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R v Wiggins (No 5)

R v Wiggins (No 5)

Case [2022] NSWSC 1055 5 August 2022

Limitation Periods

Abuse of Process

Res Judicata

Prosecution Duty of Disclosure

Criminal Law

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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 RD [2016] NSWCCA 84
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:
Mr K McKay SC with Ms S Sloane (Crown)
Mr D Dalton SC with Mr T Woods (Accused)
Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
Khan Law & Associates (Accused)

File Number(s): 2013/13092

Judgment

Background

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.
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…

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 5)

Details

AGLC: R v Wiggins (No 5) [2022] NSWSC 1055
Case: [2022] NSWSC 1055
Decision Date: 05 August 2022

CaseChat Overview and Summary

The matter before the court was an application by Wiggins, the accused, to permanently stay the proceedings against him. Wiggins was facing trial for the serious offences of murder and inflicting grievous bodily harm with intent. The case had a protracted history, and this was to be his fourth trial. The court was asked to consider whether the proceedings should be permanently stayed due to the alleged unfairness of the Crown's "opportunistic" addition of new evidence, which Wiggins claimed "patched up" their case. This application for an exceptional remedy required Wiggins to demonstrate a fundamental defect in the proceedings.

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