Citation: R v Wiggins [2021] NSWSC 719
Court: Supreme Court of New South Wales
Date: 18 June 2021
Judge(s): N Adams J
Background
The accused faced a fourth trial for the murder of a man shot dead in his parents' front yard in April 2012, and for intentionally inflicting grievous bodily harm on the deceased's father, who had struggled with the gunman at the scene. The Crown case was entirely circumstantial. Among the connecting evidence was DNA found on a motorcycle helmet and sunglasses left at the scene, a burned-out motorcycle traced back to an associate of the accused, and phone calls between the accused and a close associate before and after the shooting. The alleged motive centred on the accused's close friendship with a man who had disappeared months before the shooting and was presumed dead, with the deceased suspected by some of involvement in that disappearance.
The accused had previously been convicted at a third trial, but the Court of Criminal Appeal ordered a new trial. Prior to the fourth trial, set to commence on 21 June 2021, the accused applied to exclude five categories of evidence.
Legal Issues
- Whether evidence of a police vehicle stop near the deceased's home five months before the shooting was admissible as relevant to motive
- Whether videos of the accused competing in mixed martial arts (MMA) bouts were admissible, or whether their violent content created an unfair risk of prejudice under s 137 of the Evidence Act 1995 (NSW)
- Whether the accused's birth certificate, recording his mother's Croatian birthplace, was admissible in the context of the deceased's father describing the gunman's appearance as "Balkan"
- Whether certain telephone intercept recordings should be excluded (deferred by agreement)
- Whether the Crown's use of the word "coincidences" in closing address at the previous trial raised issues under s 98 of the Evidence Act requiring resolution before the new trial
Decision
Police vehicle stop (Issue 1): Adams J held that evidence of the accused being observed driving near the deceased's home approximately five months before the shooting was relevant to the question of motive. This evidence was found to be admissible under ss 55 and 56 of the Evidence Act, as it could rationally affect the assessment of the probability of a fact in issue.
MMA videos (Issue 2): The deceased's father had described the gunman as a kickboxer. The Crown sought to tender videos showing the accused competing in organised MMA bouts to establish his proficiency in that discipline. Adams J viewed the footage in court and in chambers. The edited versions depicted professional, well-organised bouts before a crowd, with a referee and ring announcer present. The judge found the recordings had significant probative value, because being a trained kickboxer is not a common characteristic and the videos conveyed the accused's level of skill in a way that no other evidence could. A portion of the second video showing the accused repeatedly punching a grounded opponent until the opponent lost consciousness was ordered to be further edited out. Subject to that editing, Adams J was not persuaded that there was a real risk the jury would misuse the footage: kickboxing is a legal, organised sport and does not carry implications of bad character or a general tendency toward violence.
Birth certificate (Issue 3): The accused's birth certificate recording his mother's Croatian birthplace was found to be admissible. Latham J at the 2018 trial had admitted the document on the basis that it could support the reliability of the deceased's father's description of the gunman as having a "Balkan" appearance, particularly given that the accused's name was not obviously indicative of any such ancestry. That reasoning was not disturbed.
Telephone intercepts (Issue 4) and coincidences list (Issue 5): The parties agreed to resolve the editing of telephone intercepts without judicial determination. On the "coincidences" issue, Adams J noted that nothing prevented the Crown from presenting its circumstantial case as a series of individual facts whose cumulative weight told against the accused, provided the word "coincidence" was not used in the technical sense contemplated by s 98 of the Evidence Act. The form of the closing address remained a matter to be resolved closer to trial.
Orders Made
• The recordings of the accused's kickboxing bouts are admissible as evidence
• Further editing is required to remove any footage of the accused punching his opponent to the head while his opponent is already on the ground
• A publication restriction that was previously in place has been removed (as of 19 September 2022)
Key Takeaways
- Video evidence of an accused's participation in a legal, organised combat sport can be admissible to establish a relevant skill or characteristic where that characteristic is directly in issue at trial, provided sufficiently prejudicial footage is edited out.
- Under s 137 of the Evidence Act, the mere fact that a sport involves violence does not automatically generate unfair prejudice sufficient to exclude footage of a regulated competition; the nature, context, and presentation of the footage all bear on that assessment.
- Birth certificate evidence recording a parent's country of birth may be relevant and admissible where a witness has described the perpetrator's appearance in ethnic or regional terms, even where the relevance is indirect.
- Where a Crown prosecutor uses the word "coincidences" in closing address to describe strands of a circumstantial case, this engages the question of whether s 98 of the Evidence Act (the coincidence rule) applies; a clear distinction must be maintained between lay usage of the word and its technical legal meaning.
- Presenting a circumstantial case as a series of individually unremarkable facts with cumulative probative force is a permissible forensic approach, separate from reliance on the coincidence rule.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), ss 55, 56, 98, 137
Cases:
- Festa v The Queen (2001) 208 CLR 593; [2001] HCA 72
- Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37
- R v Colby [1999] NSWCCA 261
- Wiggins v R [2020] NSWCCA 256