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Supreme Court 24 January 2022

R v Wiggins (No 4)

[2022] NSWSC 27

Assault & violenceHomicide
WHERE ACCUSED ON BAIL APPLICATION GRANTED

Citation: R v Wiggins (No 4) [2022] NSWSC 27
Court: Supreme Court of New South Wales
Date: 24 January 2022
Judge(s): N Adams J

Background

The accused faced trial for the alleged murder of one person and the intentional infliction of grievous bodily harm on another, arising from events in April 2012. He was charged in January 2013, but the matter has had a prolonged and troubled history: the first trial was aborted after 15 days, the second resulted in a hung jury, and the third produced a conviction that was subsequently set aside by the Court of Criminal Appeal in October 2020 on the basis that a new trial was required.

The accused was granted bail in December 2020 following the quashing of his conviction. A fourth trial date (June 2021) was vacated due to the COVID-19 pandemic's suspension of jury trials. The matter was then listed for a fifth time, commencing 17 January 2022, later moved to 31 January 2022 after the accused contracted COVID-19.

On 14 January 2022, the accused filed a motion to vacate the 31 January 2022 trial date entirely, citing the disruption expected from the then-current Omicron wave. The Crown formally opposed any further adjournment but acknowledged, in practical terms, that proceeding could cause significant delays within the trial itself.

  • Whether it was in the interests of justice to vacate the trial date of 31 January 2022 in light of the COVID-19 Omicron outbreak
  • Whether the combination of the accused's financial position, the trial's procedural history, the anticipated disruption to witnesses and legal representatives, and the likely extension of trial length justified a further adjournment

Decision

Adams J accepted that there was a real prospect, not merely speculative, that the Omicron outbreak would cause substantial disruption during the trial. Key personnel, including the accused's solicitor, had already been required to self-isolate. Several witnesses would need to travel to Sydney and give evidence in person, creating further vulnerability to disruption.

The court identified six factors weighing in favour of vacating the date. These were: the real risk of COVID-related delays extending the trial well beyond its five-to-six-week estimate; the accused's deteriorating financial position after spending approximately $800,000 on his defence across previous proceedings; the circumstantial nature of the Crown's case, which would be particularly harmed by interruptions; the fact that this was already the accused's fourth trial; the absence of significant additional prejudice to the Crown given the nine-year delay and the availability of transcripts from earlier trials; and the risk that a protracted 12-week trial would consume court resources and delay other proceedings.

Both parties effectively agreed that a short adjournment of approximately six weeks, to late March 2022, would be the ideal outcome. However, no suitable courtroom was available until August 2022. Adams J concluded that, given the unusual combination of factors, interests of justice required the trial date to be vacated, with the matter to be re-listed for a new date to be allocated.

The court noted that Mr Dalton SC's initial suggestion that a potential double-booking might justify the adjournment was not accepted; the accused's trial was told it would take priority, potentially requiring other briefings to be returned.

Orders Made

  • The trial date of 31 January 2022 is vacated.
  • The matter is listed before RA Hulme J on 11 February 2022 for allocation of a further trial date.
  • The accused's bail conditions are to revert to those in place prior to the variation made on 13 December 2021.

Key Takeaways

  • Where a trial date is sought to be vacated due to COVID-19 disruption, the interests of justice test requires a holistic assessment of all relevant circumstances rather than a single determinative factor.
  • Accumulated procedural misfortune, including multiple aborted or unsuccessful trials, can weigh significantly in the balance when a court assesses whether further delay is justified.
  • The privately funded nature of a defence is a relevant consideration; the risk of a trial running well beyond its estimate bears more heavily on an accused who has already exhausted substantial personal funds across prior proceedings.
  • A circumstantial Crown case is particularly susceptible to harm from repeated mid-trial adjournments, and this risk can support, rather than oppose, an application to vacate a trial date in favour of a later, more orderly proceeding.
  • Court resource constraints, specifically the lack of available courtrooms caused by pandemic-related backlogs, can directly limit the remedies available and force a choice between proceeding in difficult conditions and a longer delay than any party sought.

Legislation and Cases Referenced

Cases:
- Wiggins v R [2020] NSWCCA 256 (Court of Criminal Appeal decision setting aside the conviction and ordering a new trial)

Legislation: No specific legislation was cited in this decision.