told by Bunting that, at Waterloo Corner Road, Wagner strangled Davies using jumper leads. The strangling occurred in the bathroom. At the time of the strangling Vlassakis' mother, Harvey, was in the kitchen.
In his second interview, Vlassakis gives a similar version about the taking of Davies to Bakara, the torture and returning to Waterloo Corner Road. Vlassakis says Bunting told him "they" put Davies in the "hole". He also says he was told that his mother became involved. She stabbed Davies up and down his legs with a ceramic cleaning tool. Vlassakis was told that his mother and Wagner together strangled Davies. Harvey died before the second interview. Vlassakis says that he did not previously mention his mother's involvement because he wanted to protect her.
According to Vlassakis, he gained the information by hearing bits and pieces from Bunting over a period of time. As to a motive, he said he was told by Bunting that Davies was a paedophile and had interfered with Cannon's children. Vlassakis says that both Bunting and Wagner talked freely about killing Davies. He said they made jokes and laughed about it. They laughed as they were telling him about torturing Davies. Vlassakis says that there was no suggestion that Haydon was involved in the murder of Davies, nor was Haydon present at conversations about this murder.
According to Vlassakis, Bunting told him that he, Vlassakis, knocked on the door at about the time Davies was being killed and was told to go away. Vlassakis says that there was an occasion when he knocked on the door and, after a delay, the door was answered by his mother. Bunting and Wagner were in the premises. He could see that Wagner was holding something about the size of a jack handle in his hand. They told him to go away and not come in.
Vlassakis also said that the name "Jimmy", which was a reference to Davies, was one of the names listed by Bunting to Youde immediately before the murder of Youde.
As will appear later in these reasons, the Crown seeks to demonstrate that the accused sought to benefit from the deaths of a number of the deceased by making use of their property. This included the sale of Davies' caravan. In addition, the Crown sought to establish that the accused created the impression that a number of the deceased were alive in order to ensure the continuation of social security benefits ("Centrelink benefits") being received by the deceased and to enable the accused to access those benefits. The first deceased in respect of which such a fraud was perpetrated was Davies.
By various means it was represented to Centrelink that Davies was still alive. Seven changes of address for Davies were notified after his death. At one of those addresses, the Riversedge Caravan Park at Tailem Bend, Bunting impersonated Davies and stayed at the caravan park. A receipt in respect of the payment for that accommodation in the name of Davies was subsequently found in the Ford Marquis at Mofflin Road. One of the addresses given to Centrelink was a former address occupied by Wagner and Lane and another was next door to the former premises of Bunting at Waterloo Corner Road.
On a number of occasions between January and April 1999, Bunting was filmed by security cameras accessing Davies' account. Banking records demonstrate that from about the time Bunting commenced living at Murray Bridge, the vast majority of withdrawals occurred at Murray Bridge locations. Withdrawals at Murray Bridge ceased at about the time that Bunting returned to Adelaide to live. On 23 December 1996 and 18 September 1997, within a minute or so of withdrawals from Bunting's account, withdrawals occurred at the same location from the accounts of Davies and another deceased, Allen. It appears that approximately $32,000 was falsely obtained by accessing Lane's benefits.
The Crown sought to link both Bunting and Wagner to the ongoing fraud by reference to documents found at Bundarra Court and Mofflin Road. Numerous documents connected to Davies were found in the house and rear yard at Bundarra Court. A number of similar documents were found in the Ford Marquis at Mofflin Road.
In addition to documentation related to Davies, the Crown also relies upon items found in the U-Store-It unit rented by Bunting. DNA consistent with that of Davies was found on a blood stained t-shirt, underpants stained with blood and faeces, a blood stain on an electrical cord and the outer surface of a glove found in the unit. A letter sent to Davies by his parents after Davies' disappearance was also located in the unit.
Suzanne Allen - (Count 4)
Allen was last seen alive in late November 1996. As mentioned, her body was found on 23 May 1999 in the hole at the rear of Waterloo Corner Road above the body of Davies. A post-mortem examination was unable to determine the cause of her death. There were no fractures. Dismemberment and defleshing had occurred. Parts of Allen's body were found in eleven plastic bags. Remnants of rope were found in two of the bags.
By late 1995 Bunting and Allen had a relationship. Bunting ended the relationship by mid 1996. It appears that Allen was unwilling to accept that the relationship was finished. Bunting told Allen's daughter, Annette Cannon, that he was sick of receiving notes from Allen and to tell Allen to stop sending notes and driving past the residence occupied by Bunting.
Vlassakis says he was given information about the death of Allen. However, the information provided to Vlassakis by Bunting is an unusual aspect of the Crown case because Bunting told Vlassakis that Allen died of natural causes. According to the Crown that statement was untrue. Vlassakis says that Bunting told him that he and Wagner were involved in a "slice and dice" meaning they dismembered Allen's body. He was told that Allen's dismembered body was put in the same hole as the body of Davies. Both Bunting and Wagner gave information about Allen's death to Vlassakis.
According to Vlassakis, Bunting wanted Allen's property and pension. Bunting and Wagner were also involved in removing the property of Allen from her home shortly after her disappearance. They were observed removing property on 3 December 1996. A neighbour called the police who were told that Bunting and Wagner were helping a friend move house. A contact number was given to the police. That number was in the name of Laura Martin, a name used by Harvey. When police communications called the number, a woman answered and said Allen was not available.
Bunting assumed control of Allen's Nissan Pulsar motor vehicle. He took it to the home of Wagner's mother. He said it needed repairing. Subsequently, with the assistance of a witness, Mr Freeman, the Pulsar was moved to Burdekin Avenue. The vehicle was then re-registered and insured in the name of Harvey. On 18 September 1998 Bunting and Vlassakis were in the vehicle when it caught fire. A claim was made pursuant to an insurance policy and the proceeds were paid to Harvey.
For the purposes of removing property from Allen's home, Wagner borrowed a truck from a business called Steptoe & Son. When the truck was returned, Wagner was with Bunting. Some of Allen's property was sold to the owner of the truck for $10.
Ms Jodie Elliott was a friend of Bunting. In 1998 she had a relationship with Bunting. Elliott lived at Blackham Crescent with Haydon and Elizabeth Haydon. She slept in the shed at the rear of the premises. Bunting arranged for Harvey and Elliott to impersonate Allen for the purpose of maintaining Allen's pension. Bunting derived financial benefit through that fraud. It appears that a little in excess of $17,000 was obtained from late 1996 through to 1999. Bunting was filmed accessing the benefits on two occasions. From December 1996 until early February 1999, almost all of the accesses to Allen's account occurred at Murray Bridge. Bunting was living at Murray Bridge during this period. When Bunting moved from Murray Bridge to Adelaide, the pattern of accessing Allen's account changed. From early February 1999 onwards almost all of the accesses occurred in the Elizabeth area.
After the death of Allen, five different addresses were provided to Centrelink as part of the representation that Allen was still alive. Two of those addresses were residences at Murray Bridge in which Bunting lived with Harvey. Centrelink documentation addressed to Allen at those addresses was subsequently located at Bundarra Court and in a Sigma motor vehicle registered to Harvey which was located at Blackham Crescent. Elliott registered a post office box address and gave that address to Centrelink as the address for Allen.
As part of providing residences in the name of Allen, on 17 September 1998 Haydon drove Elliott and Elizabeth Haydon to Owen. Bunting had found a property and told Elliott to rent the property in Allen's name. Elliott says that Haydon drove her to Owen in Haydon's four wheel drive vehicle because Bunting was away on a job. She signed the rental document in the name of Allen.
On 10 December 1996 Allen was reported to the police as a missing person. Elliott says that at the instigation of Bunting, in March 1999 she travelled to Berri with the intention of impersonating Allen and ringing Missing Persons. She was accompanied by Bunting and Haydon. They travelled in Haydon's motor vehicle and he drove. Bunting sat in front and Elliott in the rear. During the trip Bunting talked about Allen and gave Elliott details of Allen's background and family history. Counsel for Haydon pointed out that initially Elliott told the police that the purpose of the trip was not discussed until after they had arrived at Berri.
A large amount of documentation connected to Allen was found in various rooms at Bundarra Court and in the ceiling of those premises. That documentation included a memo book containing the writing of the deceased Gardiner. A loose page in that book contained personal details of Allen in the handwriting of Bunting. A pink dressing gown belonging to Allen was found in a plastic bag in the ceiling.
At Blackham Crescent, documentation relating to Allen was found in Elliott's briefcase in the lounge room and in the shed occupied by Elliott. Documentation relating to Allen was also found in a Sigma motor vehicle registered in the name of Harvey which was parked at Blackham Crescent.
On 18 December 1998, police seized clothing from the main bedroom at Blackham Crescent as part of their investigation into the disappearance of Elizabeth Haydon. Some of that clothing was subsequently identified as belonging to Allen. However, Elliott identifies the clothing as belonging to Elizabeth Haydon.
After the disappearance of Allen, Bunting and Wagner were both involved in telling false stories about Allen and her whereabouts to a close friend of Allen, Ms Carol Parker. Details were provided mainly by Bunting, but often in the presence of Wagner. At times Wagner would support Bunting. Vlassakis was present on occasions and joined in the giving of the false stories. Haydon was also present on one occasion. However, Parker did not meet Haydon until about January 1999.
On 1 April 1997, as a result of the missing persons report, police spoke to Bunting. He said that Allen had stayed with him, but had moved to Tasmania or Mildura. She did not want her brother to know her whereabouts. Bunting told the police that he would have her contact Missing Persons. On 2 April 1997 an officer telephoned the address at which Bunting was living and spoke to a person identifying himself as Bunting. The officer was told that originally Allen had left for Tasmania at about Christmas time 1996. The officer was also told that Allen had recently stayed with Bunting for a few days, but had left for Tasmania or Mildura. Bunting said he believed that she was engaged to a Tasmanian called Andy and that she was driving his vehicle.
Counsel for Haydon drew attention to evidence of Elliott. In her interview with the police she describes how Bunting arranged for her to impersonate Allen. During cross-examination at the preliminary examination, Elliott said that when she discussed with Bunting matters pertaining to the impersonation of Allen, the discussions were private. They took place in the shed or she and Bunting whispered. It appeared to her that Bunting did not want Haydon to know about the matters they were discussing. These conversations occurred in 1998. On the Crown case, eight murders had been committed prior to the conversations in the course of an ongoing enterprise. Counsel for Haydon asked why Bunting would be seeking to keep the impersonation of Allen a secret from Haydon if Haydon was part of an ongoing enterprise to kill as alleged by the Crown. In response, the Crown referred to the evidence of Elliott concerning the trip in March 1999 to Berri which is discussed earlier in these reasons.
Michael Gardiner - (Count 5)
Gardiner was last seen alive early in September 1997. His body was found in a barrel in the bank vault at Snowtown. The barrel also contained the body of Lane. A rope was around the deceased's neck with a slip knot behind his right ear. His left foot had been removed.
Gardiner lived in the residence of Ms Nicole Zuritta, a cousin of Ms Veronica Mills (who lived with Wagner). Zuritta's home address was not far from Mofflin Road. Gardiner was openly homosexual. He disappeared while Zuritta was working near Mildura. On 16 September 1997 a friend discovered that the premises had been ransacked and Gardiner was not at the premises. There was no sign of forced entry. Zuritta reported the matter to the police.
Ms Katerina Van Gelder was a friend of Gardiner. She had known him since he was about six or seven years of age. In about September 1997, Gardiner introduced her to Lane. Van Gelder asked Gardiner not to bring Lane to the house again.
At about the time that Gardiner disappeared, Van Gelder was expecting Gardiner to move to Goolwa and live at her premises. She received a telephone call from Gardiner. She could hear people in the background telling him to hurry up and get off the phone. Van Gelder says that Gardiner's voice sounded funny in the sense of being tense or upset about something. She also noticed that he called her Auntie Kathy. She had previously told him not to call her Auntie Kathy and to call her Katrina or Kathy. After she had told him not to call her Auntie Kathy, he had not used that title until this telephone call.
Van Gelder says the call was not a local call. She heard the pips of an STD call. Their conversation lasted about three or four minutes. Gardiner told her he was okay and that he still wanted to move in with her and her children. He said it would not be long, but he had something to sort out. Ven Gelder gave him her address. She was still talking when the phone went dead.
According to Mills, Wagner did not like Gardiner because Gardiner was gay and intimidated Wagner. Mills describes an occasion when Gardiner placed his hand over a child's mouth to stop the child from talking. Wagner was horrified. He told Mills that when he was about eight years of age the same thing had happened to him. Wagner told Mills bits and pieces, but said that if he told her what had happened she would not be able to listen because it was too graphic. Mills says Wagner could never calm down enough to tell her the story. After the incident with the child, Wagner would not allow Gardiner near their child or the other children of Mills unless he or Mills was present.
Notwithstanding Wagner's feelings, Mills was very close to Gardiner. After his disappearance she received a message on her answering machine. The voice sounded too husky for Gardiner. In the words of Mills, "It sounded like someone putting on a fag's voice." The voice said that he had pinched property belonging to Zuritta and was going to use the money to get a sex change. Mills played the tape to Zuritta over the telephone.
Zuritta received a telephone call from a male person saying that Gardiner wanted his wallet because he needed his identification. She told the caller to tell Gardiner to come and get it himself and she hung up. That evening, the male person called again saying that Gardiner wanted his wallet and needed identification to get money. Zuritta said she needed her property, meaning the stolen property. The male said that Gardiner did not want to face her and asked if she would meet the caller in the park and hand over the wallet. She refused.
Zuritta then started receiving obscene calls. The caller would introduce himself as Gardiner, but the voice sounded nothing like him. Vlassakis was present when one of those calls was made from Blackham Crescent. He says the call was made by Brooks at the request of Bunting. Vlassakis is unable to say whether Haydon was present.
During the sequence of events following Gardiner's disappearance, Wagner told Zuritta that he and Bunting had seen Gardiner at a service station on Prospect Road at Prospect. In response to a question by Zuritta, Wagner said he did not grab Gardiner and call the police because he did not want to be charged with assault. Bunting and Mills were present during this conversation.
Vlassakis provides evidence of admissions by Bunting and Wagner. He says that in about April 1998 at Burdekin Avenue, Bunting showed him a barrel which Bunting said contained the bodies of Lane and Gardiner. Subsequently, Bunting told him that Gardiner had been taken from Zuritta's place to the shed at Burdekin Avenue. Bunting told Vlassakis that he had strangled Gardiner with a rope. There were a number of conversations about Gardiner involving Bunting, Wagner and Vlassakis. The talking was done predominantly by Bunting, but Wagner was also involved.
Vlassakis says that as far as he is aware Haydon had no knowledge of the murder of Gardiner. However, Vlassakis also says that Gardiner's Christian name was one of the names listed by Bunting in the presence of Haydon immediately before Youde was murdered.
According to Vlassakis, Bunting asked him to obtain Gardiner's wallet from Zuritta. He told him what to say. Vlassakis visited Zuritta and told her he was intending to commit a breaking offence and leave Gardiner's wallet behind or something to set him up. Zuritta gave the wallet to Vlassakis. Subsequently Vlassakis gave it to Bunting.
After the disappearance of Gardiner, his memo book was found at Bundarra Court. As mentioned, the book contained a loose page on which Allen's personal details were written in Bunting's handwriting.
The black bum bag found in the Marquis at Mofflin Road was similar to a bum bag owned by Gardiner. A bus pass holder containing cards in the name of Gardiner was found in the bum bag. The cards had been given to Vlassakis by Zuritta after Gardiner disappeared. Vlassakis gave them to Bunting.
Barry Lane - (Count 6)
Lane was last seen alive in October 1997. His body was found in a barrel in the bank vault. That barrel also contained the body of Gardiner. There was a gag in the deceased's mouth and tape around his mouth. A rope was around the deceased's neck. The body had been dismembered.
Lane and Wagner had been in a relationship from about 1985 until early 1996. There is evidence to suggest that Lane was originally dominant in the relationship, but that in latter times Wagner became more assertive.
As mentioned, Lane and Wagner met Bunting when Bunting moved into the property at Waterloo Corner Road. At that time Lane and Wagner lived at 1 Bingham Road, Salisbury North. The properties were in close proximity to each other. Lane was openly homosexual. Notwithstanding Lane's homosexuality, Bunting regularly associated with Lane. Vlassakis says that Bunting was always talking about Lane being "dirty" and Bunting told Vlassakis that Lane was a paedophile. In Bunting's bedroom at Waterloo Corner Road, Bunting created a form of chart which has been referred to as a "rock spider wall". The chart comprised various pieces of paper, some of which were connected by pieces of wool. On those pieces of paper Bunting wrote the names of persons that he considered were "dirty" because they were homosexuals and paedophiles. These types of people were also referred to as "rock spiders".
Pieces of paper that had been part of the wall chart were found in the U-Store-It unit rented by Bunting and at Bundarra Court. The pieces of paper show that names were connected by lines in a manner that could be described as a flow chart. Lane's name is written in the centre of one piece and is linked to other names including that of Davies. It is the Crown case that the document is in the handwriting of Bunting. Police also located a typed document which could be described as a profile of Lane.
The Crown says that notwithstanding his hatred of Lane, Bunting associated with Lane for the purposes of extracting information from Lane about paedophiles. Vlassakis says that Bunting was nice to Lane and that Bunting obtained information from Lane about different paedophiles in the area. Vlassakis also refers to conversations between Wagner and Lane about "dirties" in the presence of Vlassakis and Haydon. If information was provided, Bunting would check whether the name was on the wall chart. He used post-it note stickers to add names or details.
It is the Crown case that there was an additional reason for killing Lane. As mentioned, Lane told Tripp that he had helped dispose of a body. He told her that Bunting had killed someone by striking the person on the head with the back of shovel and that the body had been disposed of at Lower Light. The Crown submitted that the statements by Lane to Tripp demonstrate that Lane had knowledge of the murder of Trezise and that Lane posed a risk to those involved in killing Trezise. Vlassakis says Bunting spoke of Lane having a "big mouth".
Further evidence of the attitude of Bunting and Wagner to Lane is provided by officers of Family and Youth Services ("FAYS"). On 9 April 1996, Ms Julie Stevens of FAYS was allocated a file in connection with Lane which involved questions of child protection and supervised access. On 5 June 1996, using the name Christine Johnson, Elizabeth Harvey contacted Stevens about Lane. An interview was conducted at which Bunting was present. Bunting gave the address of 14 Catalina Road, Elizabeth. Subsequently Wagner was present. Allegations were made that Lane had sexually interfered with the brother of Vlassakis. Stevens was also told that Wagner was thirteen and a half years of age when Lane "got his hands on him".
Late on 17 October 1997 or in the early hours of 18 October 1997, Lane rang his mother, Mrs Sylvia Lane. Vlassakis says this call was made at the instigation of Bunting with the intention that Lane would abuse his mother and tell her he was travelling to Queensland. Mrs Lane says that when Lane telephoned her, he said he was travelling to Queensland to see his sister, Ms Krystal Spencely-Smith. Lane called his mother a lot of bad names. He told her he did not want anything to do with her or the family. Trevilyan was in the background spurring Lane on.
Mrs Lane told Spencely-Smith that Lane was on his way to Brisbane. A few minutes after receiving that information, Spencely-Smith received a call from a person who identified himself as her brother Barry saying he would be with her in a couple of days. Spencely-Smith thought it was Lane, but the conversation was odd because the caller did not identify himself in the manner usual for Lane by saying "It's Barry".
Bearing in mind the evidence of Vlassakis discussed later in these reasons that Bunting told him Trevilyan was involved in the murder of Lane, the Crown also sought to lead evidence that Lane was scared of Trevilyan. According to Mr Bruce Balmer, a friend of Lane, during an evening on about 12 October 1997 he received a telephone call from Lane who was extremely distressed and frightened. At Lane's request, Balmer went to the premises, arriving at about 10.20 pm. Lane appeared to be distressed, but Trevilyan was quiet. After about twenty minutes of casual discussion, Lane left the premises. In the absence of Lane, Trevilyan told Balmer that he liked Lane but was sick of Lane's sexual advances. Lane returned at about 11.00 pm and Trevilyan went for a walk. In the absence of Trevilyan, Lane asked whether Trevilyan had mentioned threatening Lane. He then expressed fears for his life. Lane pleaded with Balmer to stay the night, but Balmer declined.
On 27 October 1997 an ex fiancé of Lane, Ms Michelle Bihet, reported Lane missing. On 30 May 1998 police telephoned the number connected to Mofflin Road. The officer spoke to a person identifying himself as Wagner. She was told that he had seen Lane a couple of weeks earlier at the Elizabeth City Centre shops. Wagner said Lane was with a teenage boy and that Lane did not see Wagner as Wagner had seen Lane first and avoided him.
Wagner also gave a false story to Mr Henry Smith, the proprietor of Steptoe's Cheap Mart at Elizabeth South. Smith knew Wagner and Lane as regular customers. He was aware of their relationship and of the end of that relationship. Smith says that in about September 1998 he commented to Wagner that he had not seen Lane for some time. Wagner told him he was not likely to see Lane as Lane had sold a car to some bikies and had done "a runner". Wagner said that when the bikies found him, Lane would be face down dead somewhere.
Vlassakis provides evidence of admissions by Bunting and Wagner to the murder of Lane. He says they bragged about it together. Bunting told him of torturing and murdering Lane. He said that Trevilyan was involved. The description given by Bunting to Vlassakis implicates both Bunting and Wagner in the torture and murder of Lane. Bunting spoke of Lane having raped and abused Wagner when he was a child. Bunting talked of a financial benefit in connection with Lane as icing on the cake.
Vlassakis says that, on the information given to him, Haydon was not involved in the murder of Lane. However, he says Haydon was present for conversations about Lane's murder. In particular, Vlassakis recalls a conversation when Bunting and Wagner told Vlassakis and Haydon about wrapping Lane's body in a carpet. In addition, Lane's name was one of those mentioned by Bunting to Youde shortly before the murder of Youde.
After the murder of Lane, Bunting took possession of Lane's motor vehicle. He took the motor vehicle to the home of friends, Mr and Mrs Freeman. He said he had purchased the vehicle from Lane for a television receiver and $50 cash. Later Bunting and Mrs Freeman were involved in swapping Lane's vehicle for an orange Sigma.
At the time of his disappearance, Lane was in receipt of Centrelink benefits. The locality of withdrawals changed in October 1997. The majority of withdrawals had previously occurred in the areas of Rostrevor, Hectorville and Newton. From 27 October 1997, almost all of the withdrawals occurred in the Smithfield, Elizabeth and Munno Para areas. It is the Crown case that Wagner was filmed accessing Lane's benefits.
Two changes of address were given to Centrelink for Lane. There is no record of Lane having lived at either address. Both addresses are close to Mofflin Road. The first address was vacant between 17 November 1997 and 26 June 1998. The second address was vacant between 18 November 1997 and 14 August 1998. The card necessary to gain access to Lane's account was found by Mills at Mofflin Road after the arrest of Wagner.
The Crown sought to link the accused with Lane's death by reason of their possession of property belonging to Lane or associated with him. A sports bag belonging to Lane and a micro-cassette from Lane's answering machine were found at Bundarra Court. A number of documents connected with Lane were found in the ceiling of those premises. A car ramp belonging to Lane was found in the U-Store-It unit rented by Bunting.
In the Ford Marquis at Mofflin Road police found a number of documents related to Lane, together with a pensioner concession card and a Target card in Lane's name. Both cards contained genuine signatures of Lane. A blanket identified by Mrs Lane as belonging to Lane was found in Haydon's Toyota Landcruiser ("Landcruiser").
Thomas Trevilyan - (Count 7)
Trevilyan's body was found on 5 November 1997 hanging from a tree in a remote locality in the Kersbrook area. A damaged and empty milk carton crate was nearby. No means of transport was present. The cause of death was attributed to the hanging. The pathologist found no evidence to suggest that a second person was involved in the death. At that time the authorities treated the death as a suicide.
Counsel for Bunting indicated that the question whether Trevilyan was murdered or committed suicide is a live issue in the trial. In addition to the absence of any evidence to suggest the involvement of a second person, counsel pointed out evidence suggesting that Trevilyan was prone to unusual behaviour and had experienced some psychiatric difficulties. He always wore army fatigues and it was not uncommon for him to hike long distances on foot without warning.
Lane and Trevilyan occupied the same premises from about April 1997 until Trevilyan moved to Mofflin Road in October 1997. Mills says that Wagner told her that Trevilyan had come from Lane's place and needed somewhere to stay. Mills describes Trevilyan as "crazy". She said every time there was a noise he would bolt outside with a carving knife. Initially she and Trevilyan were able to talk, but later he became "strange" and she could not understand him. He would chop and change subjects. He was always going for walks on his own. Trevilyan told Mills that he was supposed to be on medication, but was not taking anything while he was living at her premises.
Mills had three young children from previous relationships. No difficulties arose with Trevilyan until 4 November 1997 when he threatened to kill a puppy that one of the children was holding. Trevilyan chased the child with a knife in his hand. He was threatening to cut the dog's throat. The child ran around a car to keep away from Trevilyan. Mills was screaming at him to stop. A passer-by took the dog and the incident came to a halt. Trevilyan put the knife away and left the premises on foot.
The timing of the incident with the knife on 4 November 1997 is not clear. At 10.46 am, the Centrelink office at Elizabeth issued a card which enabled access to Trevilyan's account. The type of card issued required that the entire content of the account be withdrawn by use of the card. At 10.58 am Trevilyan withdrew $280 from his bank account leaving a nil balance.
Wagner was not present on 4 November 1997 at the time of the incident with the knife. When he and Bunting subsequently came to the house, Mills told them what had happened. According to Mills, that evening Bunting and Wagner took Trevilyan for a drive. Mills did not see Trevilyan again. Later that night when Wagner returned home he attempted unsuccessfully to contact Bunting on the telephone. Wagner told Mills that they had dropped Trevilyan off at Gawler. On 5 November 1997 the body was discovered and Mills received a telephone call from the police advising her that Trevilyan was dead. Wagner appeared stunned at the news. On 6 November 1997 Wagner told Detective Bell that he last saw Trevilyan on 4 November when Trevilyan left Wagner's premises after being asked to leave. He did not mention taking Trevilyan for a drive.
Vlassakis says that Bunting told him that Trevilyan had started to "fuck up" and "go mental". Bunting said Trevilyan had a big mouth and would tell people about Lane. He said that he and Wagner had hung Trevilyan out of a tree. Trevilyan was made to stand on something and it was kicked out from under him. Bunting told Vlassakis that it was easy to make the death look like a suicide by leaving money in the deceased's pocket. Wagner was present for one or two such conversations about Trevilyan.
According to Vlassakis, Bunting pointed out the location of the hanging. Subsequently, Vlassakis was able to indicate the general area to the police from a position 80 metres from the tree.
As mentioned, Vlassakis says Bunting told him that Trevilyan was involved in the murder of Lane. It is in that context that the Crown submitted the statement by Bunting to Vlassakis that Trevilyan had started to "fuck up" and "go mental" must be assessed. In addition, the Crown sought to rely upon evidence that shortly before his death Trevilyan spoke of being involved in the murder.
On 30 October 1997 Trevilyan confided in his cousin, Lenore Penner. She made an entry in her diary that evening. Trevilyan gave enough details to Penner to support a conclusion that Trevilyan possessed knowledge of the murder of Lane. The Crown argued that possession by Trevilyan of such knowledge is relevant to whether Trevilyan's death was suicide or murder. His knowledge bears upon the question of a motive to kill him. The Crown also argued that Trevilyan's knowledge and his state of mind are relevant to the state of the relationship between Trevilyan and the accused Bunting and Wagner.
According to Vlassakis, Haydon has never been mentioned in connection with Trevilyan's murder. Vlassakis cannot remember any direct conversation that would have made Haydon aware of the murder.
The death having been made to look like a suicide, on the Crown case there was no occasion for attempting to benefit from the use of Trevilyan's property or by gaining access to his Centrelink entitlements. The only item of property connected to Trevilyan that was subsequently located was a Scottish hat found in a green garbage bag in the ceiling at Bundarra Court.
Gavin Porter - (Count 8)
Porter was last seen alive in April 1998. His body was found in a barrel in the vault. The condition of the body prevented a determination as to the cause of death.
Porter and Vlassakis were friends. Both used heroin. At the time of his murder, Porter was living with Vlassakis, Bunting and Harvey at Burdekin Avenue.
The murder of Porter came as a surprise to Vlassakis. Neither Bunting nor Wagner had previously expressed any desire to kill Porter. Vlassakis did not pick up any "vibes" that Porter was a target. After Porter's murder, Bunting and Wagner expressed concern about Porter's drug use and referred to him as "waste". Porter was open about the absence of relatives. After the murder, Bunting told Vlassakis that "it fell into our laps" and he would be set for life with income.
Vlassakis says that at the time Porter was murdered he had been told about previous murders but he had not seen a body or a barrel containing a body. He says that he was told of the circumstances of the murder of Porter by Bunting. Wagner also spoke about it.
On the night of the murder, Vlassakis went to the Murray Bridge Drive-In theatre. On his return to Burdekin Avenue, he was told that Porter had been murdered by Bunting and Wagner while Vlassakis was at the Drive-In. Vlassakis says that when he returned to Burdekin Avenue, Porter's motor vehicle was at the premises. Bunting and Wagner were inside. Bunting showed Vlassakis the body of Porter in the shed. Vlassakis saw a large purple mark around the deceased's neck. He was told that Wagner had a rope around the deceased's neck, but the deceased lashed out in self-defence and stabbed Bunting in the hand. Bunting said that he then jumped onto the deceased and pushed all the air out of his chest.
It is the Crown case that at the time Porter's body was placed in the shed, the barrel containing the bodies of Gardiner and Lane was in the shed. Vlassakis recalls seeing the barrel in the shed a couple of times. He is uncertain whether Bunting opened that barrel on the night that Vlassakis saw the body of Porter in the shed. He says he was told by Bunting that the barrel contained the bodies of Gardiner and Lane.
Vlassakis says that within a couple of days of the murder, Bunting arrived at the premises with a barrel in the back seat of the Marquis. They took the barrel into the shed. Bunting uncovered the body of Porter and items were moved in the shed to make extra room. With the assistance of Vlassakis, Bunting put the body of Porter into the barrel. Bunting placed a lid on the barrel. The barrel containing the body of Porter was next to the first barrel. Vlassakis says that Bunting took the lid off the first barrel and made a comment to the effect that "they're rotting very nicely".
According to Vlassakis, he was told to drive Porter's car to Adelaide. Property belonging to Porter was put in the vehicle. Vlassakis drove the vehicle by himself and Wagner followed in another vehicle. On the way to Mofflin Road they stopped at Birdwood because Wagner said he was short on petrol. They waited at Birdwood until they could obtain petrol early the following morning. They then drove to Mofflin Road where Wagner removed property from Porter's vehicle. Mills was at Mofflin Road and an argument occurred between her and Wagner about who owned the vehicle. Mills recognised the vehicle as belonging to Porter.
Vlassakis says that shortly after he and Wagner arrived at Mofflin Road, Bunting arrived. Bunting spoke to Mills and the argument ceased. Vlassakis drove Bunting back to Murray Bridge. During the trip Bunting spoke about what had happened to Porter, but Vlassakis is unable to remember what details were given to him. Vlassakis says that in subsequent conversations when Bunting would refer to earlier murders, Bunting always said that the murder of Porter was a "funny one". He spoke about the positioning of the rope around Porter's neck and of talking to Porter about moving his head because the rope was caught up.
Following the murder of Porter, a number of false stories were told about Porter's whereabouts. The stories were mainly told by Vlassakis. Again, they were designed to create the impression that Porter was alive.
According to Vlassakis, documentation belonging to Porter was collected up by Bunting. A page from a book containing personal details relating to Porter written in Bunting's handwriting was found in the ceiling at Bundarra Court.
After the murder of Porter, at the instigation of Bunting a fraud was perpetrated against Centrelink in respect of Porter's benefits. Vlassakis and Bunting were involved in impersonating Porter and another deceased, Brooks. Those impersonations occurred on 23 September 1998, some months after the death of Porter. Haydon was not involved in the impersonations or in setting up the access to Porter's benefits.
The use of Porter's card to access his benefits commenced in April 1998. According to Vlassakis, prior to Porter's death he and Porter used each other's keycards to access their accounts. After Porter's death, Bunting gave Porter's keycard to Vlassakis and said he could access Porter's benefits. He had it only a few weeks. It was cut off and he gave the card back to Bunting.
Vlassakis says that in 1999 when he moved back to Bundarra Court, he discovered that Porter's keycard was still operating and that Haydon had the card. He did not see Haydon use the card. However, Haydon told him that he had the card. After the subsequent murder of Brooks, the benefits of Brooks were paid into Porter's account. Haydon told Vlassakis that he had to use Porter's card to access the Centrelink benefits of Brooks.
As mentioned, when Vlassakis arrived at Mofflin Road in Porter's vehicle, Mills recognised the vehicle. Subsequently, Wagner admitted to Mills that the vehicle belonged to Porter. He said that he was paying fifty dollars per fortnight for the vehicle. He claimed Bunting was putting the money into Porter's account. That vehicle was registered in the name of Mills on 4 April 1998. It was found by police at Mofflin Road. The property of more than one deceased was found in that vehicle.
Property belonging to Porter or connected to the obtaining of Porter's benefits was found in the Ford Marquis at Mofflin Road and at Bundarra Court. A book in which Bunting had written Porter's PIN number and his family details was found in the ceiling at Bundarra Court.
The premises occupied by Haydon at Blackham Crescent were also linked to Porter. Two Centrelink letters post-dating Porter's death were found in the shed. Haydon's fingerprints were found on those documents. A Centrelink concession card in the name of Porter was found in a pit in the shed. In the main bedroom of the premises police found two ATM account inquiry receipts from Porter's bank account dated after Porter's death. A Centrelink letter written after Porter's death was also found in Haydon's Landcruiser.
Vlassakis says Porter's Christian name, Gavin, was one of the names listed by Bunting to Youde in the presence of Haydon shortly before Youde was murdered.
Counsel for Haydon referred to evidence suggesting that Haydon had little contact with Bunting at the time of Porter's murder. Vlassakis says that when he first met Bunting, Haydon and Bunting were together all the time. However, after Haydon started going out with Elizabeth Haydon and married her (24 February 1996), the relationship between Bunting and Haydon seemed to "fall apart". This was about the time Wagner moved from Lane's house and Bunting and Wagner formed a close relationship. Vlassakis says that when he moved into Burdekin Avenue in about January or February 1998, Haydon was not associating with Bunting and Wagner. Their relationship seemed to resume in mid-1998 when Haydon moved from Catalina Road to Blackham Crescent.
Brown says that from about January to April 1994, Bunting and Haydon were constant companions. In October 1995 Bunting advised Centrelink that he had moved to Catalina Road, the address at which Haydon was residing. As mentioned, Davies' caravan was taken to Catalina Road and remained there until it was sold in January 1996.
Haydon and Elizabeth Haydon were married on 24 February 1996. There is no positive evidence that a close relationship existed between Bunting and Haydon from the time of the marriage until June 1998. During this period, Bunting and Harvey lived at Bakara until November 1996 when they moved to Lohmann Street, Murray Bridge. A statement by Harvey made in May 1999 suggests that for a period of two and a half to three years before May 1999 Bunting and Harvey had not associated with Haydon as a consequence of a fall out between the families. The murders of Allen, Gardiner, Lane, Trevilyan and Porter occurred from November 1996 to April 1998. In respect of those deaths, other than by reasoning that Haydon was part of a joint enterprise that encompassed these killings, there is no evidence to connect Haydon to the killings nor to events immediately before and immediately after those killings.
Evidence of the existence of a relationship in mid-1998 is provided by Elliott. As mentioned, Haydon and Elizabeth Haydon moved to Blackham Crescent in June 1998. Elliott moved from Queensland to South Australia in 1998. She says that shortly before the move she, Bunting, Haydon and Elizabeth Haydon travelled to Queensland together to obtain property belonging to Elliott.
Troy Youde - (Count 9)
Youde was last seen alive in August 1998. Dismembered parts of his body were found in two barrels in the bank vault. Defleshing had occurred. Fractures to the throat structures identified strangulation as the cause of death.
Vlassakis admits to being an eye witness to the murder of Youde. He had told Bunting on many occasions that Youde had raped him when he was younger. Haydon was not present during these conversations. Vlassakis says Bunting was angry about Youde's behaviour and had often said that he wanted to bash Youde and give him a flogging. However, there was no plan to murder Youde nor any talk of murdering him in advance of the occasion in question. Vlassakis did not think that Bunting would murder Youde because Youde was the brother of Vlassakis and Bunting was in a longstanding relationship with their mother (Harvey).
According to Vlassakis, the events leading to the murder of Youde occurred without warning. Vlassakis was asleep in the lounge room at Burdekin Avenue. He was woken up and given a club and a pair of handcuffs. Bunting, Wagner and Haydon were each armed with a jack handle. Vlassakis says he was taken down to the bedroom where Youde was asleep. The four men walked into the bedroom and Bunting said "Now". Vlassakis describes the four men as "swinging into Troy". Youde awoke and jumped onto the bed with his back to the wall. Bunting and Wagner "just flew in".
Vlassakis says that Bunting demanded that he put the handcuffs on Youde. He put one handcuff on and then walked out of the bedroom into the lounge. It appears that Haydon also left the bedroom. Vlassakis became aware that Bunting and Wagner were putting Youde into the bath tub. Vlassakis and Haydon entered the bathroom. At that time Vlassakis still believed that Youde was to be bashed.
After more physical and verbal abuse of Youde by Bunting, Vlassakis left the bathroom. Haydon was already in the lounge. Vlassakis says that he couldn't handle it and he thought that Haydon was unable to handle it. He could hear the physical abuse of Youde continuing.
Vlassakis says that he witnessed torture of Youde conducted by Wagner. A tape recorder was produced and Youde was made to make abusive statements directed at his mother and others. Bunting would say the words and have Youde repeat the words for taping purposes. A PIN number was obtained. Youde was made to refer to those present by deferential titles such as "sir".
Bunting encouraged Vlassakis to take advantage of the circumstances and make Youde apologise for what he had done to Vlassakis. According to Vlassakis, he knelt in front of Youde and spoke to him. Youde apologised.
At the direction of Bunting, Vlassakis obtained a bag from the lounge room which contained items such as duct tape and gloves. A sock or similar item was placed in Youde's mouth and tape was applied to hold the gag in place. More physical violence was applied to Youde.
Vlassakis says he felt very emotional because initially he was thinking that Youde was to receive only a beating and then he realised that Youde was about to be murdered. At a time when Vlassakis and Haydon were not in the bathroom, Bunting said they "had to see this". They moved to the bathroom. Vlassakis entered the bathroom. It appears that Haydon was watching from outside the bathroom.
According to Vlassakis, a rope was put around Youde's neck and a jack handle was inserted into the rope as a twisting mechanism. Vlassakis knew Youde was going to die and he wanted it to happen quickly. He assisted in the twisting, but the rope broke. Wagner retied the rope and completed the strangling.
As mentioned, Vlassakis says that during the abuse and torture of Youde, Bunting knelt in front of Youde and named people he had killed. Bunting mentioned names and then asked Haydon if he had left any out. Haydon repeated a couple of names immediately before the strangling commenced. Vlassakis says Haydon just repeated the names Bunting had already nominated.
Specifically as to the involvement of Haydon, Vlassakis says that Haydon assisted in the initial beating of Youde in the bedroom, but did not provide any subsequent assistance. He is unable to remember Haydon being present during the torture. At the time that Vlassakis obtained the bag containing the tape, Haydon was in the lounge. Haydon was present when the tape was applied. After Bunting had summoned both Vlassakis and Haydon to the bathroom at the time the rope was placed around Youde's neck, and during the strangling, Haydon was looking through the doorway to the bathroom. He did not assist in any manner.
According to Vlassakis, after Youde was killed Bunting asked him to go to a shop and purchase surgical gloves and garbage bags. Either Vlassakis or Haydon asked what sort of garbage bags and Bunting responded "heavy ones, heavy-duty ones". Bunting showed Vlassakis an almost empty box of surgical gloves of the type that he wanted purchased. Vlassakis and Haydon drove in Haydon's Landcruiser to Woolworths at Murray Bridge where they purchased the box of gloves and heavy-duty plastic bags.
On their return to Burdekin Avenue, Bunting let Vlassakis and Haydon into the premises. They went to the bathroom. The body of Youde was on the floor. Bunting told Wagner to check if Youde was dead. Wagner put his foot on the deceased's chest and pushed a number of times. Bunting and Wagner laughed. The deceased was still handcuffed.
Bunting and Wagner put rubbish bags over the body. Rope was put around the deceased's legs. A barbell was used to assist in carrying the body. All four men carried the body into the shed. Bunting was laughing and saying that Youde was "happy now" and that he had been "made good".
Vlassakis says that after the body was put in the shed, Vlassakis left the premises to obtain methadone from a pharmacy. He was absent from the premises for approximately ten minutes. After he returned to the premises, a discussion occurred about what had happened. Bunting and Wagner were having a "big laugh". Haydon had "a bit of a laugh". Vlassakis was feeling shocked, but did not wish to show his feelings. Bunting asked how Vlassakis felt because he had just committed murder. There was talk of Youde going too quickly and not experiencing enough pain. Eventually Bunting said he was hungry and all four men travelled in Haydon's vehicle to MacDonald's. Vlassakis was unable to eat.
According to Vlassakis, he and Bunting cleaned up in the bedroom and bathroom. Bunting put clothes and other items in a garbage bag together with Youde's bankcard. That bag was put into Haydon's Landcruiser. Subsequently Haydon and Wagner left the premises in the Landcruiser. Although Vlassakis and Bunting had cleaned up in the bedroom and bathroom, Bunting had put some of Youde's CD's in the fish tank and messed up the lounge room a bit to make it look like a fight had occurred. When Harvey returned home, Bunting told her that a fight had occurred between Vlassakis and Youde and that Bunting had stepped in. He said the argument continued between him and Youde and that Youde had left the premises.
Vlassakis says that within a day or so he and Bunting drove to Adelaide in the Ford Marquis and purchased a barrel. On their return to Burdekin Avenue, Bunting and Vlassakis put the barrel in the shed and Bunting locked the door behind them. They put Youde's body into the barrel, but the legs were sticking out of the barrel. Bunting told Vlassakis he would have to do a "slice and dice". Using a knife, Bunting cut around an ankle joint and detached the deceased's foot. The foot was put into the barrel. After the lid of the barrel was applied, the barrel was moved to where two other barrels were situated in the shed. Vlassakis understood that one barrel contained the bodies of Lane and Gardiner and the second contained the body of Porter. The barrel containing the body of Youde was shorter than the other two barrels.
According to Vlassakis, while in the shed Bunting lifted the lid of the barrel containing the body of Porter. He looked into the barrel and said that the body was "rotting very nicely". He asked Vlassakis about the smell. Bunting also looked into the barrel containing the bodies of Lane and Gardiner and again asked about the smell. Vlassakis describes the smell as very powerful and potent. He told Bunting it was pretty bad.
Subsequently, Vlassakis gave false stories to a number of persons concerning the disappearance of Youde. The stories were designed to create the impression that Youde was still alive.
Vlassakis says that Bunting gave him a card which enabled access to Youde's bank account. He had the card for approximately three to four months before Bunting wanted it back. Vlassakis was told to use the card only at EFTPOS machines and not at the bank. The record of withdrawals demonstrates regular use of the card from September 1998 to March 1999. Vlassakis says he gave money to Bunting if Bunting needed it.
In order to maintain the Centrelink benefits that Youde had been receiving, it was necessary to lodge forms with Centrelink. A form dated 2 October 1998 contains the handwriting of Bunting and Wagner's fingerprint was located on that form. Five forms contain the handwriting of Bunting. A form dated 13 November 1998 contains both the handwriting and fingerprint of Vlassakis.
Documentation belonging to or associated with Youde was found at Bundarra Court together with a book which contained practice signatures in the names of Youde and Porter. Various financial documents relating to Youde were found in a green garbage back appearing to contain rubbish. The rubbish bag was in the ceiling at Bundarra Court. The fingerprints of Haydon and Bunting were located on some of the documents.
Documentation related to Youde was also found in the shed at Blackham Crescent. That documentation included Medicare and Healthcare cards in the name of Youde.
Frederick Brooks - (Count 10)
Brooks was last seen alive on 17 September 1998. At that time he was living at Blackham Crescent with Haydon, Elizabeth Haydon (and her children) and his mother, Jodie Elliott (also the sister of Elizabeth Haydon). The day on which Brooks was last seen alive was the day that Bunting, Elizabeth Haydon and Elliott travelled to Owen looking for a property to be rented by Elliott in the name of Allen.
The body of Brooks was found in a barrel in the vault. Thumb cuffs were loose in the barrel with the body. The deceased's wrists were held behind his body by handcuffs. A gag was in the deceased's mouth and ducting tape had been applied across the mouth and over the head. The lower limbs were held flexed by knotted electrical cord. There was a loss of soft tissue over the left knee.
Brooks was last seen alive at Blackham Crescent in the company of Vlassakis, Bunting and Haydon. At that time, Bunting was in a relationship with Elliott. According to Vlassakis, on a number of occasions Bunting referred to Brooks as a paedophile and a dirty. However, prior to the occasion on which Brooks was killed, there was no talk of killing him. Vlassakis was not aware of a plan to kill Brooks and the events of the murder came as a surprise to him.
Vlassakis says that Haydon also complained about Brooks. However, it appears that Haydon's complaints arose out of the presence of Brooks and others as residents at the home of Haydon and his wife.
Elliott says that, after the trip to Owen, during the late afternoon at Blackham Crescent there was talk of going to a party. She and Brooks shared a keycard to an account. She gave that card to Brooks. Vlassakis was the first to leave. A few minutes later Brooks left on foot. Subsequently, Bunting and Haydon left together. Elliott did not see Brooks again.
The story is taken up by Vlassakis. He says he was at home at 23 Burdekin Avenue, Murray Bridge when Bunting arrived. Bunting told Vlassakis that he had "some goodies down the road". Vlassakis took this to be a reference to stolen property. Bunting asked him for assistance. They walked to 3 Burdekin Avenue. As they were about to enter the premises, Bunting told Vlassakis that he had Brooks. Bunting said he was putting handcuffs on Brooks and giving the key to Brooks to get the handcuffs off. He told Vlassakis to put the handcuffs on himself to make it look good.
Vlassakis says that he and Bunting walked into the premises and into a bedroom. Brooks was in the room, putting the handcuffs on and getting out of them. Bunting was behaving in a very friendly manner and talking in an excited way about ripping off a computer shop. Wagner was present. At the suggestion of Bunting, Vlassakis put the handcuffs on and, with a key, took them off. Eventually when handcuffs were put on Brooks, thumb cuffs were also applied and Wagner grabbed Brooks around the neck with his arms.
Vlassakis gives a description of physical violence and torture by Bunting and Wagner. It was a lengthy period of torture by various means, including the use of an electrical impulse machine called a "Variac". A PIN number for a telephone was extracted from Brooks together with phrases abusing Elliott, Haydon and Elizabeth Haydon which were recorded. Brooks was questioned about being a "dirty". He was made to call the accused and Vlassakis by deferential titles similar to those extracted from Youde. Music from the album titled "Throwing Copper" was played. The same music was played during the previous murder of Youde and the subsequent murder of Johnson. Two tapes of that music were subsequently found at Mofflin Road together with an empty CD cover.
According to Vlassakis, a gag was placed in Brooks' mouth and tape was wrapped around his mouth and head. Vlassakis describes the process of using the tape as the same process that occurred in the murder of Youde. At this time the handcuffs and thumbcuffs were still applied.
Vlassakis says that everything became a bit of a blur. He is unable to recall precisely how Brooks was killed. He says that Bunting told Brooks of the previous murder victims as he had done shortly before murdering Youde. After Brooks was murdered, Bunting wrapped the body in rubbish bags and the body was placed in the boot of a white Torana. Brooks' clothes and items used during the murder were put in a black plastic bag and placed in the boot. Vlassakis recalls wearing gloves which were placed in the rubbish bag. During the clean up, Bunting and Wagner compared the torture of Brooks to that of Davies and commented how Brooks had handled the pain like Davies.
Haydon was not present at Murray Bridge for any of the events to which I have referred. There is no evidence that Haydon was aware of an intention on the part of Bunting or Wagner to kill Brooks. According to Vlassakis, within a day or so of the murder Haydon attended at the premises. A trailer was attached to Haydon's Landcruiser. The white Torana was loaded onto the trailer and towed away by Haydon. Bunting accompanied Haydon.
Within about a week, Vlassakis saw the Torana in a shed at Haydon's premises. Haydon was spray painting the car and fixing it up. Vlassakis says that Bunting asked Haydon how Fred [Brooks] was and whether he was happy or not. Haydon responded to the effect that "he's going alright; he's alright." Bunting and Haydon went into the pit. Vlassakis walked about half way down into the pit. Vlassakis says he saw a body on the floor wrapped in the same manner as the body of Brooks had been wrapped when placed in the boot of the Torana. An odour emanated from the shed which Vlassakis describes as the same smell that emanated from the bank vault. Bunting asked about the smell and Vlassakis responded that it wasn't that bad.
Vlassakis says that subsequently he helped Bunting place an answering message on the mobile telephone that belonged to Brooks. They used the tape recording of Brooks' voice. Vlassakis is unable to recall the details of the message. According to Elliott, when she rang that number she received a foul message telling her to leave Brooks alone and saying that he did not want to talk to her. She describes the message as basically telling her to "fuck off".
As mentioned, Bunting and Haydon had left Blackham Crescent together late in the afternoon of Thursday 17 September 1998. They returned together on Saturday 19 September 1998. Elliott was worried. Bunting told her that Brooks was "off his face on speed" and that he had been seen at a service station in that condition. It was said that Brooks had called Elliott bad names. Haydon was present during the conversation. According to Elliott, on subsequent occasions Bunting told her of seeing Brooks and Haydon reiterated what Bunting had told her.
Vlassakis assisted in misleading Elliott. She says that shortly after Brooks disappeared, Vlassakis asked for Brooks' clothes. He told her that Brooks wanted his clothes together with some of his toiletries.
The keycard that Elliott had given to Brooks on the day that he disappeared was returned to her by Bunting. On an occasion when Elliott opened her front door to let Bunting in, he bent down and picked up the card and handed it to her. The back of the card was scratched.
It is the Crown case that Vlassakis and all accused were involved in the process of fraudulently obtaining the continuation of the Centrelink payments to which Brooks was entitled. The Crown says this was done for the benefit of Haydon. By this time the barrels containing the bodies of the deceased Gardiner, Lane, Porter and Youde had been moved from Burdekin Avenue to the shed at Blackham Crescent as the tenancy at Burdekin Avenue was to end on 28 September 1998. Hence the body of Brooks was taken to Blackham Crescent within a couple of days of the murder.
Brooks was in receipt of a Youth Training Allowance at a dependent rate. Steps were taken to change to an independent rate which required less regular provision of information to Centrelink. On 23 September 1998 Vlassakis impersonated Brooks for the purposes of obtaining a medical certificate from Doctor Koo. He was accompanied by Bunting who gave the name Gavin Allen, those being the Christian names of Porter. Vlassakis set out to exhibit symptoms of schizophrenia and paranoia. On 29 September 1998 Vlassakis lodged the necessary forms and a medical certificate with Centrelink. He was referred to a social worker for an assessment and given an appointment card. That appointment card was later found in the ceiling at Bundarra Court.
On two occasions Vlassakis impersonated Brooks at appointments with a social worker. The Youth Training Allowance was suspended. On 16 October 1998 Vlassakis again saw the social worker. He was accompanied by Bunting who posed as Gavin Porter. Wagner was also present for part of the interview.
The benefits were reinstated and transferred to Porter's account. On 16 October 1998 a payment of $87.84 was made into Porter's account as arrears to which Brooks was entitled. The balance of the account was $106.64. That day, $100.00 was withdrawn through use of an ATM at a BP petrol station at Munno Para. Immediately before the withdrawal, a balance enquiry had been made. Wagner was a regular user of that particular ATM. Subsequently, police found an ATM receipt for that inquiry dated 16 October 1998 in the main bedroom at Blackham Crescent together with another receipt for a withdrawal on that account dated 8 October 1998.
In order to maintain the benefit payable to Brooks, it was necessary to lodge forms at Centrelink each fortnight. In February 1999, the benefit was cancelled because forms had not been lodged.
In April 1999, a second lot of impersonations occurred. On 8 April 1999, Vlassakis telephoned Centrelink and identified himself as Brooks. He enquired about the reinstatement of the benefit. The call was made from the landline connected to Bundarra Court. On 12 April 1999, Vlassakis attended at Centrelink and explained the reasons for the failure to lodge the form. The same day, posing as Brooks, he again saw Doctor Koo. Vlassakis says Bunting coached him as to how to act like a paranoid schizophrenic. Bunting accompanied Vlassakis posing as Gavin Allen. A medical certificate was provided. Vlassakis filed the necessary documentation with Centrelink. A benefit in the form of medical incapacity was approved. According to Vlassakis, he and Bunting were driven that day to Centrelink at Gawler and to the doctor's premises by Haydon in Haydon's Holden Kingswood. It is the Crown case that the impersonations by Vlassakis and Bunting were undertaken with the intention that Haydon would receive the benefit by accessing the funds directed to Brooks.
On 19 April 1999 Vlassakis again saw Doctor Koo and a blood sample was taken. The DNA of that blood sample is consistent with the DNA of Vlassakis. Prior to the attendance of Vlassakis, Bunting telephoned from Bundarra Court to enquire about the time of the appointment for "Brooks".
Subsequently, an account was opened in the name of Brooks at the CPS Credit Union. Initially there was no keycard and transactions had to occur over the counter. Vlassakis says that on the last couple of trips to the Credit Union premises at Gawler, Haydon drove him. On one of those occasions, after Vlassakis withdrew the funds and left the premises, Haydon was waiting with his hand out and Vlassakis gave the funds to Haydon in accordance with a previous arrangement set in place by Bunting. According to Vlassakis, the paperwork associated with the account was always left with Bunting in Haydon's car or with Haydon. On the third occasion he obtained funds from the account, Haydon gave him a folder of papers and he returned that folder to Haydon when he gave Haydon the money.
The address given for the Credit Union account was PO Box 378 Elizabeth. That was a post office box rented by Wagner. After the accused were arrested the new keycard and other CPS documentation was found in that post office box together with six Centrelink letters addressed to Porter, three letters to Bunting and twelve items for Wagner.
Documentation related to Brooks was found at Bundarra Court. An unopened letter from Centrelink addressed to Brooks was found in the mailbox at Mofflin Road. Centrelink documentation associated with Brooks was found in the front of a Ford station wagon which belonged to Porter at the time of his death and which was located at Mofflin Road. A wallet belonging to Brooks was found in the black bum bag in the Ford Marquis at Mofflin Road.
A number of Centrelink and Credit Union documents relating to Brooks were found in Haydon's Holden station wagon at Blackham Crescent. Also in the station wagon was a notepad containing Brooks' name, date of birth and telephone PIN number written in the handwriting of Bunting. Haydon's fingerprints were on a Centrelink account payable form in the name of Brooks dated 9 for April 1999. Personal details of Brooks were recorded in Bunting's writing on a piece of paper found in the ceiling of Bundarra Court.
Gary O'Dwyer - (Count 11)
O'Dwyer was last seen alive on 28 October 1998. He lived alone at 23 Frances Street, Murray Bridge. That street intersects with Burdekin Avenue.
O'Dwyer's body was found in a barrel in the vault. No cause of death was determined. Marks on the deceased's chest were suggestive of electrical burns. Histological examination confirms the presence of electrical burns. Patterns on the skin are consistent with the application of clips attached to the Variac electrical impulse machine.
The circumstances of the murder are provided by Vlassakis. He knew the deceased. Bunting enlisted the aid of Vlassakis to gain relevant information about the financial circumstances of O'Dwyer and whether he had any family. Vlassakis says the inquiry by Bunting was unexpected. In essence, Vlassakis says that O'Dwyer was a financial target. In addition, according to Vlassakis, Bunting said that O'Dwyer was a "fag" and a "dirty" and needed to "go to the clinic". This was Bunting's way of saying that O'Dwyer needed to be murdered. There is no suggestion in the interviews of Vlassakis that Haydon was present at any discussion about O'Dwyer.
On the day in question, Vlassakis was intending to go to a party. However, at the insistence of Bunting, Vlassakis arranged with O'Dwyer for "a couple of friends" to have a drink with O'Dwyer.
Vlassakis says he intended to go to the party, but Bunting insisted that he accompany Bunting and Wagner to O'Dwyer's home. They took a carton of beer. Bunting set out to get O'Dwyer drunk. After approximately fifteen to twenty minutes, Wagner grabbed O'Dwyer around the throat. O'Dwyer immediately went into some sort of fit. Bunting told Wagner to ease off a bit. Handcuffs were applied. Physical violence and torture followed. The Variac was used. Personal information was extracted from O'Dwyer. Vlassakis left the premises while O'Dwyer was being tortured. He went to the party and, after a few hours, returned to his home at 23 Burdekin Avenue, Murray Bridge.
The following morning Vlassakis went to 26 Burdekin Avenue where his mother and Bunting were living. Bunting arrived while Vlassakis was talking to his mother. In the presence of Vlassakis, Bunting told Harvey that O'Dwyer had run into trouble with some aboriginals and that he, Bunting, had purchased all of O'Dwyer's furniture. Bunting gave the same story to near neighbours. Furniture was offered to Harvey and others.
According to Vlassakis, later that day he helped Bunting load the deceased's furniture on to a trailer. Bunting told Vlassakis that "Gary was good now". This was an expression used by Bunting to indicate that he had murdered someone. He told Vlassakis that O'Dwyer admitted to being a "rock spider". Bunting did not tell Vlassakis how O'Dwyer had been killed. When Bunting departed with a trailer load of furniture, he told Vlassakis that he was taking a lounge suite to Haydon's home. Subsequently a lounge belonging to O'Dwyer was found at Haydon's home at Blackham Crescent.
Vlassakis says that when he later visited the premises of O'Dwyer, he noticed a strong smell which was worse than the smell emanating from the barrels. He walked to the home of Bunting and asked if the body of O'Dwyer had been left in the house. Bunting answered in the negative and said that the body was in a barrel. He suggested that the smell was caused by meat in the freezer. Through inferences discussed later in these reasons, the Crown submitted that a jury could conclude that the barrel containing O'Dwyer was stored in the shed at Haydon's premises. At a much later date, Bunting told Vlassakis that the barrel had been stored at Haydon's place.
According to Vlassakis, Bunting arranged for the issue of a keycard to enable access to O'Dwyer's bank account into which Centrelink payments for O'Dwyer were made. A considerable quantity of documentation relating to O'Dwyer was found in the ceiling at Bundarra Court. Much of it was in bags together with documentation associated with other victims. Elizabeth Harvey was found to be in possession of a fridge/freezer belonging to O'Dwyer. A television receiver belonging to O'Dwyer was found in the main bedroom at Mofflin Road and documentation related to O'Dwyer was found in a motor vehicle at Mofflin Road. Subsequently, the father of the deceased Johnson found a document at Bundarra Court on which Bunting had written personal details relating to O'Dwyer.
After O'Dwyer was murdered, his account was accessed on numerous occasions. Between October 1998 and February 1999, almost all of the access occurred at Murray Bridge. Bunting was then living at Murray Bridge. The tenancy at Bundarra Court commenced on 13 February 1999. After Bunting moved from Murray Bridge to Bundarra Court, access was taken on a number of occasions in the Smithfield, Salisbury and Hillbank areas. The card which enabled access was found by Vlassakis under a carpet in the bedroom at Bundarra Court.
Elizabeth Haydon - (Count 12)
Haydon and his wife Elizabeth were living at Blackham Crescent. Elizabeth Haydon was last seen alive at that address in the period 20-22 November 1998. Her body was found in a barrel in the bank. A sock was in the deceased's mouth and tape had been placed around her mouth and head. A rope was loose around her neck with a slip knot on the left side. Unusual softening of the skull and teeth had occurred.
Vlassakis was not present at the relevant time. However, he says that after Haydon moved to Blackham Crescent (June 1998), in the presence of Vlassakis and Wagner, Bunting regularly spoke of the need for Elizabeth Haydon to die and to "go to the clinic". There is no suggestion that these types of statements were made in the presence of Haydon.
As mentioned, Elliott was living in a shed at 4 Blackham Crescent. Elizabeth Haydon was Elliott's sister. Two children of Elizabeth Haydon also lived at that address. On Saturday 21 November 1998, the children were staying with the brother and sister in law of Elizabeth Haydon, Mr Garion and Mrs Rae Sinclair.
During the evening of 21 November 1998, Haydon and Elliott left the premises. Bunting, Wagner and Elizabeth Haydon remained in the premises. It is the Crown case that Haydon and Elliott left the house as part of a pre-arranged plan between the accused to remove Elliott from the premises and that Elizabeth Haydon was murdered by Bunting and Wagner during their absence.
Elliott says that Elizabeth Haydon asked her to take Haydon away from the house for about two hours because Haydon's birthday present was due to arrive. At the suggestion of Elliott, Elizabeth Haydon asked Bunting to identify an appropriate place which would take Haydon out of the premises for about two hours. He suggested that Elliott take Haydon to Reynella. Elliott asked Haydon if he would take her to McDonald's at Reynella where she wanted to look at a dog. Bunting gave Haydon twenty dollars for fuel. Haydon agreed and he and Elliott drove to Reynella where they waited at McDonald's. When no-one arrived, Elliott suggested that they return home and commented that when they got home it would be too late for eating. Haydon suggested that they purchase something on the way home and they pulled into a service station for that purpose. Haydon said that he would ring home and let the others know that they were not far away.
According to Elliott, when Haydon returned to the car he said that "all hell" had broken loose at home. Elliott said that when she travelled to Reynella with Haydon, he behaved in his normal quiet manner. He did not seem edgy. However, after the telephone call on the way home, Haydon was quite disturbed and aggravated.
On arrival at Blackham Crescent, Bunting told Haydon and Elliott that Elizabeth Haydon had made sexual advances to him and he had turned her down. Elliott offered to talk to Elizabeth Haydon, but Bunting told her to leave Elizabeth Haydon alone. Bunting said he was going to Hungry Jacks to purchase something to eat and asked if Elliott wanted to accompany him. She left the house leaving Haydon and Wagner in the premises. She had not seen Elizabeth Haydon and presumed that she was in the bedroom sulking.
In response to the Crown case that Elizabeth Haydon was murdered while Elliott and Haydon were absent from the premises, counsel for Haydon drew attention to initial statements by Elliott that when she and Bunting left to go to Hungry Jacks, she saw Elizabeth Haydon at the curtain of Elizabeth Haydon's bedroom. However, during evidence at the preliminary examination, Elliott said that she only saw fingers on the curtain and someone at the window. She could not say who was at the window. It was very dark. As they left, Bunting spoke foul language at the window. Elliott also said that she did not see Elizabeth Haydon in the bedroom and there was no indication by noise or otherwise of the presence of anyone in that bedroom.
Elliott says that when Bunting and Elliott returned from their trip to Hungry Jacks, Haydon told them that Elizabeth Haydon had grabbed a bag or something and had gone off with her boyfriend. There was no mention of the name of the boyfriend. The suggested behaviour by Elizabeth Haydon did not seem out of the ordinary to Elliott because there were times that Elizabeth Haydon was prone to keeping a boyfriend secret and disappearing with the boyfriend.
The following day, Sunday 22 November 1998, Elliott and Bunting drove to the beach. Elliott says that on their return Haydon told her that Elizabeth Haydon had arrived home at about 5.00 am "blind rotten" drunk. Elliott did not check the bedroom. She left the house and on her return Haydon, who she understood had also been absent from the house, said that Elizabeth Haydon must have left while they were absent.
Later that Sunday, Haydon went to the home of Mr and Mrs Sinclair to collect the sons of Elizabeth Haydon. He told them that he had been involved in an argument with Elizabeth Haydon as a result of her accusing him as having slept with Elliott. He said that Elizabeth Haydon had come home drunk at 2.00 am and that she was currently in bed asleep. On their return home late that Sunday afternoon the children did not see Elizabeth Haydon.
On Monday 23 November 1998 the children were supposed to have walked to school. They walked to the Sinclair's. They were upset because they had not seen their mother. William Sinclair says that he and his brother were told by Haydon that their mother was in the bedroom, but they were not to disturb her. Christopher Sinclair says that Haydon told them that their mother would not be home until Monday.
During the afternoon of 23 November 1998 Haydon again attended at the home of the Sinclair's. He said that Elizabeth Haydon had come home drunk at about 4.30 am on Sunday morning and had slept it off. She had then packed her bags and telephoned her boyfriend. The boyfriend turned up with his friends and she left. Haydon also said that Elizabeth Haydon had cleared out the bank accounts of Haydon and his father.
On Tuesday, 24 November 1998 Haydon gave further information to Mr and Mrs Sinclair. He said he had been visiting his father on Sunday morning and when he returned home he found that Elizabeth Haydon had left. He said Elizabeth Haydon had seen Elliott coming out of Haydon's bedroom and had misunderstood the circumstances.
On Wednesday, 25 November 1998, Mr Sinclair reported Elizabeth Haydon missing. A police investigation commenced. On 26 November 1998 Haydon provided to the police a written account of the circumstances of his wife's disappearance. He referred to the "day of our marriage break-up". Haydon said that on his return home from the trip to Reynella, Bunting told him that Elizabeth Haydon had made a pass at Bunting and had become upset when he declined her advance. Haydon told the police that he went into the bedroom to speak with Elizabeth Haydon and she had accused him of sleeping with Elliott. He said that while Bunting and Elliott were absent from the premises, Elizabeth Haydon had come out of the bedroom and had abused him in the presence of Wagner. She said she was leaving and was intending to ring her boyfriend to pick her up. Haydon said that he went to bed at about 2.00 am. Elizabeth Haydon returned home at approximately 4.00 am. She was drunk. She got into bed and passed out. At about 11.30 am Elizabeth Haydon got up. Haydon said he asked her where she had been and who she had been with, but she would only tell him that she was with someone he did not know. He asked her why she had done that and she again accused him of sleeping with Elliott. She told Haydon that he should visit his father at the nursing home and she would wait until he returned. However, when he returned at about 4.00 pm she was not at the premises. He said he had not seen her since that Sunday.
Bunting and Wagner were interviewed by the police on 30 November 1998. Bunting said that Elizabeth Haydon told him she had bought a new computer for Haydon and she wanted to surprise him. She said she asked Elliott if she could get Haydon out of the house. While Haydon and Elliott were absent, Elizabeth Haydon made a sexual advance to him which he rejected. Bunting said that Elizabeth Haydon was upset by the rejection and sulked in her bedroom.
According to Bunting's statement, when he and Elliott left the premises to go to the shops, Elizabeth Haydon stared at them from the window. He said he was later told by Haydon that Haydon and Elizabeth Haydon had argued and she had left the premises.
Bunting also told the police that Elizabeth Haydon's children should not be at the home of Garion Sinclair as Elizabeth Haydon's brother, Tony, had told Bunting that Garion Sinclair was a "child molester". The Crown sought to link that statement with evidence suggesting that the voice of Elizabeth Haydon had been recorded accusing Garion Sinclair of being a child molester.
Wagner told the police that Elizabeth Haydon had made an advance towards Bunting. He said that the others were at the house when he had left the premises.
It is the Crown case that Bunting and Haydon also gave a false story to Mrs Angela Freeman. As appears later in these reasons, premises occupied by the Freemans was used to store barrels containing bodies. According to Mrs Freeman, after the disappearance of Elizabeth Haydon she was involved in a conversation with Bunting and Haydon when they were discussing the problems being experienced with police. It was said that the police were trying to involve Haydon in Elizabeth Haydon's disappearance and that they felt that if anything had happened to Elizabeth Haydon it would be her brother who was involved. Mrs Freeman suggested to Haydon that he seek legal help. It was mentioned that Elizabeth Haydon had been seen in Melbourne. In her evidence at the preliminary examination, Mrs Freeman explained that when the group was together talking, Bunting did the bulk of the talking while Haydon sat quietly, but everybody had something to say in the conversation.
Ms Sharon Ball was a friend of Elizabeth Haydon. She says that on Thursday 26 November 1998 she found out that Elizabeth Haydon was missing. On Monday 30 November 1998 she attempted to ring the number of Elizabeth Haydon's mobile telephone, but on about four occasions she only succeeded in reaching a message bank. However, Elizabeth Haydon's voice was not the voice of the message bank. On about the fifth try, Ball thought she was talking to Elizabeth Haydon. She asked Elizabeth Haydon to talk to her. She received a reply to the effect of "leave me alone, I'm alright; fuck off." Elizabeth Haydon had never spoken to Ball in that manner previously.
A few minutes later, Ball again telephoned Elizabeth Haydon's mobile number. She heard a voice that sounded like a recording on a tape. It said "you're a slut; you're nothing but a dirty slut". There was the voice of a male and it sounded distant.
A tape of Elizabeth Haydon's voice was found by police in the ceiling at Bundarra Court. A number of statements are heard on the tape abusing Elizabeth Haydon's mother, Elliott and Haydon. There is reference to finding someone else and leaving her alone. The statements also include an allegation that Garion Sinclair is a child molester. The Crown says that the tone of Elizabeth Haydon's voice on the tape clearly demonstrates that she was under stress. Mr Vlassakis says that recordings of a similar nature were made during the murders of Youde, Brooks and Johnson.
In respect of the phrases that Elizabeth Haydon was made to repeat, counsel for Haydon pointed out that the phrases included abuse of Haydon. She suggested that as the phrases were intended to be heard by the named recipient, the existence of abuse of Haydon suggested that Haydon was not involved in the murder of Elizabeth Haydon. However, counsel acknowledged that recordings of statements by deceased were played to answering machines or services of intended recipients. It could be said, therefore, that in order to give credibility to the deception that Elizabeth Haydon had voluntarily left and wanted no more to do with those who were close to her, it was necessary to include phrases that abused Haydon.
Vlassakis says he was first told of the murder of Elizabeth Haydon when Bunting came to Murray Bridge with a barrel in the back of the Ford Marquis. The barrel was placed into a Sigma parked at the home of Vlassakis. Bunting said that he and Wagner had killed Elizabeth Haydon, but the conversation was mainly about the police being "onto him". Bunting told Vlassakis that there were barrels in Haydon's four-wheel drive vehicle and on a trailer. There was also the barrel that had to come to Vlassakis.
According to Vlassakis, it was some time before Bunting again spoke about Elizabeth Haydon. He told Vlassakis that Haydon was supposed to take the children to school, but had dropped them off and saw them walking down the road but not into the school. Bunting told Vlassakis that he and Wagner grabbed Elizabeth Haydon and put her in the bathtub. Vlassakis says he does not know if the murder actually happened at that time or not. Subsequently Bunting showed Vlassakis a barrel in the bank vault which he said contained the body of Elizabeth Haydon. Haydon was not present during the conversations between Vlassakis and Bunting about the death of Elizabeth Haydon.
As to a motive, Vlassakis says that he overheard Haydon telling Bunting that he, Haydon, had told Elizabeth Haydon about the murder of Trezise. The details are set out earlier in these reasons. In addition, as mentioned Vlassakis says that Bunting often said that he hated Elizabeth Haydon.
According to Vlassakis, Haydon and Elizabeth Haydon still had compassion for each other. In the presence of Vlassakis, Haydon spoke to Harvey in terms of "how could she run away" and said that he missed Elizabeth Haydon. However, Vlassakis says Haydon was present in the vault when the lid of the barrel containing Elizabeth Haydon's body was removed. Bunting and Wagner were making jokes about Elizabeth Haydon and laughing. Haydon had a laugh under his breath. Vlassakis says they left the vault soon after that incident and Haydon told him that he couldn't stomach it.
On 26 November 1998 Haydon and Elliott each gave a statement to the police. Elliott says that later on 26 November 1998 the three accused were at 4 Blackham Crescent. They seemed edgy for some reason that she was unable to work out. She was told that they had stuff which had to be moved. Elliott was instructed to stay in the family room and keep an eye out in case the police came back. Haydon's Landcruiser was reversed towards the shed. Although she could not see what was happening, Elliott also heard movement into the ceiling of the house and the removal of property from the ceiling. Items were wrapped in old blankets and put into the Landcruiser. A trailer was obtained. The Landcruiser was put onto the trailer and Wagner's vehicle was used to tow the trailer away from the premises. This occurred between about midnight and 3.00 am.
It is the Crown case that property of victims or associated with victims was removed from the ceiling at Blackham Crescent because the police had become involved in investigating the disappearance of Elizabeth Haydon. Property belonging to or associated with victims was subsequently found in the ceiling of premises occupied by Bunting at Bundarra Court. Elizabeth Haydon's visacard was found by Mills on top of a cupboard at Mofflin Road.
It is also the Crown case that barrels containing bodies had been stored in the shed at Blackham Crescent. The evidence by which the Crown sought to prove that fact is discussed later. It is the Crown case that the barrels were loaded into the Landcruiser during the evening while Elliott was keeping a look-out for the police. The Landcruiser was then towed on a trailer to the property of Mr and Mrs Freeman at Hoyleton.
The Crown says that a combination of circumstances leads to the inevitable inference that Elizabeth Haydon was killed while Elliott and Haydon were absent from Blackham Crescent. The proposed evidence is capable of supporting such a finding.
If a finding is made that Elizabeth Haydon was killed before Elliott and Haydon returned to Blackham Crescent, it would follow that Haydon knowingly made false statements about Elizabeth Haydon's behaviour and movements. The first of those statements was to Elliott when she and Bunting returned from their visit to Hungry Jacks. Against the background of Haydon's knowledge that Bunting and Wagner had murdered a number of people, and in view of the storage of barrels containing bodies in Haydon's shed of which Haydon was aware, the fact that Haydon immediately began telling false stories about Elizabeth Haydon is capable of supporting an inference that when Haydon left the premises with Elliott he was aware that his wife would be murdered. The alternative view is that, while Elliott and Bunting were at Hungry Jacks, Haydon became aware that Elizabeth Haydon had been killed and in order to support Bunting and Wagner he immediately began telling false stories about Elizabeth Haydon's movements.
The Crown pointed out that if Haydon was not party to the murder of his wife, Bunting and Wagner took an extraordinary risk in murdering Elizabeth Haydon while Elliott and Haydon were temporarily absent. In addition, the Crown referred to the evidence of Mills that after Elizabeth Haydon's death, the relationship between Bunting and Haydon seemed to be closer. That view of the relationship is supported by evidence from a neighbour of Bunting's at Murray Bridge. Mr Robert Gottwald says that Haydon stayed with Bunting at Murray Bridge for almost all of January 1999. The Crown also relies upon Haydon's subsequent behaviour in the vault when the lid of the barrel containing the body of Elizabeth Haydon was removed.
In answer to the submission that it was Elizabeth Haydon's idea that Elliott take Haydon away from the premises, the Crown says the birthday present did not exist. The idea of having Haydon leave the premises was an idea put into the mind of Elizabeth Haydon by Bunting as part of the plan to get Elliott out of the premises while Elizabeth Haydon was murdered.
In respect of the current application, I am required to make a provisional assessment of the evidence. That assessment leads me to the view that the totality of the evidence is capable of supporting an inference beyond reasonable doubt that at the time Haydon and Elliott left the premises leaving Elizabeth Haydon, Bunting and Wagner in the premises, Haydon was aware that Bunting and Wagner were intending to kill Elizabeth Haydon.
David Johnson - (Count 13)
Johnson was murdered on 9 May 1999. His body was found in a barrel in the vault. The hands had been almost completely degloved and there had been an attempted disarticulation at the right knee.
Johnson was the stepbrother of Vlassakis. He was not a homosexual. However, Bunting referred to Johnson as a faggot and said he needed to die. According to Vlassakis, Bunting disliked Johnson from the day they met.
Vlassakis says that on an occasion when he borrowed Bunting's car, Bunting asked if he could go and get David for him. From the way Bunting asked, Vlassakis says he "knew what he wanted then straight away". Initially Vlassakis refused, but Bunting kept "hassling" him. Vlassakis attended at Johnson's premises and said that he had a computer for sale at the place of a friend just past Clare. They discussed exchanging the computer for an ounce of marijuana. There were subsequent discussions between Vlassakis and Johnson on that topic.
Vlassakis was living with Bunting at Bundarra Court. He says that after a visit to Johnson to discuss the computer, he returned home and saw Bunting in the ceiling. Haydon was standing on the floor holding a ladder together with Wagner. Bunting came down from the ceiling holding a pair of handcuffs. The three men went to the laundry where Bunting asked Vlassakis how he got on with "putz head". This was a reference to Johnson. Bunting was talking about how it was going to be fun. This was the first time that Bunting mentioned to Vlassakis that he wanted to kill Johnson. According to Vlassakis, this was the type of conversation that did not occur around people other than Vlassakis, Bunting, Wagner and Haydon. Hence the conversation occurred in the laundry. Vlassakis says that this is the only conversation about Johnson at which he can specifically recall Haydon being present. He says that there were a few conversations involving Haydon, Wagner and Bunting at Haydon's place within a couple of days of the murder of Johnson, but he is unable to recall what was said. He cannot be 100 per cent sure that the topic of the conversations was to do with Johnson.
Vlassakis says he lured Johnson to Snowtown on 9 May 1999. Earlier that day he was present at a conversation involving Bunting, Wagner and Ms Michelle Fitzgerald. Vlassakis says that Fitzgerald spoke about Johnson needing to die. Fitzgerald is not a Crown witness.
Vlassakis and Johnson drove in different vehicles to Harvey's home where Vlassakis left his car. While Vlassakis was driving to his mother's home, Wagner telephoned him. This call was recorded on a telephone intercept. It occurred at about 6.40 pm. Wagner enquired as to whether "putz head" was with Vlassakis. Vlassakis said that Johnson was behind him [in another vehicle] and there was talk of where they would leave the car on arrival at Snowtown.
At 6.56 pm Bunting telephoned Vlassakis and told him that the side door of the bank was open. Bunting said that the "machine" was set up. At 8.56 pm Wagner telephoned Mr Freeman who lived a short distance from the bank at Snowtown. He left a message requesting that they be permitted to use the shower at the Freemans later that night.
Vlassakis says that almost immediately after he and Johnson entered the bank premises at Snowtown, Wagner grabbed Johnson around the throat and Bunting applied handcuffs. Bunting told Johnson he only wanted to talk to Johnson and that Johnson would be gone in half an hour after a few questions. Johnson was sitting on a television set. Bunting had Johnson repeat numbers and phrases. Johnson's repetitions were recorded on a computer (a notebook later found between the vault door and plastic lining the doorway contained phrases Johnson was made to repeat and Johnson's PIN number). After some time Johnson's socks were removed and a sock was put in his mouth. His mouth was covered with tape. Physical violence and torture followed. A PIN number was extracted from Johnson. Wagner and Vlassakis drove to Port Wakefield and attempted to use Johnson's card. The attempt was unsuccessful. Bunting rang Vlassakis who told him that the attempt had been unsuccessful.
According to Vlassakis, when he and Wagner returned to the bank premises, Johnson was dead. The deceased's belt was around his neck. Bunting was holding his ribs and thumb. He told Vlassakis and Wagner that the deceased "had wimped out". He said Johnson got the handcuffs to the front of his body and a fight occurred between them. Bunting said that Johnson grabbed the Stanley blade, but Bunting put the belt around Johnson's neck and strangled him.
Vlassakis says that Bunting and Wagner told Vlassakis he would have to do a "slice and dice". Bunting told him to put on a protective covering which was referred to as a "playsuit". Vlassakis complied. Wagner and Vlassakis carried the body into the vault. Car keys, handcuffs and a watch were removed from the body. The gag was removed (DNA consistent with Johnson's DNA was subsequently found on tape located in the vault and on hair attached to the tape). Both Vlassakis and Wagner wore gloves. Bunting told Vlassakis and Wagner that Mr Freeman was at the premises. He shut the bank vault door. Vlassakis felt ill. Eventually he left the vault.
Mr Freeman said that he arrived home that evening at about 10.30 pm. There was a note on his door asking him to ring Wagner's mobile phone number. He rang the number written on the piece of paper and spoke to Bunting. He was told that Bunting was in Snowtown. Out of curiosity Freeman went to the bank. He had a key to the side door, but when he opened the door a restraining chain was in place. Bunting let him in.
Bunting invited Freeman to have a look at the computer which was on the floor. Freeman says that about one or two minutes after he sat down at the computer, Vlassakis walked out of the vault. Black plastic covered the open doorway and Freeman could see light through a slit in the plastic. He says that Vlassakis was wearing disposable white overalls of a type he had not seen before. In the words of Freeman, Vlassakis "stunk of rotting meat". Prior to Freeman leaving, Vlassakis took a step towards him and put out his arms saying "give me a hug".
Freeman also saw Wagner walk out of the vault. Wagner was wearing his yellow Country Fire Service overalls and gloves. As Freeman was leaving, Wagner also said "give us a hug".
According to Freeman, about an hour or an hour and a half later the three men arrived at his house. They all "stunk" and all took turns in taking a shower.
Freeman saw that Vlassakis had a Nissan EXA motor vehicle. He says that Bunting had offered to sell that vehicle to him a few weeks previously. Bunting said that a friend had lost his job and could not afford to keep up the payments. He had asked two thousand dollars for the car. Vlassakis was driving the Nissan and the other two men were in Wagner's brown Ford Falcon station wagon. They left at about 1am. That was the last occasion that Freeman saw them.
Johnson's Nissan was driven from Snowtown to Haydon's premises at Blackham Crescent. Elliott and Haydon were at the premises. Bunting offered the vehicle to Elliott as a Mother's Day present. She took it for a test drive. She discussed the car with Bunting, Wagner and Haydon. Elliott understood that the owner wanted one thousand five hundred dollars for the car.
Vlassakis says that after they arrived at Blackham Crescent, Bunting told Haydon what had happened. Vlassakis recalls Bunting telling Haydon about the fight between Johnson and Bunting and what occurred after the fight. According to Vlassakis, Haydon knew that the Nissan belonged to Johnson and, as a consequence of the previous conversation when Bunting had been in the ceiling, Haydon was aware that the vehicle would be arriving.
As mentioned, shortly before Johnson was murdered Bunting had Johnson repeat numbers and phrases for recording on the computer. This was the first occasion on which a computer was used for recording purposes. Audio tapes had been used in connection with Elizabeth Haydon, Brooks and Youde. By means of a listening device in place at Blackham Crescent on 15 March 1999, there is audio evidence of Bunting, Elliott and Haydon using the sound program that enables the recording and subsequent manipulation of material recorded on the computer. Elliott identifies her voice and those of Bunting and Haydon. The Crown says that the program was being tested and that the testing is significant in view of the fact that audio tapes had been used in recording the voices of three persons previously murdered, including Youde, at whose recording and murder Haydon had been present. However, counsel for Haydon pointed out that Elliott and Haydon were being harassed by the police concerning the disappearance of Elizabeth Haydon and the thrust of the "testing" was to demonstrate what the police could do by way of manipulating interviews. It was put that in substance Bunting was endeavouring to persuade Elliott that she should not trust the police and should not talk to them. The content of the transcript tends to support the view advanced by counsel for Haydon.
The recording of Johnson's voice immediately before his murder was put into practice two days later on 11 May 1999. Through telephone intercepts, calls were recorded from Bunting's home at Bundarra Court to a friend of Johnson's, Ms Toni Freeman. A recording of Johnson's voice was played over the telephone to Ms Freeman. The recording included abusive phrases that had been spoken by Johnson at the insistence of Bunting on the night of Johnson's murder. Ms Freeman did not recognise Johnson's voice on the first occasion. The intercept then recorded two calls shortly after the first call, but Ms Freeman's number was engaged. In one of those calls Bunting is heard to say that the line was engaged. Call Number 4 was answered by Ms Freeman and she heard the same male voice. This time she recognised the voice as Johnson's. She was sure that the voice was a recording. She yelled into the phone, but there was silence. Ms Freeman then rang Vlassakis at Bundarra Court. She asked if Vlassakis knew where Johnson was and Vlassakis responded that he had no idea. Ms Freeman told Vlassakis that Johnson had telephoned and played a recording.
On 13 May 1999, Bunting made a number of calls to Telstra enquiring about how to block a number in order to prevent a receiver of a call finding out the number of the caller. Bunting also telephoned Vlassakis and played the recording of Johnson's voice to Vlassakis over the telephone in order to test the quality.
Ms Linda Kovarskis was Johnson's girlfriend. She last spoke to him on 9 May 1999 and was told by Johnson that he was obtaining a computer from Bunting that day. Johnson told Kovarskis that the contact had been provided by Vlassakis. On Wednesday 12 May 1999, Kovarskis made enquiries as to the whereabouts of Johnson. At about 10.30 am on 13 May 1999, Kovarskis and her mother attended at Johnson's home. Their knock on the front door was answered by Vlassakis. He told Kovarskis that Johnson had made a thirteen year old girl pregnant and was seeing someone else. Kovarskis observed that Johnson's clothing and belongings were still in his room.
Kovarskis told Vlassakis to tell Johnson to call her. She said that if she did not get a call she would contact the police and report Johnson as missing. That same morning, a telephone intercept recorded a conversation between Vlassakis and Bunting in which they discussed the intention of Kovarskis to go to the police if Johnson did not call her that night. It is the Crown case that a plan was put in place to satisfy Kovarskis. Bunting purchased a telephone pack. He gave Johnson's birth certificate to Vlassakis to enable Vlassakis to register a SIM card in Johnson's former name, David Cheeseman. The number was given to Kovarskis. Bunting arranged for Elliott to impersonate Johnson's girlfriend. Bunting told Elliott that Johnson had left the State because he made a 13 year old girl pregnant. Elliott answered when Kovarskis telephoned and pretended to call out to Johnson. She told Kovarskis that Johnson must have been on the toilet and that she had to go. Elliott hung up. The SIM card was later found in Bunting's mobile telephone in a vehicle at Bundarra Court.
On 19 May 1999, Vlassakis and Wagner attended at the home of Johnson and removed a quantity of property. The same exercise was repeated on 20 May 1999. They told Mr Marcus Johnson, the deceased's father, that they were taking the property to his son. Some of the property was given to a friend of Johnson without identifying Johnson as the source. Other property was placed in a Goodwill bin and was subsequently retrieved by the police.
Property belonging to or related to Johnson was subsequently found at Bundarra Court and Mofflin Road. Johnson's Nissan EXA was found by the police at Blackham Crescent.
Only one access was taken to Johnson's bank account after his death. That access occurred on 19 May 1999 at Hillbank. Vlassakis says he made the withdrawal in the presence of Wagner.
Other Evidence
The Crown submitted that in addition to considering the evidence directly bearing upon each individual count, it is important to gain an overall perspective of the evidence in order to appreciate the underlining unity and connection between the various counts and to appreciate the extent of the involvement of each accused. The Crown contended that once the full impact of the overall perspective is appreciated, it is apparent that each count is admissible upon the other and that relatively little evidence is admissible against one accused and not another. If separate trials were ordered, the vast majority of the evidence would still have to be led on each trial.
Dynamics of Group
First, the Crown referred to the dynamics of the group. There is a considerable spread of age. Haydon was born on 4 December 1958, Bunting on 4 September 1966, Wagner on 28 November 1971 and Vlassakis on 24 December 1979. At the time that Trezise was killed, Vlassakis was aged about thirteen years and had not met Bunting. Vlassakis met Bunting when he was about fourteen. He lived with Bunting before Bunting moved in with Vlassakis' mother, Elizabeth Harvey. Vlassakis came to regard Bunting as his father.
According to Vlassakis, Bunting and Haydon were close friends and were together all the time when Vlassakis became friendly with Bunting. Wagner became more involved after Bunting moved into Waterloo Corner Road and after Wagner's relationship with Lane ended. According to Tripp, Bunting's partner when he lived at Waterloo Corner Road, Haydon and Wagner were regular visitors. As mentioned, there is evidence supporting the view that Bunting and Haydon did not associate with each other from early 1996 until mid-1998.
It is the Crown case that Bunting was the common thread. Vlassakis says that Bunting regularly spoke of and bragged about the murders while in the group of four. Wagner also joined in. Haydon listened, but spoke very little. According to Vlassakis, unless Bunting was present he, Wagner and Haydon did not talk about the murders.
Mills became involved with Wagner in late 1996. She and Wagner lived in Mofflin Road from 1997. She says that Bunting, Wagner and Haydon did not speak in front of her. They would go outside. A similar observation is made by Elliott. She described it as like a boys club. They would talk outside or, if inside, they would talk at a low level.
Bunting moved to Murray Bridge in 1991. He lived at 10 Lohman Street from November 1991 to May 1997. He was at 3 Burdekin Avenue from May 1997 until September 1998. It is the Crown case that a story was created to enable Bunting to regularly visit Adelaide. He claimed he was driving trucks. He went as far as hiring a truck in order to convince Harvey that he was driving trucks. Haydon and Wagner were able to leave their homes without question apparently to travel with Bunting in the truck. Wagner also pretended that he had obtained a job driving trucks. Counsel for Haydon pointed out that the Crown relies upon the evidence of Elliott that Haydon would go with Bunting "sometimes" when Bunting was driving trucks. Elliott's evidence only relates to the period after June 1998.
Counsel for Haydon referred to evidence that she argued demonstrated that Haydon was on the outer and was not regarded as part of the group surrounding Bunting. Statements were made by Bunting suggesting that only those who had been sexually abused were considered to be part of the group. In addition, counsel referred to evidence which she said justified the conclusion that Bunting was pursuing his own agenda and selected and planned the killings without reference to Haydon.
Motive
As mentioned earlier in these reasons, in respect of some victims the Crown says that at least part of the motivation for the murders was a belief by the accused that the victims posed a risk to the accused because they knew too much. In addition, the Crown contended that the evidence demonstrates a desire to financially gain from the death of a number of victims. Another aspect of motive was a hatred of paedophiles that was shared by the accused.
It is the Crown case that there were numerous conversations involving the accused in varying combinations and Vlassakis when the hatred of paedophiles and what should be done to such persons was discussed. Vlassakis says that these types of conversations occurred in respect of a number of victims. He says that the topic of paedophiles inevitably arose during discussions with Bunting. In the early stages, when Bunting was talking about paedophiles and bashing them, Haydon would "have a few inputs here and there". Over time the conversations involved escalating violence to the point of killing.
Other witnesses also speak of conversations about paedophiles. Marcus Johnson met Elizabeth Harvey in 1988 and they married in 1991. After about five years they separated permanently.
Marcus Johnson became aware of allegations that a person by the name of Payne had sexually interfered with Harvey's children, namely Vlassakis and his brothers. At about that time Marcus Johnson first met Bunting, Wagner, Haydon and the deceased Lane. He was present at a conversation when those men and Harvey were talking about Payne and discussed killing Payne themselves. It was a general conversation about taking matters into their own hands if Payne was not arrested by the police. Bunting was the most violent in the nature of the language he used. Payne was arrested on 3 March 1994.
Marcus Johnson says that after the first occasion, it seemed that every time he visited Harvey the same group was at her house discussing the same things. On one of those occasions Bunting said that he and Haydon were part of vigilante group who took care of paedophiles, homosexuals and deviates. When pressed during his evidence at the preliminary examination Marcus Johnson agreed it was possible but not probable that Haydon was not present when the term "vigilante" was used. He said that Haydon was present at these violent conversations on more than one or two occasions and that, although his "verbalisation was quite limited", Haydon endorsed the tone of the conversations. He said Haydon took his lead from Bunting and would back up the statements Bunting made about violence and paedophiles by nodding his head and making a few comments along the same lines. The tone of the conversations was always about "taking care of these people" and that they "shouldn't be on the earth".
The conversations described by Marcus Johnson occurred when Harvey was living at Kilsby Street, Elizabeth South. Harvey lived at Kilsby Street from October 1993 to April 1994. Subsequently Harvey moved to another address and a relationship developed between Bunting and Harvey. Marcus Johnson also says that Harvey introduced Haydon to Elizabeth Haydon.
As mentioned, Elizabeth Haydon was Stewart's sister. He says he first met Haydon in about March 1994. He was aware that Haydon and Elizabeth Haydon began living together at 14 Catalina Road, Elizabeth. While they were living at that address, Stewart met Bunting and Elizabeth Harvey.
Stewart recalls an occasion when Haydon took him to Bunting's house. He heard Bunting tell Haydon that a young lad who had been staying with Bunting had sexually interfered with Elizabeth Haydon's son. Stewart says that Haydon told Bunting that when Bunting found the "little rock spider", Bunting should give him a call. Haydon was angry and yelling while he was talking to Bunting. Haydon said he wanted to give the person a hiding and Bunting said they would teach him a lesson.
A short time after the conversation, Haydon drove Stewart back to Haydon's home. On the way, Haydon made a comment to the effect that "they should all be rounded up and slaughtered like cattle".
Mrs Patricia Lewis is Elizabeth Haydon's mother. She says that when Haydon and Elizabeth Haydon were living at Catalina Road, she met Bunting. At times when she saw Haydon and Bunting together, they discussed their hatred of homosexual persons and paedophiles.
For present purposes, it is unnecessary to discuss the evidence of a number of other witnesses who speak of conversations involving Bunting and Wagner that disclose at least an intense dislike for homosexual persons and paedophiles. I have already referred to the chart known as the "rock spider wall".
The Crown argued that the paedophile/homosexual theme exists with respect to the murders of Trezise, Davies, Gardiner, Lane, Youde, Brooks, O'Dwyer and Johnson. In addition, Bunting and Wagner referred to Porter as "waste". Davies was living in a caravan at Allen's premises. Lane, Trevilyan and Elizabeth Haydon each had knowledge of one murder. Access was taken to the Centrelink benefits of Davies, Allen, Lane, Porter, Youde, Brooks, O'Dwyer and Johnson. Each accused accessed the benefits of at least one deceased. Gardiner's card was found at Mofflin Road, but the benefits were cut off as a result of enquiries about Gardiner by friends.
Bank Premises
Snowtown is approximately 140 kilometres north of Adelaide. The Crown places particular emphasis upon the evidence that emanates from former bank premises at Snowtown. The Crown argued that a proper appreciation of the facts and how they are connected begins with the bank premises.
Police entered the bank on 20 May 1999. The bank vault measures 2.4 metres by 3.6 metres. Together with a number of other items, stored in the bank vault were six barrels containing eight bodies. Items associated with the murders were found in the vault and in the remainder of the premises including gloves, knives, tape, sparklers, the Variac, handcuffs, protective clothing and garbage bags.
At the time of his arrest, Wagner had a key to the external door of the bank. When police entered the premises, the door to the vault was shut and locked. Mr Freeman fashioned a key from wire which enabled the door to be unlocked. He had fashioned such a key for Bunting and he was "pretty sure" that Haydon was present and assisting at that time. A piece of wire fashioned in the same manner and capable of opening the door to the vault was found in the pit in the shed at Haydon's premises at Blackham Crescent. A key capable of opening the handcuffs found in the vault was located in the pit.
Inside the door to the vault and across the doorway black plastic had been taped in place. Johnson's wallet and a notebook containing the script of phrases spoken by Bunting to Johnson and repeated by Johnson were found between the door and the plastic. A slit in the centre of the plastic which enabled access through the plastic to the vault was covered with tape. When that tape was removed, a foul smell emanated from the vault. The evidence establishes that Bunting has no sense of smell. Vlassakis says that Bunting asked him about the smell. Air fresheners were put in place. It appears that Haydon may not have a sense of smell.
Vlassakis says that gloves were worn when bodies were handled. DNA consistent with the DNA of each accused was found on gloves in the bank premises. (Bunting 3, Wagner 16 and Haydon 6). Two gloves bore DNA consistent with that of Vlassakis. DNA consistent with a number of deceased were found on numerous gloves. On one of the three gloves containing DNA consistent with Johnson, voluntary skeletal muscle was found. The presence of that muscle tends to support the evidence of Vlassakis that Wagner removed flesh from the body of Johnson. DNA consistent with that of Johnson was also found on a knife in the vault and on tape and hair. DNA consistent with Bunting was found on the tape.
Rope on a counter in the bank premises contained DNA consistent with the DNA of Porter. DNA consistent with Youde was found on tape, clothes, rope and hair from the rope. DNA consistent with a number of deceased was also found on items contained in plastic bags within the general area of the bank.
A pair of gloves was found in the pit at Blackham Crescent. Both of the gloves contained DNA consistent with that of Haydon. DNA consistent with that of Wagner was found on two gloves in Porter's vehicle (the vehicle was at Mofflin Road). A glove in Haydon's Landcruiser contained Haydon's fingerprint.
The fingerprints of the accused were found on both moveable and fixed objects in the bank. The prints of Bunting and Haydon were found on plastic capable of being used as a poncho of the type used when dealing with bodies. The prints of all accused were found on various items in the bank.
It is the Crown case that the evidence from the bank and from the gloves found at Blackham Crescent, in Porter's vehicle at Mofflin Road and in Haydon's Landcruiser not only demonstrates a close link between each of the accused and the bank, but also illustrates the degree of involvement of each accused in the activities at the bank.
The Crown also pointed to evidence concerning the renting of the bank and visits to the bank by all accused. The evidence is capable of supporting a conclusion that the bank premises were rented by Bunting and Haydon in January 1999. The owners of the bank, Mr Andrew and Mrs Rosemary Michael, met two men in connection with renting the bank who introduced themselves as John Bunting and Mark. A key was provided. Both owners have identified Bunting as involved. Mr Michael has identified Haydon as the person introduced as "Mark". On 8 February 1999 the rental agreement was left at the bank to be completed by those renting the premises. On 10 February 1999 the agreement, which had been completed in handwriting, was at the post office with the rent. The agreement was in the names of John Bunting and Mark Lawrence of 4 Blackham Crescent, Smithfield. Lawrence was Haydon's former name. A handwriting expert has expressed the view that Bunting filled out the details and signed the document. She has also expressed the opinion that there are similarities and no significant differences between the signature of "Mark Lawrence" and the specimen signatures of Haydon using the name Mark Lawrence. A thumb print of Bunting was located on the document.
As to visits to the bank, I have referred to the evidence of Mr Freeman and Vlassakis concerning the events of 9 May 1999 (the time at which Johnson was murdered). Vlassakis says that he visited the vault on two other occasions. The first visit with Haydon was in about March or April 1999. Bunting told Vlassakis to go to Snowtown with Haydon to pay the rent. He was told to keep a low profile. They travelled to Snowtown in Haydon's Holden Kingswood. Haydon was driving. Haydon had a key to the side door. They entered the bank together. The vault was locked.
Vlassakis says that after obtaining the rent book from inside the premises, he and Haydon left in Haydon's car. Haydon went into the supermarket for the purpose of paying the rent. The rent book was put back in the bank by Haydon.
According to Vlassakis, the second trip was in April 1999. He travelled to Snowtown in Haydon's Holden Kingswood with Bunting, Wagner and Haydon. Bunting told Vlassakis to take a change of clothes. On the way they stopped at Wagner's premises and bags of premix cement were transferred from Wagner's car to Haydon's vehicle. Vlassakis was scared that he was about to be killed. During the trip there was discussion about previous murders.
Vlassakis says that once inside the bank premises, Bunting manipulated the lock and all four entered the vault. Bunting provided gloves for all of them to wear. Lids of barrels were lifted. A comment was made by Bunting to the effect that he could not believe how quickly Elizabeth Haydon was rotting. There was a lot of laughing by Bunting and Wagner. Haydon was also laughing.
The bags of concrete were moved from the Kingswood into the general bank premises together with buckets and hoses. Bunting said he was going to cut the bodies into smaller parts, put concrete into the bottom of the barrels and take them out to sea and dump them. Previously Bunting had been pushing Vlassakis to obtain a boat licence.
Vlassakis says that after the vehicle was unloaded, the vault was re-opened. Bunting and Wagner began dismembering the body of Youde. Vlassakis left the vault because he could not cope with what was happening. He talked with Haydon in the general bank premises. Haydon told Vlassakis that he could not stomach it. From time to time Haydon would enter the vault and talk with Bunting and Wagner. Vlassakis could hear Bunting and Wagner laughing most of the time and when Haydon entered they were still carrying on.
Vlassakis says that his clothes and hair "reeked" as the stench had got into him. They travelled to the Freemans where he, Bunting and Wagner each had a shower. Vlassakis is not certain whether Haydon had a shower.
It is the Crown case that by 1999 there were four people who were considered part of the enterprise. They were fully trusted with all details and with access to the vault where the bodies were stored. They were Bunting, Wagner, Haydon and Vlassakis. All four were involved in the activities in the vault and in the events leading to the storage in the vault of the barrels containing the bodies.
Storage and Movement of Barrels
Vlassakis provides the earliest reference to barrels. As mentioned, Vlassakis lived at Burdekin Avenue with Bunting and Harvey. He became aware of the presence of a barrel in the shed at Burdekin Avenue. Initially Vlassakis noticed an unusual smell and was told by his mother that it was rotting cats. It was a smell similar to a smell Vlassakis had experienced in a paddock, but it was different because it was in a confined area. He felt queasy.
As discussed earlier in these reasons, Vlassakis says that Porter was murdered by Bunting and Wagner at Burdekin Avenue. Bunting showed Vlassakis the body of Porter in the shed. According to Vlassakis, there was already a barrel in the shed. He was shown the contents of that barrel by Bunting and the contents were identified as the bodies of Lane and Gardiner. After the murder of Porter, Bunting brought another barrel to the shed and Vlassakis assisted in placing the body of Porter into the barrel. The bodies of Gardiner and Lane were found in a barrel later marked D. The body of Porter was in a barrel later marked B.
Youde was the next victim. Vlassakis says his body was carried into the shed. Subsequently Vlassakis was present when Bunting purchased another barrel and that barrel was placed in the shed at Burdekin Avenue. According to Vlassakis the body of Youde was placed into the new barrel, but it would not fit. The deceased's foot was cut off and placed into the barrel separately. As mentioned, Vlassakis says that subsequently he witnessed Bunting and Wagner cutting up Youde's body in the vault. Parts of the body were found in barrels later marked A and F.
In September 1998, Bunting moved from 3 Burdekin Avenue to 26 Burdekin Avenue, Murray Bridge. Vlassakis moved to 23 Burdekin Avenue. At that time three barrels containing the bodies of Gardiner, Lane, Porter and Youde were in the shed at 3 Burdekin Avenue. Vlassakis says a truck was hired for the purpose of moving. The barrels were loaded onto the truck by Bunting and Wagner. Bunting told Vlassakis the barrels were going to Haydon's shed, but Vlassakis was not involved in the move. Vlassakis observed three barrels tied into the truck with rope. Two circular stains were left behind in the shed at Burdekin.
Brooks was the next victim. He was murdered on about 17 September 1998. Vlassakis says the murder occurred at 3 Burdekin Avenue in the last stages of the tenancy, but after the barrels had been removed from the shed at those premises. As discussed earlier in these reasons, according to Vlassakis the body of Brooks was placed in the boot of a white Torana which was collected by Haydon within a day or so of the murder.
Vlassakis says that when he subsequently attended at the shed at Blackham Crescent and saw Haydon working on the Torana, he saw a body on the floor of the pit in garbage bags which he understood to be that of Brooks. He says he is "pretty certain" that the barrels were in the garage as opposed to the pit. He did not see any barrels in the pit. The smell emanating from the shed was the same as the smell which had emanated from the shed at Burdekin Avenue and subsequently emanated from the vault in the bank. Bunting and Haydon went down into the pit and appeared to be moving things around.
The body of Brooks was found in a barrel subsequently marked C. Bunting spoke to Vlassakis about putting the body in a barrel. The Crown says the obvious inferences are that the barrels from Burdekin Avenue were in the shed at Blackham Crescent and a fourth barrel was put in the shed for the body of Brooks.
O'Dwyer was murdered at Frances Street, Murray Bridge in late October 1998. His body was found in a barrel subsequently marked A. Parts of the body of Youde were also found in that barrel. The inference is open from the evidence of Vlassakis that the body of O'Dwyer was moved from those premises almost immediately after the murder. Bunting told Vlassakis that the body had not been left in the house and was in a barrel. Subsequently, Bunting told Vlassakis that the barrel had been stored at Haydon's premises. The Crown says that as the barrels and body of Porter were taken from Murray Bridge to Blackham Crescent, the obvious place to take the body of O'Dwyer was the same premises.
The next victim was Elizabeth Haydon. Her body was found in a barrel subsequently marked E. There is no direct evidence of storage in the shed at Blackham Crescent. The Crown says that as Haydon was murdered at Blackham Crescent and, in view of the evidence from which it can be inferred that other barrels containing bodies were then at Blackham Crescent, it is highly unlikely that the body of Elizabeth Haydon was stored at another premises.
Circular stains were subsequently observed on the floor of the pit in the shed at Blackham Crescent, but the diameters of the stains were not consistent with the diameters of the barrels found in the vault. Some staining in the pit gave a positive reaction on a presumptive test for blood. However, other substances can also cause such a positive reaction. In addition, when those stains were tested for the presence of DNA, the source was identified as a higher primate.
The Crown says that when the police began investigating the disappearance of Elizabeth Haydon, the barrels were moved from Blackham Crescent. Six barrels were found in the vault, but one of those barrels contained the body of Johnson who was murdered in May 1999. According to Vlassakis, after the murder of Elizabeth Haydon, Bunting arrived at Murray Bridge with a barrel in the back of the Marquis. He told Vlassakis of the murder of Elizabeth Haydon, but his conversation was mainly about the fact that the police were on to him. Bunting said there were barrels in Haydon's Landcruiser and on a trailer. He said one of the barrels had to come to Murray Bridge and be placed in the back of a Sigma which was parked at the rear of the premises occupied by Vlassakis at 23 Burdekin Avenue. At that time Bunting and Harvey were living across the road at number 26. The barrel was placed in the Sigma. Bunting told Vlassakis that the barrel contained the body of Porter. There was a strong smell emanating from the barrel.
Vlassakis says that the barrel was in the Sigma at the rear of the premises for one or two months. On a hot day, if he got close to the Sigma, the smell was detectable. Vlassakis complained to Bunting about the smell. Gottwald lived next door at 25 Burdekin Avenue for a couple of weeks just before Christmas 1998. He detected a smell coming from the Sigma.
Vlassakis moved to Strathalbyn. He left it to Bunting to arrange the removal of the Sigma containing the barrel. Subsequently Bunting told Vlassakis that the barrels had been moved and were in a safe spot.
The Crown says that the barrel containing Porter had first been stored at Burdekin Avenue and was moved to Blackham Crescent with other barrels in September 1998. The obvious reason for Bunting transporting that barrel back to Murray Bridge was the concern about the presence of police at Blackham Crescent in connection with enquiries into the disappearance of Elizabeth Haydon.
The movement of barrels is confirmed by other evidence. As mentioned, Elizabeth Haydon was reported missing on 25 November 1998. On 26 November 1998 both Haydon and Elliott gave statements to the police. According to Elliott, later on 26 November 1998 property was removed from the premises while she kept watch for the police. Elliott heard property being removed from the ceiling. Haydon's Landcruiser was loaded and removed on a trailer. Elliott was not in a position to see what, if anything, was removed from the shed and placed in the Landcruiser. It is the Crown case that barrels containing bodies were moved from the shed to the Landcruiser.
The trail of events is taken up by Mr and Mrs Freeman. They moved to Hoyleton in about March 1998. Hoyleton is approximately 100 kilometres north of Adelaide. According to Mr Freeman, in October or November 1998 Bunting rang him and asked if he could store a car at their property at Hoyleton. Bunting said the car was owned by the friend and the friend was having a lot of complaints from neighbours because the car stank. He needed to store the car long enough for the smell to disappear and then he could sell it.
Mr Freeman says that about three to four hours after the call, Bunting and Wagner arrived in a blue "Fairlane" towing a trailer. Haydon's Landcruiser was on the trailer. It is the Crown case that the "Fairlane" was the blue Ford Marquis which was subsequently located at Mofflin Road.
The property on which the Freemans were living was about one and a half to two acres in size. The Landcruiser was taken off the trailer and parked at the bottom of the property. Both Mr and Mrs Freeman noticed an odour like rotten meat.
When the vehicle arrived, Mr Freeman could see that there was something in the back covered by a blanket. It looked like the side of a black plastic drum. He assumed there were four drums under the blanket by the way the blanket was sitting. He asked Bunting and Wagner what was in the drums and Wagner said there was all sorts of "crap" in them.
Mrs Freeman confirms that in late 1998 she was aware that Bunting had telephoned and spoken to Mr Freeman about storing a four wheel drive on the property. She says it was about 2.30 am when she heard a vehicle on the driveway. After about half an hour she got dressed and went outside. As she exited the house she immediately smelt a foul odour like really bad rotting meat. The blue Ford Marquis was in the driveway and attached was a car trailer carrying a Toyota four wheel drive. Wagner and Bunting were present.
Mrs Freeman enquired about the smell. Bunting told her it was caused by kangaroo carcases in drums. She told Bunting that the vehicle had to be parked at the corner of the block well away from the house. A couple of days later when Mrs Freeman attempted to approach the Landcruiser, she was unable to get closer than about twenty feet because of the smell emanating from the vehicle. There appeared to be sheets and blankets over the windows.
According to Mrs Freeman, Bunting continued to visit approximately every two weeks. On occasions he was accompanied by Wagner. Bunting spoke about kangaroo shooting. He said that he, Wagner and Haydon were involved in a business. They shot kangaroos, minced the meat up and sold it for pet food. The remaining carcasses were in the barrels stored in the Landcruiser. Mr Freeman suggested that Bunting empty the carcasses into a creek which would not appear unusual on a sheep station. Bunting said he could not do that because he had shot the kangaroos in the head and the bullets were still lodged in the skulls. He told Mrs Freeman that Haydon had been charged with having unlicensed firearms and that the police were looking for evidence to charge him for using the firearms while unlicensed. Bunting was concerned that if anyone found the bullets the police would charge Haydon.
Mrs Freeman said she telephoned Bunting on a few occasions complaining about the smell and asking him to get rid of the Landcruiser. Bunting kept putting it off. He said he had sold the vehicle for $1800 and was waiting for the purchaser to come up with the money.
In January 1999, Mr and Mrs Freeman moved from Hoyleton to 25 Railway Terrace West, Snowtown. Bunting and Wagner assisted in the move. Not long before the move, Bunting asked whether he could store the Landcruiser at the Snowtown address. Mrs Freeman says she eventually gave in on the proviso that he did something about the odour. About a week into the move Bunting and Wagner said they were going to flush the drums of kangaroos carcasses out with water into the septic tank at Hoyleton. The next morning they arrived at Snowtown. Both stunk of the odour that had been emanating from the Landcruiser. Mrs Freeman was told that the barrels had been flushed out.
Both Mr and Mrs Freeman say that a car carrying trailer was hired from a premises at Clare. It appears that the hiring occurred on 14 January 1999. Mr Freeman says that Bunting, Wagner and Haydon were involved in towing the Landcruiser to Snowtown. He did not want to be involved because of the smell. According to Mr Freeman, when the vehicle arrived at Snowtown, Haydon drove the vehicle from the street up the driveway. A Sigma was towed behind the Landcruiser into the driveway.
There is an inconsistency between the statements of Mr and Mrs Freeman in respect of the placement of the Landcruiser in the driveway. Mrs Freeman says that she saw Bunting drive the Landcruiser off the car trailer and use that vehicle to manoeuvre the Sigma into the driveway. She also says that the windows were down on the Landcruiser and no smell emanated other than on one occasion when it was a really hot day. There appeared to be something large inside the Landcruiser covered with blankets. She assumed they were the barrels with kangaroo carcasses in them.
After Mr and Mrs Freeman had moved to Snowtown, Mr Freeman became aware that the bank building was available for rent. He knew that Bunting was looking for a place to rent. He told Bunting about the bank. About a fortnight later Bunting told him that he was renting the premises. Approximately two weeks after Mr Freeman became aware that Bunting was renting the premises, at about 9.00 pm or 10.00 pm Bunting and Wagner arrived at the Freeman's. A trailer was being towed behind the Ford Marquis. There were four black barrels on the trailer. Plastic food wrap was in position around the lid of each barrel. Previously, Mr Freeman had told them to get rid of the barrels because the neighbours had started to complain and were blaming the sheep for the smell. On a hot day a whiff of the smell carried into the kitchen.
Mr Freeman was told that they were going to get rid of the barrels. Either that night or the next day, Bunting told Mr Freeman that the barrels had been put in the vault at the bank. Freeman had been told at Hoyleton that the barrels contained kangaroos and other assorted dead animals. Mr Freeman did not see the barrels being removed from the Landcruiser to the trailer.
Mrs Freeman became aware of the renting of the bank. She recalls that she and her husband were shown through the bank. According to Mrs Freeman the following evening Bunting, Wagner and Haydon came to their home. Haydon had a trailer attached to the rear of his car. She saw a sack truck. Bunting said they were going to get rid of the "happy roos". He did not say where they were to be placed. Mrs Freeman remained inside and she could see Haydon, Bunting and Wagner walking past the kitchen window. She was unable to see precisely what they were doing, but she thought they were removing the barrels. A few days later Bunting and Wagner again attended at the home of the Freeman's. Bunting told Mrs Freeman that he had moved the "happy roos" and put them in the vault. Mrs Freeman said that the lady living next door would complain of the smell. Bunting told her he had sealed the vault with plastic to keep the smell in.
Mrs Freeman also recalls a subsequent telephone call in which Bunting told her that they were going to pour acid into the drums to try and break the kangaroo carcasses down. That evening she and Mr Freeman met Bunting, Wagner and Haydon at the Terminus Hotel at Balaklava. Later that evening they separated on the understanding that they would meet later at the house. Bunting had a key to the house. When Mr and Mrs Freeman arrived home about three or four hours later, Haydon, Bunting and Wagner were in the premises. Bunting was finishing up in the shower. According to Mrs Freeman, Wagner smelt of the same odour that had emanated from the Landcruiser and she told him to have a shower. After Wagner showered, Haydon had a shower. They changed into clean clothes, washed the clothes they had been wearing and hung them on the clothes line. The three men stayed the night.
Only four barrels will fit in the Landcruiser. Mr Freeman saw four barrels on the trailer when the barrels were moved from the Landcruiser at his home to the bank. Six barrels were found in the vault.
The evidence to which I have referred is capable of establishing that barrels containing bodies were first stored at Burdekin Avenue and then at Blackham Crescent. One barrel was then moved to Murray Bridge and four were taken in the back of the Landcruiser from Blackham Crescent to Hoyleton. The final move was to the bank vault at Snowtown. To differing extents, all accused were involved in the movement and storage of the barrels containing the bodies.
Property and Benefits
The Crown also relies upon an overall view of the activities of the accused in connection with the property and benefits of a number of victims. Each accused was involved to a differing extent. The caravan of Davies was taken and sold. The motor vehicles of Allen, Lane, Porter and Johnson were taken. Other property of Davies, Allen, Gardiner, Lane, Trevilyan, Porter, Youde, O'Dwyer and Johnson was taken. Each accused received some benefit from the use or sale of property.
Documentation and property associated with a number of the deceased were found at premises occupied by the accused or in vehicles at those premises. It is the Crown case that Bunting was in possession of such material relating to ten victims while Haydon and Wagner "had property" relating to nine victims. However, counsel for Haydon submitted that a careful examination of the evidence concerning the property relating to a number of victims demonstrates that it is misleading to say that Haydon "had property" relating to nine victims.
The caravan in which Davies was living at the time of his death was moved by Bunting and others to premises occupied by Vlassakis at 14 Catalina Road, Elizabeth. However, Haydon was not involved in the movement of the caravan to those premises and, at that time Bunting's wife, Elizabeth Harvey, was living at those premises. Bunting received the proceeds from the sale of the caravan. While Vlassakis says that Haydon assisted in cleaning out the caravan, according to Allen's daughter, Cannon, she saw Bunting, Wagner and Allen cleaning out the caravan prior to its removal from Allen's premises. In these circumstances, for the purposes of connecting Haydon to a relevant joint enterprise pursuant to which Davies was killed, counsel for Haydon urged that the evidence is not capable of supporting the view that Haydon "had property" belonging to Davies.
As to the deceased Allen, counsel for Haydon submitted that the documentation found in Elliott's briefcase in the lounge room at Blackham Crescent and in a shed occupied by Elliott at those premises should be ignored for these purposes. Pursuant to Bunting's instructions, Elliott was impersonating Allen. In these circumstances, documents in her possession cannot be said to be in the possession of Haydon. Similarly, it cannot be said that Haydon was in possession of documentation relating to Allen that was found in a Sigma motor vehicle registered in the name of Harvey and parked at Blackham Crescent. That vehicle had been under the control of Bunting and Harvey.
The remaining property of Allen upon which the Crown relies is clothing taken from a bedroom at Blackham Crescent in December 1998 as part of the police investigation into the disappearance of Elizabeth Haydon. The property is not distinctive. It comprises two Target brand tops. While one witness has identified the tops as belonging to Allen, Elliott says they belonged to Elizabeth Haydon. Even if it is postulated that the tops belonged to Allen and that Bunting or Wagner gave them to Haydon for use by Elizabeth Haydon, counsel argued that those facts are incapable of supporting an inference that Haydon "had property" belonging to Allen.
The only property said to have belonged to Lane that was subsequently linked to Haydon is a blanket found in Haydon's Landcruiser. The deceased's mother identifies the blanket. Counsel pointed out that she had very little contact with her son. However, accepting the reliability of her identification of the blanket for these purposes, the circumstances in which the blanket came to be in the Landcruiser deprive it of any probative value. Mrs Lane saw the blanket in the back seat of Lane's Sigma motor vehicle. Bunting took possession of that motor vehicle. He conveyed it to the home of Mr and Mrs Freeman. Later there was a swap involving that vehicle. In addition, the Landcruiser became unregistered in September 1998. Further, the evidence demonstrates that Bunting and Wagner were involved in conveying the Landcruiser to the home of Mr and Mrs Freeman at Hoyleton. In these circumstances, counsel argued that the obvious source of the blanket was Bunting or Wagner and the existence of the blanket in the Landcruiser is not capable of providing a relevant connection between Lane and Haydon.
In respect of Porter, the Crown rely upon the evidence of Vlassakis that Haydon accessed Porter's benefits. Counsel for Haydon pointed out, however, that Vlassakis initially accessed Porter's benefits. Porter having been murdered in April 1998, it was not until Vlassakis moved back to Bundarra Court in 1999 that he became aware that Haydon had Porter's keycard. The documents found in the shed at Blackham Crescent were found in a Myer bag together with documents related to Bunting and Wagner.
As to the deceased Youde, counsel for Haydon did not suggest that the evidence could not support an inference that Haydon "had property" of Youde. Similarly, through the evidence of Vlassakis, Haydon is linked to the property of Brooks in the sense of accessing the benefits of Brooks.
A lounge belonging to O'Dwyer was found at Blackham Crescent. Counsel for Haydon pointed out that the presence of the lounge at Blackham Crescent should be viewed in the context that Elliott was in a relationship with Bunting. It was Elliott's regular practice to sit on the lounge watching television for lengthy periods each day. Bunting was at the premises daily and regularly stayed overnight. In addition, others received O'Dwyer's property from Bunting and the Crown does not suggest that such receipt implicates those persons in the murder of O'Dwyer.
Johnson's motor vehicle was brought to Blackham Crescent. However, Bunting offered the vehicle to Elliott. She subsequently drove it to Victoria. Wagner and Vlassakis removed items from the vehicle. Bunting retook possession on about 19 May 1999. There is no suggestion that the car was ever intended for Haydon or that he took possession of the vehicle at any time.
Ultimately, counsel for Haydon submitted that the first deceased in respect of which it can reasonably be said that Haydon "had property" was Youde. Porter could be included if the use of Porter's keycard is treated as having property for these purposes. Similarly, Haydon accessed the benefits of Brooks. Analysed in this way, the best that can be said from the Crown point of view is that Haydon "had property" relating to three not nine victims, namely, Porter, Youde and Brooks.
Finally with respect to property, counsel for Haydon sounded a general warning. She pointed out that a large amount of documentation relating only to Bunting, Wagner or Vlassakis was found at Blackham Crescent. According to Elliott, from November 1998 Bunting was sleeping at Blackham Crescent one or two nights every ten to twelve days. His mail was coming to Blackham Crescent. He moved some of his belongings to Blackham Crescent, particularly after moving from Murray Bridge. In addition, Elliott was living at the premises and a large amount of documentation related to her activities with respect to her impersonating Allen. Counsel urged that, generally speaking, Blackham Crescent was being used as a storage area.
It is the Crown case that possession of material belonging to or related to deceased persons must be viewed in the light of the activities at Blackham Crescent after police became involved in investigating the disappearance of Elizabeth Haydon. The Crown says the inference is open that incriminating material was removed from the premises. Some items were left behind. Those items included the key capable of opening handcuffs found at the vault and the wire fashioned as a key capable of unlocking the vault door. A pair of disposable gloves bearing DNA consistent with Haydon's DNA and maggot casings were also found in the pit.
As to financial reward, the Crown pointed out that access was taken to the benefits of all but four of the deceased. No attempt was made to access benefits to which Trezise was entitled. As to Gardiner, Zuritta told Centrelink that he had left without giving a forwarding address and his benefits were cut off. The death of Trevilyan was made to look like a suicide. The disappearance of Elizabeth Haydon was reported to the police.
Each accused gained financially from the benefits of one or more deceased. It is the Crown case that Bunting accessed the funds of Davies, Allen, Youde and O'Dwyer. Wagner accessed the benefits of Lane while Haydon accessed the benefits of Porter and Brooks through an account in the name of Porter. Vlassakis accessed the benefits of Porter, Youde and Johnson. A keycard related to O'Dwyer's account was given to the police by Vlassakis. According to Vlassakis, Bunting kept the various cards. Not all cards were recovered. Cards relating to Davies, Allen, Youde, O'Dwyer and Johnson were at Bundarra Court. A newer card in respect of an account in the name of Allen was found in a Sigma registered to Harvey and situated at Blackham Crescent. Cards in the names of Lane and Elizabeth Haydon were found at Mofflin Road. A photocopy of the rear of a card in the name of Porter was found in the ceiling at Bundarra Court. The new card for Brooks' account was located in Post Office box 378 at the Elizabeth Post Office. That box was registered in Wagner's name.
In order to maintain the impersonations and access to the various accounts, details of the victims were required. As mentioned, Vlassakis gives evidence of the extraction of details from some deceased. Personal details concerning Allen were found on a piece of paper in the main bedroom at Bundarra Court. Those details had been written by Bunting. Also in the ceiling at Bundarra was a book containing the PIN number and family details of Porter. Those details were also in Bunting's handwriting. Porter's name and telephone PIN number were written by Bunting in a notebook that was found in Haydon's Holden station wagon. A piece of paper containing details relating to Brooks was found in the ceiling at Bundarra. The details were in Bunting's handwriting. Between the vault door and the plastic lining, a book containing details relating to Johnson was located. The details were written in Bunting's handwriting. Prints of Bunting, Wagner and Vlassakis were found on that book.
Joinder
Against that background, the Crown argued that a joint trial of all accused on all accounts is not only authorised, but is appropriate. The joinder of accused is governed by common law principles. Section 278(1) of the Criminal Law Consolidation Act 1935 authorises the joinder of two or more offences in the same Information if the charges are founded on the same facts, or form, or a part of, a series of offences of the same or a similar character. The Crown contended that the offences charged on the Information qualify as a series of offences of the same or a similar character. In my opinion the Crown contention is correct.
The offences of murder charged in Counts 1 and 3-13 are plainly offences of a "similar character". Counsel for Wagner suggested that assisting offenders in connection with the murder charged in Count 1 is not an offence of the same or similar character as the offences of murder. This point was taken in the context of the joinder of sexual offences with counts of false imprisonment and assault in R v Garrett (1988) 50 SASR 392. King CJ, with whom Jacobs and von Doussa JJ agreed, said (401):
"It is necessary to determine whether there is sufficient nexus between the offences alleged in the information to justify the application to them of the description contained in the section. I feel no doubt that the alleged offences of false imprisonment and assault against Miss Fuller were a part of a series of offences in the relevant sense. They formed part of a course of conduct, according to the case for the prosecution, extending through a large part of the association between the appellant and Miss Fuller and involving violence towards and domination of her. I think that the alleged offences of false imprisonment and assault committed against Gray are so connected with the alleged offences against Miss Fuller that they should properly be regarded as part of the series. Ordinarily false imprisonment and assault would not be thought of as offences of a similar character to rape. A similarity may arise, however, not only from the legal elements of the offences in question, but also from the facts which constitute them and the circumstances in which and the relationships out of which they arise. An important characteristic of the rapes alleged by Miss Fuller is the element of personal domination of her by the appellant. The false imprisonment and assault upon her alleged to have occurred on 4 October contain that same element of personal domination and are clearly linked with the allegations of earlier sexual violence. I think that they are sufficiently similar in character to be regarded together with the alleged rapes as part of a series of offences of the same or similar character. Again in this connection, I think that the offences alleged to have been committed against Gray are so linked with the alleged offences against Miss Fuller that they, too, should be regarded as offences of similar character to the alleged rapes. The admissibility of evidence of one offence on the trial of the other is regarded as an important factor in determining whether alleged offences are part of a series of the same or similar character: see R v Kray [1970] 1 QB 125 esp at 130-131; R v Ludlow [1971] AC 29 esp per Lord Pearson at 39. For reasons which I explain below, I consider that the evidence of the alleged rapes was admissible in support of the charges of false imprisonment and assault."
The reasoning of the Court of Criminal Appeal in Garrett was applied by Mullighan J in R v Luczkowski (1988) 54 SASR 169.
In my opinion, the same reasoning can be applied to the circumstances under consideration. The similarity arises from the facts and circumstances in which and the relationships out of which the offences arose. As will appear later in these reasons, in my view the evidence of the circumstances relating to the murder of Trezise and the involvement of Wagner in assisting the offenders is admissible in respect of the subsequent offences of murder. A sufficient nexus exists between the offences to constitute a series: DeJesus v The Queen [1986] HCA 65; (1986) 61 ALJR 1.
The Crown submitted that the evidence was capable of establishing the existence of an over-arching joint enterprise to which each accused was a party and pursuant to which each deceased was killed. The common enterprise began in about 1992 with the murder of Trezise. The accused were linked by their common hatred of homosexual persons and paedophiles. The enterprise developed. Where possible the accused sought to benefit from the property of the deceased and to access any Centrelink benefits to which the deceased were entitled at the times of their deaths. Where necessary, personal details were extracted from the deceased immediately before their deaths with a view to ensuring the continuation of the benefits and to arranging access by the accused to those benefits. Steps were taken to create the impression that the deceased were still alive. False stories were spread to explain disappearances and false sightings of deceased were created. The voices of some deceased were recorded with a view to playing those voices to friends or family thereby creating the impression that the deceased were still alive but wanted nothing to do with family or friends.
According to the Crown, Vlassakis was groomed and eventually became a trusted member of the group. Each of the accused and Vlassakis were directly involved in one or more murders. Each accused benefited from the death of one or more deceased through receiving property and by accessing Centrelink benefits. Each accused was actively involved in the storage of bodies and in the movement of barrels containing bodies and of other material in order to avoid exposure of the crimes.
It is the Crown case that as the enterprise between the accused developed, it came to include the murder of persons it was thought necessary or appropriate to kill because they knew of other murders and were perceived as creating a risk of exposure. The nature of the enterprise was such that each accused was implicated in each murder even if a particular accused was not party to plans to murder a particular deceased nor present at the time of the murder.
In support of a joint trial, the Crown submitted that evidence relating to each count is admissible in respect of the other counts (cross-admissible). However, although it is the Crown case that the features associated with the murders and subsequent events are such that an underlying unity between the murders is demonstrated, for the purposes of the applications for separate trials the Crown did not seek to rely upon striking similarities as a basis of cross-admissibility.
In summary, the heads of admissibility upon which the Crown relied are as follows:
(1) The crimes are connected by such an underlying unity, system or pattern that commonsense gives rise to the objective improbability of the crimes being committed other than as alleged by the Crown.
(2) Each count is cross-admissible upon the others for the following purposes:
(i) to prove both the existence of the enterprise as alleged by the Crown and that each accused was a party to the enterprise at the relevant times;
(ii) to negate an innocent association or relationship between the three accused;
(iii) to negate an innocent interpretation of the involvement of the accused in accessing property and benefits, possession of property and material associated with the deceased, giving false stories, storing and moving of bodies and involvement at the bank premises at Snowtown; i.e. to negate an interpretation of these matters inconsistent with the involvement of each accused in the crimes of murder;
(iv) to prove that each death was murder; counsel have indicated that the issue of murder as opposed to natural causes or suicide is a live issue in respect of the deaths of Allen and Trevilyan; in other counts, no indication has been given; a probable cause of death is attributed for some deaths and in others no cause can be attributed because of the condition of the bodies.
(3) The circumstances associated with Trezise are admissible for the purposes of proving a motive to kill Lane and Elizabeth Haydon.
(4) The circumstances associated with Lane are admissible for the purposes of proving a motive to kill Trevilyan.
(5) The listing of names of Trezise, Davies, Lane, Gardiner and Porter to Youde connects those crimes to the murder of Youde.
(6) The property of various victims was found collected together and gives "colour" to the fact of possession.
(7) The circumstances of each death are admissible for purposes associated with Vlassakis. Without reference to all deaths, the jury would be given an incomplete picture of the role of Vlassakis and of his relationships with each of the accused. In order to place the evidence of Vlassakis in its proper context, it is necessary that he give evidence of the development of his relationship with Bunting and of his role and knowledge with respect to all deaths and associated matters. In addition, as Vlassakis is an accomplice, a jury will be required to consider whether his evidence is corroborated. It will be impossible for a jury to properly assess the evidence of Vlassakis and determine the question of corroboration without reference to all of the evidence concerning all the deaths.
Each accused challenged the Crown contention as to cross-admissibility. In particular, counsel for Haydon submitted that the evidence admissible against Haydon on each count is in a very small compass. In respect of Trezise, other than the evidence of Vlassakis concerning the conversation between Haydon and Bunting as to what Haydon had told Elizabeth Haydon about the murder of Trezise, there is no evidence connecting Haydon to the death of Trezise. Counsel contended there is no evidence to connect Haydon to the death of any other deceased except Youde. In view of the lack of evidence implicating Haydon, the risk of misuse of inadmissible evidence to fill the gaps is particularly high. There is such a large volume of evidence that is inadmissible against Haydon and highly prejudicial to him that a fair trial would not be possible if he is jointly tried with the other accused.
Counsel for Haydon also advanced additional propositions which can be summarised as follows:
(1) The features relied upon by the Crown to establish the existence of an over-arching joint enterprise to which Haydon was a party and pursuant to which all deceased were killed are features that exist with respect to a number of other persons. In particular, if the reasoning the Crown sought to apply to Haydon was applied to Vlassakis, he would be guilty of the murder of Elizabeth Haydon. The conduct of the Crown is inconsistent. An examination of those features as they apply to other persons demonstrates the flawed nature of the reasoning. In addition, the evidence being capable of implicating other persons in various murders, it cannot be said that the murders were committed as part of an over-arching joint enterprise involving only the three accused and Vlassakis. The possibility that the murders occurred pursuant to individual enterprises to which Haydon was not a party cannot be excluded.
(2) As to the group dynamics, a careful examination of the evidence demonstrates that the dynamics are inconsistent with the Crown version of an over-arching joint enterprise involving the accused and Vlassakis. What is demonstrated is that Haydon was the odd person out. Bunting was single-minded in his approach to murder and was joined in that single-mindedness by Wagner. Bunting selected the targets and planned the killings. Bunting was a killer who acted independently and not pursuant to some over-arching joint enterprise.
Over-arching Joint Enterprise
The concept of an over-arching joint enterprise to kill persons it was considered appropriate or necessary to kill is essential to the Crown case against Haydon in respect of the deaths of Davies, Allen, Gardiner, Lane, Trevilyan, Porter, Brooks, O'Dwyer and Johnson. Unless the Crown succeeds in establishing the existence of such an enterprise, and in establishing both that Haydon was a party to the enterprise and that each of those deceased was killed pursuant to the enterprise, the Crown case against Haydon with respect to those deceased could not succeed. As to Trezise, in the absence of such an enterprise encompassing the death of Trezise, the only evidence implicating Haydon in the death of Trezise is Haydon's conversation with Bunting that was overheard by Vlassakis and the statements by Haydon to Stewart and McKenzie. The conversation overheard by Vlassakis occurred approximately six years after the murder of Trezise. For these purposes I put aside the listing of names by Bunting to Youde because Vlassakis says that Haydon simply repeated some of the names listed by Bunting. That repetition is capable of being viewed as confirmation of Haydon's knowledge of the murder of Trezise, but it is not capable of being used as an admission by Haydon that he was implicated in the murder of Trezise.
The various features upon which the Crown relies to establish the existence of an over-arching joint enterprise must be considered in conjunction with the evidence directly related to each of the deaths. On the Crown case, more than one person is involved in each of the murders. In respect of each murder, it is necessary for the Crown to lead evidence capable of excluding the possibility that it was committed pursuant to an individual enterprise rather than the over-arching enterprise for which the Crown contended. In my opinion, the following summary demonstrates the inadequacy of the evidence in this regard.
Davies was murdered in December 1995. The evidence tends to suggest that a specific incident led to Bunting and Wagner torturing and killing Davies with the assistance of Harvey. There is no evidence that Haydon was involved or that Haydon was present at conversations about the murder. While the deceased's caravan was stored at the premises occupied by Haydon, Harvey was also living at those premises and the evidence tends to suggest that the caravan was intended for use by Harvey. The involvement of Haydon in cleaning out the caravan is of little significance.
Allen died in November 1996. On the assumption that she was murdered, there is no evidence that Haydon was involved. The evidence supports the view that Haydon was not involved in the subsequent movement of Allen's property. In view of Bunting's regular presence at Blackham Crescent, the finding of the two tops at Blackham Crescent in 1998 is of limited significance. Although the fraud on Centrelink with respect to Allen's benefits began in late 1996, there is no evidence that Haydon was involved in that fraud until September 1998 when he drove Elliott to Owen. That was followed by the trip to Berri in March 1999. Documentation relating to Allen found at Blackham Crescent was found in localities associated with Elliott and Harvey, both of whom had been involved in impersonating Allen.
The next murder was that of Gardiner in about September 1997. As mentioned, there is evidence capable of supporting an inference that a fallout occurred between the families of Haydon and Bunting and that a break in the relationship occurred between late 1996 and mid-1998.
There is no evidence that Haydon was involved in the murder of Gardiner or in the events relating to Gardiner that preceded or followed his death.
Lane was murdered in about October 1997. According to Vlassakis, after the murder Haydon was present for at least one conversation about the murder when Bunting and Wagner told Vlassakis and Haydon about wrapping Lane's body in a carpet. However, there is no evidence connecting Haydon to this murder. Haydon was not involved in the telling of false stories or in the perpetration of a fraud against Centrelink in respect of Lane's benefits. In the circumstances previously discussed, the finding of a blanket belonging to Lane in Haydon's Landcruiser is of no significance to the question whether Haydon was implicated in the murder of Lane.
Trevilyan died on 5 November 1997. On the assumption for present purposes that he was murdered, there is no evidence implicating Haydon in the murder. The evidence tends to support the view that the decision to murder Trevilyan followed the incident involving the knife and the child of Mills. It appears unlikely that any conversation occurred which would have made Haydon aware in advance of an intention to kill Trevilyan.
Porter was murdered in April 1998. Vlassakis says that Haydon was not associating with Bunting at that time. The evidence of Vlassakis excludes the involvement of Haydon in this murder. Haydon was not involved in the activities immediately after the murder such as the movement of Porter's vehicle or in setting up access to Porter's Centrelink benefits. The earliest connection between Haydon and those benefits are ATM receipts related to Porter's account found in the bedroom at Blackham Crescent dated 8 and 16 October 1998. It was not until 1999 that Vlassakis became aware that Haydon was using Porter's account.
Youde was murdered in August 1998. Vlassakis says Haydon was present at the murder and gives an account of the events that is capable of implicating Haydon in that murder.
After the body of Youde had been put into a barrel, there were three barrels stored in the shed at Burdekin Avenue. They were moved in September 1998 and before the murder of Brooks. Irrespective of any statement by Bunting, the evidence is capable of supporting the inference that they were moved from Burdekin Avenue to the shed at Blackham Crescent. The evidence is also capable of supporting the inference that Haydon was aware of the storage of barrels in his shed and that he was aware that the barrels contained bodies of murdered persons.
Brooks was murdered in mid September 1998. Vlassakis is an eye witness. Haydon was not present. Bunting lured Brooks to Murray Bridge. There is no evidence that Haydon was aware of an intention to kill Brooks. The evidence is capable of supporting a finding that, within a day or so of the murder, Haydon attended at Murray Bridge for the purposes of removing the body of Brooks and taking it to his shed at Blackham Crescent. Haydon was given access to Brooks' Centrelink benefits through the use of Porter's account.
O'Dwyer was murdered in October 1998. Vlassakis was a witness to the torture that occurred before the murder. He excludes any involvement of Haydon. Similarly, he excludes any involvement of Haydon in the activities of Bunting before the murder. After the murder, a lounge belonging to O'Dwyer was taken to Blackham Crescent and, for present purposes, I will assume that the evidence is capable of supporting an inference that O'Dwyer's body was stored in the shed at Haydon's premises.
Elizabeth Haydon was murdered in late November 1998. Vlassakis says that he overheard Haydon telling Bunting that he, Haydon, had told Elizabeth Haydon about the murder of Trezise. As mentioned, in my view the proposed evidence is capable of supporting a finding that Elizabeth Haydon was killed while Elliott and Haydon were absent from Blackham Crescent. On that basis, it follows that later that evening Haydon knowingly made a false statement to Elliott. As I have indicated, in my view the totality of the evidence is capable of supporting an inference that when Haydon and Elliott left the premises, Haydon was aware that Bunting and Wagner were intending to kill Elizabeth Haydon. In those circumstances, the evidence is capable of supporting an inference that Haydon is implicated in the murder by being party to a plan to kill the deceased and through his assistance and encouragement in participating in the removal of Elliott from the premises.
Following the murder of Elizabeth Haydon, and after police began to make inquiries about her disappearance, the accused were all involved in the removal of incriminating material from Blackham Crescent. In particular, the barrels containing the bodies were moved to Hoyleton. Subsequently, Haydon was involved in renting the bank premises for the purposes of using the premises for the storage of the barrels. The barrels were moved from Hoyleton to the Freemans at Snowtown and, subsequently, to the bank vault.
Haydon visited the bank. The evidence from the bank premises supports the view that all accused had active involvement within the bank premises. According to Vlassakis, Haydon was involved in taking concrete to the premises and was present during both discussions about the body of Elizabeth Haydon and the dismembering of the body of Youde.
Johnson was murdered on 9 May 1999. The evidence is capable of supporting the view that Haydon was aware of Bunting's intention to kill Johnson. That knowledge came from the occasion on which Bunting obtained handcuffs from the ceiling at Bundarra Court. In my view, however, Haydon's presence when Bunting obtained the handcuffs is not capable of supporting a finding that Haydon counselled or procured the murder of Johnson. Vlassakis lured Johnson to Snowtown and was present until shortly before Bunting killed Johnson. His evidence excludes any involvement of Haydon.
After the murder, Johnson's motor vehicle was taken to Blackham Crescent. Bunting took the vehicle to that address in order to offer it to Elliot. The presence of that vehicle at Blackham Crescent is of no significance in the case against Haydon other than demonstrating that Bunting regarded the premises as a safe haven.
The nature of the relationship between Bunting and Haydon is illustrated by the fact that Bunting told Haydon of the murder after arriving at Blackham Crescent. However, there is no evidence to implicate Haydon in any of the subsequent activities with respect to Johnson.
In my opinion, independently of implication based on the over-arching joint enterprise relied upon by the Crown, the evidence is not capable of implicating Haydon in the murders of any deceased other than Trezise, Youde and Elizabeth Haydon.
As to the existence of the over-arching joint enterprise for which the Crown contended, Vlassakis positively excludes the presence of Haydon at the times of a number of deaths. In addition, Vlassakis says that Haydon was not present at any conversations with respect to a number of deaths. On the assumption that Haydon was involved in the murder of Trezise in 1992, the next murder to which Haydon is connected by participation in any form is that of Youde in 1998. Haydon's involvement with property of victims was minimal. He first accessed benefits in October 1998, approximately four months after the death of Porter. Haydon's assistance with respect to the barrels did not occur until September 1998 when Bunting was shifting from Burdekin Avenue and needed a place to store the barrels.
In these circumstances, in my opinion the evidence that the Crown proposes to lead is incapable of establishing the existence of an over-arching joint enterprise to which Haydon was a party that had as its object the killing of persons it was appropriate or necessary to kill. Further, the evidence is incapable of establishing that any of the deceased were murdered pursuant to such an enterprise. For these purposes, an over-arching joint enterprise of the type relied upon by the Crown is to be distinguished from a continuing relationship or association between the accused within which the accused shared a knowledge or contemplation that persons would be killed from time to time. However, whether each accused is guilty of the individual murders depends upon their knowledge of and involvement in each murder.
For these reasons I reached the view that the trial of Haydon with respect to the deaths of Davies, Allen, Gardiner, Lane, Trevilyan, Porter, Brooks, O'Dwyer and Johnson should be separated from a trial or trials with respect to the remaining three deaths. I recognise that the effect of my ruling as to the inadequacy of the evidence with respect to those counts has the practical effect that the Crown is unable to proceed against Haydon with respect to those counts because of the absence of evidence implicating Haydon in those murders.
As to the murder of Trezise, in the absence of the over-arching joint enterprise, the Crown is left to rely upon the evidence of Vlassakis, Stewart and McKenzie as to statements made by Haydon. The critical issues are whether the statements were made and, if so, whether any of the statements can reasonably be viewed as an admission of implication in the murder of Trezise. In my opinion, Haydon's knowledge of subsequent murders, his involvement approximately six years later in the murders of Youde and Elizabeth Haydon and his involvement with the bodies and the bank are not admissible on a trial with respect to the murder of Trezise. In those circumstances, bearing in mind the nature and volume of the evidence to be led in respect of the subsequent murders, I am of the view that the trial of Haydon with respect to the murder of Trezise should be held separately from the trial of any other count against Haydon.
The question remains as to whether the charges against Haydon with respect to the deaths of Youde and Elizabeth Haydon should be heard in one trial with each other and with the trial or trials of Bunting and Wagner with respect to those and other deaths. It is convenient first to deal with the applications by Bunting and Wagner with respect to the trials of the counts against them.
Wagner - Separation from Bunting
Wagner sought an order that he be tried separately from Bunting on all counts. Bunting did not make a similar application. In essence, counsel for Wagner submitted that in respect of a number of counts, evidence will be led of statements by Bunting in the absence of Wagner that are not admissible against Wagner, but are prejudicial to him. In particular, a number of the statements by Bunting gave considerable detail of the murders and of the involvement of Wagner in those murders which would not be given in evidence against Wagner on a separate trial. As the case against Wagner with respect to a number of charges relies upon the evidence of Vlassakis that Bunting made statements amounting to admissions in the presence of Wagner which were, by conduct or words, adopted by Wagner, the critical issues will be whether the statements were made in the presence of Wagner and whether he adopted those statements. The prejudice will accumulate count by count as the jury hear evidence of the statements by Bunting. Counsel contended that, notwithstanding directions as to the proper use of evidence, it will be impossible for a jury to ignore the statements by Bunting when considering the critical issues.
It is difficult to predict with confidence the content of the admissions that Vlassakis will say Bunting made in the presence of Wagner which the Crown will ask the jury to infer were adopted by Wagner. The interview of Vlassakis speaks in general terms. It is unclear how much of the detail of each murder was provided by Vlassakis to Bunting in the presence of Wagner or how much was provided in the absence of Wagner. It is also unclear how many of Bunting's statements in the absence of Wagner will be admissible against Wagner because they were made in furtherance of a joint enterprise between Bunting and Wagner. However, even assuming that the bulk of the details were provided in the absence of Wagner and that those statements are, therefore, inadmissible in the case against Wagner, in my opinion the jury will be capable of understanding that statements in the absence of Wagner are not to be used against him. The existence of inadmissible statements by a co-offender implicating an accused is not an uncommon problem in joint trials. I see no reason to doubt that a jury would comply with the directions as to the proper use of those statements.
It is the Crown case that Bunting and Wagner commenced the relevant relationship in 1992 when Bunting killed Trezise and enlisted the aid of Wagner and Lane in disposing of the body. Thereafter, Bunting and Wagner both actively participated in the killing of each deceased. In referring to both actively participating, I include the circumstances of Johnson. It is the Crown case that Wagner and Bunting together tortured Johnson and that, while Wagner and Vlassakis were absent from the bank for the purpose of using Johnson's credit card, Bunting killed Johnson. The Crown also alleges that Bunting and Wagner acted jointly with respect to the property and benefits of a number of deceased and that property of a number of deceased was found at locations associated with both Bunting and Wagner. Both were involved in telling false stories. Both are linked to the bank and the activities within the bank by the evidence of Vlassakis and the Freemans together with forensic evidence such as DNA and fingerprints.
It is unnecessary to discuss the principles or numerous authorities to which I was referred. In my opinion, the nature of the case against Bunting and Wagner and the evidence admissible against each of them provide a particularly strong basis for proceeding by way of a joint trial. Separation is inappropriate.
For these reasons I refused the application by Wagner that he be separated from Bunting.
Bunting and Wagner - Severance
Both Bunting and Wagner also sought orders for severance of counts. It was argued that charges relating to the deaths of Trezise, Davies, Allen and Trevilyan should not be joined with the remaining counts which all involved bodies found in barrels. Both counsel challenged the Crown position as to the cross-admissibility of evidence relating to each count. In addition, counsel for Bunting urged that the case with respect to Trezise is a significantly different type of case from that with respect to other deceased. In essence, the case depends entirely on alleged admissions by Bunting to Tripp and Vlassakis. Counsel submitted that in a trial involving all deceased it would be impossible for a jury to avoid a propensity type reasoning rather than restricting their consideration to the evidence of the admissions and matters affecting the reliability of those admissions. A separate trial with respect to the deceased Trezise would be a relatively straightforward trial of only a few weeks.
As to the charge relating to the death of Davies, counsel for Bunting and Wagner argued that it should be severed from all other charges or, in the alternative, should be tried with the count relating to Allen. Both bodies were found in the hole at the rear of Waterloo Corner Road. Both cases lack any evidence of the involvement of Haydon. Both essentially involve admissions and conduct with respect to the deceased or the deceased's property after death. Both involve specific motives and a large amount of evidence is devoted to conduct after death such as accessing the Centrelink benefits being received by the deceased at the time of their deaths.
Counsel for Bunting emphasised that the critical issue with respect to the death of Allen is whether the evidence is capable of proving that Allen was murdered. He suggested that evidence relating to the other murders was incapable of disproving the alternative hypothesis, namely, that there was death by natural causes followed by macabre behaviour in dismembering the body. He contended that the only way the evidence of other murders could be used was to reason by propensity that it could not be death by natural causes because Bunting and Wagner are killers. Alternatively, counsel urged that I should sever the count relating to Allen because a joint trial would require an analysis of evidence that involves such a degree of finesse that it would be extremely difficult for a jury to avoid being overwhelmed by the mass of evidence on other stronger counts.
As to Trevilyan, the critical issues are whether the death was a suicide and, if not, the reliability of the evidence of Vlassakis that Bunting and Wagner made admissions to him. Counsel for Bunting and Wagner submitted that it would be impossible for a jury to avoid a propensity type reasoning rather than restricting their considerations to the evidence directly bearing upon those critical issues. A trial with respect to that matter would be relatively short and straightforward.
Counsel for Wagner also argued that the cases against Wagner were not strong. He emphasised the proposition that the critical evidence by which the Crown sought to implicate both Bunting and Wagner will be overwhelmed by highly prejudicial evidence concerning the bodies in the barrels if these counts are not severed.
Associated with the applications for separation and severance was an argument developed by counsel for Bunting based upon the length and complexity of a trial involving all counts. Relying upon the right of the accused to a fair trial and to a verdict based upon the evidence properly considered by an impartial jury, counsel contended that the accused would be deprived of that right in a single trial of all counts by reason of the sheer size, complexity and trauma of such a trial. It was said that the trial would be of such length and complexity that its management could not be assured to produce a fair trial. The jury would not have capacity to cope with the vast volume of evidence and the complications created by questions of use of evidence. Counsel referred to a risk that members of the jury would resent the disruption to their lives caused by such a long and complex trial and that such resentment would be exacerbated by the trauma caused to members of the jury by the nature of the evidence to be presented. The resentment and trauma will create a substantial risk that the jury will not give proper and impartial consideration to the evidence. Counsel challenged the conventional wisdom that a single trial is the most efficient and fair means of determining the guilt of the accused on each charge. Reference was made to the relatively recent experiences in Victoria with long and complex trials and to similar experiences in the United Kingdom and the United States of America. In particular, reliance was placed upon American authorities supporting the power of the trial judge to direct the Crown to proceed on a reduced number of counts in order to ensure a manageable and fair trial.
Some weeks after I had refused the applications for separate trials and severance, Wagner requested that he be re-arraigned on Counts 6 (Lane), 10 (Brooks) and 13 (Johnson). Upon re-arraignment Wagner pleaded guilty to each of those counts. Following those pleas of guilty, Bunting applied for a separate trial on all counts or, alternatively, sought severance of his trial on those counts to which Wagner had pleaded guilty. In essence, counsel submitted that the jury was likely to infer from the pleas that Wagner admits the main thrust of the Crown allegations that Wagner and Bunting together killed Lane, Brooks and Johnson. It was said that directions would be incapable of preventing this type of impermissible reasoning.
The pleas by Wagner are not admissible against Bunting. In my opinion, there is no reason to doubt that the jury would be unwilling or incapable of understanding and complying with appropriate directions as to the proper use and impermissible use of the pleas of guilty by Wagner. The fact of the pleas adds little to the case for separate trials.
Counsel for Bunting also raised the possibility that a joint trial could result in a miscarriage of justice because Wagner might not give evidence and will not, in a joint trial, be compellable as a witness for Bunting. He agreed that if Wagner does not give evidence, and subsequently in sentencing proceedings Wagner advances a case that Bunting was not involved in the murders of Lane, Brooks or Johnson or any of them, in a joint trial Bunting will have been denied the benefit of calling Wagner to give evidence to that effect. In these circumstances it was said that either a separate trial should be granted or the sentencing proceedings for Wagner should be invoked in order to ascertain Wagner's version with respect to the three murders to which he has pleaded guilty.
In my opinion, given the relevance of the three murders to which Wagner has pleaded guilty on the trial of the other eight counts of murder to which he has pleaded not guilty, it is not appropriate to embark upon any procedure which would have the effect of requiring Wagner to disclose his version of the facts of the murders to which he has pleaded guilty. To do so would effectively undermine the privilege against self-incrimination. Counsel for Wagner advised that his instructions did not permit him to disclose any information except that torture of Brooks is denied and, in respect of Johnson, a particular aspect that it is unnecessary to identify is denied.
In every joint trial there is always the possibility that an accused will not give evidence and that, in subsequent sentencing proceedings, will advance a version that would have assisted the defence of a co-accused. Whether such a circumstance gives rise to a miscarriage of justice is a matter that can only be determined when the events have occurred. In view of the nature of the Crown case and the evidence the Crown proposes to lead, in particular having regard to the evidence concerning the counts to which Wagner has pleaded guilty, in my view it is unlikely that Wagner will advance a version which exonerates Bunting from involvement in any of the murders to which Wagner pleaded guilty.
In my opinion there is a compelling case for a joint trial of all counts. The pleas by Wagner do not detract significantly from that position. For these reasons I refused the further applications by Bunting.
Following the refusal of Bunting's further application, Wagner also applied for severance of particular counts. In my view there is no substance in the reasons advanced by counsel and it is unnecessary to discuss that application further.
Cross-admissibility
As I have said, counsel for all accused disputed the Crown position that there is cross-admissibility between the counts. They submitted that as the evidence with respect to each count discloses the commission of a crime, the test of admissibility is that stated by the High Court in Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461. In a joint judgment, after identifying propensity evidence as a special class of circumstantial evidence, Mason CJ, Deane and Dawson JJ said (483):
"...[T]he trial judge must apply the same test as a jury must apply in dealing with circumstantial evidence and ask whether there is a rational view of the evidence that is consistent with the innocence of the accused. Here 'rational' must be taken to mean 'reasonable' and the trial judge must ask himself or herself the question in the context of the prosecution case; that is to say, he or she must regard the evidence as a step in the proof of that case. Only if there is no such view can one safely conclude that the probative force of the evidence outweighs its prejudicial effect." (footnotes omitted)
Later in the judgment their Honours emphasised that, as circumstantial evidence, propensity evidence should not be used to draw an inference adverse to an accused unless it is the only reasonable inference in the circumstances. They said (485):
"More than that, the evidence ought not to be admitted if the trial judge concludes that, ... there is a reasonable view of it which is consistent with innocence." (footnote omitted)
Pfennig was charged with murder. The High Court was concerned with the admissibility of evidence that proved Pfennig possessed a disposition to abduct young male persons for sexual purposes. Evidence independent of Pfennig's disposition established that the deceased had been abducted for sexual purposes. That fact led to the conclusion that a person with such a disposition equipped with the means of effecting the abduction was in the area at the relevant time. In those circumstances, it was relevant to prove that Pfennig was in the area at the relevant time, that he had the means to effect the abduction and that he possessed the requisite disposition. In other words, the Crown relied upon Pfennig's disposition or propensity to commit a particular type of crime.
Evidence tending to prove that an accused person has engaged in discreditable conduct or committed crimes may be relevant for purposes other than proving that the accused has a disposition to commit crime or to commit a particular type of crime. An example found in numerous authorities is evidence of violence perpetrated by an accused against the accused's spouse when the accused is charged with murdering the spouse. The evidence is led not as evidence of a propensity or disposition to commit violent acts towards the spouse, but as evidence of the nature of the relationship between the accused and the deceased. That relationship bears directly on the question of guilt: Wilson v The Queen [1970] HCA 17; (1970) 123 CLR 334; R v Olasiuk (1973) 6 SASR 255; R v Hissey (1973) 6 SASR 280.
Counsel for the accused submitted, however, that following the decisions of the High Court in Hoch v The Queen [1988] HCA 50; (1988) 165 CLR 292 and Pfennig, the test laid down in Pfennig applies to all evidence that discloses discreditable conduct or the commission of crimes other than the crime charged. That proposition was rejected by Olsson J in R v Peake (1996) 67 SASR 297 and by the South Australian Court of Criminal Appeal in R v Nieterink [1999] SASC 560; (1999) 76 SASR 56. In a judgment with which Mullighan J agreed, Doyle CJ held in Nieterink that if the evidence disclosing criminal conduct is relevant for a purpose other than demonstrating that an accused has a propensity to commit the crime charged or is likely to commit such a crime, the test identified in Pfennig is not applicable. The Chief Justice referred to Wilson, Olasiuk and Hissey and to authorities concerning relationships between accused persons and alleged victims of sexual assaults. His Honour identified that in cases involving sexual offences against young persons, evidence of uncharged acts of unsexual assault may be relevant for a number of reasons. Those reasons include placing the charged acts in their context thereby enabling the jury to understand that the first offence charged did not "come out of the blue", explaining how a victim might come to submit to the acts involved in the first charge, explaining why a victim might not complain and establishing a sexual attraction on the part of the accused towards the victim.
In R v Palaga [2001] SASC 174; (2001) 80 SASR 19, Doyle CJ adhered to the views he expressed in Nieterink. Nyland J agreed with the Chief Justice. His Honour again adhered to those views in R v Kostaras [2002] SASC 326. Wicks and Besanko JJ agreed.
Palaga was not a "relationship" case. It was concerned with the admissibility of the appellant's attempt to produce cannabis through the propagation of cuttings as evidence of guilt of taking part in the production of cannabis at another premises. The evidence was not admitted for the purposes of demonstrating that the appellant was the sort of person likely to be involved in the growing of cannabis. Nor was the jury invited to reason that the evidence demonstrated a pattern or type of behaviour of a distinctive kind. The evidence was relevant to prove production of plants from cuttings at a time when they might have been transported to the other premises and to prove both knowledge of how to produce cannabis plants and possession of the means to do so. Doyle CJ held that the test of admissibility set out in Pfennig was not applicable.
The decisions in Nieterink and Palaga were delivered in December 1999 and June 2001. In April 2000, without reference to Nieterink, the Full Court of the Federal Court delivered judgment in Conway v R [2000] FCA 461; (2000) 172 ALR 185. The appellant was convicted of the murder of his estranged wife. Evidence was admitted of the relationship between the appellant and his wife. In particular, evidence was admitted from which the jury was asked to infer that approximately a week before the death of the deceased, the appellant had spiked the deceased's coffee with heroin. The Crown argued that the spiking of the drink was part of a plan to make it appear that the deceased was a heroin user so that her subsequent death would appear to be due to a self-administered overdose.
On appeal, the appellant argued that the admissibility of the evidence was governed by Pfennig because it was "propensity" evidence. That submission was rejected by the Court. The jury was not invited to reason that the appellant was, by reason of his disposition, a person likely to have arranged the murder of his wife. The jury were instructed that the evidence could only be used as "relationship evidence" relevant to motive and as evidence of an act preparatory to murder. In a joint judgment, Miles, von Doussa and Weinberg JJ held that the test in Pfennig was inapplicable. Their Honours said [95]:
"The admissibility of 'relationship evidence' turns upon its relevance to the issues in the trial. Such evidence must satisfy the test that its prejudicial nature is outweighed by its probative value. It is not required to satisfy the special test formulated ultimately in Pfennig designed to deal with the admissibility of what has traditionally been described as 'similar fact evidence'. It must be remembered that Pfennig had nothing whatever to do with 'relationship evidence'. None of the authorities dealing with relationship evidence were referred to by any members of the High Court, let alone disapproved. Pfennig dealt with the special dangers inherent in propensity reasoning."
In August 2001, without reference to Nieterink, Palaga or Conway, in R v Chevathen (2001) 122 A Crim R 441 the Court of Appeal in Queensland took the same view of Pfennig. The appellants had been convicted of the murder of a four year old child. Evidence of prior violence against the child by both appellants was admitted. On appeal it was argued that since Hoch and Pfennig all evidence which reveals criminal propensity is inadmissible unless there is no rational view of it consistent with the innocence of the accused. After observing that the submission was premised on the assumption that relationship evidence is regarded as a species of propensity evidence, the Court said (449):
"We do not think that that is a correct statement of the law. The question was addressed by McHugh J in KRM. Plainly, 'relationship evidence', which is an incidental form of propensity evidence, remains admissible although it could never meet the test which is, according to the submission, necessary before it could be admitted. Some latent ambiguities in Pfennig, particularly in relation to the term "the evidence" were referred to by this court in O'Keefe. At least some of the references in Pfennig to 'the evidence' are references to the evidence as a whole. There is no doubt that such a test is binding and appropriate with respect to similar facts evidence and to evidence tendered for the purpose of proving propensity. But it would in our respectful view be absurd to apply the same test to evidence which is admitted for other purposes, usually subsidiary but nonetheless valid purposes, which can never satisfy so rigorous a test." (footnotes omitted)
I am bound by the decisions of the South Australian Court of Criminal Appeal in Nieterink and Palaga. I also agree with those decisions and with the approach taken in Conway and Chevathen. If the Crown seeks to lead evidence from which the jury will be asked to infer that an accused had a propensity to commit the crime of murder, the test of admissibility is that identified in Pfennig. However, if the evidence of the commission of a crime or crimes of murder is relevant for some other purpose, the Pfennig test does not apply.
The precise use which the jury can properly make of circumstances relating to one murder in connection with another murder cannot be finally determined until all the evidence has been given and the essential issues have been identified. Speaking broadly, I am satisfied that the circumstances relating to each murder are cross-admissible in respect of one or more other murders for some or all of the purposes identified by the Crown and outlined earlier in these reasons [350] under heads of admissibility numbered (2)-(7). Not all counts are cross-admissible on the same basis. For example, the circumstances relating to the murder of Trezise are relevant to later offences because they identify the beginning of the relevant relationship and the facts of Trezise are directly relevant to the murder of Lane. The name "Happy Pants" (Trezise) was also one of the names listed by Bunting to Youde shortly before the murder of Youde. However, the facts of the offences subsequent to the murder of Trezise do not appear to bear upon the principal issues to be determined in connection with Trezise. The murder of Lane is directly relevant to the issue of motive to murder Trevilyan, but the facts associated with Trevilyan do not appear to be relevant on any other count.
These are only examples of how different counts may be cross-admissible for different purposes. Across all counts is the nature of the relationship between the accused and the relationship between Vlassakis and the accused.
In my opinion, given the nature of the case and the evidence to be led in support of the Crown assertions, it would be artificial and potentially misleading to sever any count. This is a matter in which it is necessary for the jury to hear the full story of all the events over a period of years. To apply a phrase that has been used in the context of similar fact evidence, it would be "an affront to common sense" to sever the counts and thereby to present the jury with a fragmented and distorted picture.
The Crown also sought to justify cross-admissibility of most counts on the basis of the improbability line of reasoning identified earlier under head of admissibility numbered (1). In particular, with respect to the death of Allen, the Crown submitted that the improbability line of reasoning excludes as a reasonable hypothesis the possibility that Allen died of natural causes. The Crown referred to the following circumstances:
• Allen's body was found buried in the backyard of Waterloo Corner Road with the body of Davies, but above the body of Davies.
• The dismembered parts of the body were found in garbage bags. At least one other body was temporarily stored in garbage bags.
• Rope was found in two of the bags containing parts of Allen's body. Ropes were found around the necks of the bodies of Gardiner, Lane, Trevilyan, Youde and Elizabeth Haydon. Vlassakis says that Bunting admitted that Porter and Johnson were strangled with rope.
• Allen's body had been dismembered. The bodies of other deceased had been dismembered or mutilated.
• Immediately after Allen's death, property was collected from her house including paperwork and her car. A similar pattern was followed in respect of other deceased.
• A loose page in a book containing the writing of Gardiner was found in the ceiling at Bundarra Court. That page contained the personal details of Allen in the handwriting of Bunting. Like pieces of paper were found in connection with Porter, O'Dwyer, Brooks and Johnson. Vlassakis says that personal details were extracted from victims of murders for the purposes of accessing the accounts and benefits of the victims. After the death of Allen, Bunting arranged for Harvey and Elliott to impersonate Allen in order to convince authorities that she was alive. False stories were told to convey the impression that Allen was alive. Bunting accessed the benefits of Allen from late 1996 through to 1999. The benefits of other deceased were accessed. False stories were told about other deceased being alive.
Against that background, the Crown submitted that a jury would be entitled to reason that it is inherently improbable that Allen died of natural causes when, in the same or similar circumstances, the accused murdered other persons. That line of reasoning presupposes that the jury is first satisfied that Bunting and Wagner committed other murders which were accompanied by the relevant features. It was argued that such an underlying unity exists between Allen's death and the proven murders that it excludes as a reasonable hypothesis death by natural causes. I am inclined to agree with the Crown submission.
The Crown also submitted that the same line of reasoning is applicable to the death of Trevilyan for the purpose of rebutting the hypothesis of suicide. However, the death of Trevilyan was not accompanied by features which establish an underlying unity between that death and other proven murders. In these circumstances, in my view the improbability line of reasoning is inapplicable in respect of the death of Trevilyan. However, for the reasons I have given, I am satisfied that other aspects of cross-admissibility exist and that it would be inappropriate to sever the trial of the count relating to Trevilyan.
During the course of submissions concerning severance, and particularly in connection with the counts relating to Allen and Trevilyan, discussion occurred as to the possibility that the Crown would be asking the jury to reason from the commission of a number of crimes of murder that Bunting and Wagner were in the business of killing people. Features such as possession of property and accessing of Centrelink benefits were features associated with that business. In other words, the accused had a propensity to kill in particular circumstances and the existence of those circumstances in connection with the death of a particular deceased is probative of the fact of murder and of the identity of the accused as the offenders.
As presently advised, I am minded to the view that cross-admissibility is also justified on the basis of propensity reasoning, at least in respect of Allen. However, it is unnecessary for me to finally determine this issue at this stage of the trial. Cross-admissibility exists on grounds other than proof of propensity to murder.
In these circumstances I reached the view that all counts against Bunting and Wagner should be tried in a single trial. In arriving at this conclusion, I have not overlooked the points made by counsel for Bunting about the length and complexity of a single trial and the difficulties thereby created. It is unnecessary to explore the power of the Court to direct that the Crown proceed on a reduced number of counts in order to ensure a manageable and fair trial. The Court possesses all the powers necessary to ensure that the trial is fair. I am satisfied that the length and complexity of a single trial of Bunting and Wagner on all counts will not be such as to place in jeopardy the right of either accused to a fair trial. I do not underestimate the difficulties associated with a single trial, particularly in view of the nature of the evidence to be led, but in my opinion the length and complexity is not such that there is a risk that a jury will be unable or unwilling to apply the directions and to give appropriate and impartial consideration to the evidence.
Haydon - Separation from Bunting and Wagner
Counsel for Haydon submitted that the trial of Haydon with respect to the deaths of Youde and Elizabeth Haydon should be separated from the trial of Bunting and Wagner. In essence, she contended that the volume and nature of the evidence relating to Bunting and Wagner would be such as to make a fair trial for Haydon impossible. The Crown argued, however, that as Haydon is jointly charged with Bunting and Wagner with the murders of Youde and Elizabeth Haydon, it is appropriate that he be tried with those accused. The Crown submitted that there is no basis for doubting that a jury would be able to isolate the evidence admissible against Haydon and to put aside the inadmissible material.
The Crown initially submitted that the counts against Haydon concerning the deaths of Youde and Elizabeth Haydon are cross-admissible against each other. After further discussion, however, in essence the Crown conceded that the Elizabeth Haydon count was not admissible in respect of Youde. The Crown maintained that the knowledge gained by Haydon from his presence at the murder of Youde is admissible in respect of Elizabeth Haydon. The Crown also argued that much of the evidence to be led in the trial of Bunting and Wagner would be admissible against Haydon in respect of the counts relating to Youde and Elizabeth Haydon. In these circumstances, the Crown urged that it is inappropriate to direct that Haydon be tried separately from Bunting and Wagner.
In the remarks that follow I have endeavoured to identify, in general terms, the categories of evidence that the Crown argued would be relevant on the trial of Haydon with respect to the murders of Youde and Elizabeth Haydon. I have also endeavoured to identify the basis of relevance advanced by the Crown.
The murder of Trezise is linked to the murders of Youde and Elizabeth Haydon. Vlassakis says that the murder of "Happy Pants" (Trezise) was one of the murders nominated by Bunting when he listed the names of a number of victims to Youde during the torture of Youde. Names of other deceased were also mentioned. Haydon repeated some of the names. The Crown submitted that Haydon's conduct demonstrates that he was aware that Bunting had murdered the nominated victims.
A connection between Trezise and Elizabeth Haydon is found in the evidence of Vlassakis that he overheard Haydon telling Bunting that he, Haydon, had told Elizabeth Haydon of that murder. That statement by Haydon demonstrates a knowledge on his part of the murder of Trezise. In addition, it is capable of providing a basis for an inference as to motive to kill Elizabeth Haydon.
The Crown also sought to establish that, prior to the murder of Youde, Haydon had knowledge that Bunting and Wagner had murdered Lane. Vlassakis says that Haydon was present for conversations about Lane's murder. He recalls a conversation when Bunting and Wagner told Vlassakis and Haydon about wrapping Lane's body in a carpet. The timing of this conversation is unclear. Lane's Christian name was one of those mentioned by Bunting to Youde shortly before the murder of Youde.
Counsel for Haydon submitted that the evidence is incapable of establishing that at the time of the murder of Youde, Haydon had knowledge that Bunting and Wagner had committed any murder other than that of Trezise. In particular, counsel argued that the positive statements by Vlassakis that Haydon had no knowledge of a number of murders cannot be displaced by the general statements of Vlassakis that Haydon was present at conversations when murders were discussed.
As I have said, the timing of the conversation about wrapping Lane's body in a carpet is uncertain. However, Vlassakis also says that Bunting used to brag about different murders "all the time" in front of Vlassakis, Wagner and Haydon. In addition, according to Vlassakis, the Christian names of Davies, Gardiner and Porter were listed by Haydon to Youde at the same time as the mention of Happy Pants and Lane.
In my opinion, on a provisional assessment of the evidence to be led, the evidence is capable of supporting an inference that, at the time of the murder of Youde, Haydon had knowledge that Bunting had murdered Trezise and other persons and that Wagner had been involved with Bunting in murders. The involvement of Haydon soon after the murder of Youde in the storage of bodies and in the subsequent movement of bodies, when considered in conjunction with the other evidence, is also capable of tending to confirm this view.
On the assumption that the evidence is capable of supporting a finding that, at the time of the murder of Youde, Haydon was aware that Bunting and Wagner had committed one or more murders, counsel for Haydon submitted that such knowledge is not admissible upon charges of murdering Youde and Elizabeth Haydon. I do not agree.
As to Youde, Vlassakis says that Haydon participated in the initial violence against Youde, but was a spectator during the torture and murder. Haydon's knowledge bears directly upon his state of mind at the time of the beating, torture and murder of Youde. At the least, Haydon's knowledge is relevant to whether, at the time he assisted in beating Youde, Haydon contemplated the possibility that Bunting and Wagner would kill Youde.
As to the murder of Elizabeth Haydon, if a finding is made that Elizabeth Haydon was murdered during the absence of Haydon and Elliott, the critical issue is whether Haydon was a party to removing Elliott from the premises for the purpose of enabling Bunting and Wagner to kill Elizabeth Haydon in Elliott's absence. The Crown submitted that the false statement by Haydon later that evening to Elliott that Elizabeth Haydon was at the premises is, in the circumstances, probative of Haydon's complicity as are false stories subsequently given by Haydon to the police and other persons.
In my view, Haydon's knowledge that he had left Elizabeth Haydon in the company of persons who had murdered Youde, Trezise and others, places in proper context the false statements made by Haydon to Elliott and other persons. In the circumstances, false statements made in ignorance of prior murders committed by Bunting and Wagner would bear a significantly different complexion from false statements made with knowledge of prior murders. A jury would be entitled to reason that, possessing knowledge of prior murders by Bunting and Wagner, Haydon's conduct in immediately telling a false story to Elliott about the presence of Elizabeth Haydon is inconsistent with the view that he was not party to a plan to kill Elizabeth Haydon but merely discovered her absence on his return home with Elliott. A jury could conclude that Haydon's knowledge excludes the possibility that Haydon decided to tell a false story about the presence of Elizabeth Haydon for some reason other than complicity in her murder.
The Crown pointed to an additional relevance attaching to Haydon's knowledge of prior murders. The Crown contended that the nature of the relationship between Haydon and Bunting is of particular significance. The relationship was such that Haydon was trusted with knowledge of murders. Knowledge of the nature of the relationship is necessary to place the events with respect to Youde in their proper context. That relationship explains what otherwise might appear to be unlikely, namely, that Bunting would beat, torture and murder Youde in the presence of Haydon. Similarly, the nature of the relationship is relevant to whether Bunting and Wagner would be likely to kill Elizabeth Haydon during the temporary absence of Haydon from the premises if Haydon was not party to that murder.
In my opinion, the relationship between Haydon and Bunting is relevant for the reasons advanced by the Crown. Haydon's knowledge of prior murders bears directly upon that relationship.
The issues to which evidence of Haydon's knowledge of prior murders are addressed are not peripheral issues. The evidence is highly probative with respect to issues which are highly probative of the ultimate fact in issue, namely, whether Haydon was implicated in the murders of Youde and Elizabeth Haydon. Leaving aside knowledge gained from presence at the murder of Youde, the evidence of knowledge of murders comprises statements made in the presence of Haydon coupled with his conduct in both accessing the benefits of Porter and assisting in the storage and movement of bodies. That evidence is prejudicial to Haydon. However, in my opinion the evidence is highly probative on each count. As presently advised, I would not exclude that evidence in the exercise of my discretion.
Haydon's presence at the murder of Youde raises additional considerations. In my opinion, the evidence of Haydon's presence at that murder or implication in it is not admissible on the charge of murdering Elizabeth Haydon for the purpose of proving that Haydon was or was likely to be involved in the murder of Elizabeth Haydon. Such a use would involve propensity reasoning in circumstances where such reasoning lacks the required degree of probative value. Haydon's presence at Youde's murder is admissible only for the purpose of demonstrating that, from first-hand experience, Haydon gained knowledge that Bunting and Wagner were willing to engage in beating, torture and murder. Knowledge from such firsthand experience is highly probative, but the evidence carries with it the potential for prejudice by reason of the risk of impermissible reasoning by propensity.
On a joint trial with the other accused, all the evidence would be led. Strong directions would be required as to the proper use of the evidence. If Haydon is granted a trial separate from the trial of Bunting and Wagner, should an application be made these considerations would be relevant to whether the charges with respect to Youde and Elizabeth Haydon should be severed from each other. For reasons which will become apparent, it is unnecessary for me to decide this issue.
The Crown submitted that even if Haydon is granted a separate trial, a considerable quantity of evidence that would be led on a joint trial will be admissible on the separate trial. For example, the Crown referred to evidence concerning Haydon's presence at discussions of murders and during anti-paedophile conversations, together with evidence of his attitude to homosexuals and paedophiles. Similarly, evidence concerning his conduct after the murders of Youde and Haydon would be admissible on a separate trial. By way of categories, the admissible conduct includes the following:
• Accessing the accounts of Porter and Brooks.
• Possession of property of any victim.
• Telling of false stories about victims and presence when false stories were told by others.
• Storage of bodies at Blackham Crescent.
• Removal of property, including bodies, from Blackham Crescent following police inquiries into the disappearance of Elizabeth Haydon.
• Connection to the bank premises including possession of keys to vault and handcuffs, renting the premises, attendances described by Vlassakis and forensic evidence.
The Crown submitted that these categories of evidence speak volumes as to the nature of the relationship between Haydon and Bunting and, for the reasons already discussed, the evidence is highly probative and admissible against Haydon. Some of the evidence is also relevant to motive.
These propositions are disputed by counsel for Haydon. Counsel also suggested that the Crown's interpretation of the evidence is rebutted by other evidence and that much of the evidence is equivocal.
Counsel for Haydon did not dispute the proposition that the finding of the bodies of Youde and Elizabeth Haydon in barrels at the bank is admissible. However, at times her submissions carried the implication that other conduct of Haydon after the deaths was necessarily lacking in relevance because it occurred after the deaths. In my opinion, that suggestion is not supported in principle or in logic. Speaking generally, if evidence of conduct after the commission of a crime possesses the necessary probative value, subject to any exclusionary rule such evidence is admissible. The purpose for which it is sought to lead the evidence must be assessed in the context of the totality of the evidence and the live issues at trial. There is no difference in principle between conduct occurring before or after the crime.
Some of the evidence which the Crown would seek to lead against Haydon discloses discreditable conduct and the commission of other offences. The Crown does not seek to lead this evidence as evidence of a propensity to commit murder or any other crime, but as evidence relevant for other reasons. In those circumstances, as I have indicated earlier in these reasons, in my opinion the test enunciated by the High Court in Pfennig is not the appropriate test. However, for reasons that will become apparent, it is unnecessary for me to determine whether the categories or individual pieces of evidence are admissible against Haydon in respect of one or both of the counts of murder and, if admissible, whether there are grounds upon which the evidence should be excluded in the exercise of the discretion. On the assumption that the Crown would be entitled to lead all or most of the evidence to which I have referred, and assuming that the evidence concerning Haydon's presence at the murder of Youde is admissible in respect of Elizabeth Haydon, it is apparent that virtually all of that evidence will be led in the trial of Bunting and Wagner.
Against that background, the Crown relied on the public policy considerations that weigh heavily in favour of a joint trial. As King CJ pointed out in R v Glover (1987) 46 SASR 310, generally speaking where accused persons are charged jointly with offences it is highly desirable in the interests of justice that they should be tried together. His Honour said (312):
"It is, generally speaking, very unsatisfactory for jurors to have to attempt to arrive at the truth of a matter when only one of the persons alleged to have participated in the criminal conduct is before them. In order to arrive at the truth of the matter it is generally highly desirable that the jury should have before it the respective accounts and explanations which are given by all the alleged criminal participants in the incident. There are cases, of course, in which that important consideration has to give way to other considerations. There may be circumstances surrounding the case for the prosecution which would be so prejudicial to a particular accused that a separate trial is imperative, but, generally speaking, participants in the same incident alleged to have been of a criminal nature, or to have resulted in or have included the commission of criminal offences, ought to be tried together."
King CJ repeated those remarks in R v Collie, Kranz and Lovegrove [1991] SASC 2996; (1991) 56 SASR 302 at 309. His Honour also cited the following passage from R v Demirok [1976] VR 244 at 254:
"The matters of public interest which must be considered in this case, and in all such cases, may be summarised as follows. In the first place, there is the question of the administrative matters of court time spent and public expense incurred if more than one trial is to be conducted. These matters will in many cases not be of very great weight, in others they may assume real significance. Secondly, it is against the interests of justice that there should be inconsistent verdicts, and those interests require that where the accounts of accused persons differ or conflict their differences should be resolved by the same jury at the same trial. Thirdly, and allied with the first two considerations, it has always been the policy of the law to reach finality as expeditiously as possible; and no system could function if it permitted the repeated retrial of the same issues except in situations where the concept of justice so required. Fourthly, the convenience of witnesses must be considered. The lot of a witness in a criminal trial is not a happy one, and unless for good reason witnesses should not be required to give evidence of the same events at a succession of trials."
The Crown properly highlighted the inconvenience and trauma to witnesses. Some of the witnesses were closely associated with the accused. This matter has attracted exceptional publicity. In view of the estimated length of the trial with respect to Bunting and Wagner, it is unlikely that a separate trial of Haydon would occur until mid 2003 or later. Counsel suggested that a delay of that nature in the particular circumstances of this matter would give rise to a real risk to the Crown's ability to continue to secure the co-operation of critical witnesses and to properly present its case.
As to public expense, counsel for Haydon suggested that a separate trial with respect to Haydon on both counts would probably take approximately four weeks. The Crown disputed this estimate. My assessment is that a trial involving Bunting and Wagner is likely to be significantly shorter and less complicated if Haydon is granted a separate trial. I also anticipate that a trial of Haydon on two counts would take a matter of weeks rather than months. Of course, if Haydon is granted a separate trial, it would be a matter for the future trial judge whether the two counts are heard together.
As King CJ recognised in Glover and Collie, there may be circumstances involved in the case for the prosecution which would be so prejudicial to a particular accused that a separate trial is imperative. This does not mean that the mere existence in a joint trial of material inadmissible against an accused and prejudicial to that accused necessarily justifies separate trials. The existence of such material is common in joint trials.
The capacity of a jury to understand and apply directions as to the use of evidence and as to permissible and impermissible lines of reasoning should not be underestimated. Experience and the limited research available demonstrate that juries take their responsibilities very seriously and readily appreciate the critical importance of not misusing evidence and of not engaging in impermissible lines of reasoning. However, the matter under consideration is quite exceptional in many respects. Just as the capacities of a jury should not be underestimated, nor should the difficulties that a jury would face in a joint trial of the three accused be underestimated.
Even if the Crown was permitted to lead all the evidence that the Crown argued is admissible against Haydon on two counts of murder, in a joint trial the jury would be faced with a large volume of evidence relating to ten other murders which would not be admissible against Haydon. That evidence includes gruesome details of some of the murders including torture, methods of killing and dismemberment of bodies. Notwithstanding that evidence in connection with Youde would involve evidence of torture and dismemberment, the impact of the volume of gruesome evidence not admissible against Haydon must be carefully considered.
The Crown will lead evidence against Bunting and Wagner designed to establish that they were in the business of killing and of reaping financial rewards from the murders. As I have indicated, I am tentatively of the view that the Crown will be entitled to invite the jury to reason by way of propensity to kill in respect of Bunting and Wagner. However, that line of reasoning is not available in the case against Haydon. The difficulty for a jury of isolating that line of reasoning and limiting it to Bunting and Wagner would be exacerbated by the fact that the jury would be invited to find that Haydon was trusted with knowledge of murders, was involved in committing two murders with Bunting and Wagner, was involved in the movement and storage of bodies and was involved in the activities at the bank. The difficulty of avoiding reasoning to guilt by association or propensity is obvious.
There is a further feature that is to be considered in conjunction with the matters to which I have referred. It concerns the evidence of Vlassakis. His evidence is critical in the case against Haydon with respect to the murder of Youde. Vlassakis has admitted committing four crimes of murder. He sought to use his co-operation with the authorities as a factor in mitigation of penalty. He has admitted knowledge of all murders and admitted engaging in numerous frauds and deceptions in respect of a number of deceased. The credit of Vlassakis is critical in the cases against all accused. An accomplice warning and corroboration directions will be necessary.
The evidence of Vlassakis implicating Bunting and Wagner in all of the murders is supported in a number of respects. It is unnecessary for present purposes to canvass the details of the support with respect to each count. Nor is it necessary to identify how much of that supporting evidence amounts to corroboration. It is sufficient to observe that there is a considerable volume of evidence which, if accepted, provides corroboration and general support for significant parts of the evidence that Vlassakis will give against Bunting and Wagner. In this context it is to be remembered that Vlassakis is giving evidence concerning twelve murders and associated events occurring over a period of approximately seven years.
By way of contrast, the evidence of Vlassakis against Haydon in respect of the murders of Youde and Elizabeth Haydon is in a much narrower compass. There is evidence capable of providing support for the evidence of Vlassakis against Haydon in respect of matters such as Haydon accessing the Centrelink benefits of Porter and Brooks and being involved in the movement and storage of bodies. However, in respect of the critical evidence of Vlassakis concerning the presence of Haydon at the time of the murder of Youde and as to Haydon's involvement in the beating of Youde, there is no direct evidence independent of Vlassakis to support his version.
The Crown argued that the evidence independent of Vlassakis which supports his evidence with respect to Haydon accessing Centrelink benefits and being involved in the movement and storage of bodies amounts in law to corroboration of the evidence by Vlassakis that Haydon was present at the time of the murder and was involved in the beating of Youde. In other words, it is said by the Crown that the accessing of Centrelink benefits and involvement in the movement and storage of bodies are material facts implicating Haydon in the commission of the crime. Not surprisingly, counsel for Haydon argued that these facts are too removed from the critical questions for these purposes.
In Doney v The Queen [1990] HCA 51; (1990) 171 CLR 207, in a joint judgment the High Court said (211):
"The essence of corroborative evidence is that it 'confirms', 'supports' or 'strengthens' other evidence in the sense that it 'renders [that] other evidence more probable': R v Kilbourne, per Lord Simon of Glaisdale. It must do that by connecting or tending to connect the accused with the crime charged in the sense that, where corroboration of the evidence of an accomplice is involved, it 'shows or tends to show that the story of the accomplice that the accused committed the crime is true, not merely that the crime has been committed, but that it was committed by the accused': R v Baskerville." (footnotes omitted)
After confirming that corroboration may be in the form of circumstantial evidence, their Honours said:
"It is not necessary that corroborative evidence, standing alone, should establish any proposition beyond reasonable doubt. In the case of an accomplice's evidence, it is sufficient if it strengthens that evidence by confirming or tending to confirm the accused's involvement in the events as related by the accomplice: see Baskerville; R v Hester." (footnotes omitted)
In my opinion, there is force in the Crown contention. However, it is pertinent to note that although Haydon accessed the benefits of Brooks, there is no evidence that he was involved in the murder of Brooks. Similarly, while on the Crown case Haydon was involved in the movement and storage of the bodies of the deceased, the evidence does not implicate him in the murder of six of those deceased.
Decisions as to whether evidence is capable of amounting to corroboration usually arise at the conclusion of the evidence. There are obvious difficulties in attempting to predict this far in advance whether the evidence identified by the Crown will amount to corroboration of evidence Vlassakis gives implicating Haydon in the murder of Youde. Notwithstanding corroboration of Vlassakis with respect to Haydon accessing Centrelink benefits and being involved in the movement and storage of bodies, the critical evidence of Vlassakis that Haydon was present at the murder of Youde stands alone. Even if the evidence of Vlassakis is corroborated in other respects, at the least it will be necessary for the jury to be given a strong warning that the evidence of Vlassakis should be approached with special caution.
In a joint trial, the credibility and reliability of Vlassakis would be of critical importance in the case against each accused. The jury would be required to consider the credibility of his evidence against Bunting and Wagner. For that purpose the jury would be entitled to take into account the considerable volume of evidence that supports the account that Vlassakis gives against Bunting and Wagner. However, the vast bulk of that supporting evidence is not admissible against Haydon. The evidence inadmissible against Haydon that supports the credibility of the version given by Vlassakis against Bunting and Wagner cannot be used to support the credibility of the evidence that Vlassakis gives against Haydon.
These circumstances give rise to a potential difficulty for a jury on a joint trial. If, based on evidence inadmissible against Haydon but supporting the account of Vlassakis against Bunting and Wagner, the jury find that Vlassakis is a credible witness against Bunting and Wagner, the jury would be required to set aside and ignore that view of the credibility of Vlassakis when considering the credibility of his evidence against Haydon. The jury would be required to consider afresh the credibility of evidence given by Vlassakis against Haydon by reference only to that evidence and to other evidence admissible against Haydon that supports the version given by Vlassakis against Haydon.
The difficulty to which I have alluded was the subject of consideration in R v Demirok [1976] VR 244, R v Gibb and McKenzie [1983] 2 VR 155 and R v Jones (1991) 55 A Crim R 159. In each instance, the evidence of a critical witness was supported by evidence inadmissible against the appellants. The Courts recognised that the credibility of the witness having been enhanced by inadmissible evidence, in the particular circumstances there was a real danger that the jury would find it impossible to approach the evidence of that witness against the appellant unaffected by the views already formed of the credit of the witness. In Jones, Crocket J highlighted the "unreal" and "contrived" nature of the direction that would be required.
As the Court in Demirok observed, the existence of this difficulty does not necessarily mean that separate trials should be ordered. It is standard practice to inform juries of their right to accept part of the evidence of a witness and to reject other parts. It will not be uncommon for the evidence of an accomplice to be corroborated with respect to one accused and not another. In many cases the Court can be confident that the jury will follow appropriate directions and the public interest factors favouring a joint trial will prevail.
The matter under consideration is quite exceptional. I have already referred to the horrific nature and volume of evidence inadmissible against Haydon that would be led against Bunting and Wagner on a joint trial. As I have indicated, the evidence of Vlassakis is not confined to a single incident or a relatively short period of time. It covers a period of approximately seven years and deals with twelve murders and associated events. Propensity reasoning might be applicable to Bunting and Wagner, but not to Haydon. In the particular circumstances, it would be extraordinarily difficult if not impossible for a jury to ignore the enhancement of the credit of Vlassakis through evidence inadmissible against Haydon when considering the credibility of the version given by Vlassakis that Haydon was present at the murder of Youde and participated in the beating of Youde.
Not without considerable hesitation I have concluded that the trial of Haydon with respect to the charges of murdering Youde and Elizabeth Haydon should be separated from the trial of Bunting and Wagner. The combination of factors to which I have referred, coupled with the complexity of the directions that would be required in a joint trial, have persuaded me that there is a grave risk that Haydon would not receive a fair trial if jointly tried with Bunting and Wagner. I doubt that the separation of the trials will add greatly to the public expense, but I am acutely conscious of the problems created for witnesses. However, I have been driven to the conclusion that the interests of justice require the separation of the trials.
In these circumstances it is unnecessary for me to address the suggestion that in a joint trial Haydon may seek to elicit evidence of Bunting's violent disposition which would be inadmissible as part of the Crown case. Similarly, it is unnecessary for me to determine whether a single trial of the Youde and Elizabeth Haydon counts is permissible and, if it is, whether separate trials of those counts should be ordered. Those questions and other issues to which I have referred are best left for determination by the trial judge.
For these reasons I ordered that the trial of Haydon upon the charges of murdering Youde and Elizabeth Haydon be separated from the trial of Bunting and Wagner.
