Citation: R v Wiggins (No 6) [2022] NSWSC 1189
Court: Supreme Court of New South Wales
Date: 5 September 2022
Judge: N Adams J
Background
The accused stood trial for the murder of a man shot dead outside his parents' home in April 2012, and for the serious assault of the victim's father during the same incident. The Crown's case was entirely circumstantial. DNA matching the accused's profile was found inside a helmet and on sunglasses left at the scene after the victim's father wrestled with the gunman.
The Crown alleged the accused's motive was revenge: he suspected the deceased had killed his close friend Goran Nikolovski, who had gone missing in late October 2011. The Crown sought to tender 31 listening device transcripts and 17 SMS messages, four of which were contested on admissibility grounds.
The objecting party conceded all four calls were relevant. The sole ground for exclusion was that, in each case, the danger of unfair prejudice to the accused outweighed the evidence's probative value under section 137 of the Evidence Act 1995 (NSW).
Legal Issues
- Whether each of the four intercepted calls should be excluded under section 137 of the Evidence Act because the danger of unfair prejudice to the accused outweighed probative value
- Whether derogatory remarks about police in the calls created a risk the jury would misuse the evidence by inferring criminal association or propensity rather than using it to assess motive
- Whether a direction to the jury could adequately cure any identified risk of unfair prejudice
Decision
The applicable test: The court applied the section 137 balance between probative value, defined as the extent to which evidence could rationally affect the assessment of the probability of a fact in issue, and the danger of "unfair prejudice," meaning the risk the jury would use the evidence on a basis logically unconnected with its legitimate purpose (at [11]-[13]).
Call 1 (excluded): This call between the accused and the national head of the Comanchero OMCG occurred on the day Nikolovski's disappearance became apparent. The court found its probative value was low because other unobjected-to calls already established that both men were worried about Nikolovski and that one intended to travel to Wollongong to discuss the matter (at [22]-[23]). Against that low value, the court found a real risk of unfair prejudice: the accused's derogatory comments about police in this call could not, at that early stage, be attributed to frustration over the investigation into Nikolovski's death, and might instead lead the jury to infer the accused despised police simply because of criminal associations (at [25]-[26]).
Call 2 (admitted): This call, two days later, involved discussion of why police had not located Nikolovski's car and included a reference to "our lives" being tracked. The court found it significant because the two men were beginning to discuss the police investigation, and the reference to tracking was relevant to why the accused might have been guarded in his phone conversations (at [32]-[34]). The risk of unfair prejudice was found to be slight and capable of cure by a judicial direction that the accused was not himself under police surveillance at that time (at [35]).
Call 3 (partially excluded, admitted in edited form): This call between the accused and Nikolovski's partner included a reference to "an eye for an eye" that had previously been ruled inadmissible by Latham J at an earlier trial. The Crown did not press that portion once the prior ruling was identified, and it was excised (at [41]-[42]). The remainder of the call was admitted. The court found it highly probative because the accused's question about surveillance cameras on the route to the deceased's house was consistent with his belief that the deceased was involved in Nikolovski's disappearance, and it connected the accused's state of mind to the Crown's motive case (at [45]). Any remaining unfair prejudice from disparaging police comments was outweighed by this probative value (at [46]).
Call 4 (admitted): This call, made many months after the shooting on the day an unrelated body was found, showed the accused still firmly believed the deceased had been responsible for Nikolovski's death. The court found this rebutted any suggestion the accused's motive was short-lived, and the accused's reference to surveillance cameras informed the Crown's case about the shooter's awareness of CCTV in the area (at [51]). The court found the probative value outweighed the unfair prejudice arising from further disparaging comments about police, noting those comments were consistent with a continuing pattern of frustration over the failure to investigate Nikolovski's death (at [52]).
Orders Made
- Call 1: excluded
- Call 2: not excluded
- Call 3: partially excluded (the "eye for an eye" portion excluded; remainder admitted)
- Call 4: not excluded
Key Takeaways
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Under section 137 of the Evidence Act, "unfair prejudice" means the risk that a jury will use evidence on a basis logically unconnected with the purpose for which it is tendered, such as inferring bad character or criminal association rather than assessing the specific fact in issue (at [13]).
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Where multiple intercepts cover similar ground, the marginal probative value of each additional call must be weighed independently: a call adding little beyond what other unobjected-to evidence already establishes may have probative value too low to survive a section 137 challenge (at [22]-[23]).
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Derogatory remarks about police carry different prejudice risks depending on context: comments made before any obvious personal grievance may invite the jury to infer general criminality, while similar remarks made during a clearly established period of frustration over an investigation are more defensible (at [25], [46]).
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A targeted judicial direction can reduce or eliminate identified risks of unfair prejudice where the prejudice arises from a factual misapprehension, such as the jury mistakenly believing the accused was himself under police surveillance (at [35]).
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Where a specific portion of a recording has been ruled inadmissible at a prior trial, section 130A of the Criminal Procedure Act 1986 (NSW) operates as a hurdle to re-agitating that ruling at a retrial, and the Crown may need to bring a specific application to overcome it (at [41]).
Legislation and Cases Referenced
Legislation
- Criminal Procedure Act 1986 (NSW) , s 130A
- Evidence Act 1995 (NSW), s 137
Cases
- Colby v The Queen [1999] NSWCCA 261
- Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37
- The Queen v Bauer (a pseudonym) (2018) 266 CLR 56]; [2018] HCA 40