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

1. 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.

2. 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).

3. 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

4. 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.

5. 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 out about a week after the shooting shortly after police released a media release describing the bike used in the shooting. Mr Madden is a close friend of Derek Ferguson who in turn is a close friend of the accused. There was significant telephone contact between the accused and Mr Ferguson on both the day of the shooting and the day of the media release. The Crown case is that the accused is the gunman and that he drove the Ryan bike during the shooting.

6. The deceased’s father is a former boxer. He gave evidence that the gunman fought like a professional former fighter. There is evidence that the accused was an MMA (Mixed Marshall Arts) fighter and had a boxing licence as at 2012.

7. Telephone intercepts to be played in the Crown case confirm that the accused had a motive to kill the deceased as he suspected that he had killed his close friend Goran Nikolovski. Those intercepts also recount the accused’s frustration with police for failing to advance their investigation into the deceased’s role in the suspected killing.

8. Other evidence has been adduced to suggest that the deceased had been a member of the Comanchero Outlaw Motorcycle Gang (“OMCG”) but had recently left in bad circumstances and the Comanchero had a “contract” out on him. The deceased had been shot by persons in January 2012, only months before he was fatally shot. The persons said to be responsible for the previous shooting were in custody at the time of the fatal shooting. On the defence case, there were a number of people who wanted the deceased dead.

9. Against that factual background, the Crown proposes to tender a number of intercepts in the period from when Mr Goran Nikolovski was declared missing until a date after the shooting but before the arrest of Mr Wiggins.

10. Before turning to consider the intercepts and the respective submissions concerning their admissibility, it is pertinent to briefly outline the statutory basis for the exclusion of the intercepts.

Section 137 of the Evidence Act

11. Section 137 of the Evidence Act provides that in a criminal proceeding, “the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant”.

12. The application of s 137 of the Evidence Act requires me to balance the extent of the capacity of the evidence to support particular factual findings against the danger of unfair prejudice to the accused. “Probative value” is defined in the Dictionary to the Evidence Act as “[t]he extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.”

13. Although “probative value” is defined in the Evidence Act, the term “unfair prejudice” is not. It has been held that the danger of “unfair prejudice” within the meaning of s 137 of the Evidence Act means a risk that the evidence would be misused by the jury in some unfair way that is logically unconnected with the purpose of its tender: see McHugh J in Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 at [91]. As Mason P observed in Colby v The Queen [1999] NSWCCA 261 at [97]: “[t]he focus is upon the danger that the tribunal of fact will use the evidence upon a basis logically unconnected with the issues in the case ...”. More recently, the High Court observed the following in The Queen v Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40 at 93-94 [73] (footnote omitted):

“… ‘unfairly prejudicial’ in s 135 and ‘unfair prejudice’ in s 137, each conveys essentially the same idea of harm to the interests of the accused by reason of a risk that the jury will use the evidence improperly in some unfair way.”

The intercepts

14. The four intercepts over which objection is taken are as follows.

First intercept: - 1 November 2011 at 6.42pm from Mark Buddle to the accused

15. The date of 1 November is significant; it is the day it became apparent that Goran Nikolovski was missing. He was last seen on 30 October 2011. Paula Geldeard (Goran Nikolovski’s partner) has given evidence that Mark Buddle, who was at that time the national head of the Comanchero OMCG, contacted her once she had become aware that Goran Nikolovski had gone missing.

16. Call 1 is a call between Mr Buddle and the accused. Both were friends of Mr Nikolovski. In the call Mr Buddle indicates that he is on his way down (presumably to Wollongong). He asks if there is any news (about Goran Nikolovski’s disappearance) to which the accused replies there is not. The accused explains he is with “his brother” (presumably Robert Nikolovski), that the “pigs” are on their way to “rake” Robert Nikolovski’s house and they (the “pigs”) have just left Paula’s house. The following exchange then occurs:

“MW   They wanna, they wanna um raid, ah raid fuckin’ um Rob’s house, not his mum’s house.

MB   Goz’s house?

MW   They wanna – they gonna do both.

MB   Why?

MW   I dunno, ‘cause they’re fuckwits.

…

MB   But why, why are they raidin’ the houses?

MW   I dunno ‘cause they’re fuckin cock suckers.

…

MW   Yeah well, that’s what, that’s what the “D’s” told Paula. Probably just to fuckin’ spin it out to her.

MB   Oh well – tell her, ring a fuckin’ lawyer and don’t let ‘em in the house brother. Like the poor cunt…[OVERTALK]

MW   Exactly. If, if they haven’t got a warrant they can go fuck ‘em selves.”

Submissions

17. Mr Woods, on behalf of the accused, submitted that this call had low probative value. There were two other calls between these two men (the accused and Mr Buddle) that day that were not objected to showing these two men were worried about Goran Nikolovski’s disappearance. It was submitted that given that there are a number of calls relied upon by the Crown to establish contact between the accused and Mr Buddle, it is not essential for the Crown's purposes that every call between those two men be tendered. Nor is it the first call between them that day.

18. It was submitted that there is a danger of unfair prejudice because of the derogatory terms used by the accused and the associated potential misuse by the jury of this evidence. That misuse was identified as being to reason from the fact that the accused has very adverse views about the police and their inquiries and their work on this case to reasoning that the accused wanted to carry out some action on his own part.

19. It was further submitted that the fact of further contact is also established in the agreed fact which is proposed to be put to the jury. It was submitted that all that this additional call does is raise the risk of the jury holding against the accused that fact that he is speaking in such derogatory terms about the police.

20. The Crown submitted that the probative value was high. It was submitted that the two men were talking about Goran Nikolovski’s disappearance and that it shows that the accused had an interest in relation to what is happening in respect of locating of Mr Goran Nikolovski and the police investigation at this early time. He is updating Mr Buddle. It was further submitted that it is relevant to motive that the accused was concerned in respect of the disappearance of Mr Goran Nikolovski, although it was conceded that there is nothing in the call that points to Mr Janceski at that early stage.

Ruling

21. I excluded this intercept under s 137 of the Evidence Act.

22. I was satisfied that the probative value was low. It is not disputed that the accused spoke with Mr Buddle on a number of occasions, and they knew each other. This is reflected in the agreed facts and other calls to be played which are not objected to. Call 1 is the second call to be played to the jury chronologically. The first call establishes that the accused and Mr Buddle are concerned about Goran Nikolovski going missing. In that call, there is a discussion between Mr Buddle and the accused about something having happened to Goran Nikolovski. In that context Mr Buddle says, "[i]f he's not home by tonight mate he's dead and buried brother". The accused says, "[a]s soon as you get down here man give me a call".

23. I am satisfied that the other calls are sufficient to establish that Mr Buddle and the accused were both concerned about whether Goran Nikolovski was still alive and that he had gone missing, and that Mr Buddle was so concerned that he was going to come down to Wollongong to have further discussions.

24. There is no reference to the deceased (Mr Janceski) being a suspect in this call.

25. As against the low probative value, I am satisfied that there is the risk of unfair prejudice within the meaning of s 137. The comments by the accused add no more to the other calls to be played than to show that the accused has an unhealthy disrespect for police. Although he makes similar comments in later calls, that is at a time when he is clearly frustrated with the police investigation into his friend’s death. At this stage, his disrespect to police cannot be attributed to frustration over the investigation into Goran Nikolovski’s death and might suggest to the jury he hates police simply because of his association with other criminals such as Mr Buddle.

26. For these reasons, I excluded this call.

Second intercept: - 3 November 2011 at 12.12pm from Mark Buddle to the accused

27. This is another call between Mark Buddle and the accused two days after the call outlined above. The two men discuss why police have not found Goran Nikolovski’s car as yet. In that context, the following exchange occurs:

“MB   Surely they’ll know where the car is.

MW   Yeah exactly fuck, it’s got to have a tracker brother 100%.

MB   Our life is tracked.

MW   Yeah exactly, phones everything, they’ve got something they have to.”

Submissions

28. It was submitted on behalf of the accused that this exchange was unfairly prejudicial because it will raise suspicions on the part of the jury about the accused's possible involvement in other types of criminal activity with Mr Buddle. It was further submitted that the Crown case is not advanced any further than the calls which are not the subject of objection and which the Crown will have before the jury anyway establishing contact between Mr Buddle and Mr Wiggins.

29. It was also submitted that in a subsequent call the accused refers to “doing some rounds” which, when combined with a suspicion that their lives were “tracked” because they were drug dealers and doing a few rounds, might well be doing a few rounds distributing prohibited drugs.

30. In reply, it was accepted that one possible interpretation is that "our" could be encompassing Mr Buddle and Goran Nikolovski and nobody else, but the jury could well interpret in another way and given the contact between Mr Wiggins and Mr Buddle that "our" was a reference to all of them.

31. On behalf of the Crown, it was submitted that this call was highly probative as it is consistent with the two men discussing the disappearance and the police investigation. Mr Buddle is making his own inquiries and prepared to keep Mr Wiggins updated, even if nothing is coming back. Then they further talk about meeting up together. Further, it shows that the accused is on notice that when he speaks with Mr Buddle, or some other people, he might be recorded which is a reason he was cautious in exactly what he says on the phone.

Ruling

32. I ruled that this call was admissible.

33. This is a significant conversation as the two men are starting to talk about the police investigation. The reference to being tracked is a reference to why police have not been able to find Goran Nikolovski’s car.

34. The two men suspect that police may have been tracking Goran Nikolovski and in that context Mr Buddle says, “our lives are tracked”, possibly referring to Goran Nikolovski and himself. A jury might well presume that a person who identifies as being the head of the Comanchero OMCG might suspect he was being recorded. And he was – this intercept was on Mr Buddle’s phone not the accused’s. The accused was not under suspicion at this time and was not being tracked – which is something there will be evidence about from police of which I can instruct the jury.

35. I am satisfied that the risk of any unfair prejudice is slight and can in any event be cured by a direction from me that the accused’s phone was not being “tracked” and that he was not a suspect at that time.

Third intercept: - 1 December 2011 at 5.56pm from Paula Geldeard to the accused

36. This is a call between Paula Geldeard and the accused. It is to be inferred that an article has appeared in a newspaper, presumably based on information provided by police. The accused and Ms Geldeard are angry about it and believe it to be untrue. In that context the following exchanges occur. V2 is the accused:

“V2:   Fucking bunch of idiots.

V1:   Yeah. Fucking idiots. I don’t, just, an, I don’t know what fucking, where they’ve been getting it from but, yeah. They’re just pulling at strings, I don’t know, they’re fuckwits.

V2:   They’re just pulling it from their arse, or they’re just, uh, going to fucking talk to any weak cunt gronk fucking junkie cunt on the street…

V1:   …and just listen to their fucked up stories.

…

V1:   Yep.

V2:   What I don’t understand is that the cops have got no idea. Why don’t they just let every cunt fucking go take an eye for an eye, for fuck’s sake.

V1:   Yeah, that’s it.

V2:   If they’re not fucking worried about it, you know what I mean?

…

V2:   Well you know, you know when you spoke to the Ds, right?

V1:   Yep.

V2:   Did they check every place possible on the way to Darko’s house, surveillance or cameras?

V1:   They won’t tell me. They won’t tell me.

V2:   Yeah, because every point where Goran left, when he left the house…

V1:   Yep.

V2:   …that, I’m fucking sure that someone’s house from there to Berkeley, they’ve got fucking surveillance. Have to. And seen the car drive past.

…

V1:   Like what they found, if they’ve found anything. If they’ve seen, you know, the car on surveillance or anything like that. They just won’t say nothing. They’re just, I don’t know why they’re not telling me, what, I don’t know. They just won’t. Unless they don’t know themselves.

V2:   Yeah. Fucking wankers. Um.”

(Emphasis added.)

Submissions

37. Although all of the call was objected to, the principal objection was to the italicised portion above. It was submitted that the reference to an “eye for an eye” gives rise to a real danger of unfair prejudice given the Crown case is one of vigilante justice.

38. Although detailed submissions were directed at the challenge to the italicised portion above, I was not ultimately required to rule on that portion, only the remaining intercept. That is because of some confusion about the history of the admissibility of the italicised portion which unfolded in this way.

39. The initial submission was that the Crown had agreed to edit out the accused’s “eye for an eye” comment at the last trial but inadvertently played the unedited version in court. There was no application for a discharge at that time, but the Crown agreed not to rely on it in his closing. Given there had been no ruling on it at the previous trial, there was nothing to prevent the Crown from changing its position at a new trial.

40. When I asked for this intercept to be played in court for the purpose of my ruling the Crown inadvertently played a version of the call which had already been edited to exclude the “eye for an eye” comment. No doubt that was the version meant to be played at the last trial. The unedited version was then played in court as well.

41. After I reserved my decision overnight, Mr Woods was able to examine the transcript of the last trial more closely and found that Latham J had in fact ruled the “eye for an eye” portion to be inadmissible. In those circumstances, the Crown had to overcome s 130A of the Criminal Procedure Act 1986 (NSW). When it was ascertained that there had already been a ruling on this discrete portion of the recording the Crown did not press that portion of the intercept further.

42. In those circumstances I was not required to rule on the “eye for an eye” comment. That left the remainder of the recording.

43. It was submitted on behalf of the applicant that the language was inflammatory and derogatory and that it was five months before the shooting. The “unfair prejudice” was identified as a risk that because the accused’s statements do not reflect well on him then he is likely a person involved in the wider factual scenario.

Ruling

44. I ruled that this edited call was admissible.

45. I am satisfied that the call is highly probative. During the call the accused asks, "[d]id they check every place possible on the way to Darko's house for surveillance or cameras?" This is consistent with his belief that Darko Janceski has some involvement with the disappearance of Goran Nikolovski, particularly given there is a later call when they talk about the house burning down and believing the carpet might have been used in the house. The call supports the Crown case that the accused has an interest in the disappearance of Goran Nikolovski, a frustration about the police investigation and that Darko Janceski was involved.

44. As for the risk of unfair prejudice, it is to be accepted that he is not speaking about the police in favourable terms, but this is someone whose close friend has just gone missing. He is expressing frustration that nobody has been charged. This is to be contrasted with the first call (which I excluded).

Fourth intercept: - 19 September 2012 at 8:22pm from Paula Geldeard to the accused

47. This is a call between Ms Geldeard and the accused months after the shooting. It takes place on the day a body was found which was initially suspected of being Goran Nikolovski (it was not – his body has never been found). The following exchange occurs during that call:

“V2:   They found a body, wrapped in carpet, but, who else would it be? Darko’s house got burnt down, he was probably there at there at the house, they wrapped it up in carpet and it’s up there.

V1:   Who told you that?

V2:   I can’t say, but.

V1:   Okay, all right.

…

V2:   So, so ring them, yeah, so ring them first thing in the morning and see what the fuck’s going on because the cunts won’t tell ya straight away. I mean, they, they wouldn’t tell ya ‘cause they probably wanna do a fuckin’ autopsy or some bullshit.

V1:   Yep.

V2:   I thought I’d just let you know.”

Submissions

48. Mr Woods objected to this call based on its low probative value in the context of further derogatory and inflammatory things said by the accused about the police. Its low probative value was said to be since this conversation takes place many months after the shooting and more than a year after the previous conversations to be tendered between Mr Geldeard and the accused.

49. The Crown did not accept that the probative value of the call was low. It was noted that the reference to surveillance, ("[d]id they check every place possible on the way to Darko's house for surveillance or cameras”), is consistent with the shooter knowing that there would be surveillance cameras in the area. The shooter has taken steps to cover the tracks. He is covered, not only with a helmet, but a balaclava and sunglasses underneath and clothing from head to toe. This shows an awareness of potential CCTV footage and other cameras that may be on the route. It was submitted that this call is relevant to the accused’s state of mind in that people can be identified from CCTV or other footage in public areas.

50. It was submitted that it could also inform the Crown case on motive; the belief that the accused had prior to the shooting that Darko was involved continued until at least 19 September 2012?

Ruling

51. I did not exclude this call. I am satisfied that the call has probative value. Even months after the shooting the accused still maintains his belief that Darko Janceski killed his friend Goran Nikolovski. It rebuts any suggestion that this belief by the accused was short lived. It remained a firmly held belief that continued until at least 19 September. It goes to the depths of his belief as well as his knowledge of CCTV cameras in the area.

52. It is to be accepted that in the context of discussing the finding of a body thought to be Goran Nikolovski, confirming his belief that Darko Janceski was responsible and indicating his knowledge of CCTV cameras in the area, the accused also speaks in disparaging terms about police, but I am satisfied that the probative value outweighs any unfair prejudice. In any event, for the reasons provided in relation to call 3 above, those disparaging comments are consistent with his earlier frustration with police for not investigating his friend’s death properly.

Conclusion

53. For these reasons, I made the following orders:

1. Call 1 is excluded.

2. Call 2 is not excluded.

3. Call 3 is partially excluded.

4. Call 4 is not excluded.

Amendments

19 September 2022 - Publication restriction removed

Decision last updated: 19 September 2022