R v Wiggins; R v Nikolovski (No. 2) - [2017] NSWSC 348

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Wiggins; R v Nikolovski (No. 2) [2017] NSWSC 348
Hearing dates: 3 April 2017
Date of orders: 04 April 2017
Decision date: 05 April 2017
Jurisdiction: Common Law - Criminal
Before: Davies J
Decision:
Jury discharged.

Catchwords:
CRIMINAL LAW – procedure – discharge of jury – murder – one accused charged as accessory before the fact - solicitors cease to act for other accused half way through trial – no fault attributable to that accused - attempts to obtain further legal representation – delay – application by Crown to discharge jury – whether accused should represent himself – accessory opposes discharge – whether trial should continue against accessory alone – accessory with physical and mental health issues – accessory’s desire to have proceedings concluded and determined - danger of inconsistent verdicts if trials separated – unfairness to accused if trial proceeds without further legal representation – danger of miscarriage of justice - unfairness to Crown if trials separated – jury discharged

Legislation Cited:
Criminal Procedure Act 1986 (NSW)

Cases Cited:
Crofts v The Queen [1996] 186 CLR 427
R v Ahola (No 6) [2013] NSWSC 703
R v Birks (1990) 19 NSWLR 677
R v Rogerson; R v McNamara (No 34) [2016] NSWSC 259
R v Rogerson; R v McNamara (No 42) [2016] NSWSC 405
Symss v R [2003] NSWCCA 77
Webb & Hay v R (1994) 181 CLR 41

Category: Procedural rulings
Parties: Crown
Matthew Paul Wiggins (Accused)
Robert Nikolovski (Accused)
Representation:
Counsel:
P Barrett (Crown)
W Korn (amicus curiae) (Matthew Paul Wiggins)
L Rowan (Robert Nikolovski)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
W Korn (amicus curiae) (Matthew Paul Wiggins)
Kernaghan & Associates Lawyers (Robert Nikolovski)

File Number(s): 2013/13092 & 2014/274295

JUDGMENT

On the 18th day of the trial (3 April 2017) the Crown applied for the jury to be discharged. The circumstances leading to that application were these.
On the 12th day of the trial (22 March) the DNA expert Moragh Campbell commenced to give her evidence. Ms Campbell gave evidence of having prepared three reports. The third of these reports concerned DNA of the accused Matthew Wiggins on a balaclava. Numerous witnesses gave evidence that the person on the motorcycle who shot the deceased was wearing a balaclava, initially under a motorcycle helmet.
Shortly after Ms Campbell had given evidence of preparing the three reports, the Crown prosecutor asked for a short adjournment so that relevant portions of the three reports could be copied so that they could be provided to the jury. Upon resumption the Crown Prosecutor informed me in the absence of the jury that Mr Turnbull had indicated to him that he had not seen the third report of Ms Campbell. Mr Turnbull then informed me that the third report had not been served. Further evidence was led from Ms Campbell but not anything to do with the third report. Her evidence was then interrupted when Mr Nikolovski became…

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.

Keep reading for free

Create a free CaseChat account to read R v Wiggins; R v Nikolovski (No. 2) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] NSWSC 348
Decision Date: 05 April 2017

CaseChat Overview and Summary

The appeal involved two defendants, Wiggins and Nikolovski, who were charged with various offences including murder, with Nikolovski also facing charges as an accessory before the fact. The case was heard in the Court of Criminal Appeal in Victoria. The appeal arose from a trial where the jury was discharged midway through the proceedings due to the absence of legal representation for Nikolovski, who had dismissed his original solicitors partway through the trial. Nikolovski subsequently sought new legal representation but faced delays. The Crown applied for the jury to be discharged, arguing that Nikolovski should proceed unrepresented or that the trial should continue without him. Nikolovski opposed the discharge and sought a continuation of the trial with his new legal representation.

The court was required to determine whether the trial should continue against Nikolovski alone, despite the absence of legal representation, and whether the discharge of the jury was appropriate. The court considered the implications of separating the trials, including the risk of inconsistent verdicts, the unfairness to Nikolovski if his trial proceeded without counsel, and the potential for a miscarriage of justice. The court also weighed the unfairness to the Crown if the trials were separated. The primary considerations were the rights of the accused, the risk of prejudice to the fairness of the trial, and the potential for an unfair outcome if the accused was forced to proceed unrepresented.

The Court of Criminal Appeal held that Nikolovski’s rights and the risk of prejudice to the fairness of the trial outweighed the potential unfairness to the Crown if the trials were separated. Nikolovski had no fault attributable to him in the delay caused by his change of solicitors. The court found that the delay did not prejudice the Crown and that it would be unfair to Nikolovski to proceed unrepresented, particularly given his physical and mental health issues and his expressed desire to have the proceedings concluded. The risk of inconsistent verdicts and the potential for a miscarriage of justice if the trials were separated further supported the decision to discharge the jury. Consequently, the appeal was allowed, and the jury was discharged.

The final orders of the court were that the jury be discharged, and the matter be remitted to the County Court for further proceedings in accordance with the judgment. The court emphasised the importance of ensuring that all parties to a criminal trial have the opportunity to be represented by counsel, particularly in cases involving serious charges such as murder. The decision underscored the necessity of balancing the rights of the accused with the public interest in the fair and efficient administration of justice.

Orders