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

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.
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.
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”).
The orders sought included that there be no publication of information that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Wiggins (No 2)

Details

AGLC: R v Wiggins (No 2) [2021] NSWSC 1127
Case: [2021] NSWSC 1127
Decision Date: 06 September 2021

CaseChat Overview and Summary

The case of R v Wiggins (No 2) was heard in the Supreme Court of Victoria, where the primary concern was the granting of suppression and non-publication orders concerning the identity of a witness. The appellant, Wiggins, was charged with serious criminal offences, and the court had to consider whether such orders were necessary to prevent prejudice to the administration of justice and to protect the safety of the witness. The witness in question was described as "akin" to a rollover witness and had previously provided assistance in other criminal matters. The central issue for the court was whether these orders were essential to uphold the integrity of the judicial process and to safeguard the well-being of the witness.

The court examined the necessity of the suppression and non-publication orders by assessing the potential risks to the witness's safety and the integrity of the proceedings. It considered the witness's vulnerability, given their past cooperation in other criminal investigations, and the likelihood of reprisals from those involved in the current case. The court also deliberated on whether the orders were in the public interest, taking into account the seriousness of the charges against Wiggins and the potential impact of publicising the witness's identity on the judicial process. The court concluded that the orders were justified to ensure the witness's safety and to maintain the fairness of the trial.

The Supreme Court of Victoria granted the suppression and non-publication orders, recognising the substantial risk to the witness's safety and the importance of protecting the integrity of the judicial process. The court determined that these measures were necessary to prevent undue prejudice and to ensure that the trial could proceed without interference. By doing so, the court aimed to balance the rights of the accused with the imperative to protect a vulnerable witness and uphold the public interest in a fair and unbiased trial. The final orders maintained the anonymity of the witness throughout the proceedings and limited the publication of any information that could reveal their identity.

Orders