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. Pre-trial rulings 1. By notice of motion dated 4 June 2021 the accused seeks the exclusion of five categories of evidence as follows: 1. Evidence of a police vehicle stop near the deceased's premises on 5 November 2011; 2. Videos of the accused competing in mixed martial arts (MMA) fights; 3. The accused's birth certificate, which records that his mother was born in Croatia; 4. Recordings of certain telephone intercepts; 5. A list of "coincidences" relied upon by the Crown in the absence of a notice under s 98(1)(a) of the Evidence Act 1995 (NSW). 1. Written submissions were provided by both the Crown and the accused and the matter was listed for pre-trial hearing on 16 June 2021. 2. The issues in dispute were narrowed significantly at the pre-trial hearing. Issue 5: List of coincidences 1. The fifth objection above was to the fact that at the 2018 trial, the Crown prosecutor said the following in his closing address: "CROWN PROSECUTOR: I want to now go fairly quickly through what I call coincidences. I'm not talking about coincidence in the legal sense but in the sense that we all understand. I want to pose a rhetorical question to you. If Mr Wiggins was not the shooter, and I want you to look at these coincidences from that standpoint." (emphasis added) 1. The Crown then listed all of the various circumstances (strands in the cable) that linked the accused with the crime, including those I have listed above, by referring to each of them as a "coincidence". The reference by the Crown to "coincidence in the legal sense" is a reference to s 98 of the Evidence Act which provides that: 98 The coincidence rule (1) Evidence that 2 or more events occurred is not admissible to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to any similarities in the events or the circumstances in which they occurred, or any similarities in both the events and the circumstances in which they occurred, it is improbable that the events occurred coincidentally unless— (a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence, and (b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value. 1. It is difficult to know what the jury would have made of the Crown informing them that he was not using the word "coincidence" in the legal sense but there is otherwise nothing wrong with putting a circumstantial case to the jury as comprising a number of facts which separately do not prove anything but which cumulatively can be powerful evidence against an accused. In any event, the closing address is some way off and the Crown can clarify how he wishes to put his circumstantial case closer to that time. Issue 4: Telephone intercepts 1. The parties undertook to attempt to resolve the question of editing the telephone intercepts without the need for the Court to provide reasons. Those intercepts will not be played until near the end of the Crown case in any event. Issue 3: Birth certificate 1. Slobodan Janceski gave evidence that when fighting with the gunman, he knocked the gunman's helmet off and could see his eyes and mouth through the holes in the balaclava. He described what he saw as follows: "It was a male; Balkan sort of face. Like, Greek, half of Turkey. That's all Balkan from Austria right down." 1. At the 2018 trial, the Crown adduced evidence about the accused's birth certificate, which indicates that his mother was born in Kakanj, Croatia. Detective Brendan Ritchie gave the following evidence: "Q. There are a couple of matters with Detective Ritchie. Detective, firstly you obtained the birth certificate for Matthew Paul Wiggins? A. Yes, it was obtained during the course of the investigation. Q. The upshot of that is that the accused's father was born in Glen Innes in New South Wales? A. Yes. Q. And the accused's mother was born at a place called Kakanj in Croatia? A. Yes." 1. Mr Dalton objected to the admission of the accused's birth certificate in the 2018 trial. That objection was dealt with in the following way: "HER HONOUR: Yes. Is that that objected to? DALTON: It is, because the mother or father may come from a certain ethnic background it doesn't mean that he necessarily looked that way,. HER HONOUR: No, but what it does do is that it – DALTON: They have got plenty of photos of my client at the time. HER HONOUR: I know. But when Mr Janceski Senior describes the appearance of the person I would have thought it would rebut any inference that the jury might draw about your client, having an Australian name, not a Croatian name, Matthew Wiggins wouldn't alert them to the fact that he had some Croatian ancestry. DALTON: It is not just his name, it is his looks. HER HONOUR: I appreciate that. But what I am saying is what the Crown is seeking to do is to say that Mr Janceski Senior can be relied upon in that respect because in fact the accused did have, at least on one side of his parentage, a person from that region. Look, it's relevant, Mr Dalton, so we get past s 55. How is it prejudicial? DALTON: Your Honour in my submission it is not relevant. HER HONOUR: Why do you say it is not relevant? DALTON: Because you might have a parent from that particular racial background doesn't mean you look like that. HER HONOUR: That is true. But that is a question for jury. You can make that submission. DALTON: That is what I mean, it's dangerous to be suggesting only one parent might have had some affiliation with that country, and you don't know in what way as well. Perhaps that person was born in another country and then went over and adopted that nationality, which then became the nationality that went on that birth certificate. It has no probative value to the way a person looks. And if it is the most minimal probative value, certainly [its] prejudice outweighs that. HER HONOUR: In what way is it prejudicial? DALTON: Because they will run off that the mother was Croatian. HER HONOUR: Well, I can give them appropriate directions about that. All I am going to says is that, as you point out, the strength of Mr Janceski's description of the assailant insofar as it might well apply to the accused is offset by the fact that we know there is a very large Croatian population in that area and it doesn't really, I mean, it is consistent but it is not determinative. That is the appropriate direction, isn't it? DALTON: But, your Honour, my point is that someone's [n]ational heritage does not necessarily have any bearing on the way that person looks. HER HONOUR: It doesn't necessarily. But it may well have if the person who describes the assailant is of the same general background. DALTON: Your Honour, should we leave this objection now and I will do some- HER HONOUR: We will come back to it later. We will have the jury and we will re visit this." 1. The following day, the issue was raised again and the following exchange occurred: "CROWN PROSECUTOR: Could I take your Honour's attention to the second sentence. That is the source of that information. I don't seek to put anything from the birth certificate document, other than the fact of the place of birth of the mother. HER HONOUR: Are you proposing to lead that through someone? CROWN PROSECUTOR: Yes. DALTON: Can we have the place of birth of the father as well. CROWN PROSECUTOR: Yes, I don't have a problem with that." 1. In the pre-trial argument before me, the accused submitted that a person's heritage, particularly on one side of their family, does not necessarily determine their racial features. The jury will have ample photographs of the accused taken at the time to make up their own minds about the shooter. It is submitted this evidence is not relevant. 2. Further, it was submitted that perceptions of an accused's racial heritage can vary considerably, and that the accused at least ostensibly looked to be more of Anglo-Saxon heritage at the time of the shooting. If this evidence is allowed, the jury are likely to unfairly consider that the witness was somehow able to divine some Balkan traits in his appearance. This is a matter that should be properly determined upon the photographic evidence rather than his mother's heritage as recorded on his birth certificate. It is submitted the evidence should be excluded pursuant to s 137 of the Evidence Act accordingly. 3. The Crown submitted that it was not necessary that this issue be determined before opening addresses and that the Crown would make further inquiries as to the accused's heritage. I propose to defer this ruling. Issue 1: Police vehicle stop 1. The reason that the deceased was living with his parents at the time of the shooting is that there had been a fire at his premises on 5 November 2011, shortly after Goran Nikolovski went missing. The Crown case is that the deceased burned down his own home to destroy evidence relating to Mr Nikolovski's disappearance. The property was not completely destroyed, and investigators were able to conclude that a rug had been removed from the premises before the fire. 2. Inspector Darren Kelly gave the following evidence about the fire at the deceased's home on 5 November 2011: "Q. Do you recall at about 5.30 in the morning of 5 November 2011 were you recalled to duty because of a fire at 17 Barnes Street at Berkeley? A. Yes, I was. Q. Darko Janceski's home? A. That's correct. … Q. Was Darko Janceski there on your arrival and was he with another man called Evren Agridan? A. Yes, that's correct. Q. Did you stop them as they were walking away from the premises and speak with them? A. Yes. … Q. Did you ask him if he was having any dramas with anyone? A. Yes. Q. Do you remember his response? A. He indicated the [Comancheros]. … Q. Was he a member of the Comancheros at that time? A. I'm unsure of what his exact position was, but I know he was affiliated with them. Q. Did you see for yourself and speak to the fire officer in charge there that the fire had caused extensive damage? A. Yes, it did. … Q. Did they tell you that they could smell accelerant such as fuel? A. Yes. Q. And did they tell you that they believed it had been deliberately lit? A. Yes, they did." 1. Inspector Kelly gave evidence in cross-examination about his discussion with the deceased following the fire: "Q. And once again I will refer to the excerpts as set out in your statement paragraph 65, you asked Mr Janceski specific questions in regard to the criminal and coronial process of an inquiry related to fires, is that right? A. Yes. Q. And Janceski said. You might think it was me it was the commo's mate Buttle? [sic: Buddle] A. Yes. Q. That was a reference to Mark Buttle, that was referred to in your evidence in chief? A. Yes that is right. … Q. And Janceski said. I know that Buttles was hanging around he wanted my bike but I can't prove that though. Is that right. A. Yes. Q. You, from the information that you had obtained, suspected that Mr Janceski was involved in setting the fire to his own house? A. Yes. Q. Some of your evidence in chief dealt with various aspects of that, one of them being the movement of a Sydney City photo that he seemed to be very partial to? A. Yes that is right." 1. Detective Senior Constable Daniel Sammut gave the following evidence about the accused being stopped near the deceased's house following the fire: "Q. At about 10.40 in the morning [on 5 November 2011], did you see a vehicle travelling slowly past the house at Barnes Street? A. Yes. Q. Did you, I think you were working with a Detective Baker at the time, is that right? A. That is correct. Q. Did you watch that vehicle travel slowly past the house? A. Yes. Q. Barnes Street, was that a main road? A. No it is not. Q. Is it a cul de sac or is it a? A. No it is not a cul de sac. It is just a street that is not a main road. Q. After the vehicle travel[l]ed slowly past, did you continue to watch it? A. Yes. Q. How many occupants? A. One. Q. Did you then go to the police vehicle and drive off and follow that vehicle? A. Yes I did. Q. Did you then travel into a street called Northcliffe Drive? A. Yes I did. Q. Is that a more main road? A. Yes it is. Q. In that road did you stop the driver of the vehicle? A. Yes I did. Q. And did you then speak to the driver? A. Yes. Q. Who was that? A. Matthew Wiggins." 1. There was other evidence in the Crown case about the fire. On 5 November 2011 at 4:57pm, Robert Nikolovski (Goran Nikolovski's brother) and the accused had the following conversation: (V1 is Mr Nikolovski and V2 is the accused) "V1: All right. That house out there… V2: Yeah. V1: … that's burnt, that's Darko's house. V2: It was, wasn't it? V1: Yeah. Now, now, think about that for a second. (Pause) V2: Yeah. V1: Did, did, are you clued on yet? V2: Yeah, yeah, yeah. V1: Okay. Come up when you're ready. V2: All right buddy." 1. On 19 September 2012 at 8:22pm, the accused had the following conversation with Goran's partner, Paula Geldeard: (V1 is Paula, V2 is the accused) "V2: … tomorrow morning, ring the pigs up straight away… V1: Yeah. V2: They found the body up at the bush, in the bush up near the mine, wrapped up in a rug, in, in carpet, in carpet. V1: What do you mean? How do you… V2: I reckon it has to be fuckin' um, Gozza [Goran Nikolovski] because, at Darko's house… … V2: They found a body, wrapped up in carpet, but, who else would it be? Darko's house got burnt down, he was probably there at there at the house, they wrapped it up in carpet and it's up there." 1. I note that Goran Nikolovski's body has in fact never been found. 2. The accused sought to exclude the evidence of police stopping the accused while he was driving slowly past the scene of the fire. This occurred five months before the shooting but shortly after Goran's disappearance. It was submitted that the evidence was irrelevant due to the lack of temporal proximity and the lack of evidence linking the accused to the house fire. 3. It was submitted that the accused lived nearby and had to drive past the deceased's address to go to work. The fact that he slowed down is consistent with him just being a "stickybeak". 4. The Crown submitted that the accused's presence near the deceased's house shortly after the fire was relevant to his interest in the deceased's activities and his belief that the deceased was involved in Mr Nikolovski's disappearance. Consideration 1. Sections 55 and 56 of the Evidence Act provide that: 55 Relevant evidence (1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding. (2) In particular, evidence is not taken to be irrelevant only because it relates only to: (a) the credibility of a witness, or (b) the admissibility of other evidence, or (c) a failure to adduce evidence. 56 Relevant evidence to be admissible (1) Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding. (2) Evidence that is not relevant in the proceeding is not admissible. 1. In determining whether the evidence is relevant I am required to assess the capacity of the evidence rationally to affect the assessment of the probability of the existence of a fact in issue, putting to one side other questions of potential inadmissibility. 2. I am satisfied that this evidence is relevant in that it has the capacity, if accepted, to rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue, namely, that the accused had an interest in Darko Janceski and a motive to kill the deceased. 3. As for the risk of unfair prejudice, s 137 of the Evidence Act provides that: 137 Exclusion of prejudicial evidence in criminal proceedings In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant. 1. The application of s 137 of the Evidence Act requires me to balance the extent of the capacity of the evidence to support particular factual findings against the danger of unfair prejudice to the accused. The danger of "unfair prejudice" in this statutory context means a risk that the evidence would be misused by the jury in some unfair way that is logically unconnected with the issues in the case: see McHugh J in Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 at [91]-[92]. As Mason P observed in R v Colby [1999] NSWCCA 261 at [97]: "[t]he focus is upon the danger that the tribunal of fact will use the evidence upon a basis logically unconnected with the issues in the case". As Gleeson CJ observed in Festa v The Queen (2001) 208 CLR 593; [2001] HCA 72 at [22], the risk of unfair prejudice "lies in the risk of improper use of the evidence, not in the inculpatory consequences of its proper use". 2. The evidence is relevant and of moderate probative value. Mr Dalton submitted that the risk of misuse arose from the possibility that the jury would think that the accused was involved in setting the deceased's house on fire. It was submitted that there was evidence that the deceased suspected that either Mark Buddle or Robert Nikolovski had organised for someone to set the fire, and that introducing evidence of the police stop might lead the jury to think that the accused set the fire at the behest of Mr Buddle or Mr Nikolovski. It was submitted that there was a risk that the jury would reason in this way even though the Crown expressly disavowed this theory in its case and there was evidence from police officers that they suspected the deceased had set his own house on fire. 3. It can often be difficult for judges to fully apprehend the relevance and potential prejudice of one piece of evidence in a circumstantial case prior to the commencement of the trial. Both counsel for the Crown and senior counsel for the applicant appeared at the 2018 trial and are abreast of the details involved. I do not currently have the same overview of the evidence as they do. Despite this, I am satisfied that the significance of this discrete piece of evidence is a matter for determination by the jury. I am satisfied that there is no risk of the jury using it in some way logically unconnected with the issues at trial if appropriate directions are provided to the jury as to how the Crown puts its case. 4. The evidence of the applicant driving slowly past the deceased's home after the fire on 5 November 2011 is admissible. Issue 2: Martial arts videos 1. At the 2018 trial the Crown relied upon two recordings of the accused competing in mixed martial arts (MMA) competitions. The videos are edited portions of particular fights in which the more violent aspects of the videos have been removed. The Crown submitted that the videos are relevant because the evidence of Mr Slobodan Janceski is that the gunman had skills as a kickboxer. 2. In the 2018 trial, Slobodan Janceski gave the following evidence about his altercation with the gunman immediately following the shooting: "as I tried to get up, he push down and he hit me about four times I say, with his right knee – kick boxing style. … Q. You said that the person you were fighting, you felt, what, his arms and you said he was [pumped]? A. He was tinnier than mine, but pump harder. So I could tell then he had some training. … Q. Firstly, you said that this person appeared that he had done some training? A. Yes. Q. And you spoke about this person having some, what was it, kick boxing experience? A. Kick boxing." (emphasis added) 1. Mr Janceski was cross examined about his own experience in boxing and judo as follows: "Q. You trained in judo? A. Yes. Q. And did you then move over to training in boxing? A. Exactly. Q. How long did you do boxing for? A. At that time, 10 years. Q. At that time, did you participate in boxing fights? A. I understand you now. I was first an amateur; three rounds, two minutes. Within six months to eight months I graduate to professional; six rounds three minutes. Q. How many fights did you have, do you know? A. I had about 20, 21 amateur fights and 7 or 8 – I take 7 for granted. Q. Seven professional fights? A. Yes, professional fights. Q. Wins and losses? A. I lost first fight – the very first amateur, because I was put in the ring within three weeks of training. So my skills were not good, but then I learned how to do it, but I never lost a fight. There were a couple of draws, some draws, but most of them win. The professional, all wins – seven fights." 1. Mr Janceski went on to give evidence that he was not an expert but said that he was "very interested" in physical sports such as boxing, kickboxing, and karate. He said, "I am not [an] expert but I can tell". 2. It was submitted on behalf of the accused that the jury could simply be told that the accused had participated in MMA bouts and had won certain competitions, without the need for the videos to be played. It was submitted that some members of the community may be morally opposed to violence or combat sports and may find the videos shocking or abhorrent. It was submitted that the videos would be unfairly prejudicial to the accused and that there was a real risk that the evidence would be misused by the jury. 3. The Crown submitted in reply that there is no evidence that members of the public (and by extension, potential members of the jury) are vehemently opposed to MMA fights. It was noted that there had been significant editing of the videos already to ensure a fair trial. It was submitted that there is no danger of unfair prejudice to the accused when the jury is considering the sole issue in this trial, that is whether the Crown has established beyond reasonable doubt that the accused was the person who carried out a shooting murder. That is a vastly different proposition to that of a person's involvement in organised MMA competitions. Consideration 1. Mr Dalton SC did not suggest that the recordings were not relevant. The objection was based solely on the risk of unfair prejudice. 2. The videos were played in court during the pre-trial hearing as was the material deleted from the second of them. That deleted material shows the accused repeatedly punching his opponent in the head while he is on the ground until his opponent passes out. 3. I viewed the recordings again in chambers. There is no real difference between them once the highly prejudicial material is deleted. They both depict the accused in a boxing ring with his opponent along with a referee and a ring announcer. There is a reasonably large crowd in attendance. The fighting looks reasonably professional and appears to be well organised. The accused and his opponents are wearing gloves and shorts (in the style of professional boxers) and are barefoot. The competitors are announced as they enter the ring, and they engage in timed bouts of fighting in accordance with the referee's directions. In the second video, both competitors have trainers observing from the edge of the ring. The actual fighting involves both boxing and kicking – in other words, kickboxing, as described by Mr Janceski snr. The first video also involves some wrestling. 4. I am satisfied that the recordings have significant probative value. Being qualified as a kickboxer is not a common trait and one only gets an understanding of what that sport involves and the accused's proficiency at it by watching the videos. I am satisfied that at the end of the second recording, the portion of the video involving violent punching to the head should be edited even more closely that it currently is so that none of that is depicted. Otherwise, I am not persuaded that there is a real risk that the footage would be misused by the jury. Kickboxing is a sport. It is legal. It does not raise bad character or any tendency to be violent. Nor am I satisfied that jurors would be prejudiced against the accused if they do not like the sport itself. Directions can be given in that regard. 5. I am satisfied that the recordings are admissible subject to further editing of any footage of the accused punching his opponent to the head while his opponent is already on the ground. ********** Amendments 19 September 2022 - Publication restriction removed DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 September 2022