Wiggins v R

Case [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…

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Decision restricted [2020] NSWCCA 256
Case
[2020] NSWCCA 256
Decision Date

CaseChat Overview and Summary

Wiggins v R is an appeal against conviction in the Australian legal system, raising concerns of a potential miscarriage of justice. The appellant, Wiggins, challenges the conviction on the grounds that the summing up and directions to the jury during the trial were unfair and lacked balance, potentially leading to an unjust outcome. The appeal specifically focuses on three complaints related to the circumstantial evidence presented by the Crown, which the appellant argues undermined the fairness of the trial.

The legal issues before the court were whether the summing up during the trial was so lacking in balance and unfair as to occasion a miscarriage of justice. The court had to determine if the complaints about the summing up were substantiated, particularly in relation to the most significant circumstances relied on by the Crown. The court also needed to assess whether the manner in which the jury was directed in relation to the evidence, particularly the circumstantial evidence, was fair and balanced.

In its reasoning, the court found that the summing up was indeed unfair and lacked balance, particularly in relation to the circumstantial evidence. The court accepted that the complaints made by the appellant were substantiated as they pertained to the two most significant circumstances in the Crown's case. The court held that the unfairness in the manner in which the jury was directed established a miscarriage of justice, warranting a new trial.

The court ordered that the conviction be quashed and a new trial be conducted. The appellant, Wiggins, is entitled to a retrial where the issues identified in the summing up and directions to the jury are properly addressed to ensure a fair trial.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 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. 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. 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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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