R v Wiggins (No 2)

[2021] NSWSC 1127

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Wiggins (No 2) [2021] NSWSC 1127

Hearing dates:

5 July 2021

Date of orders:

6 September 2021

Decision date:

06 September 2021

Jurisdiction:

Common Law

Before:

N Adams J

Decision:

See [28].

Catchwords:

CRIMINAL PROCEDURE — Suppression and non-publication orders – whether necessary to prevent prejudice to proper administration of justice – whether necessary to protect the safety of the witness – whether orders in public interest – where witness is “akin” to rollover witness – where witness has provided assistance in other matters – orders granted

Legislation Cited:

Court Suppression and Non-publication Orders Act 2010 (NSW), ss 6, 7, 8, 12

Evidence Act1995 (NSW), s 38

Cases Cited:

AB (A Pseudonym) v R (No 3) [2019] NSWCCA 46

Attorney-General (NSW) v Nationwide News Pty Ltd (2007) 73 NSWLR 635; [2007] NSWCCA 307

Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125

Hamzy v R [2013] NSWCCA 156

John Fairfax Group Pty Ltd (Receivers & Managers Appointed) v Local Court of New South Wales (1991) 26 NSWLR 131

R v Kwok (2005) 64 NSWLR 335; [2005] NSWCCA 245

Category:

Procedural rulings

Parties:

Regina (Crown)
Matthew Paul Wiggins (Accused)
NSW Police Commissioner (Applicant)

Representation:

Counsel:
Mr P Barrett (Crown)
Mr D Dalton SC (Accused)
Mr R Bhalla (Applicant)

Solicitors:
Solicitor for Public Prosecutions (NSW)
Khan Law & Associates
NSW Crown Solicitor (Applicant)

File Number(s):

2013/13092

Judgment

1. Matthew Wiggins is charged with the murder of Darko Janceski (“the deceased”) and the intentional infliction of grievous bodily harm on Darko Janceski’s father, Slobodan Janceski. The deceased was fatally shot on 14 April 2012 in the front yard of his parents’ home. The gunman rode by on a trail bike and stopped outside the house. The gunman wore, inter alia, a balaclava, sunglasses and a bicycle helmet. He shot the deceased and then engaged in a physical altercation with the deceased’s father who ran outside to confront the gunman. Mr Janceski snr knocked off the gunman’s helmet and sunglasses and suffered injuries to his face constituting grievous bodily harm. It is the Crown case that Mr Wiggins was the gunman.

2. This murder trial has a very long procedural history. It was most recently listed for hearing on 21 June 2021 but, regrettably, the trial date had to be vacated due to the suspension of jury trials caused by the COVID-19 pandemic. It has now been listed for hearing on 17 January 2022.

3. Prior to the trial date being vacated, by notice of motion dated 23 June 2021 the Commissioner of Police (NSW) (“the Commissioner”) sought orders that the identity of a Crown witness, who I shall refer to as Mr X for the purposes of these reasons, be suppressed pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) (“the Court Suppression Act”).

4. The orders sought included that there be no publication of information that revealed, or would tend to reveal, the true identity of Mr X; any visual or other description of his physical appearance and/or any other identifying features; or his place of residence or work. The Commissioner sought that the orders be imposed for a period of 99 years. The Commissioner further sought that Mr X give evidence in closed court in these proceedings.

5. The Commissioner submitted that the orders were necessary on the basis of one or more of the grounds set out in subs 8(1)(a), (c) and (e) of the Court Suppression Act, extracted below at [17].

6. The Commissioner relied on two affidavits of Mr Peter Cotter, Assistant Commissioner of Police, sworn on 23 July 2021. One of these was an open affidavit provided to both the parties and the Court whereas the second affidavit was a confidential affidavit provided to the Court only.

7. The Commissioner also relied on written submissions provided to the Court and the parties.

8. The application was not opposed.

Evidence in support of application

9. Mr X provided a three-page statement to police on 9 May 2019. His proposed evidence relates to conversations he had with a Crown witness, Derek Ferguson, regarding the source of certain items used in the shooting, including the motorbike, helmet and balaclava. That evidence has the capacity to undermine evidence of Mr Ferguson.

10. The position of the Crown Prosecutor is that the question of whether Mr X is in fact called at the trial depends on what evidence is given by Mr Ferguson. It was foreshadowed that an application under s 38 of the Evidence Act1995 (NSW) would be made at the trial to permit Mr Ferguson to be cross-examined by the Crown.

11. The affidavit evidence disclosed that the police do not consider Mr X to be a “rollover witness” in the strict sense but take the view that he is “akin” to one. He has received an indemnity against prosecution in relation to assistance he has provided in other trials.

12. In the Assistant Commissioner’s view, any publication of the name or identifying details of Mr X may discourage him from giving evidence in further prosecutions due to fear of intimidation or violence or could dissuade others from providing assistance to police in future. More generally, it was submitted that it is crucial to the investigation and successful prosecution of criminal activity that those who provide assistance to police are not dissuaded from doing so by perceived risks or fears for their safety.

13. In relation to the closed court order, it was submitted that this was necessary to maintain the integrity of the non-publication order, for the same reasons set out in the Assistant Commissioner’s affidavit.

14. The Commissioner relied on material in the confidential affidavit in support of the submission that the non-publication orders should be made for a period of 99 years.

15. The Commissioner submitted that the suppression of Mr X’s identity was necessary in order to prevent prejudice to the proper administration of justice; to protect the safety of a person; and/or was necessary in the public interest, which significantly outweighed the public interest in open justice.

Consideration

16. Although these orders were ultimately sought by consent, it is nonetheless necessary that I be satisfied that in making them an appropriate balance is struck between the need to protect the safety of Mr X, the need for a fair trial and principles of open justice.

17. Sections 6, 7 and 8 of the Court Suppression Act provide as follows:

6 Safeguarding public interest in open justice

In deciding whether to make a suppression order or non-publication order, a court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.

7 Power to make orders

A court may, by making a suppression order or non-publication order on grounds permitted by this Act, prohibit or restrict the publication or other disclosure of—

(a) information tending to reveal the identity of or otherwise concerning any party to or witness in proceedings before the court or any person who is related to or otherwise associated with any party to or witness in proceedings before the court, or

(b) information that comprises evidence, or information about evidence, given in proceedings before the court.

8 Grounds for making an order

(1) A court may make a suppression order or non-publication order on one or more of the following grounds—

(a) the order is necessary to prevent prejudice to the proper administration of justice,

(b) the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security,

(c) the order is necessary to protect the safety of any person,

(d) the order is necessary to avoid causing undue distress or embarrassment to a party to or witness in criminal proceedings involving an offence of a sexual nature (including sexual touching or a sexual act within the meaning of Division 10 of Part 3 of the Crimes Act 1900),

(e) it is otherwise necessary in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice.

(2) A suppression order or non-publication order must specify the ground or grounds on which the order is made.

(3) Despite subsection (1) (d), a court may make a suppression order or non-publication order on the grounds that the order is necessary to avoid causing undue distress or embarrassment to a defendant in criminal proceedings involving an offence of a sexual nature only if there are exceptional circumstances.

18. Each of the grounds set out in s 8 of the Court Suppression Act imports a test of “necessity”. It has been held that the word “necessary” in that context should not be given a narrow construction: Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125 at [8] per Bathurst CJ (“Fairfax v Ibrahim“). In Fairfax v Ibrahim, Bathurst CJ went on at [8] to refer to the observations of Hodgson JA in R v Kwok (2005) 64 NSWLR 335; [2005] NSWCCA 245 at [13] in which his Honour adopted the remarks of Mahoney JA in John Fairfax Group Pty Ltd (Receivers & Managers Appointed) v Local Court of New South Wales (1991) 26 NSWLR 131 at 161:

“This leads to the consideration of what is meant by ‘necessary to secure the proper administration of justice’ in this context. The phrase does not mean that if the relevant order is not made, the proceedings will not be able to continue. Plainly they can. If the name of an informer is not hidden under a pseudonym, the proceeding will go on: at least, the instant proceeding will. And if the name of a security officer is revealed, the administration of justice or of the country will not collapse. The basis of the implication is that if the kind of order proposed is not made, the result will be — or at least will be assumed to be — that particular consequences will flow, that those consequences are unacceptable, and that therefore the power to make orders which will prevent them is to be implied as necessary to the proper function of the court. The kinds of consequences that, in this sense, will be seen as unacceptable may be gauged by those involved in the cases in which statutory courts have been accepted as having restrictive powers. Thus, there will be hardship on the informer or the security officer or the blackmail victim; the future supply of information from such persons will end or will be impeded; and it will be more difficult to obtain from such persons the evidence necessary to bring offenders before the courts and deal with them. It is not necessary to attempt to state exhaustively the considerations relevant in this regard: it is to considerations of this kind or of an analogous kind on which the principle stated by McHugh JA is based.”

19. The administration of justice in s 8(1)(a) has been held to extend to the investigation and detection of crime and the obtaining of evidence against suspects, with the protection of the identity of informers being a key aspect of these functions: Attorney-General (NSW) v Nationwide News Pty Ltd (2007) 73 NSWLR 635; [2007] NSWCCA 307 at [38] per Hodgson JA, Hislop and Latham JJ agreeing.

20. The protection of a person’s safety in s 8(1)(c) is to be assessed in terms of a calculus of risk. In AB (A Pseudonym) v R (No 3) [2019] NSWCCA 46, the Court of Criminal Appeal held that the calculus of risk approach requires the Court to consider (at [56]):

“the nature, imminence and degree of likelihood of harm occurring to the relevant person. If the prospective harm is very severe, it may be more readily concluded that the order is necessary even if the risk does not rise beyond a mere possibility.”

21. The test under s 8(1)(c) was stated by Harrison J in Hamzy v R [2013] NSWCCA 156 at [60] as follows:

“If the potential publication of the applicant's evidence before the primary judge and in this Court raised even some doubt that his safety were compromised, he should in my opinion be given the benefit of that doubt when deciding the question of whether or not a suppression or non-publication order is necessary. I consider that the material does raise that doubt. The need to safeguard the public interest in open justice does not prevail in this case where in my opinion the s 8(1)(c) ground has been made out.”

22. Applying the principles derived from these decisions to the applicable legislation, I am satisfied (based on the material in the confidential affidavit) that the concerns currently held by police have a proper basis and it is appropriate that I suppress the name of Mr X. Although there is a degree of overlap as between the relevant grounds in s 8(1), in the circumstances, I am satisfied that it is necessary to make the pseudonym orders sought on the grounds provided in subs 8(1)(a), (c) and (e) of the Court Suppression Act.

23. The name of Mr X will need to be read to the jury panel but thereafter he could be referred to by way of a pseudonym. I am satisfied that suitable directions could be given to the jury as to the reason why he is to give his evidence by way of a pseudonym that would minimise any potential prejudice to the accused. It is not unusual for witnesses to give evidence with a pseudonym and the courts have been able to craft directions to remove any prejudice associated with such a course being taken at a trial.

24. Turning specifically to the question of whether the court should be closed for the evidence of Mr X, I am satisfied that an order for a pseudonym and a non-publication or suppression order alone may not be sufficient to address the relevant concerns of police regarding his identity as persons could come into the courtroom and observe his physical appearance.

25. Based on the material before me, I am satisfied that the orders sought are appropriate.

26. In relation to the duration of the orders, s 12 of the Court Suppression Act provides as follows:

12 Duration of orders

(1) A suppression order or non-publication order operates for the period decided by the court and specified in the order.

(2) In deciding the period for which an order is to operate, the court is to ensure that the order operates for no longer than is reasonably necessary to achieve the purpose for which it is made.

(3) The period for which an order operates may be specified by reference to a fixed or ascertainable period or by reference to the occurrence of a specified future event.

27. It seems to me that the identity of Mr X should be suppressed for a significant period of time, well after the resolution of these proceedings. I note that Leeming JA observed in DRJ v Commissioner of Victims Rights [2020] NSWCA 136 at [47] (Bell P and Meagher JA agreeing) that such orders should not be open-ended in duration. Accordingly, I am prepared to make the order in the terms sought.

ORDERS

28. Accordingly, I make the following orders:

1. Except for the proper purposes of these proceedings, the Crown witness who provided a 3-page statement in these proceedings dated 9 May 2019 is to be referred to by a pseudonym.

2. Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) (“the Court Suppression Act”), and upon the grounds set out in s 8(1)(a), (c) and (e) of the Court Suppression Act, there will be no publication beyond these proceedings of information that reveals, or tends to reveal the following matters:

1. the true identity of the witness;

2. any visual or other description of the physical appearance and/or any other identifying features of the witness; and

3. the place of residence or work of the witness.

3. Order 2 does not apply to any disclosure(s) made by the Commissioner and officers of the NSW Police Force.

4. Pursuant to s 11 of the Court Suppression Act, Order 2 applies throughout the Commonwealth of Australia.

5. Subject to any further order of this court, Order 2 is to have effect for 99 years from the date of these orders.

6. The Court is to be closed for the duration of the evidence given by the witness.

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Amendments

19 September 2022 - Publication restriction removed

Decision last updated: 19 September 2022