Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: R v Wiggins (No 5) [2022] NSWSC 1055 Hearing dates: 3 August 2022 Date of orders: 5 August 2022 Decision date: 05 August 2022 Jurisdiction: Common Law Before: N Adams J Decision: The application for a permanent stay of the proceedings is refused
Catchwords: CRIMINAL PROCEDURE – application to permanently stay proceedings – accused facing trial for murder and inflict grievous bodily harm with intent – long and unfortunate procedural history – delay – upcoming trial to be accused’s fourth trial – alleged unfairness due to “opportunistic” “patching up” of Crown case with new evidence – exceptional remedy sought – accused must show fundamental defect – prosecution duty of disclosure – application refused
Legislation Cited: Criminal Appeal Act1912 (NSW), s 8
Evidence Act 1995 (NSW), ss 38, 165, 192
Criminal Procedure Act1986 (NSW), s 147
Cases Cited: Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41
Dietrich v The Queen (1992) 177 CLR 292
Dupas v The Queen (2010) 241 CLR 237; [2010] HCA 20
Jago v District Court of NSW (1989) 168 CLR 23; [1989] HCA 46
Koloamatangi v R; Popovic v R [2020] NSWCCA 52
Nikolovski v R [2021] NSWCCA 327 (Decision restricted)
R v Michael John Issakidis [2015] NSWSC 834
R v Sparos (No 2) [2017] NSWSC 1462
R v Warwick (No.64) [2019] NSWSC 163
R v Wiggins (No 2) [2021] NSWSC 1127
R v Wiggins (No 3) [2021] NSWSC 1128
Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions (2018) 266 CLR 325; [2018] HCA 53
The Queen v Edwards (2009) 83 ALJR 717; [2009] HCA 20
The Queen v Glennon (1992) 173 CLR 592; [1992] HCA 16
Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77
Wiggins v R [2020] NSWCCA 256 (Decision restricted)
Category: Procedural rulings Parties: Regina (Crown)
Matthew Paul Wiggins (Accused)Representation: Counsel:
Solicitors:
Mr K McKay SC with Ms S Sloane (Crown)
Mr D Dalton SC with Mr T Woods (Accused)
Solicitor for Public Prosecutions (NSW) (Crown)
Khan Law & Associates (Accused)
File Number(s): 2013/13092
Judgment
Background
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The accused, Matthew Wiggins, is due to stand trial on 8 August 2022 for the murder of Darko Janceski on 14 April 2012. By notice of motion filed on 28 June 2022 he seeks a permanent stay of the proceedings. The motion was heard before me on 3 August 2022 at which time I reserved my decision.
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The basis of the application was articulated in the affidavit of Sarah Khan, solicitor for the accused, dated 28 June 2022 in support of the motion at [2]-[3]:
“The basis for the application is the unfairness caused by opportunistic steps taken by the police and the Crown to reshape and ‘patch up’ the Crown case. This has been enabled by the extensive delays in the matter.
The extraordinary delay and repeated re-running of the case has…
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- AGLC
- R v Wiggins (No 5) [2022] NSWSC 1055
- Case
- [2022] NSWSC 1055
- Decision Date
CaseChat Overview and Summary
The legal issues the court had to address included the appropriate standard of unfairness necessary to warrant a permanent stay, the extent of the prosecution's duty of disclosure, and whether the introduction of new evidence amounted to an abuse of process. The court also had to consider whether the delay and previous trials had prejudiced the accused to the point where a fair trial was no longer possible.
The court found that the accused had not demonstrated a fundamental defect in the proceedings that would justify a permanent stay. The court held that the standard of unfairness required to justify such a remedy was high and had not been met in this case. The court also found that the prosecution had not abused the process by introducing new evidence, as the evidence was not new but had been available all along and had not been deliberately withheld. The court further held that while there had been a significant delay, it had not prejudiced the accused to the extent that a fair trial was no longer possible. The application for a permanent stay was therefore refused.
No orders were made as the application for a permanent stay was refused.
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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