Citation: R v Wiggins (No 5) [2022] NSWSC 1055
Court: Supreme Court of New South Wales
Date: 5 August 2022
Judge: N Adams J
Background
The accused faced charges of murder and intentionally inflicting grievous bodily harm arising from a fatal shooting in April 2012. The deceased was killed when a helmeted and disguised gunman drove past his parents' home on a motorcycle and shot him in the front yard. The accused had already been tried three times: the first two juries failed to reach verdicts, and a third jury convicted him in May 2018, but the Court of Criminal Appeal set that conviction aside in October 2020 due to unfavourable comments made by the trial judge in her summing-up.
By the time this application was heard, the accused had been awaiting a fourth trial for over nine years since the original charges. He had been on strict bail conditions since December 2020. The fourth trial was listed to commence on 8 August 2022, just days after the stay application was argued.
The accused moved for a permanent stay of the proceedings, arguing that new evidence introduced by the prosecution after the conviction was quashed amounted to an opportunistic reshaping of the Crown case, rendered possible only by the extended delay. He contended this had created fundamental and irremediable unfairness.
Legal Issues
- Whether the procedural history and cumulative delay had rendered the upcoming fourth trial so fundamentally unfair as to warrant the exceptional remedy of a permanent stay
- Whether the Crown's introduction of new evidence after the conviction was quashed constituted impermissible "patching up" of the prosecution case that could not be cured by directions to the jury
- Whether the fading of witness memories over the course of the lengthy proceedings caused irreparable prejudice to the accused
- Whether the financial burden on the accused arising from repeated trials was a basis for a permanent stay
Decision
Adams J began by confirming the established legal standard: a permanent stay is an exceptional remedy, available only where the accused can demonstrate a fundamental defect that cannot be remedied by any other means. The court identified three changes to the Crown case since the last trial, relating to two witnesses and a confidential informer. The accused argued these changes reflected opportunistic supplementation of a weakening prosecution case.
The court considered each of the three identified changes in turn and was not persuaded that any of them, individually or collectively, created irreparable unfairness. Two of the three changes required the Crown to first obtain the court's leave to cross-examine its own witnesses under s 38 of the Evidence Act 1995 (NSW), and Adams J indicated that leave would not be granted if unforeseen prejudice emerged at that stage. The remaining evidential change could be addressed adequately through jury directions.
On the question of fading memories, the court noted that the relevant witnesses had made contemporaneous statements and had given sworn evidence on multiple occasions across the various trials. Accordingly, any loss of recollection had already been captured in the existing record, and directions concerning forensic disadvantage, informer witnesses, and identification evidence were capable of meeting any residual concern.
The court also rejected the submission that the ongoing financial cost to the accused of defending the charges over many years could, on its own or in combination with the other matters raised, justify a permanent stay. Adams J undertook the required balancing exercise, weighing the accused's right to a fair trial against the legitimate public interest in the determination of serious criminal charges and the need to maintain public confidence in the administration of justice, and concluded that the threshold for a permanent stay had not been met.
Orders Made
- The application for a permanent stay of the proceedings is refused.
Key Takeaways
- A permanent stay of criminal proceedings is an exceptional remedy requiring the accused to demonstrate a fundamental defect that cannot be remedied by any other means, including curative directions to the jury.
- Introducing new or supplementary evidence in advance of a retrial does not, without more, constitute the kind of fundamental unfairness that warrants permanently halting proceedings; the relevant question is whether the trial itself can be conducted fairly.
- Where witnesses have made contemporaneous statements and given sworn evidence across multiple proceedings, concerns about fading memories are substantially reduced because the existing record captures what would otherwise have been lost.
- The financial burden on an accused arising from prolonged and repeated proceedings is an unfortunate consequence of delay, but the Supreme Court held it does not independently or in conjunction with other matters automatically justify a permanent stay.
- Proposed changes to the Crown case that require leave under s 38 of the Evidence Act remain subject to judicial scrutiny at the point of application; leave can be withheld if prejudice not previously raised becomes apparent at trial.
Legislation and Cases Referenced
Legislation
- Criminal Appeal Act 1912 (NSW), s 8
- Evidence Act 1995 (NSW), ss 38, 165, 192
- Criminal Procedure Act 1986 (NSW), s 147
Cases
- Jago v District Court of NSW (1989) 168 CLR 23
- Walton v Gardiner (1993) 177 CLR 378
- Dietrich v The Queen (1992) 177 CLR 292
- The Queen v Glennon (1992) 173 CLR 592
- Agar v Hyde (2000) 201 CLR 552
- The Queen v Edwards (2009) 83 ALJR 717
- Dupas v The Queen (2010) 241 CLR 237
- Strickland v Commonwealth Director of Public Prosecutions (2018) 266 CLR 325
- Wiggins v R [2020] NSWCCA 256
- R v Wiggins (No 2) [2021] NSWSC 1127
- R v Wiggins (No 3) [2021] NSWSC 1128
- Nikolovski v R [2021] NSWCCA 327
- Koloamatangi v R; Popovic v R [2020] NSWCCA 52
- R v RD [2016] NSWCCA 84
- R v Sparos (No 2) [2017] NSWSC 1462
- R v Warwick (No 64) [2019] NSWSC 163
- R v Michael John Issakidis [2015] NSWSC 834