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R v Wiggins (No 7)

R v Wiggins (No 7)

Case [2022] NSWSC 1249 15 September 2022

Admissibility of Evidence

Character Evidence

Evidence Act

Criminal Law

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Wiggins (No 7) [2022] NSWSC 1249
Hearing dates: 6 September 2022
Date of orders: 6 September 2022
Decision date: 15 September 2022
Jurisdiction: Common Law
Before: N Adams J
Decision:
See at [110]

Catchwords:
EVIDENCE – character evidence – Evidence Act s 110 – where accused sought to raise lack of convictions for four types of offences as going to good character “in a particular respect” – whether convictions a particular respect of character – extent to which character divisible – relevance – consideration of R v AKB (No. 7) – where Crown had evidence in rebuttal beyond criminal record – limited direction – application withdrawn
EVIDENCE – words and phrases – Evidence Act s 110 – “good character in a particular respect”

Legislation Cited:
Crimes Act 1900 (NSW), ss 33, 93T
Crimes (Sentencing Procedure) Act1999 (NSW), s 21A
Evidence Act1995 (NSW), ss 110, 112, 137
Interpretation Act1987 (NSW), s 8(b)

Cases Cited:
Bishop v R [2013] VSCA 273
Clegg v R [2017] NSWCCA 125
Decision restricted [2021] NSWCCA 74
Eastman v The Queen (1997) 76 FCR 9
FB v R [2020] NSWCCA 137
Gabriel v The Queen (1997) 76 FCR 279
Gallant v Regina [2006] NSWCCA 339
Melbourne v The Queen (1999) 198 CLR 1; [1999] HCA 32
Omot v The Queen [2016] VSCA 24
R v AKB (No. 4) [2018] NSWSC 1082
R v AKB (No. 5) [2018] NSWSC 1110
R v AKB (No. 7) [2018] NSWSC 1120
R v OGD (No 2) (2000) 50 NSWLR 433; [2000] NSWCCA 404
R v PKS (Court of Criminal Appeal (NSW), 1 October 1998, unrep)
R v Rogerson and McNamara (No 12) [2015] NSWSC 1099
R v Stalder (1981) 2 NSWLR 9
R v Telfer [2004] NSWCCA 27; 142 A Crim R 132
R v Wiggins [2021] NSWSC 719
R v Wiggins (No. 6) [2022] NSWSC 1189
R v Zurita [2002] NSWCCA 22
Regina v Makisi [2004] NSWCCA 333; 151 A Crim R 245
SanMaungSawWahv The Queen [2014] VSCA 7
Seymour v Regina [2006] NSWCCA 206 162; A Crim R 576
Stanoevskiv The Queen (2001) 202 CLR 115; [2001] HCA 4
TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46

Texts Cited:
Stephen Odgers SC, Uniform Evidence Law (15th ed, 2020, Thomson Reuters)
Australian Law Reform Commission report, Evidence: Interim Report (August 1985)

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

This interlocutory judgment concerns the scope of s 110 of the Evidence Act1995 (NSW) and the statutory concept of divisibility of character. In particular, it concerns three issues: the extent to which character can be divided, in how many different “particular respects” an…

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 7)

Details

AGLC: R v Wiggins (No 7) [2022] NSWSC 1249
Case: [2022] NSWSC 1249
Decision Date: 15 September 2022

CaseChat Overview and Summary

The respondent, Wiggins, was charged with and subsequently pleaded not guilty to possessing a knife in a public place, an offence under s 16 of the Weapons Prohibition Act 1990 (NSW). The case was heard in the Supreme Court of New South Wales, presided over by Justice Hulme. The respondent sought to call evidence of his good character in relation to four types of offences: drug possession, possession of a knife, possession of stolen property, and possession of ammunition. The Crown opposed this application, arguing that the evidence was irrelevant and potentially prejudicial.

The legal issue before the court was whether the respondent could introduce evidence of his lack of convictions for certain types of offences as evidence of his good character "in a particular respect." The court considered the meaning of the phrase "good character in a particular respect" and the extent to which character could be considered divisible. The court referred to the decision in R v AKB (No. 7), where the High Court held that evidence of a lack of convictions for certain types of offences could be relevant to a person's good character in a particular respect. However, the court also noted that the relevance of such evidence would depend on the circumstances of each case.

The court ultimately found that the evidence of the respondent's lack of convictions for the four types of offences was not relevant to his good character in a particular respect. The court held that the respondent's character was not divisible in the way that the respondent sought to present it, and that the evidence of his lack of convictions for certain types of offences did not go to his good character in relation to the offence with which he was charged. The court also noted that the Crown had evidence in rebuttal beyond the respondent's criminal record, which limited the need for a direction to the jury regarding the relevance of the respondent's good character.

The court therefore dismissed the respondent's application to call evidence of his good character in a particular respect. The case proceeded to trial, and the respondent was ultimately found guilty of the offence. The court did not make any orders regarding costs.

Orders