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Supreme Court 15 September 2022

R v Wiggins (No 7)

[2022] NSWSC 1249

Assault & violenceHomicide
EVIDENCE CHARACTER EVIDENCE EVIDENCE ACT S 110 EXTENT TO WHICH CHARACTER DIVISIBLE RELEVANCE CONSIDERATION OF R V AKB (NO. 7)

Citation: R v Wiggins (No 7) [2022] NSWSC 1249
Court: Supreme Court of New South Wales
Date: 15 September 2022
Judge: N Adams J

Background

The accused stood trial for the murder of one man and the intentional infliction of grievous bodily harm on another, arising from events in April 2012. The trial had a protracted history, commencing before Adams J and a jury of 15 in August 2022, more than ten years after the alleged offences and nine years after the accused's arrest.

The accused held a criminal record that included three convictions for assault occasioning actual bodily harm and one for affray. The Crown also held telephone intercept material implicating him in further uncharged acts of violence, and the accused had been associated with the Comanchero Motorcycle Club at the relevant time. Good character had never been raised at any of the earlier trials in this matter.

Shortly before the close of the Crown case, defence counsel sought a ruling on whether the accused could raise good character in specific nominated respects under s 110 of the Evidence Act 1995 (NSW), without opening the door to the Crown's broader rebuttal evidence beyond his formal criminal record.

  • Whether an accused with prior convictions for violence can nonetheless raise "good character in a particular respect" under s 110 of the Evidence Act, by identifying categories of offending for which he has no convictions (such as firearms, drugs, organised crime, and dishonesty offences).
  • Whether, when such a partial character claim is made, the Crown is limited in its rebuttal to the accused's criminal record alone, or may also rely on other evidence such as telephone intercepts.
  • Whether the approach taken by Davies J in R v AKB (No 7) [2018] NSWSC 1120 should be followed.
  • The extent to which an accused's character is divisible, and how many "particular respects" can legitimately be nominated.
  • Whether a full good character direction was warranted, or only a more limited direction.

Decision

Adams J examined the scope of s 110 of the Evidence Act, which permits an accused to adduce evidence of good character "in a particular respect" while leaving open the Crown's right to rebut that evidence under s 112. The court engaged with the question of whether the mere absence of convictions in nominated categories constitutes a cognisable "particular respect" of character, and how divisible character can legitimately be.

The court declined to accept the accused's broadest contention, namely that a claim of good character limited to the absence of convictions in specified categories would confine the Crown's rebuttal exclusively to the criminal record. Adams J found that, in circumstances where the Crown held intercept material and other evidence of uncharged conduct, it would not be so confined. The court also expressed concern that nominating multiple narrow categories risked fragmenting character evidence in a way that was artificial and potentially misleading.

The court permitted evidence to be led that the accused had no convictions for firearms offences and no convictions for offences related to outlaw motorcycle clubs. However, Adams J indicated that any direction arising from this would be a limited one, expressly not using the language of "good character," and reflecting the constrained nature of what had actually been established.

The dishonesty aspect was deferred until after the accused gave evidence for the first time. When the accused did ultimately give evidence, defence counsel renewed that application, but indicated that if the court would give only a limited direction (rather than a full good character direction), the application was withdrawn. At the conclusion of the defence case, defence counsel also withdrew the request for any limited character directions at all, meaning no character direction was ultimately given.

Orders Made

No orders were made in this decision.

Key Takeaways

  • Under s 110 of the Evidence Act, an accused may seek to raise good character "in a particular respect," but the court retains a discretion to assess whether what is nominated genuinely constitutes a cognisable aspect of character rather than an artificial construct built solely around the absence of convictions in listed categories.
  • Where an accused frames a character claim by reference only to absent convictions, this does not automatically restrict the Crown's rebuttal evidence to the formal criminal record. If the Crown holds other probative material, such as telephone intercepts revealing uncharged conduct, it may be entitled to rely on that material in rebuttal.
  • The Supreme Court declined to follow R v AKB (No 7) to the extent it might be read as confining the Crown's rebuttal evidence solely to the accused's criminal record once the character claim is defined by reference to convictions only.
  • Character is not infinitely divisible. Adams J signalled concern about an accused nominating multiple narrow "particular respects," noting that excessive fragmentation risks creating a misleading picture for the jury and may attract proportionally broad Crown rebuttal.
  • Where a limited character direction is the most that the court is prepared to give, counsel retain the option of withdrawing the application altogether. In this case, once Adams J indicated the direction would not include the language of "good character," all character applications were withdrawn before closing addresses.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), ss 110, 112, 137
- Crimes Act 1900 (NSW), ss 33, 93T
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
- Interpretation Act 1987 (NSW), s 8(b)

Cases:
- R v AKB (No 7) [2018] NSWSC 1120
- R v AKB (No 4) [2018] NSWSC 1082
- R v AKB (No 5) [2018] NSWSC 1110
- Melbourne v The Queen (1999) 198 CLR 1; [1999] HCA 32
- Decision restricted [2021] NSWCCA 74
- FB v R [2020] NSWCCA 137
- Clegg v R [2017] NSWCCA 125
- Bishop v R [2013] VSCA 273
- Omot v The Queen [2016] VSCA 24
- Eastman v The Queen (1997) 76 FCR 9
- Gabriel v The Queen (1997) 76 FCR 279
- R v OGD (No 2) (2000) 50 NSWLR 433; [2000] NSWCCA 404
- R v Telfer [2004] NSWCCA 27
- Gallant v Regina [2006] NSWCCA 339
- R v Zurita [2002] NSWCCA 22
- R v Rogerson and McNamara (No 12) [2015] NSWSC 1099
- R v Stalder (1981) 2 NSWLR 9
- R v PKS (Court of Criminal Appeal (NSW), 1 October 1998, unreported)