Citation: R v Wiggins; R v Nikolovski (No. 2) [2017] NSWSC 348
Court: Supreme Court of New South Wales
Date: 5 April 2017
Judge(s): Davies J
Background
Two accused were on trial for murder. The first accused (Wiggins) was alleged to have been the shooter, and the second accused (Nikolovski) was charged as an accessory before the fact, on the Crown's case that he organised the killing. The trial had been running for 18 days when the central procedural crisis arose.
On day 12, a DNA expert gave evidence concerning a balaclava linked to Wiggins. It emerged that a third report by that expert had not been served on Wiggins' lawyers. Applications to exclude the report were underway when, on the morning of day 15, Wiggins' barrister informed the court that his solicitor had withdrawn instructions. The reason, clarified in later evidence, was that the solicitor had formed the view that he faced an ethical conflict after a conversation with Wiggins about the balaclava evidence.
Because the withdrawal occurred in the middle of an active trial, and because Wiggins' financial circumstances made private re-engagement of comparable counsel unlikely, the Crown ultimately applied for the jury to be discharged. Nikolovski, through his counsel, opposed discharge and sought the trial to continue, at least against him alone.
Legal Issues
- Whether Wiggins should be required to represent himself for the remainder of the trial, given his loss of legal representation mid-trial.
- Whether the trial should continue against Nikolovski alone, as a separate proceeding, while Wiggins obtained new representation.
- Whether the jury should be discharged entirely, having regard to the fairness interests of both accused, the Crown, and the integrity of the verdict.
- What weight should be given to the risk of inconsistent verdicts if the two accused were tried separately.
Decision
Davies J declined to require Wiggins to represent himself. The evidence indicated that the solicitors withdrew for ethical reasons arising from a conversation about the balaclava, which meant the breakdown could not fairly be attributed to Wiggins personally. Requiring an unrepresented accused to conduct his own defence in a murder trial, after 18 days of evidence and in circumstances not of his making, carried a real danger of miscarriage of justice.
The court then turned to whether the trial could proceed against Nikolovski alone. Nikolovski's counsel argued that her client had health problems, had been subjected to prolonged delay, and was anxious to have the proceedings concluded. The court acknowledged these matters but did not regard them as sufficient to displace the ordinary rule that co-accused should be tried together.
The structural difficulty with separate trials was particularly acute on the facts. Nikolovski's guilt as an accessory was necessarily dependent on Wiggins being found to have been the shooter. If Nikolovski were tried first and convicted, but Wiggins were later acquitted, the inconsistency would likely render the verdict against Nikolovski unreasonable. If tried first and acquitted, evidence of Nikolovski's communications with Wiggins about his alleged motive could be rendered inadmissible at Wiggins' later trial. Either sequence created unacceptable risks.
Davies J also accepted that separating the trials would be unfair to the Crown. The Crown is entitled to a fair trial, and the ordinary entitlement to have co-accused tried together is not displaced simply because a co-accused is unavailable through their own choices or misfortune. On balance, discharging the jury was the appropriate course.
Orders Made
- The jury was discharged.
Key Takeaways
- Where a solicitor withdraws mid-trial for ethical reasons rather than at the client's initiative, the breakdown in representation may not be attributed to the accused, and requiring self-representation in a murder trial in those circumstances risks a miscarriage of justice.
- The Supreme Court confirmed that the ordinary rule favouring joint trials of co-accused carries real weight, particularly where one accused's guilt is a necessary precondition for the other's.
- A co-accused's health difficulties and the hardship caused by delay, while relevant, were insufficient here to displace the preference for a joint trial.
- Where the Crown's case against an accessory is built on a specific principal offender committing the act (rather than any person doing so), separate trials create a structural risk of logically inconsistent verdicts that a court must weigh seriously.
- Sufficient unfairness to the Crown can arise from separating trials, not only from the perspective of the accused, reinforcing that trial fairness is assessed with reference to all parties.
Legislation and Cases Referenced
Legislation
- Criminal Procedure Act 1986 (NSW)
Cases
- Crofts v The Queen (1996) 186 CLR 427
- R v Ahola (No 6) [2013] NSWSC 703
- R v Birks (1990) 19 NSWLR 677
- R v Rogerson; R v McNamara (No 34) [2016] NSWSC 259
- R v Rogerson; R v McNamara (No 42) [2016] NSWSC 405
- Symss v R [2003] NSWCCA 77
- Webb & Hay v R (1994) 181 CLR 41