R v Wiggins [2021] NSWSC 719

Supreme Court New South Wales

Medium Neutral Citation: R v Wiggins [2021] NSWSC 719 Hearing dates: 16 June 2021 Date of orders: 18 June 2021 Decision date: 18 June 2021 Jurisdiction: Common Law Before: N Adams J Decision: See [37], [48]. Catchwords: CRIMINAL PROCEDURE — application to exclude evidence – ss 55, 98, 137 Evidence Act 1995 (NSW) – whether evidence of the accused driving past the deceased's house following a suspicious house fire five months prior to the shooting is relevant and admissible – held, evidence is relevant to motive and admissible – whether videos of accused participating in MMA bouts admissible – whether unfair prejudice due to violent nature of sport – where accused participating in organised and legal sporting activity – where more violent portions of fights are edited out of the videos – held, videos of MMA bouts admissible Legislation Cited: Evidence Act 1995 (NSW), ss 55, 56, 98, 137 Cases Cited: 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 Category: Procedural rulings Parties: Regina (Crown) Matthew Paul Wiggins (Accused) Representation: Counsel: Mr P Barrett (Crown) Mr D Dalton SC (Accused)

Solicitors: Solicitor for Public Prosecutions (NSW) Khan Law & Associates File Number(s): 2013/13092

Judgment 1. Matthew Paul Wiggins is to stand trial on 21 June 2021 for the murder of Darko Janceski ("the deceased") and the intentional infliction of grievous bodily harm on the deceased's father, Slobodan Janceski. 2. The shooting of the deceased took place on 14 April 2012 in the front yard of his parents' home. The gunman rode by on a blue and white Yamaha WR 450 trail bike and stopped outside the house. The gunman was wearing a jacket, motorcycle helmet, Prada sunglasses, a balaclava and gloves. He shot the deceased and then engaged in an altercation with the deceased's father, who ran outside to confront the gunman. He knocked off the gunman's helmet and sunglasses and suffered injuries to his face constituting grievous bodily harm. 3. It is the Crown case that Mr Wiggins was the gunman. The Crown case is circumstantial. One aspect of the Crown case is an alleged motive on the part of the accused. It is common ground that the accused was a close friend of Mr Goran Nikolovski, who disappeared on 31 October 2011 and is presumed to be dead. His body has never been found. The deceased was believed by some, including Mr Nikolovski's partner, to be involved in his disappearance. 4. Other circumstances relied upon by the Crown include that the accused's DNA was found on the motorcycle helmet and Prada sunglasses left behind at the scene; that the Yamaha motorcycle used by the gunman was similar to one owned by Mr Madden, who was the friend of a close friend of the accused, Mr Ferguson, and to which the accused had access; that the Yamaha used in the murder was last seen travelling towards Nan Tien Temple; that the Yamaha found burned out behind the temple was the one owned by Mr Madden; that the bike was found burned out within weeks of its purchase and immediately after a media release about the shooting; that the Yamaha was burned out near Mr Ferguson's place of employment; that a balaclava found at Mr Ferguson's home had the accused's DNA on it; that Prada frameless sunglasses similar to those worn by the shooter were found at the accused's home; that both Mr Ferguson and another man separately suggested that the helmet left at the scene may have been used by the accused to test ride another R6 motorcycle (not the WR 450 used in the shooting); that there were calls between the accused and Mr Ferguson before and after the shooting; that after the shooting both the accused and Robert Nikolovski went to the home of Goran's widow; that both the shooter and the accused are trained fighters; that the physical description of the shooter is similar to the accused and the accused's DNA was found at the scene of the murder of someone he had a motive to kill. 5. The accused was arrested and charged with the murder of the deceased on 15 January 2013. In March 2017 a trial commenced but was ultimately aborted. In October 2017 a second trial commenced, which resulted in a hung jury. From April 2018 a third trial proceeded before Latham J and a jury of twelve. The accused was convicted at the third trial. The accused appealed his conviction and a new trial was ordered: Wiggins v R [2020] NSWCCA 256.