R v Wiggins (No 6) - [2022] NSWSC 1189

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Wiggins (No 6) [2022] NSWSC 1189
Hearing dates: 29 August 2022
Date of orders: 30 August 2022
Decision date: 05 September 2022
Jurisdiction: Common Law
Before: N Adams J
Decision:
For orders see [53]

Catchwords:
EVIDENCE – recordings of accused speaking on telephone captured by police listening device – discussion of disappearance of Goran Nikolovski and police investigation – objection under Evidence Act s 137 – relevance to accused’s motive – where accused speaks about police in derogatory terms – whether jury would suspect accused’s involvement in criminal activity – danger of unfair prejudice

Legislation Cited:
Criminal Procedure Act 1986 (NSW), s 130A
Evidence Act 1995 (NSW), s 137

Cases Cited:
Colby v The Queen [1999] NSWCCA 261
Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37
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:
K McKay SC with S Sloane (Crown)
D Dalton SC with T Woods (Accused)
Solicitors:
Solicitor for Public Prosecutions (NSW)
Khan Law & Associates

File Number(s): 2013/13092

Judgment

Background

Matthew Wiggins is on trial for the murder of Darko Janceski on 14 April 2022 and the serious assault of his father Slobodan Janceski the same day.
On 29 August 2022, the fourteenth day of the trial, objection was made to four out of a total of 31 listening device transcripts and 17 SMS messages the Crown proposes to tender. It was conceded on behalf of the accused that the four intercept calls were relevant. The sole basis of the objection was that they should be excluded under s 137 of the Evidence Act 1995 (NSW).
Submissions were made late on 29 August 2022 and one of the calls over which objection was made was played in court during that time. The Crown tendered the proposed folder of the additional intercepts to be played (over which no objection is made) along with the accompanying agreed facts. I reserved my decision overnight and at 10am on 30 August 2022 I indicated my rulings with reasons to follow. These are my reasons for those rulings.

Overview of Crown case

On 14 April 2012, Darko Janceski was shot and killed when a man wearing a helmet, balaclava and sunglasses drove by his parents’ home on a motorbike and shot him dead. Before the gunman was able to drive away, the deceased’s father wrestled with him and was himself assaulted. During that altercation the gunman’s helmet and sunglasses fell of and were left at the scene. DNA with the same profile as the accused was located inside both the helmet and on the sunglasses.
The Crown case against the accused is a circumstantial one. There is evidence in the trial suggesting that the motorbike used by the gunman was a WR450 motorbike purchased by Christopher Madden (“the Ryan motorbike”) in somewhat suspicious circumstances. It was found burnt…

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 6)

Details

AGLC: R v Wiggins (No 6) [2022] NSWSC 1189
Case: [2022] NSWSC 1189
Decision Date: 05 September 2022

CaseChat Overview and Summary

The appellant, Wiggins, was charged with the murder of Goran Nikolovski. The case against Wiggins included evidence of his telephone conversations recorded by police using a listening device. The recordings included Wiggins discussing the disappearance of Nikolovski and the police investigation into it. Wiggins objected to the recordings being presented to the jury on the basis that they were inadmissible under section 137 of the Evidence Act, which concerns the unfair prejudice of evidence. Wiggins argued that the recordings were prejudicial because they included derogatory remarks about the police and could lead the jury to suspect Wiggins of involvement in criminal activity.

The court had to determine whether the evidence of the recorded conversations was admissible and whether it was relevant to Wiggins’s motive for the murder. The court considered whether the prejudicial effect of the evidence outweighed its probative value. The court also considered whether the evidence was necessary to establish a fact in issue in the case.

The court found that the prejudicial effect of the evidence did not outweigh its probative value. The court held that the evidence was relevant to Wiggins’s motive for the murder and was necessary to establish a fact in issue in the case. The court found that the recordings did not unfairly prejudice Wiggins because they did not suggest that he was guilty of any other crime or had a propensity to commit crime. The court held that the recordings were admissible and could be presented to the jury.

The court upheld the conviction of the appellant, Wiggins, for the murder of Goran Nikolovski.

Orders