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R v Wiggins (No 3)

R v Wiggins (No 3)

Case [2021] NSWSC 1128 6 September 2021

Appeal

Admissibility of Evidence

Hearsay Evidence

Credibility Evidence

Section 137 Exclusion

Section 165 Warning

Criminal Law

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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:
Higgins v R [2020] NSWCCA 149
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 Dolding [2018] NSWCCA 127
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
Tripodi v The Queen (1961) 104 CLR 1; [1961] HCA 22
Wiggins v R [2020] NSWCCA 256

Category: Procedural rulings
Parties: Regina (Crown)
Matthew Paul Wiggins (Accused)
Representation:
Counsel:
Mr P Barrett (Crown)
Mr D Dalton (Accused)
Solicitors:
Solicitor for Public Prosecutions (NSW)
Khan Law & Associates

File Number(s): 2013/13092

Judgment

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.
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…

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 3)

Details

AGLC: R v Wiggins (No 3) [2021] NSWSC 1128
Case: [2021] NSWSC 1128
Decision Date: 06 September 2021

CaseChat Overview and Summary

In the case of R v Wiggins (No 3), the defendant was facing charges related to a murder, and the prosecution sought to introduce hearsay evidence from a Crown witness, who had been charged as an accessory before the fact but had their charges no-billed. The dispute centered around whether the statements made by the Crown witness could be admitted as evidence under the hearsay rule exceptions or if they should be excluded under section 137 due to unfair prejudice. The court was required to determine whether the statements constituted first-hand hearsay or implied admissions, whether they were made with authority in furtherance of a common purpose, and if they were fresh in the witness's memory. Additionally, the court had to consider whether the probative value of the evidence outweighed the potential unfair prejudice and whether a section 165 warning would be appropriate.

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