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Court of Criminal Appeal 7 October 2020

Wiggins v R

[2020] NSWCCA 256

Assault & violenceHomicide
SUMMING UP DIRECTIONS TO JURY CIRCUMSTANTIAL CASE APPLICABLE PRINCIPLES MCKELL V THE QUEEN (2019) 264 CLR 307 [2019] HCA 5

Citation: Wiggins v R [2020] NSWCCA 256
Court: NSW Court of Criminal Appeal
Date: 7 October 2020
Judge(s): Simpson AJA, Fagan J, Ierace J

Background

The applicant was convicted of the murder of one man and intentionally causing grievous bodily harm to another during a shooting at a suburban Sydney home in April 2012. He was sentenced to a total of 34 years' imprisonment with a non-parole period of 25 years and six months. The Crown case was entirely circumstantial: the prosecution sought to establish that the applicant was the masked, helmeted gunman who arrived at the scene on a trail bike.

The two most significant pieces of Crown evidence were the identity of a burned-out Yamaha WR 450 trail bike found near a Buddhist temple, said to be the same bike used in the shooting and linked to the applicant through associates, and DNA matching the applicant found on the inside of the helmet and on the arms of the Prada sunglasses left at the scene. The applicant sought to explain the DNA by arguing it may have been deposited when he test-rode a motorcycle kept in a friend's garage, using gear also stored there.

The applicant sought leave to appeal against his convictions, arguing that the trial judge's summing up and directions to the jury were so unbalanced and unfair as to occasion a miscarriage of justice.

  • Whether the trial judge's summing up was so lacking in balance and fairness as to constitute a miscarriage of justice, engaging the test in McKell v The Queen (2019) 264 CLR 307.
  • Whether specific directions regarding the DNA evidence on the helmet and sunglasses wrongly undermined the applicant's defence hypothesis.
  • Whether the direction that there was "no evidence" the helmet found at the scene was the same helmet stored in the friend's garage was factually correct.
  • Whether the trial judge's observation about the balaclava's position prior to the gunman's arrival was appropriate.
  • Whether the trial judge's characterisation of a witness's bike identification features as "generic" was an appropriate direction.
  • Whether directions concerning the absence of the applicant's DNA on an earplug found at the scene, and the absence of evidence of injury to the applicant, disclosed any error.

Decision

The Court of Criminal Appeal granted leave and allowed the appeal, setting aside the convictions and ordering a new trial. Simpson AJA delivered the principal judgment, with Fagan J and Ierace J agreeing.

The Court found three directions of substance that were flawed. First, the trial judge stated there was "no evidence" the helmet used by the gunman was the same helmet stored in the friend's garage. That statement was factually incorrect on the evidence, and the directions dealing with the DNA found on the helmet and sunglasses carried an unmistakable tone of scepticism and conveyed the judge's own opinion on an important factual issue. This failed to meet the requirements set out in McKell v The Queen.

Second, the trial judge directed the jury to focus only on "what the evidence tells you," which impermissibly excluded from the jury's consideration hypotheses that, while not the subject of direct evidence, were nonetheless available and consistent with the accepted evidence. That approach was inconsistent with Barca v The Queen (1975) 133 CLR 82, which affirms that a jury may reason to conclusions not expressly proved by direct evidence.

Third, the trial judge's observation that there was "no evidence" about the position of the balaclava prior to the gunman's arrival at the scene was found to be inappropriate. The observation implicitly suggested the balaclava may have been worn differently on the journey to the scene, in a way that could have permitted DNA transfer to the interior of the helmet. This was damaging to the defence case and should not have been made. Similarly, the characterisation of the identifying features relied upon by the eyewitness in relation to the trail bike as merely "generic" was gratuitous and, as the Court noted, called into question Crown evidence that may actually have assisted the applicant. By contrast, the Court found no error in directions concerning the earplug or the absence of evidence of injury to the applicant. The earplug argument, in particular, required the jury to affirmatively find a fact without any evidentiary foundation, placing it in the realm of mere conjecture.

Fagan J added that the errors, though discrete and relatively narrow, concerned the two most significant aspects of the Crown case. That was sufficient to require a retrial, even though the summing up as a whole did not display a more generalised or pervasive tendency to influence the verdict.

Orders Made

  • Leave to appeal against conviction granted.
  • Appeal allowed.
  • Conviction set aside.
  • New trial ordered.

Key Takeaways

  • The Court of Criminal Appeal confirmed that a trial judge's summing up must not convey the judge's own opinion on contested factual issues, particularly those central to the defence case. Directions with an "unmistakable tone of scepticism" on important evidence can constitute a miscarriage of justice.
  • A direction that limits the jury's reasoning to "what the evidence tells you" is erroneous where it excludes reasonable hypotheses that, while not the subject of direct evidence, are available and consistent with accepted evidence. This is inconsistent with the principles affirmed in Barca v The Queen.
  • Gratuitous judicial observations that call into question Crown evidence potentially favourable to the defence are as problematic as directions that unfairly bolster the Crown case.
  • Not every complaint about a summing up will succeed. The Court rejected challenges concerning the earplug (where the defence hypothesis required an affirmative factual finding without evidentiary support) and the absence of evidence of injury (which was characterised as mere conjecture).
  • In dismissing the applicant's broader "cumulative rhetorical effect" argument, the Court underscored that a narrow but important misdirection on evidence bearing on the central issues is sufficient to require a retrial, without needing to characterise the entire summing up as infected by error.

Legislation and Cases Referenced

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

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