R v Wiggins (No 4) [2022] NSWSC 27

Supreme Court New South Wales

Medium Neutral Citation: R v Wiggins (No 4) [2022] NSWSC 27 Hearing dates: 17 January 2022 Date of orders: 24 January 2022 Decision date: 24 January 2022 Jurisdiction: Common Law Before: N Adams J Decision: (1) The trial date of 31 January 2022 is vacated. (2) The matter is listed before R A Hulme J on 11 February 2022 for allocation of a further trial date. (3) The accused's bail conditions to revert to those prior to the variation I made on 13 December 2021. Catchwords: CRIMINAL PROCEDURE — application to vacate trial due to COVID-19 – where accused on bail – where substantial delay already incurred – where trial would run significantly over predicted time – whether in interests of justice to vacate trial date – application granted Cases Cited: Wiggins v R [2020] NSWCCA 256 Category: Procedural rulings Parties: Regina (Crown) Matthew Paul Wiggins (Accused) Representation: Counsel: P Barrett with S Sloane (Crown) D Dalton SC (Accused)

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

Judgment 1. On 15 January 2013, Matthew Paul Wiggins was charged with the murder of Darko Janceski ("the deceased") and the intentional infliction of grievous bodily harm on the deceased's father, Slobodan Janceski. The offences were committed on 14 April 2012. The issue at trial will be whether it was Mr Wiggins or some other person who committed those offences. 2. Since his arrest, this matter has had an unfortunate procedural history. The matter was not listed for trial until 6 March 2017, over four years after he was charged. That trial proceeded before Davies J and a jury. After 15 days of evidence the trial was aborted and the jury discharged. A second jury trial was listed to commence on 3 October 2017 before Latham J. That trial was adjourned to 31 October 2017. When it eventually proceeded, the second trial resulted in a hung jury on 11 December 2017. On 9 April 2018, a third trial was listed. It proceeded before Latham J and a jury of twelve. Mr Wiggins was found guilty on 16 May 2018 and on 24 July 2018 was sentenced to a lengthy term of imprisonment. 3. The accused appealed against that conviction and his matter was heard in the Court of Criminal Appeal on 6 April 2020. On 7 October 2020, the Court of Criminal Appeal set aside the convictions and ordered a new trial: Wiggins v R [2020] NSWCCA 256. Given the delay in the matter, the accused was granted bail on strict conditions on 17 December 2020. 4. The accused's trial was listed to commence for a fourth time before me on 21 June 2021. Although several pre-trial issues were able to be resolved, the trial date had to be vacated due to the suspension of jury trials caused by the COVID-19 pandemic. 5. The accused's trial was listed to commence for the fifth time before me during the court vacation on 17 January 2022. On 3 January 2022, that trial date was adjourned on the application of the accused until 31 January 2022 in order to allow him to recover from the COVID-19 virus. 6. On 14 January 2022, the accused filed a notice of motion seeking that the trial date of 31 January 2022 be vacated, with a view to the trial proceeding later in the year. That motion was supported by an affidavit of the accused's solicitor, Sarah Khan, sworn on 14 January 2022. 7. The notice of motion was heard by me on 17 January 2022 by way of audio-visual link. Mr Barrett appeared with Ms Sloane for the Crown and Mr Dalton SC appeared for the accused. The motion was formally opposed but, for reasons that appear below, the parties joined issue as to the difficulties posed by commencing the trial at this time. After the evidence was read and submissions made, and with the concurrence of the parties, I reserved my decision until today in order to assess the progress of other jury trials commencing in both the Supreme and District Courts.