Wiggins v R - [2020] NSWCCA 256

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Wiggins v R [2020] NSWCCA 256
Hearing dates: 6 April 2020
Date of orders: 7 October 2020
Decision date: 07 October 2020
Before: Simpson AJA at [1]
Fagan J at [133]
Ierace J at [147]
Decision:
1. Leave to appeal against conviction granted;
2. Appeal allowed;
3. Conviction set aside;
4. There be a new trial.

Catchwords:
CRIME — appeals — appeal against conviction — miscarriage of justice – summing up – directions to jury – circumstantial case – applicable principles – McKell v The Queen (2019) 264 CLR 307; [2019] HCA 5 – whether summing up so lacking in balance and unfair as to occasion a miscarriage of justice – three complaints of substance – complaints made out relevant to the two most significant circumstances relied on in the Crown case – unfairness in the manner in which the jury was directed established

Legislation Cited:
Criminal Appeal Act 1912 (NSW), s 5(1)(b)
Criminal Appeal Rules (NSW), r 4
Evidence Act 1995 (NSW), s 38

Cases Cited:
Barca v The Queen (1975) 133 CLR 82; [1975] HCA 42
Green v The Queen (1971) 126 CLR 28; [1971] HCA 55
McKell v The Queen (2019) 264 CLR 307; [2019] HCA 5
Peacock v The King (1911) 13 CLR 619; [1911] HCA 66
R v Hillier (2007) 228 CLR 618; [2007] HCA 13
R v Hodge 2 Lewin C.C. 227
R v Sinanovic [2000] NSWCCA 396
R v Zorad (1990) 19 NSWLR 91
RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3
Taleb v R [2006] NSWCCA 119
The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35

Category: Principal judgment
Parties: Matthew Paul Wiggins (Applicant)
The Crown
Representation:
Counsel:
T F Woods (Applicant)
D Patch (Crown)
Solicitors:
Just Defence Lawyers (Applicant)
Director of Public Prosecutions (Crown)

File Number(s): 2013/13092
Decision under appeal

Court or tribunal:

Supreme Court of NSW

Jurisdiction:

Criminal

Citation:

[2018] NSWSC 1142

Date of Decision:

24 July 2018

Before:

Latham J

File Number(s):

2013/13092

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant was tried for and convicted of the murder of Darko Janceski and with intentionally causing grievous bodily harm to Slobodan Janceski. He was sentenced in respect of the two offences to terms of imprisonment totalling 34 years with a non-parole period of 25 years and 6 months.

The applicant sought leave to appeal against the convictions. Leave was required as the grounds of appeal proposed to be relied upon involved questions of mixed fact and law. Leave was also required under the first ground pursuant to r 4 of the Criminal Appeal Rules (NSW). While the applicant initially pleaded four grounds of appeal, there was a degree of overlap between the complaints which, together, were directed to the fairness of the primary judge’s summing up and directions to the jury.

The shooting of Darko Janceski occurred on 14 April 2012 in a suburban street while he was in the front yard of a house occupied by his parents. A man (“the gunman”) riding a blue and white Yamaha WR 450 trail bike arrived at the house and stopped outside. He was wearing a jacket, a full face helmet, a pair of Prada sunglasses, a balaclava and gloves. He shot and killed Darko Janceski. It was the Crown case that the applicant was the gunman; it sought to prove that he was the gunman by circumstantial evidence.

Slobodan Janceski, the applicant’s father, ran outside and a physical confrontation took place; Mr Janceski knocked off the gunman’s helmet and glasses but suffered injuries to his face which constituted grievous bodily harm.

The gunman, still wearing the balaclava, rode the trail bike off in the direction of a local Buddhist temple, the Nan Tien Temple. Left behind were the handgun, the helmet and the Prada sunglasses. Also found some distance away was an earplug. These items were forensically examined.

One week later, a Yamaha WR 450 trail bike was found, burned out, adjacent to the Nan Tien Temple, three kilometres away from the scene of the murder. It was the Crown case (but was disputed) that this was the bike that had been used in the shooting; this was a significant piece of evidence linking the applicant with the shooting as a blue and white Yamaha WR 450 trail bike was purchased by Christopher Madden, a close friend of Derek Ferguson (who was also a close friend of the applicant). Mr Madden bought the bike (referred to as the “Ryan bike”) from Mr Ryan; he gave evidence that he sold it shortly after purchasing it to a “man with dreadlocks”. There was no dispute that it was the Ryan bike that was burnt out at the Nan Tien Temple. It was the Crown case that the purchase of the Ryan bike could be linked with the applicant.

Evidence was given by Ms Ballardin, a next door neighbour of the Janceskis who witnessed the confrontation, regarding the appearance of the bike ridden by the gunman. Ms Ballardin’s evidence was significant as she said that she had seen the same bike on two previous occasions, one of which was prior to when the Ryan bike was purchased by Mr Madden. Ms Ballardin’s assertion that the bikes were the same relied on three features: the colour, the sound and its brand new appearance. If Ms Ballardin’s evidence were accepted, the Crown case linking the applicant with the bike used by the gunman lost force.

There was no dispute that the helmet and sunglasses found at the scene of the shooting had been worn by the gunman. No DNA other than that of the applicant was found on the inside front of the helmet or on the left and right arms of the sunglasses; DNA of others, as well as of the applicant, was found in the other locations.

The applicant sought to cast doubt on the strength of some aspects of the Crown case, and to advance an hypothesis consistent with his innocence. He sought to explain the presence of his DNA on the helmet and sunglasses by arguing that it may have been deposited on an earlier occasion when he had test ridden another Yamaha bike (an “R6”) that had been in Mr Ferguson’s garage and had used a helmet that had also been stored in the garage. Shane Dingle gave evidence that he also had ridden the R6, and had used the same helmet. He was “pretty sure” that that helmet was the helmet left by the gunman at the scene of the murder.

The applicant hypothesised that the absence of the gunman’s DNA on the inside of the helmet could be explained by the use of the balaclava, blocking any such deposit. He further hypothesised that the absence of the gunman’s DNA on the sunglasses could be explained if they had been worn on the outside of the balaclava.

The applicant placed some reliance on the absence of his DNA on the earplug.

Finally, the applicant advanced an argument based on the absence of any evidence that he was suffering an injury, or had sought medical attention. The underlying premise of this argument was that it could be expected that the gunman had suffered significant injury during the physical altercation, such that he would have sought medical attention. The applicant relied on evidence that, within a few hours of the murder, police had stopped a vehicle in which he was a passenger but did not detain the occupiers of the vehicle.

The trial judge directed the jury that there was no evidence that the helmet found at the scene was the same helmet. She also directed the jury:

(i) that there was no evidence of the position of the balaclava on the gunman prior to his arrival at the scene; and

(ii) that the features relied on by Ms Ballardin to assert that the bike she had previously seen and the gunman’s bike were the same were “generic features” that do not positively identify the bikes as one and the same.

The directions complained about by the applicant concerned the use to be made of circumstantial evidence, the DNA evidence, the absence of evidence of injury to the applicant, Ms Ballardin’s evidence concerning her previous sightings of the trail bike on which the gunman arrived at the scene, the absence of the applicant’s DNA on the earplug, and the position of the balaclava prior to the gunman’s arrival at the scene.

Held, granting leave and allowing the appeal (Simpson AJA, Fagan and Ierace JJ agreeing)

1. (a) It was factually incorrect to say that there was no evidence that the helmet worn by the gunman was the helmet in Mr Ferguson’s garage;

(b) the directions regarding the applicant’s DNA on the helmet and sunglasses were somewhat dismissive, in part, had an unmistakable tone of scepticism, and conveyed the opinion of the trial judge with respect to an important factual issue;

2. Directing attention only to “what the evidence tells you” excluded consideration by the jury of hypotheses not the subject of evidence but available and consistent with the accepted evidence. It implied that, unless there was express evidence of a possible fact, that possible fact was not available for consideration. That was inconsistent with the decision of Barca v The Queen (1975) 133 CLR 82; [1975] HCA 42: at [87].

3. There was no legitimate complaint about the directions with respect to the absence of the applicant’s DNA on the earplug. The hypothesis that the earplug was worn by the gunman did not rise above sheer conjecture: at [92]-[93].

4. Inherent in the trial judge’s direction that there was no evidence “in relation to the position of the balaclava” prior to the gunman’s arrival at the scene of the shooting was a suggestion that the balaclava may, on the journey to the scene of the shooting, have been worn in a different way to how it was worn when observed by witnesses at the scene, and in such a way as to permit transfer of DNA from the mouth of the wearer to the inside of the helmet. The observation was inappropriate and damaging to the defence case: at [99]-[100].

5. Were it not for the trial judge’s redirection regarding how the applicant’s DNA got on the inside arm of the sunglasses, there may well have been substance in the applicant’s complaints. The redirection cured the error and was not subject to any comment by senior counsel: at [111].

6. The submission that the absence of injury to the applicant pointed against his involvement was no more than mere conjecture; there was no unfairness in this respect: at [115].

7. The trial judge’s direction regarding the “generic features” of the bike relied on by Ms Ballardin was inappropriate. The observation was gratuitous, and, as correctly observed on behalf of the applicant, called into question, in a way that the Crown had not, evidence in the Crown case that might have assisted the applicant: at [121].

8. The applicant’s response to the two circumstances of greatest importance to the Crown case (the identity of the burned out bike and the DNA evidence) was wrongly undermined by the trial judge’s inappropriate directions. Together, these directions establish that the applicant’s case was not fairly put to the jury. There was a miscarriage of justice on that basis: at [123]-[126], [130].

Judgment

SIMPSON AJA: At just after 5 pm on 14 April 2012, in Gannet Avenue in Berkeley (a suburb in the Illawarra region of NSW), Mr Darko Janceski was shot dead by a man who arrived on a blue and white Yamaha trail bike. Mr Janceski’s father Slobodan (also known as Steve) Janceski heard shots and came to his son’s aid and confronted the gunman. A struggle took place. Slobodan Janceski was injured. The gunman left the scene on the trail bike.
On 15 January 2013 the applicant was arrested and charged with the murder of Darko Janceski and with causing grievous bodily harm to Slobodan Janceski. A trial commenced in the Supreme Court on 9 April 2018 and culminated, on 16 May 2018, with a verdict of guilty against the applicant on each count. On 24 July 2018 he was sentenced in respect of the two offences to terms of imprisonment totalling 34 years with a non-parole period of 25 years and 6 months, commencing on 9 July 2017. The applicant now seeks leave to appeal against the convictions. Leave is required because the grounds of appeal on which he proposes to rely involve questions of mixed fact and law: Criminal Appeal Act 1912 (NSW) s 5(1)(b). The applicant has not sought leave to appeal against the sentences imposed.
This was the third trial of the applicant on these charges. The first jury was discharged; the second was unable to reach a unanimous verdict.
Initially, the applicant pleaded four grounds of appeal as follows:

“Ground 1: The trial judge’s summing up was so lacking in balance and unfair that there was a miscarriage of justice;
Ground 2: The trial judge erred in her directions to the jury regarding circumstantial evidence;
Ground 3: The trial miscarried because the trial judge excluded evidence tending to prove a link between a Crown witness and a DNA profile recovered from the ear plug found at the crime scene; and
Ground 4: The verdicts are unreasonable and cannot be supported having regard to the evidence.”

At the hearing of the appeal the applicant abandoned Ground 4. The argument concentrated on Ground 1 although the applicant did not abandon Grounds 2 or 3. There is a degree of overlap in the three surviving grounds.

The Crown case

There was no direct evidence in the Crown case that implicated the applicant in the shooting. The Crown case was entirely circumstantial and relied on inferences to be drawn from a number of circumstances which, the Crown contended, pointed to the guilt of the applicant.
It is well established (as discussed in more detail below) that, in a case substantially based on circumstantial evidence, a jury may not convict unless the circumstances are such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused: Peacock v The King (1911) 13 CLR 619 at 634; [1911] HCA 66.
To a considerable extent the factual material on which the Crown case was based was not in dispute. What was in dispute was the inferences to be drawn from that factual material, ultimately whether it established, to the criminal standard, the applicant’s guilt.
The various circumstances on which the Crown relied to establish that the applicant was the gunman fall, generally, into five categories:

evidence of motive;

circumstances concerning the blue and white Yamaha trail bike on which the gunman arrived at and left the scene;

evidence of DNA located on a helmet and sunglasses left at the scene, indisputably worn by the gunman;

observations by local residents of the gunman, and of the trail bike that he was riding;

evidence of opportunity that the applicant had to commit the crime.

As indicated above, the shooting of Darko Janceski occurred at a little after 5 pm on 14 April 2012 in a suburban street. Mr Janceski was in the front yard of a house occupied by his parents where he was also temporarily resident. A man (“the gunman”) riding a blue and white Yamaha WR 450 trail bike arrived at the house and stopped outside. He was wearing a jacket, a full face helmet, a pair of Prada sunglasses, a balaclava and gloves. He fired seven shots from a handgun, three of which penetrated Mr Janceski’s head and killed him. It was the Crown case that the applicant was the gunman.
Slobodan Janceski heard the shots and ran outside. He seized a metal garden stake which he swung at the gunman, striking him on the helmet. The blow caused the helmet and sunglasses to be knocked from the gunman’s head, exposing the balaclava that he was wearing. A physical confrontation then took place, with the gunman assaulting Slobodan Janceski and pointing the handgun at him. Slobodan Janceski knocked the gun from the hand of the gunman; it fell to the ground, and a struggle ensued. Slobodan Janceski suffered injuries to the face which constituted grievous bodily harm.
The gunman had been knocked from the bike in the struggle. He remounted and rode off in the direction of a local Buddhist temple, the Nan Tien Temple. He was still wearing the balaclava. Left behind were the handgun, the helmet and the Prada sunglasses. Also found some distance away was an earplug. Police who were called to the scene took these items into their possession and they were forensically examined, including for DNA. The helmet was a full face road helmet, with visor, THH brand, of which only 22 had been imported into Australia.
Footage from a closed circuit television from a nearby residence showed a motor cycle travelling at high speed past the house at 5.10 pm.
Although there was no witness who actually observed the shooting, neighbours of the Janceskis who were in the vicinity heard the shots, and came to investigate. A number made observations of the gunman and the trail bike that he was riding and what he was wearing, including the balaclava. Various descriptions were given of the balaclava; generally the witnesses described a balaclava either with a single opening that exposed the eyes of the gunman, or with two eyeholes. Only two witnesses (of whom Slobodan Janceski was one) described a mouth opening in the balaclava.
One week later (on 21 April 2012) a Yamaha WR 450 trail bike was found, burned out, adjacent to the Nan Tien Temple, three kilometres away from the scene of the murder. It was the Crown case (but was disputed) that this was the bike that had been used in the shooting.
On 17 January 2013 police executed a search warrant at the home of Derek Ferguson, who was a close friend of the applicant. They took possession of two black balaclavas from a toolbox in his garage. They were also examined for DNA.
Mention needs to be made of three witnesses in particular. These were Shane Dingle, Derek Ferguson and Christopher Madden. Leave was granted to the Crown under s 38 of the Evidence Act 1995 (NSW) to cross examine each, on the basis of inconsistent evidence given by them in the previous proceedings.

The circumstances on which the Crown relied

(i) motive

The evidence concerning motive was largely undisputed. It was that the applicant had been a friend of a man called Goran Nikolovski. On 31 October 2011 Mr Nikolovski disappeared. He has never reappeared and his body has never been found. He is presumed dead. There was a good deal of evidence concerning the investigation of his disappearance and presumed death. Darko Janceski was believed by some (including Mr Nikolovski’s partner) to have been involved in his disappearance. The Crown case was that the applicant also held that belief and that that was what motivated him to kill Darko Janceski.

(ii) and (iv) the Yamaha trail bike

There is a degree of complexity in the factual background to this circumstance. That the gunman was riding a blue and white Yamaha trail bike was not in dispute. Nor was it in dispute that a Yamaha trail bike of the same kind was found, one week later, adjacent to the Nan Tien Temple, burned out. It was the prosecution case that the burned out bike was the bike that had been ridden by the gunman. That was an important element of the Crown case, because the burned out bike could be linked with the applicant, as explained below. Whether the bike ridden by the gunman was the bike found adjacent to the Nan Tien Temple was a factual matter of significant dispute.
In March 2012 Mr Matthew Ryan, from Cessnock (in the Hunter Valley, some distance from the Illawarra) advertised for sale a blue and white Yamaha WR 450 trail bike. It was purchased on 28 March 2012 by Christopher Madden, under a false name. Mr Madden lived in the Illawarra district. Like the applicant, he was a close friend of Derek Ferguson. Using a mobile telephone sim card purchased in a false name, and used only for the purpose of the purchase of the bike, Mr Madden made arrangements to meet Mr Ryan in order to make the purchase.
Mr Madden gave some evidence of the circumstances in which he purchased the Yamaha. He said that he travelled with Matthew Purches in a borrowed utility truck to the Cessnock area where he met Mr Ryan in the carpark of a fast food outlet. He did not test ride the bike. On his return to his home that evening, with the help of Mr Ferguson, he unloaded the bike from the truck. He said that he then rode the bike for about 10 hours before it developed a “knock”, so he decided to dispose of it. He did so by chaining it to a telegraph pole with a “For Sale” sign on it. After a day it was purchased by “a man with dreadlocks”. This bike has been referred to as “the Ryan bike”, a term it is convenient to adopt.

There was no dispute that the Ryan bike was the bike found burned out adjacent to the Nan Tien Temple on 21 April 2012. What was in dispute was whether it was also the bike ridden by the gunman. Expert evidence was given by Mr Rodney McCourt, a specialist forensic imagery analyst. Mr McCourt was asked to compare video images of the trail bike used by the gunman taken from a CCTV camera at a home near the murder scene, and still photographs of the Ryan bike supplied by Mr Ryan. He was unable to say with certainty that the images represented the same bike, but said that the evidence “lends strong support to the contention” that the images and the photographs were of the same bike.
Although the evidence did not establish, or suggest, a direct connection between the applicant and Mr Madden, it did establish that both were close friends of Mr Ferguson. It was the Crown case that the applicant had used his contacts for the purchase of the bike, presumably to distance himself from it when it was used in the murder. If the burned out bike (the Ryan bike) were shown to have been the bike ridden by the gunman, a significant link to the applicant would be shown. It was therefore important to the defence case to dislodge the Crown contention that the Ryan bike and the gunman’s bike were one and the same.
Ms Carmen Ballardin, who was a next-door neighbour of the Janceskis, was in her kitchen at the time of the shooting. She heard the approaching bike, and then the gunshots, and went outside to investigate. She saw the confrontation between the gunman and Slobodan Janceski and saw the gunman ride off past her house towards the end of the street. She made some observations of the bike, which she said was a “very nice bright blue and white … brand new …”. She said that she had seen this bike coming to or going from Gannet Avenue on two previous occasions, respectively about three weeks and two weeks prior to Mr Janceski’s murder. She noted the unusual colour of the bike, that it was “brand new” with brand new number plates and that it was very loud. She was confident in her evidence that it was the same bike.
Ms Ballardin’s evidence was potentially important to the defence case. If the bike ridden by the gunman was indeed the same bike she had seen on the two previous occasions she described (and her dates were correct) it could not have been the Ryan bike. Three weeks before 14 April was 24 March. Two weeks before 14 April was 31 March. The Ryan bike was purchased by Mr Madden on 28 March. If Ms Ballardin’s initial evidence of the time at which she first saw the bike was accepted, the Crown case connecting the applicant with the motor bike used by the gunman lost much (if not all) of its force. However, Ms Ballardin’s evidence with respect to dates was not straightforward. She attempted to pinpoint the dates on which she had previously seen the bike by reference to her bank records, which she linked with shopping purchases. In her evidence in chief, she agreed that her first sighting of the bike was “the last week in March”.

(iii) the DNA evidence

There was no dispute that the helmet and sunglasses found at the scene of the shooting had been worn by the gunman. The applicant’s DNA was identified on four locations on the helmet, inside the front portion near the mouth, on the base, on the plastic portion of the front (outside) and on the chin strap. No DNA other than that of the applicant was found on the inside front of the helmet or on the left and right arms of the sunglasses; DNA of others (unidentified), as well as of the applicant, was found in the other locations. DNA of Shane Dingle was identified on the chin strap. Two fingerprints of Mr Dingle were also on the top of the helmet.
From the applicant’s point of view the evidence of his DNA on and in the helmet, particularly that from the inside of the helmet near the mouth, was particularly damaging. It was a reasonable assumption, in the absence of an alternative explanation, that the DNA originated from the last person who had worn the helmet (who undoubtedly was the gunman). With less force, the same could be said of the DNA taken from the chinstrap and the other locations.
DNA of the applicant was also identified on the right and left inside arms of the sunglasses. There was a large deposit on the right arm, which an expert witness (Ms Sesardic) said was possibly a transfer of saliva. DNA from no other source was identified. That made this evidence also very damaging to the applicant. As with the helmet, in the absence of an alternative explanation, there was a clear inference that the DNA originated from the last person who had worn the sunglasses (who, again, was undoubtedly the gunman). It is not unreasonable to say that the DNA evidence was critical to the Crown case.
Simple logic dictated that, unless some rational explanation for the presence of the applicant’s DNA on these items and for the absence of DNA from any other source was forthcoming, this evidence strongly suggested that the applicant was the gunman. The applicant proposed such an alternative explanation, which will be outlined below.
DNA was also taken from the two black balaclavas seized in the execution of the search warrant at the home of Mr Ferguson. On the first was DNA of at least four people. The applicant could not be excluded as a major contributor. On the second was a mixture of DNA that originated from three individuals. Derek Ferguson could not be excluded as the major contributor. (There was nothing that identified either balaclava as having being worn by the gunman.)
The trial was conducted on the basis that the DNA evidence was not in dispute. It was accepted that the applicant’s DNA was found on the four locations on the helmet, on the sunglasses, and on the balaclava, and that DNA of no other individuals had been found on the inside of the helmet, or on the sunglasses.
There was evidence from Ms Sesardic that it is not possible to determine the date or time of DNA deposits.

(v): opportunity

There was evidence that the applicant had the opportunity to commit the crime. As that does not feature in the issues raised on appeal is not necessary to discuss it further.

The defence case

The applicant did not give or call evidence. Rather, he sought to cast doubt on the strength of some aspects of the Crown case and to advance a hypothesis consistent with his innocence, in particular by proposing an explanation for the presence of his DNA on the helmet and the sunglasses. That hypothesis, in short, was that his DNA may have been deposited on the helmet and sunglasses when he had used those items on a previous occasion, in circumstances to be outlined below, and that the helmet and sunglasses had subsequently come into the possession of the gunman, who wore them in such a way as to leave no DNA of his own when he travelled to Gannet Avenue to murder Darko Janceski.
Having regard to the arguments advanced on appeal, it is necessary to explain aspects of the applicant’s response to the Crown case. It is the manner in which these responses were dealt with by the trial judge in the summing up that gives rise to the first and second grounds of appeal.
Three of the matters on which the applicant relied call for attention.

(i) the applicant’s DNA evidence on the helmet and the sunglasses

As already indicated, the applicant did not dispute that his DNA was found on the helmet and the sunglasses, each of which had indisputably been worn by the gunman. Just as it may be said that the DNA evidence was critical to the Crown case, the applicant’s proposed explanation was critical to his defence. His proposed alternative explanation for the presence of his DNA on these items relied on evidence given (in the Crown case) by Messrs Madden, Ferguson and Dingle.
Mr Madden said that he had been the owner of another Yamaha road bike, known as an “R6”. He said that he sold the R6 to Kane Wade, who defaulted on payment and that he then reclaimed possession of the bike. He said that he then took the bike to Mr Ferguson’s house so that Mr Dingle, who was looking for a bike to buy, could test ride it. He then either left the bike at Mr Ferguson’s house, or later returned it there. Mr Madden denied that he left a helmet or sunglasses with the bike. Eventually, Mr Dingle purchased the bike.
Mr Ferguson gave evidence that Mr Madden had left the R6 at his (Mr Ferguson’s) garage because he (Mr Ferguson) might have known someone who would buy it. He said that when he left the bike there Mr Madden also left a helmet (which he described as “dark coloured”, “enclosed”, and a “full face helmet”) and gloves. Mr Ferguson’s evidence that Mr Madden had left a helmet with the bike was in direct conflict with the evidence of Mr Madden, who denied having done so. Mr Ferguson was not sure if there were also sunglasses. Mr Ferguson’s own helmet and riding gear were also in the garage. He said that the applicant gave consideration to purchasing the R6 and took it away for a few days to test ride it. He also took the helmet that Mr Madden had left with the bike. Mr Ferguson made no mention of the applicant using the sunglasses. Subsequently, Mr Dingle test rode the bike and eventually purchased it.
Mr Dingle gave evidence that, before he purchased it, he test rode the R6, which he picked up from Mr Ferguson’s garage. He said that present in the garage were a black full face helmet and a jacket, black gloves and glasses. When he test rode the bike he used the helmet but not the other items. Mr Dingle’s evidence in this respect was potentially important for the applicant. Because his DNA and fingerprints were located on the helmet worn by the gunman, it provided something of a link between that helmet and the helmet in Mr Ferguson’s garage. That, in turn, could give some support to a hypothesis that the helmet worn by the gunman was the helmet from Mr Ferguson’s garage that had previously been used by the applicant.
In previous proceedings Mr Dingle had been shown photographs of the helmet found at the scene of Mr Janceski’s murder and, on one occasion, the actual helmet. It was put to him that at no stage had he “actually recognised” the helmet as the one from Mr Ferguson’s garage that he had worn, to which he replied:

“Not a hundred percent, but yeah, I’m pretty sure it’s the one like.”

Mr Dingle pinpointed the date of his purchase of the R6 as before 14 April 2012. He did this by reference to a photograph taken at the construction of a shed at the home of a relative.
From this evidence it was hypothesised on the applicant’s behalf that his DNA could have been deposited in the helmet and on the sunglasses when he test rode the R6 bike from Mr Ferguson’s garage. Underlying that proposition was a premise that the helmet and sunglasses used by the gunman were (or may have been) those left with the R6 in Mr Ferguson’s garage, and that they subsequently came into the possession of the gunman. That was why Mr Dingle’s evidence that he was “pretty sure” that the helmet found at the scene was the one he had used was important to the applicant.
On this scenario, the gunman (if the applicant were not the gunman) used the helmet and sunglasses in such way as to leave no DNA residue and to leave undisturbed the applicant’s DNA that had already been deposited on those items. The absence of the gunman’s DNA on the inside of the helmet could be explained, it was hypothesised, by his use of the balaclava which could have blocked any such deposit (if it did not have a mouth opening).
One difficulty with the applicant’s hypothesis was Mr Ferguson’s evidence that, after the applicant had had access to the R6, Mr Dingle test rode the bike – and Mr Dingle gave evidence that he had used the helmet. Yet no DNA from Mr Dingle was found on the interior of the helmet. His DNA was found only on the chin-strap. That would, of course, have been consistent with the applicant’s hypothesis if Mr Dingle had also worn a balaclava, without a mouth opening. But Mr Dingle was expressly asked if he had worn anything under the helmet and denied having done so.
It was further hypothesised on behalf of the applicant that the absence of DNA from “the real gunman” on the sunglasses could be explained if the gunman wore the sunglasses not under, but outside, the balaclava. This argument recognised that, if the sunglasses had been placed next to the skin of the wearer (under the balaclava), it could be expected that his DNA would be deposited. But if the sunglasses were worn outside the balaclava, the applicant’s DNA, deposited there during the test ride, could have remained in place and not been overlaid by the DNA of “the real gunman”. The argument caused some complication when the trial judge came to sum up, as explained below.

(ii) the earplug

The applicant also placed emphasis on the earplug found at the scene. It was found to have on it DNA from at least three individuals, none of whom could be identified. That meant that the DNA did not come from the applicant, nor from Messrs Dingle, Madden or Ferguson, all of whom had given DNA samples for forensic examination purposes. The largest component of the DNA on the earplug came from an unidentified individual, who was called “Individual B”.
The rationale of this aspect of the applicant’s hypothesis was:

(a) that it could and should be inferred that the earplug came from the gunman; and

(b) that it could be expected that the DNA of a person who used an earplug would be on the earplug;

therefore, the absence of the applicant’s DNA on the earplug was a powerful argument against his involvement in the shooting.

(iii) no evidence of injury to the applicant

Finally, the applicant advanced an argument based on the absence of any evidence that he was suffering an injury, or had sought medical attention. The underlying premise of this argument was that, having regard to Slobodan Janceski’s evidence concerning the nature and intensity of the struggle between himself and the gunman, and the extent of his own injuries, it could be expected that the gunman also had suffered significant injury, such that he would have sought medical attention. That there was no evidence of injury to the applicant was a factor pointing against his involvement.
In this respect the applicant relied on evidence that, within a few hours of the murder, police had stopped a vehicle in which he was a passenger, and had questioned the driver, but had not detained the occupants of the vehicle. To complete that evidence, the evidence showed that police were looking for Goran Nikolovski’s brother (Robert Nikolovski), who was, by reason of suspicions that Darko Janceski had killed Goran Nikolovski, a suspect in the murder of Darko Janceski. When it was found that Robert Nikolovski was not in the vehicle, the driver was allowed to drive off.

The proposed appeal

Grounds 1 and 2 of the proposed appeal raise essentially the same issues. By ground 1 the applicant complains that the trial judge disparaged the arguments made on his behalf, particularly those in which he advanced an alternative explanation for the circumstances in which his DNA came to be on the helmet and sunglasses, and thus a reasonable hypothesis consistent with innocence. In general, he complains that the trial judge “offered counter-points or rebuttals” to each of his arguments, “wrongly used the summing up as a vehicle to strengthen the prosecution case” and “gave what was, functionally, a second address for the prosecution”. The applicant asserts that the trial judge intruded her own opinions on the factual issues for determination in such a way as to cause a miscarriage of justice.
Similarly, under ground 2, specifically concerning the directions given with respect to proof of a Crown case by circumstantial evidence, the applicant complains that the trial judge unfairly undermined his proposition that there was, on the evidence, an available reasonable hypothesis consistent with innocence.
By ground 3 the applicant complains of the exclusion of evidence concerning the earplug, which, it was suggested, could have established a link to a Crown witness.

The summing up

These being the issues on appeal, it is necessary to set out, at some length, the relevant passages of the summing up. This is conveniently done by way of an annexure to these reasons. Those passages of which the applicant makes specific complaint have been printed in bold type, with surrounding passages to give context. Headings and paragraph numbers have been added to facilitate reference. That means that the extracts it is necessary to incorporate in the body of these reasons may be more limited than would otherwise be the case.

Applicable legal principles

(i) the role and duty of a trial judge in summing up

For many years it was understood that, in summing up in a criminal trial, a judge is entitled to comment, and comment strongly, on the factual issues in dispute (although that must be done with circumspection): Green v The Queen (1971) 126 CLR 28 at 34; [1971] HCA 55; RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3 at [42]; R v Zorad (1990) 19 NSWLR 91; R v Sinanovic [2000] NSWCCA 396; Taleb v R [2006] NSWCCA 119. That understanding needs reconsideration in the light of recent authority: McKell v The Queen (2019) 264 CLR 307; [2019] HCA 5.
In RPS the plurality said:

“42. … And, of course, it has long been held that a trial judge may comment (and comment strongly) on factual issues. But although a trial judge may comment on the facts, the judge is not bound to do so except to the extent that the judge’s other functions require it. Often, perhaps much more often than not, the safer course for a trial judge will be to make no comment on the facts beyond reminding the jury, in the course of identifying the issues before them, of the arguments of counsel”. (Italics in original; internal citations omitted)

That remark has to be seen in its context. In the preceding paragraph their Honours had said:

“41. … The fundamental task of a trial judge is, of course, to ensure a fair trial of the accused.”

It was the applicant’s submission that, since the decision in RPS, the subsequent decision of the High Court in McKell “has changed the landscape in this area of law”. In McKell the plurality (Bell, Keane, Gordon and Edelman JJ) quoted [42] of RPS (without adverse comment), but added significant refinements. Their Honours said:

“3.    A trial judge’s ‘broad discretion’ to comment on the facts of the case in a criminal trial is an aspect of the power by which a trial judge discharges the fundamental task of ensuring a fair trial of the accused. The discretion is to be exercised judicially as part of ensuring that the facts of the case are put ‘accurately and fairly’ to the jury. It is not exercisable, at large, independently of the fundamental task described above. A fortiori, the trial judge’s summing up is not an occasion to address the jury in terms apt to add to the force of the case for the prosecution or the accused so as to sway the jury to either view. For that reason, as the plurality in RPS stated, judicial circumspection is required in the exercise of the discretion to comment.
…
5.   In addition, it should be clearly understood that the risk of such unfairness is such that a trial judge should refrain from comments which convey his or her opinion as to the proper determination of a disputed issue of fact to be determined by the jury.
…
35.    A trial judge must sum up for the jury the case presented by each of the prosecution and the accused after each side has addressed the jury. In Domican v The Queen [(1992) 173 CLR 555 at 561; [1992] HCA 13], Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ observed that the ‘requirement of fairness means that ordinarily the respective cases for the prosecution and the accused must be accurately and fairly put to the jury’.” (Some internal citations are omitted).

“Such unfairness” to which their Honours referred in [5] was unfairness resulting from statements made by the trial judge “so lacking in balance” that they should “be seen as an exercise in persuading the jury of the appellant’s guilt”.
In the consideration of the fairness and balance of a summing up it is necessary that the summing up be considered “in its entirety and in the context of the issues and the evidence led in the trial” (McKell at [30]).

(ii) where a prosecution case is based on circumstantial evidence

With respect to a Crown case based on circumstantial evidence, the enduring statement of principle derives from R v Hodge 2 Lewin C.C. 227, adopted in the judgment of Griffiths CJ in Peacock v The King (1911) 13 CLR 619 at 634; [1911] HCA 66:

“… before [the jury] could find the prisoner guilty they must be satisfied, ‘not only that those circumstances were consistent with his having committed the act, but they must also be satisfied that the facts were such as to be inconsistent with any other rational conclusion than that the prisoner was the guilty person’.” (italics added in Peacock)

The principle has been repeatedly restated including in, for example, Barca v The Queen (1975) 133 CLR 82 at 104; [1975] HCA 42, and The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [46].
Questions may arise about what constitutes a reasonable inference consistent with innocence:

“… an inference to be reasonable must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence”; Peacock, at 661, per O’Connor J, cited in Barca at p 104.

These statements were adopted by the High Court in Baden-Clay, at [46]-[47], in a judgment of the Court. Their Honours added:

“47. … Further, ‘in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence’ … The evidence is not to be looked at in a piecemeal fashion, at trial or on appeal” (italics in original)

The Court cited R v Hillier (2007) 228 CLR 618; [2007] HCA 13 at [46] and [48] for these propositions.

Where an accused person, in answer to a circumstantial case, advances “an hypothesis consistent with innocence”, the hypothesis must be consistent with the evidence in the case and go beyond “mere conjecture”. That does not entail any obligation on the accused person to adduce evidence to prove or support the hypothesis. It is sufficient if such an hypothesis can be derived, reasonably, from the evidence in the Crown case. No standard of proof applies. All that is necessary is that the hypothesis be such as to raise a reasonable doubt that the accused person has been proved guilty. Nor is it incumbent on an accused “to establish that some inference other than that of guilt should reasonably be drawn from the evidence: Barca at 105.
In Barca the applicant was charged with the murder of his brother-in-law. The case put forward by the Crown was circumstantial. There were some features of the evidence in the Crown case that could have been seen to implicate his father as the killer. The trial judge told the jury that there was no evidence that the father had been involved in the killing. The High Court, by majority, held that to have been an incorrect direction, because there was, in the evidence in the Crown case “some circumstantial evidence” pointing to the father’s involvement. The circumstantial evidence was “far too slight” to support a positive finding of guilt but, nevertheless, a finding that the father may have committed the murder could reasonably be based on the evidence. That would be sufficient to constitute the basis for a reasonable hypothesis consistent with the innocence of the accused and therefore defeat the Crown’s circumstantial case.
Just as it is juries themselves who set the standard of what is a reasonable doubt in the circumstances of any case (Green at 33), so it is juries who determine whether a proposed alternative hypothesis is reasonable (Barca at 105). A judge is entitled to “restore, but to do no more than restore, the balance” where “possibilities which are in truth fantastic or completely unreal” have been presented as a basis for a reasonable doubt (Green at 33). The same must apply to an alternative hypothesis that is “fantastic or completely unreal” or, indeed, has no basis in the evidence.
These principles are no more (and no less) than a reflection of the more general, and fundamental principle that the onus lies on the prosecution to prove the guilt of an accused person beyond reasonable doubt. They are not always easy to apply in practice.

The applicant’s argument – grounds 1 and 2

This was not a case in which the “alternative hypothesis consistent with innocence” involved a posited alternative cause of death (see Baden-Clay) or an alternative perpetrator of a crime (as in Barca). This was a case in which the applicant proposed an alternative hypothesis for one of the important circumstances – possibly the most important – of the Crown case.
In what follows, references to paragraph numbers in the summing up are references to paragraph numbers that have been assigned to the extracts of the summing up in the annexure to these reasons.
On behalf of the applicant the transcript of the summing up was subjected to minute scrutiny. Many of the criticisms that emerged from that scrutiny were unfair or trivial. For example, criticism was made of the direction given at an early point in the summing up (at [5]) where the trial judge told the jury that they were being asked by the Crown to make a critical finding of fact from a combination of facts established by the evidence and that she would explain how to go about the fact finding task. The applicant contended that that suggested to the jury that the facts on which the Crown relied were established, rather than that it was the task of the jury to determine whether or not those facts were established. That submission overlooks two important things: first, that, in a part of the summing up that followed shortly after that general direction and that is not the subject of criticism, the trial judge gave comprehensive directions about the fact finding exercise the jury was to undertake; second, the fundamental facts on which the Crown relied were, to a significant extent, not in dispute. It was the inferences to be drawn from facts the jury found to have been established that were in dispute. (That included, importantly, whether the Ryan bike was the bike ridden by the gunman, as well as the “critical finding” that the applicant was the gunman.)
The applicant also submitted that, in that same direction:

“Like a prosecutor, her Honour indicated that she would guide the jury through the process of making the ‘critical finding of fact’, namely that the [applicant] was guilty.”

That contention was unwarranted and without foundation.

The applicant then submitted that the direction (put by way of suggestion) at [36] of the summing up, that if the jury were satisfied beyond reasonable doubt that the applicant was the “shooter”, it would follow that the Crown had proved both counts. The complaint was that this

“… might have conveyed to the jury that they did not need to consider the elements of the offence[s] or that they could accept, without further consideration, that they were established”.

In circumstances where there was no dispute that the elements of the offences were made out, and that the question for determination by the jury was the identity of the perpetrator, that submission was also without any proper foundation.
Another criticism was that the direction at [35] of the summing up, that the critical issue for the jury to resolve was whether the Crown had proved beyond reasonable doubt that the person on the bike was the applicant, “oversimplified” the task of the jury, which was to exclude all reasonable hypotheses consistent with innocence.
That criticism also should be rejected. What the trial judge told the jury was perfectly correct. It was not in issue that the man on the bike was the man who shot Darko Janceski and engaged in a confrontation with Slobodan Janceski. The direction was merely another way of saying that the dispute in the trial was whether the Crown had proved beyond reasonable doubt that the applicant was the gunman, or that the applicant was the person who committed the murder. If that were proved, there were no reasonable hypotheses consistent with innocence.
There are, however, criticisms of more substance.
The applicant’s case was most clearly put in his submissions in reply to lengthy written submissions provided by the Crown. As I understand the applicant’s argument, it was that, where he sought to make a response to an aspect of the Crown case, the trial judge directed the jury in terms that supported the Crown case and undermined and dismissed his response. The applicant’s submissions in reply identified six aspects of the summing up, which, it was contended, support the complaint of unfairness and lack of balance. It is convenient to deal with them in the sequence adopted by the applicant (which is not the sequence in which they appear in the summing up). In order to put the submissions in context, some repetition will be unavoidable.

(i) the applicant’s DNA on the helmet and sunglasses

The directions relevant to this compliant are to be found at [102]-[106] and [113]-[117] of the summing up.
As is clear from what is set out above, an important part of the Crown case lay in the applicant’s DNA on various locations on the helmet, and on the sunglasses. It was important because a strong inference is available that the DNA originated from the last person to wear those items, who was, indisputably, the gunman. In brief, what was suggested on behalf of the applicant by way of explanation was that it was reasonably possible:

that the helmet and sunglasses worn by the gunman were the helmet and sunglasses that had been in Mr Ferguson’s garage;

that they had been used by the applicant when he test rode the R6;

that it was on this occasion that his DNA had been deposited; and

that his DNA had not been disturbed when the gunman later used those items because of the use of the balaclava.

At [113] of the summing up the trial judge described the proposition that the helmet in the garage was the helmet worn by the gunman as a “foundational assumption” that the jury were asked to accept; she then said (at [114]) that there was no evidence to establish that assumption, but whether it was a reasonable possibility that the helmet from Mr Ferguson’s garage was worn by the applicant during a test ride and then used by somebody else during the shooting “is a matter for you”. She concluded:

“114. … I’m just pointing out what the evidence tells you.”

The trial judge then referred to the conflicting evidence of Mr Ferguson and Mr Madden about whether the helmet and sunglasses had been left with the bike and to a defence submission that, in the circumstances, there was “nothing remarkable” about Mr Ferguson, Mr Dingle and Mr Madden being vague about such matters because it was “inconsequential” in their lives and they could not be expected positively to identify the helmet. She said:

“117. Well that’s an entirely appropriate submission but at the end of the day you have to come back to the evidence. Whether you think that is a reasonable possibility, that is that a pair of Prada sunglasses were left in Mr Ferguson’s garage and were worn by the accused during a test ride of the R6 and then used by someone else during this shooting of Mr Janceski, is a matter for you and bear in mind, ladies and gentlemen, it’s not just one of those items. Both of those items, the helmet and sunglasses, found their way, according to the accused’s case, from Mr Ferguson’s garage to the shooter and were both used on 14 April.” (bold added to identify the passages of which the applicant complains)

The applicant makes three complaints of these directions:

that “it is an analysis of perceived shortcomings”, is “dismissive”, and that “it reads like advocacy”;

that it was factually incorrect to say that there was no evidence identifying the helmet worn by the gunman as the helmet in Mr Ferguson’s garage; Mr Dingle had given evidence that he was “pretty sure” that the helmet at the scene was the helmet in the garage and his fingerprints and DNA were on the helmet;

that the trial judge was “not performing any of the recognised functions of a trial judge in summing up …” (giving directions of law, summing up the evidence, or stating an argument put by a party); rather, she was indicating her view, and, contrary to what was held in McKell, impermissibly expressing an opinion.

The second complaint must be accepted. It was, as was pointed out in argument, factually incorrect to say that there was no evidence that the helmet worn by the gunman was the helmet in Mr Ferguson’s garage. There was the evidence of Mr Dingle to that effect.
I also accept, reluctantly, that the directions, taken together ([113]-[115] and [117]) are somewhat dismissive. In particular, the closing two substantive sentences of [117]:

“… bear in mind, ladies and gentlemen, it’s not just one of those items. Both of those items, the helmet and the sunglasses, found their way, according to the accused’s case, from Mr Ferguson’s garage to the shooter …”

have an unmistakable tone of scepticism and conveyed the opinion of the trial judge with respect to an important factual issue. The jury was, in my opinion, invited to share her Honour’s scepticism of the hypothesis advanced on behalf of the applicant.

It may here be observed that the trial took place in May 2018, before delivery of the judgment in McKell, and at a time when it was considered that a trial judge was entitled to express (even strongly) an opinion on the facts of a case, provided that was done with “circumspection”. When she did convey an opinion the trial judge reminded the jury that the ultimate decision on the facts was for them. However, in this respect, the summing up did not meet the more exacting requirements of McKell.
The interpolation of “I’m just pointing out what the evidence tells you” (in [114]) was inappropriate and potentially misleading. What the jury had to do was consider whether the applicant’s hypothesis was one that was reasonably available on the evidence that they accepted. The trial judge had already (at [44]-[49]) correctly directed the jury about the fact finding process. She correctly directed the jury (at [53]) to exclude speculation, conjecture and supposition. She correctly directed the jury at [50] to ask themselves whether there was a reasonable conclusion, arising from the combination of the facts they found to be established, that was inconsistent with the guilt of the accused, and that, if so, the Crown case must fail. But directing attention only to “what the evidence tells you” excluded consideration by the jury of hypotheses, not the subject of evidence, but available and consistent with the accepted evidence. It implied that, unless there was express evidence of a possible fact, that possible fact was not available for consideration. That was inconsistent with the decision of the High Court in Barca. This complaint must be upheld.

(ii) the absence of the applicant’s DNA on the earplug

The relevant directions are at [108] of the summing up.
The underlying premise of the applicant’s argument with respect to the earplug was that it was very likely to have come from the gunman when the helmet and sunglasses were dislodged and that it could be expected that an earplug would bear DNA of the last person who had worn it. As might be expected, there was DNA on the earplug, but it was not that of the applicant. Since there was no DNA of the applicant on the earplug he could not have been the gunman.
The trial judge directed the jury (at [108]) that there was no evidence “that the earplug was worn in the ear of the shooter” and added that defence counsel had acknowledged that to be a speculative conclusion.
The applicant argued that it was incorrect to say that there was no evidence that the earplug was worn in the ear of the shooter, because “there was ample circumstantial evidence” in support of the defence theory.
I do not accept that that was so. While there was clear evidence that the helmet and sunglasses came from the gunman, there was no evidence that the earplug did. The earplug was found some distance from the other items. It was common ground that the balaclava worn by the gunman remained in place, making it unlikely that an earplug had been dislodged. The hypothesis that the earplug was worn by the gunman did not rise above sheer conjecture.
There is no legitimate complaint about the directions in this respect.
Her Honour appears to have been incorrect in saying that it was acknowledged by senior counsel for the applicant that the proposition was “a speculative conclusion”. The Crown has not identified any passage in the transcript where senior counsel made such a concession. That is a relatively minor matter which does not warrant upholding this complaint.

the applicant’s proposed explanation for the absence of any DNA other than his own (including that of the “real shooter”) on the interior of the helmet

The relevant directions are at [77]-[78] of the summing up.
The third aspect of the applicant’s complaints about the summing up also concerned his alternative hypothesis for the DNA evidence, which was, without a plausible explanation, highly incriminating. The absence of any DNA other than his own on the interior of the helmet was a significant obstacle to the applicant’s “alternative hypothesis”. In the ordinary course, it might be expected that the user of a helmet would deposit some DNA on the interior, particularly in the mouth area. The applicant proposed that the absence of any other DNA could be explained by the fact that the gunman wore a balaclava which could have blocked any transmission of his DNA.
After referring to this argument, the trial judge observed (at [78]) that there was no evidence “in relation to the position of the balaclava” prior to the gunman’s arrival at the scene of the shooting. She then referred to evidence of Ms Sesardic to the effect that it was possible, depending on the nature of the balaclava, for DNA to be deposited through the fabric.
The applicant described this direction as “very problematic because it involved an invitation to the jury to speculate beyond the evidence in the case” and was calculated to strengthen the Crown case.
There is substance in this complaint. Inherent in the direction is a suggestion that the balaclava may, on the journey to the scene of the shooting, have been worn in a way different to the way it was worn when observed by witnesses at the scene, and in such a way as to permit transfer of DNA from the mouth of the wearer to the inside of the helmet.
There was no call for the trial judge to make such a suggestion. There was no evidence to support it. It was not an answer that had been proposed by the Crown. It was plainly supportive of the Crown case and significantly undermined the applicant’s attempt to explain an important aspect of the Crown case, that explanation being that the balaclava impeded the transmission of the DNA (of the “real shooter”) to the helmet and left his own, earlier deposited, DNA intact.
The observation was inappropriate and damaging to the defence case. The applicant’s complaints in this respect are justified.

the applicant’s DNA on the sunglasses

The relevant directions are at [102]-[106] of the summing up.

As with the helmet, in the absence of some other explanation, it was an almost irresistible inference that the DNA on the inside of the arms of the sunglasses originated from the last person to have worn them (the gunman).
At [102] and [103] of the summing up the trial judge attempted to give directions with respect to a submission made by senior counsel concerning the DNA on the sunglasses. Those directions can be seen in full in the annexure to these reasons. Referring to a submission made by senior counsel that the sunglasses might have been worn on the outside of the balaclava her Honour said:

“103. A possible source of the relatively large deposit on the right arm of the sunglasses could have been saliva that was transferred from the face of the wearer. Of course, it would follow, I would think, that if that was the case, then the glasses were being worn inside the balaclava, not outside, but that’s a matter for you.

At the next break in the trial senior counsel took issue with those directions. In response to his complaint her Honour said that, after reading the transcript of his address, she had difficulty understanding the submission he had put to the jury. Having also read the transcript of the submissions, I have considerable sympathy with her Honour’s comment.
It appears from the discussion that ensued that what senior counsel had intended to put to the jury was a suggestion that the applicant might have worn the sunglasses without a balaclava when he test rode the R6, thus depositing DNA on the inside arms of the sunglasses; but that the gunman, when he wore the sunglasses, might have worn them on the outside of the balaclava, thus not disturbing the applicant’s DNA deposit, and not depositing his own DNA. That would explain why the applicant’s DNA was on the inside of the arms, but the DNA of the gunman was not.
That explanation cannot be read clearly (or at all) into the submissions made to the jury.
The applicant made three criticisms of the directions:

that they came directly after, and challenged, senior counsel’s submission;

that they contravened the principles stated in McKell that a trial judge should refrain from comments that convey an opinion as to the proper determination of a dispute of factual issue; and

that the concluding “but that’s a matter for you” “had a disparaging connotation”.

Those criticisms may have had some substance except for what followed. After senior counsel had explained his submission the trial judge redirected the jury in the following terms:

“Mr Dalton’s submission about the DNA belonging to the accused’s profile on the right inside arm of the sunglasses was premised on this, that if Mr Wiggins had used the sunglasses on a previous occasion without a balaclava thereby not impeding the transference of DNA from his saliva or sweat to the inside of the sunglasses, then that would explain how he came to be there, once again, assuming that the shooter wore the sunglasses outside the balaclava as opposed to inside the balaclava.
So Mr Dalton says that explains two things. It explains how the accused’s DNA got there but also why it was a single profile. I think I have represented that submission accurately, but Mr Dalton will tell me if I haven’t.”

No further complaint was made on behalf of the applicant.
As I have indicated, were it not for the redirection, there may well have been substance in the applicant’s complaints. The redirection cured the error and was not subject to any comment by senior counsel. I would not uphold this complaint.

the absence of any observable injury to the applicant following confrontation with Slobodan Janceski

The relevant directions are at [73]-[74] of the summing up.
The applicant raised an argument that, in the light of the nature and intensity of the struggle between Slobodan Janceski and the gunman, and the extent of his own injuries, it could be expected that the gunman would also have suffered significant injuries, such that he would have sought medical attention. The Crown produced no evidence that the applicant had done so. Moreover, on the evening of the shooting, the applicant was a passenger in a car that was briefly pulled over by police who observed no injury to him. Of this, the trial judge said:

“74. Could I just remind you that there is no evidence that the struggle between the shooter and Mr Janceski actually did result in significant injuries to the shooter. He was wearing a jacket. No one knows what kind of injuries he sustained in relation to that.”

The applicant’s submission in respect of this direction is that, contrary to what the trial judge said, there was sufficient circumstantial evidence to support the argument that it could be expected that the gunman would have suffered significant injury and that the absence of any evidence of injury to him (the applicant) pointed against his involvement. The comment by the trial judge was, accordingly, unwarranted and undermined the defence case.
I do not accept that submission. That the confrontation was such as would be expected to have caused injury to the gunman was no more than conjecture. As the trial judge said, the evidence was that the gunman was wearing a jacket. Moreover, the applicant pointed to no evidence that he had not sought medical treatment – although (as reflected in the direction) he made some reference to investigations made by police of medical or pharmaceutical records, that evidence was not identified for the purposes of this appeal. It was entirely correct for the trial judge to point out to the jury that there was no evidence to support the premise on which the submission was based. There was no unfairness in this respect. I would not uphold this complaint.

(vi) the evidence of Carmen Ballardin

The relevant directions are at [81] of the summing up.
The applicant sought to draw comfort from the evidence of Ms Ballardin, given in the Crown case (in summary) that, about two to three weeks before the shooting, she had observed the blue and white trail bike in the vicinity. If she were correct in her observations, and in her fixing of the dates of her observation, the trail bike ridden by the gunman could not have been the Ryan bike which provided a link to the applicant. That would have damaged the Crown case that the bike ridden by the gunman was the Ryan bike, which could be associated with the applicant.
The trial judge directed the jury that Ms Ballardin’s assertion that the bike she had previously seen was the bike she saw on 14 February relied on three features which Ms Ballardin described – the colour, the sound, and its brand new appearance. She then said:

“81. You will appreciate that those features are all generic features which might suggest that the bikes are one and the same, but they do not positively identify the bikes as one and the same time [as recorded in the transcript].”

The applicant’s complaint in relation to these directions is that the trial judge addressed an issue which had been emphasised by senior counsel for the applicant, but in a way that introduced “new counter arguments”, not raised by the Crown, who had not addressed the jury on Ms Ballardin’s evidence at all.
After complaint by senior counsel for the applicant, the trial judge redirected the jury to add a reference to evidence of Ms Ballardin’s to which she had not previously referred, that on each previous occasion on which she had seen the bike, the rider was wearing dark clothes, a full face helmet and a balaclava. This was consistent with descriptions given by a number of neighbours of the gunman’s clothing.
The observation of the trial judge at [81] was gratuitous, and, as correctly observed on behalf of the applicant, called into question, in a way that the Crown had not, evidence in the Crown case that might have assisted the applicant. I accept that the direction was inappropriate. The trial had proceeded on the basis that the bike previously observed by Ms Ballardin was the bike ridden by the gunman. The further directions given by the trial judge did not ameliorate the damage that had been done by the original directions. This complaint should be upheld.

Conclusions

I have concluded that ((i), (iii) and (vi)), of the six complaints made by the applicant about the summing up, three have substance. The significance of the directions the subject of legitimate complaint has to be evaluated in the light of the overall case, and the summing up as a whole.
Although the Crown case depended upon a number of individual circumstances, as set out above, two could be said to have been of greatest significance. One was the identity of the bike found burned out adjacent to the Nan Tien Temple (which, it was not disputed, was the Ryan bike). To repeat, that was of significance because the Ryan bike could be linked, through Mr Ferguson, to the applicant. The Crown sought to establish that the burned out bike was the bike ridden by the gunman principally by the evidence of Mr McCourt. The applicant sought to cast doubt on that asserted fact by relying on the evidence of Ms Ballardin to the effect that she had seen the bike ridden by the gunman on the day of the shooting on two previous occasions, one of which, at least on one view of her evidence, pre-dated Mr Madden’s acquisition of the Ryan bike. No issue was raised by the Crown concerning the identity of the bike Ms Ballardin had seen; the focus was on the dates on which she had seen it.
The inappropriate direction concerning Ms Ballardin’s evidence (which had been tendered, and not called in question, by the Crown) significantly supported the Crown case and undermined the defence case. It cannot be treated as trivial or unimportant.
The second important circumstance on which the Crown placed reliance was the DNA evidence. Indeed, the evidence that the applicant’s DNA was located on both the interior of the helmet, and on the inside arms of the sunglasses, was of central importance to the Crown case, as was the absence of any DNA on either of those items other than that of the applicant. Without the DNA evidence the Crown case was weak. The DNA evidence could be said to have been the lynch pin of the Crown case. A rational explanation for the presence of the applicant’s DNA on those items, and the absence of any other DNA, would have gone some way to rebutting the Crown case. The applicant’s proposed explanation for the presence of his DNA on the helmet and the sunglasses could be said to have been the lynch pin of his response to the Crown case. Without an explanation, his response was weak.
In two respects, the trial judge wrongly undermined the applicant’s response – by the erroneous direction that there was no evidence that the helmet found at the scene was the helmet in Mr Ferguson’s garage, and by the gratuitous comment concerning the position of the balaclava on the face of the gunman. Taken together with the inappropriate comment about Ms Ballardin’s evidence, these directions establish that the applicant’s case was not fairly put to the jury. There was a miscarriage of justice on that basis.
On the morning that the application was listed for hearing, the Crown advised that it would submit that, in order to argue ground 1, the applicant required leave pursuant to r 4 of the Criminal Appeal Rules (NSW) on appeal.
The Crown did not elaborate on which part of the applicant’s arguments fell foul of r 4. There were many parts to that argument, and senior counsel at trial was arduous, during breaks in the summing up, to take issue with anything he perceived to be unfair or erroneous.
The most significant omission I can identify was with respect to the direction concerning evidence about the helmet. It is a pity that point was not drawn to the attention of the trial judge as it was an error that could readily have been remediated. But the error was also significant: of most significance that the applicant should not have been deprived, on appeal, of taking the point.
In my opinion the applicant has succeeded in establishing that there was unfairness in the manner in which the jury was directed. The appeal must be allowed, the conviction set aside, and a new trial ordered.
In those circumstances, it is unnecessary to deal with ground 3.
The orders I propose are:

1. Leave to appeal against conviction granted;

2. Appeal allowed;

3. Conviction set aside;

4. There be a new trial.

FAGAN J: I agree with Simpson AJA’s reasons and with the orders proposed.
Resolution of appeal grounds 1 and 2 has required the Court to filter out numerous of the applicant’s complaints about the summing up that do not contribute to the success of the grounds. The applicant critiqued more than 20 passages but beyond the small number of matters that Simpson AJA has identified, I do not find fault. The applicant’s submissions about an alleged “cumulative rhetorical effect” of the summing up are also not sustained.
There have been identified some discrete but important misdirections on the evidence that may have wrongly influenced the jury in assessing whether there was a reasonable hypothesis consistent with innocence. That is where error has been demonstrated. It is a narrow error but, regrettably, it demands a retrial. I do not read the summing up as having a more generalised, pervasive tendency to influence the verdict, in excess of the trial judge’s proper function.
In support of ground 2, that the jury were misdirected on circumstantial evidence, the applicant’s broad attack included an assertion that the learned trial judge’s general direction on this subject was wrong. I see no error in it. As for the six more specific complaints of misdirection, concerning particular features of the evidence with respect to which the defence submitted to the jury that there was a reasonable hypothesis consistent with innocence, I agree entirely with Simpson AJA’s identification of three of those complaints that have substance and with her Honour’s rejection of the other three.
As regards the three points that are rejected, I only wish to add the following observations by way of emphasis with respect to one of them; namely, the point concerning the learned trial judge’s direction about the ear plug found on the kerb in front of the house where the deceased was shot. The impugned direction was as follows:

[108] There is no evidence, could I remind you, that the ear plug was worn in the ear of the shooter, and we know that the helmet and sunglasses were worn by the shooter but we don't know the origins of the ear plug. That's why I say it's not directly linked to the shooting. Mr Dalton made a submission to you that if it was worn by the shooter, then individual B [whose DNA was on the earplug], whoever that is, may be the shooter unless, of course, the ear plug was covered in some way. But Mr Dalton himself acknowledges that that's a speculative conclusion.

Defence counsel submitted to the jury that the ear plug was worn by the gunman and was dislodged during his physical conflict with Mr Jankeski snr. As no DNA originating from the applicant was identified on the tape lift from this item, counsel argued that this told against an inference that the applicant was the gunman. This was not an argument by way of possible explanation of circumstances relied upon by the Crown, to reconcile those circumstances to a hypothesis consistent with innocence. The Crown did not to any extent base its case upon evidence concerning the ear plug, nor ask the jury to draw any inference from it. For the jury to conclude, as defence counsel invited, that the ear plug had been worn by the gunman, they would have had to act upon evidence. They were being asked to find affirmatively that this was the shooter’s ear plug.
I have examined carefully the evidence of Mr Jankeski snr, including a video recording of his walk-through with investigating officers. I have reviewed the photographs and plans of the crime scene and the evidence of those witnesses who saw parts of Mr Janceski’s physical conflict with the gunman. That conflict took place at a considerable distance from where the ear plug was found. Her Honour was justified in saying that there was no evidence that it was dislodged from the gunman’s ear in the struggle. For it to have come from that source it would have to have worked its way out from under the gunman’s balaclava, that had remained in place, and somehow come to rest on the raised kerb, 2½ metres from the nearest point of the fight, which had taken place entirely on the road way.
Of the three specific complaints about the summing up that, as Simpson AJA has shown, have substance, the most significant to my assessment of the appeal is that concerning [114] of the summing up. I refer to the direction that there was “no evidence” to identify the helmet worn by the shooter as the same helmet as that which was said to have been worn by the applicant on a previous and innocent occasion. I have taken into account the context in which that direction appears, which is the whole of the following passage:

[112] The alternative explanation, which is offered by the accused through Mr Dalton, is that his DNA came to be deposited, I'm just going back to the helmet and the sunglasses, ladies and gentlemen, that his DNA profile came to be deposited on the helmet and the sunglasses when he test rode the R6 from Mr Ferguson's garage at some earlier time and that in some way, unknown to the accused, the shooter came into possession of the helmet and the sunglasses and used them on 14 April 2012.
[113] […] I need to take you to this evidence because the foundational assumption that you are asked to accept for the purposes of that explanation is that a black helmet in Mr Ferguson's garage is the same helmet that the shooter used and that the Prada sunglasses worn by the shooter had previously been worn by the accused in unrelated circumstances.
[114] Now, there's no evidence which identifies the THH black helmet worn by the shooter as the same black helmet said to have been left in Mr Ferguson's garage with the R6. Mr Madden maintained that he did not leave a black helmet at Mr Ferguson’s. His helmet was white. Mr Ferguson and Mr Dingle did not describe the helmet in the garage as anything other than black or matt black. They did not refer to the brand. They were initially only shown photographs of the helmet, not the helmet itself. There may well have been a black helmet in Mr Ferguson's garage that was worn at some stage by some of his friends. Whether you think that is a reasonable possibility that a black helmet in Mr Ferguson's garage was worn by the accused during a test ride of the R6 and then used by someone else during the shooting of Mr Janceski is a matter for you. I'm just pointing out what the evidence tells you.
[115] Similarly, Mr Madden denied that he left any sunglasses at all in Mr Ferguson's garage with the R6 and there is no evidence that when the accused test rode the bike, according to Mr Ferguson, that he wore a pair of Prada sunglasses or any sunglasses from Mr Ferguson's garage. The height of Mr Ferguson's evidence was that he definitely saw him with the helmet. Mr Dingle said that he saw a jacket, glasses, gloves and a black helmet with the R6 in Mr Ferguson's garage but he only took the helmet. Mr Ferguson said that Mr Madden left a black helmet, gloves and maybe glasses with the R6 but the gear meant nothing to him at the time so he forgot about it.
[116] The defence submission is that there is nothing remarkable about Mr Madden, Mr Ferguson and Mr Dingle being vague about these matters because this gear was shared around in their community and it was inconsequential in their lives and they couldn't be expected to positively identify the helmet.
[117] Well, that's an entirely appropriate submission but at the end of the day you have to come back to the evidence. Whether you think that is a reasonable possibility, that is that a pair of Prada sunglasses were left in Mr Ferguson's garage and were worn by the accused during a test ride of the R6 and then used by someone else during the shooting of Mr Janceski, is a matter for you and bear in mind, ladies and gentlemen, it's not just one of those items. Both of those items, the helmet and the sunglasses, found their way, according to the accused's case, from Mr Ferguson's garage to the shooter and were both used on 14 April.

Simpson AJA has referred to the oral testimony that made it incorrect for the learned trial judge to say, at [114], that there was no evidence to identify the gunman’s helmet with a helmet left in Ferguson’s garage. Dingle said that there was a black full-face helmet with Madden’s R6 motorcycle at Ferguson’s garage and that he thought the helmet found at the scene “is the one”; he was “pretty sure it is the one” and he was “pretty positive that it is”. Ferguson said that the helmet that was “with the bike”, meaning the R6, when Dingle took it had also been “with the bike” when the applicant test rode it and that it had been used by the applicant. He said that it “looked like the same helmet” as was found at the scene.
For the purposes of the applicant’s defence, the evidence of this prior innocent usage of the helmet was weak. Defects in it included the late emergence of assertions by Dingle and Ferguson that a black helmet had accompanied the R6; differences between the two witnesses regarding details of the sale of the bike and whether any, and if so what, other riding gear was with the helmet; direct contradiction by Madden of the proposition that he had left a helmet with the R6 at Ferguson’s garage and evidence from him of the circumstances of sale of the R6 that contradicted Ferguson and Dingle. There could have been no complaint if her Honour had reminded the jury in neutral terms of the differing accounts given by the three witnesses. Her Honour could properly have instructed the jury that they should consider whether, having regard to that evidence, they considered it a reasonable possibility that a borrowed helmet had been worn by the applicant on a test ride of the R6, as Ferguson described, and had later come into the hands of some other person, to be used in connection with the shooting.
Her Honour’s incorrect statement of “no evidence” was not neutralised by the last two sentences of [114]. Informing the jury that consideration of this possibility was “a matter for you” was contradicted by her Honour “just pointing out what the evidence tells you”, namely, that identity between the helmet on each of the two occasions was a “foundational assumption” and that there was no evidence to support it.
At [115], the learned trial judge correctly said that there was no evidence that, during the asserted test ride of the R6, the applicant had worn sunglasses of the kind that were found at the scene of the shooting with the applicant’s DNA on them. The only witness who claimed to have seen the applicant test riding the bike was Ferguson and he did not say that a pair of sunglasses was taken with the bike and worn during the test. The jury could be expected to have found the applicant’s suggested innocent explanation for the DNA on the sunglasses extremely faint in view of there being no evidence from Ferguson to support it. Nevertheless, favourably to the applicant, her Honour left it to the jury to consider whether this was a reasonable possibility: see the first half of [117].
Were it not for the incorrect direction at [114], that there was no evidence to identify the gunman’s helmet with one that the appellant had borrowed from Ferguson’s garage for a test ride of the R6, perhaps no substantial miscarriage of justice would actually have arisen from the sceptical mode of expression adopted by her Honour in the last two sentences of [114] and, more particularly in the last two sentences of [117]. But taken in conjunction with the erroneous direction about no evidence the learned trial judge’s implicit scepticism may well have been influential.
All of this occurred within a handful of paragraphs in a long summing up. However, it was important. The evidence of the applicant’s DNA on the inside of the helmet’s chin guard, on the nose guard, on the chin strap and around the base, was a central and very powerful part of the Crown’s circumstantial case. If the jury could be persuaded that this evidence was consistent with a reasonable possibility that the DNA was deposited on an earlier innocent occasion, that may have left them with a reasonable doubt about the applicant’s guilt. Her Honour’s misdirection on this point in particular was material.
IERACE J: I also agree with Simpson AJA and the orders proposed.

**********

ANNEXURE

In this trial you are being asked by the Crown to make a critical finding of fact from a combination of facts established by the evidence. That critical finding of fact is that it was the accused, Mr Wiggins, who shot Mr Janceski on 14 April 2012. I’m going to explain how it is that you go about that task a little later in the summing up, but for now I want to give you some general directions about fact finding.

Mr McCourt’s evidence

Just in relation to that, ladies and gentlemen, without in any wishing to denigrate Mr McCourt’s expertise you might think that the comparison of the images captured of the motorbike through the CCTV footage with other images provided to Mr McCourt is something that can be carried out by almost anyone simply by looking at those photographs and being careful in relation to the observations that are being made. But let me just come back to this. Of course the quality of the photographs and the capacity of the observer to distinguish features of those motorbikes in a meaningful way to allow for a meaningful comparison, they are all factors that bear upon the ultimate opinion. If the quality of the photograph or the angle at which the photograph was taken precludes the observation of those critical features, well you might think it may not assist you very much. But I am merely pointing out that the value of an expert opinion of course is based upon the quality of the material that the expert has to work with.

General directions

... If I happen to express any views upon questions of fact or you think that I am expressing a view on a question of fact you must ignore those views unless of course it happens to coincide with a view that you have independently draw[n]. I say that to reinforce the fact that you are the judges and the sole judges of the facts in the case.
I am entitled to express a view. I do not propose to try to persuade you one way or the other, that is not my task. I may when I come to a particular issue suggest to you that there is no real dispute about it and in fact I have already indicated that. That is my view and it is open to you if you wish to reject that view if it doesn’t accord with your own independent assessment of the evidence.
… The dispute in this trial is whether the Crown has proved beyond reasonable doubt that the person on the motorcycle was the accused.
May I suggest that if you were satisfied beyond reasonable doubt that the shooter was Mr Wiggins, it would follow that the Crown has proved both of the charges in the indictment. If you were not satisfied that the person on the motorcycle was Mr Wiggins then the appropriate verdict would be not guilty to both charges. That is just another way of saying that the charges stand or fall together in the circumstances of this trial.

Circumstantial case

In this case the Crown relies wholly on what is called circumstantial evidence and, in relying on circumstantial evidence, the Crown asks you to find certain basic facts and then from those facts to draw a conclusion as to the existence of a further fact. This does not mean that a circumstantial case is weaker than a case based upon direct evidence. Some direct evidence can be of very dubious quality. For example, direct evidence from a witness identifying an accused person as being an offender, can be very unreliable because identification evidence can be honest but mistake[n].
In a circumstantial case no individual fact can prove the guilt of the accused. In this case, ladies and gentlemen, no individual facts can prove the guilt of Mr Wiggins.
Where the Crown’s case depends wholly or in part on circumstantial evidence, the jury is asked is to reason in a staged approach. The Crown first asks the jury to find certain basic facts established by the evidence. Those facts do not have to be proved beyond reasonable doubt. If you were to take any one of them in isolation, it would not be sufficient to prove the guilt of the accused.
The jury is then asked to infer, or conclude, from a combination of those established facts, that a further fact or facts exist. The ultimate fact, the Crown asks the jury to find, based upon the basic facts, is that the accused person is guilty of the offence which they are charged.
A case based on circumstantial evidence may be just as convincing and reliable as a case based on direct evidence. This will depend on the number and nature of the basic facts relied upon by the Crown when considered as a whole, not individually or in isolation.
It will also depend on whether all of the evidence leads to an unavoidable conclusion that the Crown has established the guilt of the accused.
It is important that you approach a circumstantial case by considering and weighing, as a whole, all of the facts you find established by the evidence. It is wrong to consider any particular fact in isolation and ask whether that fact proves the guilt of the accused, or whether there is any explanation for that particular fact or circumstance which is inconsistent with the accused's guilt.
The correct approach is first to determine what facts you find established by the evidence. As I have already told you, any particular fact to be taken into account by you does not need to be proved beyond reasonable doubt. You then consider all of those facts together as a whole and ask yourselves whether you can conclude, from those facts, that the accused is guilty of the offences that are charged. If such a conclusion does not reasonably arise, then the Crown's circumstantial case fails, because you could not be satisfied of the guilty of the accused beyond a reasonable doubt. Of course, if [sic, it] follows, if that were the case, that you would find the accused not guilty.
But if you find that such a conclusion is a reasonable one to draw, based on the combination of those established facts, then before you could convict the accused you must ask yourselves this; is there any other reasonable conclusion, arising from the combination of those facts, that is inconsistent with the guilt of the accused? If the answer to that question is "yes", the circumstantial case fails because you are not satisfied of the accused's guilt.
Note, ladies and gentlemen, that this last step in the reasoning process also depends upon the combination of the facts that you have found in the trial. It is the existence of another reasonable conclusion arising out of the combination of the facts that you have found, which would prevent a finding of guilt.
It is not just any possible explanation, divorced from those facts. That is why it is important to determine what facts are established by the evidence in the trial before you proceed to consider whether another reasonable conclusion is available that is also consistent with those facts and, therefore, inconsistent with the guilt of the accused.
You should understand that drawing a conclusion from one set of established facts to find that another fact is proved, involves a logical and rational process of reasoning. You must not base your conclusion upon mere speculation, conjecture or supposition. You will appreciate that there may be an absence of evidence on some matters. You are not entitled to speculate what the outcome of further inquiries may have been. You must confine yourself to the evidence to what is known to draw the inferences that you are asked to draw.

…

No evidence of injury to applicant

Some of the witnesses describe the helmet and the sunglasses being lost during the struggle itself. There is reference to at least two or three strikes upon the offender with the metal bar. In that regard Mr Dalton says to you that there is no evidence of the accused seeking any medical assistance for injuries that are consistent with the bar being struck in that way and nothing that the police could find in relation to the medical or pharmaceutical records which would suggest that the accused consulted a doctor or a pharmacist. He reminded you that there were no injuries observed by police when they saw the accused later on in the evening of 14 April as he was leaving Ms Geldeard’s house. What you make of that is a matter for you, ladies and gentlemen.
Could I just remind you that there is no evidence that the struggle between the shooter and Mr Janceski actually did result in significant injuries to the shooter. He was wearing a jacket. No one knows what kind of injuries he sustained in relation to that.

…

The balaclava

The question of the opening of the balaclava, whether it be over the eyes or the mouth, is subject to the quality of the observations that were made by those persons, from what distance they were made, over what period of time they were made and in the course of the offender either struggling with Mr Janceski or riding away on the motorbike. They are all made, of course, after the helmet and the glasses were knocked off.
What you also have to take into account, of course, is that there is no evidence in relation to the position of the balaclava, whatever the balaclava was, on the journey of the offender from wherever he came to Shearwater Drive before the helmet was knocked off his face. What you also have to take into account is the evidence from Ms Sesardic, which is depending on the nature of the balaclava, the weave of the balaclava and the position of the balaclava on the face, it may, nonetheless, be possible for DNA material to be deposited through the balaclava onto the helmet. They are all the considerations that bear upon this question and it will become a little bit clearer later, ladies and gentlemen, when I refer to the DNA evidence.

The trail bike

So let me now come to the blue and white motorbike, because there does not appear to me to be any dispute that the shooter used a blue and white Yamaha trail bike and we don’t know particularly what model, but it seems to be common ground that it was a blue and white Yamaha trail bike. The real dispute centres on whether the blue and white Yamaha trail bike, found burnt out behind the temple, which was referred to as the Ryan bike, was the same bike used by the shooter. You might think that that proposition could be established if there was evidence of the registration number of the bike in Shearwater Drive on 14 April, which corresponded with the registration number of the Ryan motorbike. That is assuming that registration number plates are not swapped or shifted around.
There is probably very limited ways that anybody could establish that these two bikes were one and the same bike. We do not have that evidence. So, what the Crown says is you draw an inference from a combination of circumstances that it was the same bike.

…

Ms Ballardin’s evidence

Before I go to that, ladies and gentlemen, could I just refer to Ms Ballardin’s evidence. She says that the blue and white trail bike that she saw in Shearwater Drive three weeks and two weeks, respectively, before the day of the shooting, was the same bike she saw on 14 April. But her assertion relies on three [features] of the bike. One was the colour of the bike. One was the sound of the bike’s motor or engine and the other was its brand new appearance. You will appreciate that those features are all generic features which might suggest that the bikes are one and the same, but they do not positively identify the bikes as one and the same time.

…

DNA on the sunglasses

I’ll just remind you that Miss Sesardic said that the plastic non-porous surface of the arms of the sunglasses were a poor source for retention of DNA and a poor source for transferring DNA samples, so if there was contact and friction between the arms of the sunglasses and a porous surface such as a balaclava, DNA may transfer from the glasses to the balaclava, but bear in mind, ladies and gentlemen, that the sample’s on the inside of the arms not on the outside of the arms, hence Mr Dalton makes the suggestion that if the glasses were worn over the balaclava and not inside the balaclava then there might be some transfer from a balaclava to the arm of the sunglasses.
A possible source of the relatively large deposit on the right arm of the sunglasses could have been saliva that was transferred from the face of the wearer. Of course, it would follow, I would think, that if that was the case, then the glasses were being worn inside the balaclava not outside, but that’s a matter for you.

…

Can I remind you also that the presence of DNA deposits on the parts of the helmet and the bridge of the sunglasses from other persons who are not identified, provides evidence that the helmet and the sunglasses were at some stage in contact with other persons other than the accused. Well, that’s not surprising given that those items are mobile, they move around.
But just in relation to that, ladies and gentlemen, the Crown does not submit that the evidence of the accused’s DNA profile on the helmet and the sunglasses is the only basis for the conclusion that the accused was the shooter. It is but one circumstance, albeit a significant one, that must be taken together with all the other circumstances established by the evidence.

the earplug

There is no evidence, could I remind you, that the earplug was worn in the ear of the shooter, and we know that the helmet and sunglasses were worn by the shooter but we don’t know the origins of the ear plug. That’s why I say it’s not directly linked to the shooting. Mr Dalton made a submission to you that if it was worn by the shooter, then individual B, whoever that is, may be the shooter unless, of course, the ear plug was covered in some way. But Mr Dalton himself acknowledges that that’s a speculative conclusion.

…

the helmet

I’m just going to go to the evidence on that question, ladies and gentlemen, and then we’ll take another break. But I need to take you to this evidence because the foundational assumption that you are asked to accept for the purposes of that explanation is that a black helmet in Mr Ferguson’s garage is the same helmet that the shooter used and that the Prada sunglasses worn by the shooter had previously been worn by the accused in unrelated circumstances.
Now, there’s no evidence which identifies the THH black helmet worn by the shooter as the same black helmet said to have been left in Mr Ferguson’s garage with the R6. Mr Madden maintained that he did not leave a black helmet at Mr Ferguson [as recorded in the transcript]. His helmet was white. Mr Ferguson and Mr Dingle did not describe the helmet in the garage as anything other than black or matt black. They did not refer to the brand. They were initially only shown photographs of the helmet, not the helmet itself. There may well have been a black helmet in Mr Ferguson’s garage that was worn at some stage by some of his friends. Whether you think that is a reasonable possibility that a black helmet in Mr Ferguson’s garage was worn by the accused during a test ride of the R6 and then used by someone else during the shooting of Mr Janceski is a matter for you. I am just pointing out what the evidence tells you.
Similarly Mr Madden denied that he left any sunglasses at all in Mr Ferguson’s garage with the R6 and there is no evidence that when the accused test rode the bike, according to Mr Ferguson, that he wore a pair of Prada sunglasses or any sunglasses from Mr Ferguson’s garage. The height of Mr Ferguson’s evidence was that he definitely saw him with the helmet. Mr Dingle said that he saw a jacket, glasses, gloves and a black helmet with the R6 in Mr Ferguson’s garage but he only took the helmet. Mr Ferguson said that Mr Madden left a black helmet, gloves and maybe glasses with the R6 but the gear meant nothing to him at the time so he forgot about it.

The sunglasses

The defence submission is that there is nothing remarkable about Mr Madden, Mr Ferguson and Mr Dingle being vague about these matters because this gear was shared around in their community and it was inconsequential in their lives and they couldn't be expected to positively identify the helmet.
Well, that’s an entirely appropriate submission but at the end of the day you have to come back to the evidence. Whether you think that is a reasonable possibility, that is that a pair of Prada sunglasses were left in Mr Ferguson’s garage and were worn by the accused during a test ride of the R6 and then used by someone else during the shooting of Mr Janceski, is a matter for you and bear in mind, ladies and gentlemen, it is not just one of those items. Both of those items, the helmet and the sunglasses, found their way, according to the accused’s case, from Mr Ferguson’s garage to the shooter and were both used on 14 April. So, before I go to the next body of evidence, ladies and gentlemen, we’ll take a slightly late morning tea adjournment and I’ll see at quarter past 12.

********

Amendments

24 October 2022 - judgment numbering corrected

Decision last updated: 24 October 2022

Medium Neutral Citation:	Wiggins v R [2020] NSWCCA 256
Hearing dates:	6 April 2020
Date of orders:	7 October 2020
Decision date:	07 October 2020
Before:	Simpson AJA at [1] Fagan J at [133] Ierace J at [147]
Decision:	1. Leave to appeal against conviction granted; 2. Appeal allowed; 3. Conviction set aside; 4. There be a new trial.
Catchwords:	CRIME — appeals — appeal against conviction — miscarriage of justice – summing up – directions to jury – circumstantial case – applicable principles – McKell v The Queen (2019) 264 CLR 307; [2019] HCA 5 – whether summing up so lacking in balance and unfair as to occasion a miscarriage of justice – three complaints of substance – complaints made out relevant to the two most significant circumstances relied on in the Crown case – unfairness in the manner in which the jury was directed established
Legislation Cited:	Criminal Appeal Act 1912 (NSW), s 5(1)(b) Criminal Appeal Rules (NSW), r 4 Evidence Act 1995 (NSW), s 38
Cases Cited:	Barca v The Queen (1975) 133 CLR 82; [1975] HCA 42 Green v The Queen (1971) 126 CLR 28; [1971] HCA 55 McKell v The Queen (2019) 264 CLR 307; [2019] HCA 5 Peacock v The King (1911) 13 CLR 619; [1911] HCA 66 R v Hillier (2007) 228 CLR 618; [2007] HCA 13 R v Hodge 2 Lewin C.C. 227 R v Sinanovic [2000] NSWCCA 396 R v Zorad (1990) 19 NSWLR 91 RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3 Taleb v R [2006] NSWCCA 119 The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
Category:	Principal judgment
Parties:	Matthew Paul Wiggins (Applicant) The Crown
Representation:	Counsel: T F Woods (Applicant) D Patch (Crown) Solicitors: Just Defence Lawyers (Applicant) Director of Public Prosecutions (Crown)
File Number(s):	2013/13092
Decision under appeal	Court or tribunal: Supreme Court of NSW Jurisdiction: Criminal Citation: [2018] NSWSC 1142 Date of Decision: 24 July 2018 Before: Latham J File Number(s): 2013/13092