Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: R v Wiggins (No 3) [2021] NSWSC 1128 Hearing dates: 14 July 2021 Date of orders: 6 September 2021 Decision date: 06 September 2021 Jurisdiction: Common Law Before: N Adams J Decision: The evidence of Mr X is admissible.
Catchwords: CRIMINAL PROCEDURE — application to exclude evidence – hearsay evidence of statements made by a Crown witness regarding his involvement in the alleged murder – where witness was charged as an accessory before the fact but charges were no-billed – whether second-hand hearsay or implied admissions – held, statements are first-hand hearsay and not admissions – whether admissions made with authority in furtherance of common purpose – held, common purpose ended upon death of deceased – narrative statements made after the event not made in furtherance of common purpose – whether fresh in the witness’ memory – statements made up to seven years after the event – held to be fresh in the memory due to nature of events – whether admissible as credibility evidence in the alternative – whether evidence should be excluded under s 137 – held, probative value outweighs unfair prejudice – s 165 warning appropriate due to hearsay nature
Legislation Cited: Evidence Act 1995 (NSW), ss 38, 59, 60, 62, 66, 81, 83, 87, 101A, 102, 103, 106, 136, 137, 165
Cases Cited: Landini v State of NSW [2007] NSWSC 259
Lee v The Queen (1998) 195 CLR 594; [1998] HCA 60
Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37
R v Basha (1989) 39 A Crim R 337
R v Gregory-Roberts [2016] NSWCCA 92
R v XY (2010) 79 NSWLR 629; [2010] NSWCCA 181
The Queen v Bauer(a pseudonym) (2018) 266 CLR 56; [2018] HCA 40
Category: Procedural rulings Parties: Regina (Crown)
Matthew Paul Wiggins (Accused)Representation: Counsel:
Solicitors:
Mr P Barrett (Crown)
Mr D Dalton (Accused)
Solicitor for Public Prosecutions (NSW)
Khan Law & Associates
File Number(s): 2013/13092
Judgment
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Matthew Paul Wiggins is charged with the murder of Darko Janceski (“the deceased”) and the intentional infliction of grievous bodily harm on the deceased’s father, Slobodan Janceski on 14 April 2012.
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This matter has had a long procedural history. The accused was arrested and charged with the murder of the deceased on 15 January 2013. In March 2017, a trial commenced but was ultimately aborted. In October 2017, a second trial commenced, which resulted in a hung jury. In April 2018, a third trial proceeded before Latham J and a jury of twelve. The accused was convicted at the third trial. He appealed against his conviction and a new trial was ordered: Wiggins v R [2020] NSWCCA 256. His re-trial was listed to commence on 21 June 2021 but, regrettably, that trial date had to be…
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- AGLC
- R v Wiggins (No 3) [2021] NSWSC 1128
- Case
- [2021] NSWSC 1128
- Decision Date
CaseChat Overview and Summary
The court found that the statements were first-hand hearsay and not admissions, as they were not made with authority in furtherance of a common purpose after the death of the deceased. The common purpose had ended upon the death, and the narrative statements made after the event were not made in furtherance of that purpose. However, the court held that the statements were fresh in the memory due to the nature of the events, despite being made up to seven years after the incident. The court also considered whether the evidence should be admitted as credibility evidence in the alternative, but ultimately concluded that the probative value of the evidence outweighed the unfair prejudice. The court found that a section 165 warning would be appropriate due to the hearsay nature of the evidence.
The court's decision was that the hearsay evidence from the Crown witness regarding their involvement in the alleged murder was admissible. The probative value of the evidence was sufficient to outweigh the potential unfair prejudice, and a section 165 warning would be given to the jury to address the hearsay nature of the evidence. The court's ruling allowed the prosecution to present the statements as part of their case against the defendant.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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