R v Wiggins

Procedural history

1. This matter has had a most unfortunate procedural history.
2. On 15 January 2013, the accused was charged with the murder of Darko Janceski and the intentional infliction of grievous bodily harm on the deceased's father, Slobodan Janceski. On the same day, Robert Nikolovski was charged with soliciting Mr Janceski's murder. On 25 September 2013, the charge against Mr Nikolovski was withdrawn but on 17 September 2014 he was arrested and re-charged with murder.
3. The accused was committed for trial on 17 December 2014. He was arraigned on 1 April 2015 and his trial was listed to commence on 19 October 2015.
4. On 5 June 2015, the October trial date was vacated so the accused could be jointly tried with Mr Nikolovski, whose matter was still in the Local Court. The new trial date was set for 15 February 2016. On 18 December 2015, Mr Nikolovski was committed for trial.
5. On 3 February 2016, the February trial date was vacated due to separate trial applications by both the accused and Mr Nikolovski. Counsel for Mr Nikolovski had only been briefed the previous day. The applications for separate trials were heard on 22 April 2016 and refused on 27 April 2016.
6. At the arraignment on 6 May 2016, the joint trial was listed to commence on 27 February 2017. That trial commenced on 7 March 2017 before Davies J and a jury of twelve. On 27 March 2017, after 15 days of evidence, the accused withdrew his instructions due to "lack of confidence" in his counsel. On 4 April 2017, after the accused was unable to secure new legal representation for the balance of the trial, the jury was discharged.
7. At the arraignment on 7 April 2017, the joint trial was given a new trial date of 3 October 2017. On 16 June 2017, the accused filed a notice of motion seeking to vacate the trial date due to insufficient funds to obtain legal representation. The motion was dismissed on 28 June 2017. A further notice of motion was filed by the accused on 20 September 2017 seeking that the trial date be vacated due to the insufficient funds. That motion was dismissed on 22 September 2017.
8. On 5 October 2017, having briefed new counsel, the accused sought that the trial be adjourned to 30 October 2017. Further separate trial applications by both the accused and Mr Nikolovski were made on 26 October 2017. Latham J ordered separate trials on 30 October 2017.
9. On 31 October 2017, the accused's trial commenced before Latham J and a jury of twelve. The jury was discharged on 11 December 2017 having been unable to reach a verdict.
10. A third trial commenced before Latham J and a jury on 9 April 2018. That trial concluded on 16 May 2018 at which time the accused was found guilty on both counts. He was refused bail and sentenced on 24 July 2018.
11. On 18 June 2018, the trial of Mr Nikolovski commenced. He was convicted on 6 July 2018 and sentenced on 25 July 2018.
12. The accused appealed against his conviction. The matter was heard in the Court of Criminal Appeal (Simpson AJA, Fagan and Ierace JJ) on 6 April 2020. On 7 October 2020 his conviction was set aside and a new trial was ordered: Wiggins v R [2020] NSWCCA 256 (Decision restricted). The CCA held that the accused had not received a fair trial due to comments made by the trial judge in her summing up which were unfavourable to the accused. Given the delay in the matter, on 17 December 2020, the accused was granted bail on strict conditions. He has remained on bail since that time.
13. On 23 November 2020, the accused's trial was listed to commence for a fourth time before me on 21 June 2021.
14. On 17 December 2020, the Crown served the statement of "Mr X" on the accused. On 22 June 2021, the Crown served a notice on the accused under s 38 of the Evidence Act 1995 (NSW) indicating that it proposed to seek leave to cross-examine a Crown witness, Carmen Ballardin, at the next trial.
15. On 14 July 2021, although several pre-trial issues were resolved, the trial date had to be vacated due to the suspension of jury trials caused by the COVID-19 pandemic. On 2 August 2021, the accused's trial was listed to commence before me on 17 January 2022.
16. On 23 December 2021, the Crown served a second statement of Crown witness Russell Cusbert (dated 18 November 2021) on the accused.
17. On 30 December 2021, the Court of Criminal Appeal quashed the conviction of Mr Nikolovski and entered a verdict of acquittal: Nikolovski v R [2021] NASWCCA 327 (Decision restricted).
18. On 3 January 2022, the accused informed the Court that he had contracted the COVID-19 virus. On 6 January 2022, the accused made an application to vacate the January trial date until later in the year. That day, the contested application was listed for 17 January 2022 and the trial adjourned to 31 January 2022.
19. 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 his solicitor, Sarah Khan, sworn on 14 January 2022.
20. The notice of motion was heard by me on 17 January 2022 by way of audio-visual link with Mr Barrett appearing with Ms Sloane for the Crown and Mr Dalton SC appearing for the accused. The motion was formally opposed by the Crown, but both parties acknowledged the difficulties associated with commencing the trial at that time. On 24 January 2022, I vacated the trial date of 31 January 2022 and adjourned the matter until 11 February 2022 for the allocation of a trial date: R v Wiggins (No 4) [2022] NSWSC 27. On 11 February 2022, the matter was given a trial date on 8 August 2022.
21. On 28 June 2022, the accused filed a notice of motion seeking a permanent stay of the proceedings together with an affidavit of Ms Khan in support. A timetable for filing submissions was agreed on 29 June 2022 and the matter was set for hearing on 2 August 2022. On 15 July 2022, the Crown filed submissions and on 29 July 2022 provided a bundle of material. On 27 July 2022, Ms Khan filed a second affidavit sworn that day. On 26 July 2022, the hearing of the application was relisted for 3 August 2022.
22. For the purposes of this judgment, I propose to refer to the trial before Latham J which led to the accused's conviction on 16 May 2018 as "the last trial".

The stay application

1. The accused relied on the affidavits of Sarah Khan sworn on 28 June 2022 and 27 July 2022, the statements of Russell Cusbert dated 18 November 2021 and 5 March 2013, and the statement of witness X dated 9 May 2019.
2. The Crown relied on the indictment dated 6 November 2020; the amended Crown Case Statement; the statements of Russell Cusbert dated 5 March 2013 and 18 November 2021; the transcripts of evidence of Russell Cusbert dated 15 March 2017, 7 November 2017 and 18 April 2018; the statements of Carmen Regina Ballardin dated 15 April 2012 and 14 February 2013; the transcripts of evidence of Carmen Regina Ballardin dated 10 March 2017, 2 November 2017 and 11 April 2018; the statement of Witness X dated 9 May 2019, the decisions in R v Wiggins (No 2) [2021] NSWSC 1127 and R v Wiggins (No 3) [2021] NSWSC 1128; the transcript of the Crown closing address on 7 May 2018 (at T1202.50 - T1236.27); and the transcript of the closing address on behalf of the accused on 8 May 2018 at (T1238.4 - T1293.30).
3. Mr Woods required DSC Ritchie for cross-examination on the voir dire. He is the officer in charge ("OIC"). I have summarised his evidence below at [48]-[53].
4. The accused identified three "changes" to the Crown case since the last trial which, it was submitted, now render the trial so irremediably unfair as to warrant the exceptional remedy of a permanent stay. In order to address the significance of the additional evidence it is necessary to briefly outline the nature of the Crown case.

Overview of the Crown case

1. The deceased was killed when a man wearing a helmet, balaclava and sunglasses drove by his parents' house on a motorcycle and shot him dead in the front yard. Before the gunman was able to drive away the deceased's father wrestled with him and was himself assaulted. During that altercation the gunman's helmet and sunglasses fell off and were left at the scene. DNA with the same profile as the accused's DNA was located inside the helmet and on the sunglasses.
2. After media reporting of the shooting, a Yamaha WR450 motorcycle was found burned out behind the Nan Tien temple in Wollongong. That motorbike was referred to as the "Ryan bike" at trial. In March 2012, Matthew Ryan had advertised for sale a blue and white Yamaha WR450 trail bike in Cessnock. It was purchased by Christopher Madden on 28 March 2012 under a false name. Mr Madden is a close friend of Derek Ferguson who in turn is a close friend of the accused. Mr Madden was called as a witness at the last trial.
3. The Crown case is that the accused is the gunman and that he drove the Ryan bike during the shooting. It is a circumstantial case and relies on other circumstances that are not necessary to outline for the purposes of these reasons.
4. The defence case is that he is not the shooter, that his DNA must have transferred to the helmet when he test drove another bike in Mr Ferguson's possession and that the Crown cannot establish that the bike used in the shooting was the Ryan bike.
5. At the last trial, a number of neighbours gave evidence of: their observations of the height of the shooter; whether the balaclava he wore had a mouthpiece; and descriptions of the bike.

Additional evidence since last trial

1. In the context of the above Crown case, the accused has identified the following three "changes" to the Crown case since the last trial which, it is submitted, now render the trial so irremediably unfair as to warrant the exceptional remedy of a permanent stay.

Carmen Ballardin

1. Ms Ballardin resided next to the deceased's parents at the time of the shooting. She witnessed the altercation between the gunman and Slobodan Jancevski. In addition to giving evidence of her observations at that altercation, she also gave evidence about the bike. That evidence was summarised by Simpson AJA in Wiggins v R [2020] NSWCCA 256 (Decision restricted) as follows (at [24]): "[24] She made some observations of the bike, which she said was a 'very nice bright blue and white … brand new …'. She said that she had seen this bike coming to or going from Gannet Avenue on two previous occasions, respectively about three weeks and two weeks prior to Mr Janceski's murder. She noted the unusual colour of the bike, that it was "brand new" with brand new number plates and that it was very loud. She was confident in her evidence that it was the same bike."
2. The Ryan bike was purchased by Mr Madden on 28 March. Ms Ballardin gave evidence of the dates she saw the bike by reference to her bank records and shopping purchases. Presuming she is correct in her estimate of the relevant dates, if the bike she saw on the two previous occasions was the bike used by the gunman, then it could not have been the Ryan bike, because three weeks prior to 14 April was 24 March, which was prior to the purchase of the bike in Cessnock.
3. At the last trial the Crown prosecutor did not seek leave to cross-examine Ms Ballardin on this discrete aspect of her evidence nor did he make any reference to it in his closing address. Unsurprisingly, Mr Dalton SC did rely upon it in his closing address.
4. As noted above, the Court of Criminal Appeal quashed the accused's conviction and ordered a new trial on the basis of unfairness caused by the summing up at the last trial. One of the bases upon which the summing up was found to be unfair was that the trial judge raised the possibility that Ms Ballardin was not describing the same bike even though the Crown had not expressly impugned her evidence on that issue either in cross-examination or in his closing address: Wiggins v R [2020] NSWCCA 256 (Decision restricted) at [117]-[121] and [123]-[124].
5. The Crown has not served any new evidence in relation to Ms Ballardin but it has recently served a notice under s 38 of the Evidence Act indicating that it proposes to seek leave to cross-examine Ms Ballardin at trial to suggest to her that she is mistaken about seeing the same motorbike three weeks prior to the shooting.

Russell Cusbert

1. Mr Cusbert was a security guard employed to work at the Nan Tien Temple in 2012. In his first statement dated 5 March 2013 he described seeing a young man on a motorbike of Aboriginal appearance dressed in shorts and a T-shirt with no helmet driving near the temple at approximately midnight on either 19 or 20 April 2012. He later smelled smoke. The significance of this evidence is that the Ryan motorbike was found burnt out at that location one week later. Mr Cusbert's has given evidence consistently with that statement on three occasions thus far.
2. Mr Cusbert has recently provided a second statement dated 18 November 2021. In it he has changed the description of both the bike and the driver. He explained in his statement that after he gave evidence at the last trial, he was discussing motorbikes with another witness outside court during which time he was shown a photograph of a Yamaha WR450 motorbike. He later realised that he had seen a Yamaha WR450 motorbike on the same night that he had seen the rider and smelt the smoke. The Ryan motorbike is a Yamaha WR450 motorbike. He also gives a different description of the rider. He described the male riding the bike as having a really short hair that was light in colour "like between blonde and brown, that he was "stocky but not overly muscley, like a muscley lean build so not overly stocky," and that he was wearing shorts, singlet and shoes without socks.

Witness X

1. Shortly after Mr Wiggins was convicted and before the CCA quashed his conviction and ordered a new trial, a new witness, currently known simply as Witness X, became available to be called by the Crown. His statement is dated 9 May 2019. I have already ruled that his evidence is admissible: R v Wiggins (No 3) NSWSC 1128.
2. Witness X is an informer witness who has received an indemnity in relation to assistance he has provided in other cases. He has not been granted an indemnity in relation to evidence to be given in this trial. The evidence he could give would undermine the evidence of an unfavourable Crown witness, Derek Ferguson. The significance of Mr Ferguson's evidence is as follows.
3. Mr Madden's evidence at the last trial was that shortly after he purchased the Ryan bike, he sold it to a "man with dreadlocks". On an occasion before he sold it, Mr Madden took the bike to Mr Ferguson's place of work (which was near the Nan Tien Temple). Mr Ferguson does not deny this but denies ever providing the bike to the accused.
4. Mr Ferguson gave evidence at the last trial that he was trying to sell another Yamaha bike (an "R6") and the accused took this motorcycle away for a few days to test ride it. The accused took the helmet that was with the bike in Mr Ferguson's garage. Mr Ferguson did not mention the applicant using sunglasses. Nonetheless, the accused contends that he may have deposited his DNA on both the helmet and the sunglasses on that earlier occasion when he test drove the Yamaha R6.
5. On 17 January 2013, police searched Mr Ferguson's home and seized two balaclavas. The two balaclavas were tested for DNA: one contained a mixture originating from at least four people, from which the accused could not be excluded as a major contributor; the other contained a mixture originating from at least three people from which Mr Ferguson could not be excluded as a major contributor.
6. Witness X's evidence is that he does not know the accused but was a close associate of Mr Ferguson. He was in gaol when the shooting occurred, but he knew the accused had been charged (and in 2018, convicted) of that offence. It is anticipated that Witness X will give evidence that Mr Ferguson spoke to him about the accused and his trial. He told Witness X that he had been subpoenaed to give evidence but was trying to avoid it. It is anticipated that Witness X will give evidence that on one occasion he was standing on the driveway of Mr Ferguson's house and the conversation turned to the charges against Mr Ferguson. Witness X's anticipated evidence includes the following: 1. That Mr Ferguson said that his own charges for the murder of the deceased had been no-billed, but he had heard that police were thinking of re-charging him; 2. That Mr Ferguson said, "I organised the motorbike"; 3. That Mr Ferguson said, "[t]he cops raided me house and found the balaclava", although Witness X was not sure if he said "they found the balaclava" or "they missed the balaclava"; 4. That Mr Ferguson said something about the helmet "that bloke" used (in the murder). Witness X could not remember the exact words, but it was something like he (Mr Ferguson) had to "source it".

Evidence of Detective Senior Constable Brendan Ritchie

1. Mr Woods cross-examined the OIC on the voir dire as to how the statements of Mr Cusbert and Witness X came into existence. DSC Ritchie has been the OIC since sometime in 2013 after the accused's arrest. He has also been involved in the related matters of Nikolovski and Koloamatangi.
2. Mr Woods first asked questions concerning Mr Cusbert's second statement dated 18 November 2021. He was asked about the change in his evidence and the OIC expressed some uncertainty as to whether Mr Cusbert is describing seeing a second bike or has changed his description of the bike he has already given evidence about. When Mr Woods asked him why he was unsure of the precise import of Ms Cusbert's new statement, DSC Ritchie responded as follows: "A. Mr Woods, to be honest, I took the original statement from Mr Cusbert and I had an officer not connected with the investigation to take this second statement for the purpose now that is, you know ‑ I didn't want to be seen in trying to patch holes. I just wanted to open and clear and transparent and have someone else take a statement without the inference I've been putting words into this witness' mouth. Q. Detective Ritchie, you say that you haven't tried to patch holes in the police case in this matter? A. I tell you that I did not take this second statement intentionally to remove myself from the taking of that statement."
3. DSC Ritchie was also asked about the content of a telephone conversation he had with Mr Cusbert prior to him providing the second statement: "Q. Did you, detective, ask him whether a male person, as Mr Cusbert had on your account referred to him, did you ask him whether that was the same person that he had seen, as indicated in his original statement, or whether it was some additional person? A. No, I told Mr Cusbert that I would make arrangements for an officer to come and see him with a view to get an additional statement from him about this new information that he's provided. I didn't explore it further with him. He provided the information. I didn't go into his previous statement. I didn't go into his previous evidence. I simply let him know that we would get a statement from him and speak to him further about it and go from there. Q. Detective, you say that you didn't explore it any further with him but I take it that you understood that it was significant enough information that a statement should be taken from him? A. Well, it's not information that I could ignore if he's telling me something different or something additional. It's information I need to bring towards the attention of obviously the DPP and the Court."
4. Mr Woods also asked DSC Ritchie about the contact he has had with Mr Cusbert during the investigation and Mr Cusbert's role as a witness in the repeated trials of the accused.
5. After asking DSC Ritchie general questions about his role as OIC, how and why he takes statements from witnesses and his supervision of junior officers, abstracted from the present case, Mr Woods then moved to the issue of Witness X and asked the following questions: "Q. And what about, more particularly, in relation to the witness who has been referred to in this case as witness X? A. Yes. Q. Were you involved in taking witness X's statement? A. I have had zero involvement in liaising with or taking a statement from that witness. Q. So are you aware who took the statement? A. Yes. Q. Did he tell you who is that? A. It was Detective Senior Constable Brain and Detective Senior Constable Arnold. Q. And did either of those police officers speak to you as the officer in charge in advance about this particular witness, witness X? A. No."
6. In addition, Mr Woods put questions to DSC Ritchie on a range of matters, including his views on the outcome of related prosecutions, his contact with the family of the deceased in this case and the role of Detective Senior Constable Peter Brain in the investigation into the accused and as OIC for periods of time of the broader investigation, under the name Strike Force Calligan. Ultimately, these matters were of limited relevance to the accused's application.

Affidavits of Sarah Khan

1. Although no written submissions were filed on behalf of the accused, his solicitor Ms Khan provided two detailed affidavits outlining the matters relied upon by the accused. It was common ground that the content of her affidavits should be treated as submissions. They can be summarised as follows.
2. In her first affidavit sworn on 28 June 2022 Ms Khan set out the procedural history of the current matter said to illustrate an "extraordinary delay" in the proceedings against the accused. She also pointed to the legal costs, restriction of the accused's liberty whilst on bail and associated anxiety and inconvenience to the accused and his family during this period. She clarified that the basis of the application was not the delay and anxiety, but rather the unfair and opportunistic "patching up" of the Crown case allowed by the delay and "re-runnings" of the trial.
3. Ms Khan described the Crown case as "wholly circumstantial" with one "important strand" being the Ryan bike. She noted that the accused has always maintained that the Ryan bike was not the motorcycle used by the shooter. Ms Khan then outlined the three ways in which the Crown has "patched up" the case against the accused on the issue of the motorcycle over the course of the proceedings. First, she submitted that Mr Cusbert's second statement "radically alters" the position.
4. As for Ms Ballardin's evidence, Ms Khan set out extracts from the CCA judgment pertaining to her evidence and noted that for the first time in nine years of proceedings, the Crown is now seeking to challenge her evidence. Ms Khan contended this evidence tending to favour the defence and position has only changed because of the CCA judgment and the repeated delays in the matter which have unfairly advantaged the Crown.
5. In respect of Witness X, it was submitted that his evidence assists the Crown in showing that the motorcycle used in the shooting was the Ryan bike and calls into question the evidence of Mr Ferguson, whose version of events favours the accused. She observed that it is in the interests of the Crown to negate and discredit the evidence of Ms Ballardin and Mr Ferguson, whose evidence tends to favour the defence. The Crown is now seeking to do so in new and different ways. It was submitted that the use of Witness X is "inappropriate" and unfair given that reliance upon his evidence is only possible as a result of the lengthy and oppressive delay in the matter.
6. It was submitted that the accused has been disadvantaged unfairly by the long delays, which have not been brought about by any fault on his part and that the combined effect of these evidentiary matters is unfair prejudice to the accused, being so substantial as to warrant a permanent stay of the proceedings.
7. In her second affidavit sworn on 27 July 2022, Ms Khan repeated the matters in her first affidavit but emphasised the financial burden sustained by the accused and his family (in particular, his fiancée and her family) in defending the proceedings since his arrest in 2013. The accused has always been privately represented. He has applied for Legal Aid on two occasions and has been refused both times: on 21 April 2017 and on 11 January 2021. The financial burden incurred by the accused has included him and his fiancée selling personal possessions and relocating and family members selling property and loaning money to fund the accused's legal fees. The accused also required financial support whilst in custody.
8. Mr Khan also deposed to the fact that the accused and his fiancée have remained in employment since his arrest in 2013, other than for brief periods between work in the case of the accused. The accused is employed in the construction industry. His fiancée works as a registered nurse at Wollongong Hospital. The ongoing proceedings against the accused have disrupted the employment of the accused, his fiancée and their family.
9. Finally, Ms Khan submitted that the accused has been prejudiced in its preparation for trial by not knowing the identity of Witness X, despite repeated requests having been made to the Crown.

Mr Woods' submissions

1. Mr Woods submitted that this was an exceptional case where the only remedy is a permanent stay of the proceedings. He did not rely upon the fact of delay per se. Although some forensic disadvantage was identified, the nub of the application was that it would be oppressive for the accused to stand trial on the basis that the "repeated re-running" of the trial has given the Crown an unfair advantage and allowed new evidence to be obtained.
2. Mr Woods identified the above three pieces of evidence as the ways in which the Crown has been able to "patch up" its case. In so submitting he accepted that the prosecution has a duty to disclose and present additional evidence provided to it. He made the following submissions in relation to this "new" evidence.

Carmen Ballardin

1. It was submitted that it was unfair that the Crown now proposes to seek leave to cross-examine Ms Ballardin. It is a change in position and has caused significant unfairness to the accused. Her evidence at the last trial favoured the accused and the Crown now seeks to challenge that evidence.
2. It was submitted that had there not been significant delay in this matter the Crown would not have been able to change its case in this respect.

Russell Cusbert

1. It was submitted that the first version given by this witness was favourable to the accused in that it was a description of a mountain bike that did not match the accused and the Ryan motorbike. This change of evidence makes the Crown case stronger. It was submitted that this change could not have occurred but for the significant delay in this matter and that it caused an incurable prejudice.

Witness X

1. It was submitted that but for the delay in this matter this witness would not have been available to give evidence. Mr Woods cross-examined the OIC at length about the statement of Witness X which was taken by another officer, Mr Brain, on 9 May 2019. Mr Woods relied upon the evidence of DSC Ritchie that Mr Brain took the statement with Craig Arnold. Mr Brain is unwell and unavailable to give evidence at the forthcoming trial.
2. Mr Woods submitted that a significant disadvantage arose from the fact that Mr Brain is unavailable. It was submitted that the accused has lost the opportunity to cross-examine Witness X about how his statement was taken. He cited by way of example the decisions in Nikolovski v R [2021] NSWCCA 327) (Decision restricted) and Koloamatangi v R; Popovic v R [2020] NSWCCA 52 and how the undermining of the credit of the informers in those cases included cross-examination about the circumstances of how the statements were made.
3. Although DSC Ritchie was cross-examined about his use of informer witnesses in other matters generally, no submission was ultimately made by Mr Woods regarding DSC Ritchie's evidence as he took no part in the taking of the statement of Witness X.

Other forensic disadvantages

1. Mr Woods also submitted that the nature of the Crown case, including reliance on DNA and the evidence of the Ryan motorbike, has not been adversely affected by the effluxion of time whereas the witnesses in the Crown case relied upon by the accused will have had their memory diminished over time. In this way, it was submitted, the accused has been more disadvantaged by the delay than has the Crown. It was submitted that this should give rise to a feeling of disquiet should the trial be ordered to proceed. Mr Woods gave some examples of this, as follows.
2. It was noted that the bike helmet left at the scene had the accused's DNA on it, but the gunmen drove off still wearing the balaclava that became visible when the helmet fell off during the altercation with Slobodan Janceski. It was the defence case that it may be because there was no mouth opening on the balaclava that the shooter's DNA did not transfer to the helmet leaving Mr Wiggins' DNA there from a previous occasion. It was submitted that these eyewitnesses may have a poorer recollection now such that this evidence may not be as strong.
3. It was further submitted that some of the neighbours gave estimates of the shooter's height which far exceeded the accused's height. Again, it was submitted that the persuasive force of this evidence may be diminished if the witnesses' recollection appears to be diminishing at the trial.
4. It was further submitted that the repeated re-running of the trial has caused some recollections to be coloured. An example was given that at the last trial Mr McCulloch described the gunman as "the accused". It was submitted that a creeping prejudice exists due to the number of times the trial had been run and that this should lead to disquiet as to the prospect of a wrongful conviction.
5. It was submitted that the fact that the delay was caused by both an appeal instituted by the accused and an adjournment application made by the accused was irrelevant.
6. It was accepted that there had been no trials since the CCA decision and that it was accepted during the CCA hearing that a new trial should be ordered under s 8 of the Criminal Appeal Act 1912 (NSW) should the appeal was successful.
7. It was submitted that Derek Ferguson was a significant witness in the case and that given the passage of time, if his memory has lapsed it may impact on his demeanour and the jury may not regard his evidence in the same light as a result.
8. As for the relevant principles, it was submitted that this is an exceptional case where there is a fundamental defect such that no directions can cure the prejudice. The unfairness was identified as being the fact that the accused has been facing this charge for 10 years. He has been in custody for some part of that and on strict bail conditions for the rest of it. It has cost him nearly $1 million in privately funding his defence as he has been repeatedly refused a grant of Legal Aid. It was submitted that this has been oppressive. It was accepted that this aspect of the application was to the effect that the undue delay amounts to an abuse of process and the DPP should be prevented from prosecuting a further trial.
9. Reliance was placed on the following passage from Deane J's judgment in Jago v District Court of NSW (1989) 168 CLR 23; [1989] HCA 46 at 55: "In a case where an allegation of serious crime is involved, the burden of criminal proceedings first falls upon an accused at the time when they are threatened. It is intensified when the proceedings are commenced and personal liberty is either destroyed by imprisonment or compromised by the restraints involved in release upon bail. In Mills v. The Queen [[1986] 1 S.C.R. 863, at pp. 919-920], Lamer J. identified some of the other 'vexations and vicissitudes' of pending criminal proceedings, namely, 'stigmatization of the accused, loss of privacy, stress and anxiety resulting from a multitude of factors, including possible disruption of family, social life and work, legal costs, uncertainty as to the outcome and sanction'. If none but the guilty were accused of crime, the harshness of the burden would be alleviated by the consideration that the accused had brought it upon himself by his criminal conduct and subsequent denial of guilt and by the fact that account could be taken of pre-trial incarceration in the ultimate sentencing process. In truth, of course, the innocent as well as the guilty are accused of crime and the notions of fairness and decency which sustain our society dictate that an accused is presumed to be innocent unless and until he is convicted. For a person who is innocent of wrong-doing, the burden involves undeserved mental, social and often financial damage. And that damage will not be erased by ultimate acquittal. Life may be resumed but the mental, social and financial scars will ordinarily endure."

Crown submissions

1. The Crown submitted that this was not an exceptional case warranting a permanent stay of the prosecution.
2. The Crown noted the ongoing duty of disclosure under s 147 of the Criminal Procedure Act 1986 (NSW). After setting out the principles derived from the relevant authorities, the three "changes" in the evidence were addressed in turn.
3. As for Mr Cusbert, it was submitted that he is available to give evidence and be cross-examined at trial as to discrepancies between his statements and the circumstances which led to the second statement. The jury will be directed as to the assessment of witnesses in respect of truthfulness and reliability. It was also noted that in his closing address Mr Dalton SC had touched briefly on his evidence in a way which acknowledged that the jury could conclude the Ryan bike was used in the offence.
4. As for the s 38 notice in relation to Carmen Ballardin, it was submitted that there has been no change in the Crown case regarding this witness. As for any unfairness, it was submitted that Mr Dalton had acknowledged in his closing address at the last trial that she could be mistaken. This was a further concession that the jury could accept the Ryan bike was used by the gunman. It was submitted that in any event there is another remedy available to the court if unfairness is demonstrated. Any application by the Crown for leave to cross-examine this witness will require the court to have regard to the provisions of both s 38 and s 192 Evidence Act. Any unfairness could be addressed at the time the application for leave was made and could also be cured by direction.
5. As for Witness X, it was submitted that a warning could be given under s 165 of the Evidence Act in relation to that witness. Further, the timing of the evidence does not amount to unfairness such as to require the proceedings to be permanently stayed. Even if there was unfairness, it could be cured by direction.
6. The Crown submitted that the question of any potential unfairness to the accused, (and whether or not any such unfairness could be cured by directions), should be addressed during submissions on whether the Crown should be granted leave to cross-examine Mr Ferguson as to the alleged conversations with Witness X. If the Crown is not granted leave to cross-examine Ferguson as to those conversations, then Witness X will not be called to give evidence.
7. In oral submissions the Crown prosecutor submitted that this is a "strand in a cable" case. At the last trial the Crown case was that whether or not the Ryan bike was used in the shooting is not fatal to the Crown case.
8. As for Mr Cusbert, it was accepted that his evidence had changed but it was submitted that that fact is not sufficient to justify a permanent stay. It was submitted that directions could be provided in relation to the "identification" evidence of that witness.
9. As for Witness X, it was anticipated that a statement would be obtained from Mr Arnold shortly as to the taking of his statement. The Crown was not aware that Mr Arnold was present until the evidence of DSC Richie given in court on that day.
10. As for the submissions in relation to unfairness due to fading memories, it was submitted that there is no evidence of this, and it is to some extent speculative. It was submitted that the case has always been a circumstantial one and its foundations have remained unchanged.

Consideration

1. The relevant principles regarding the granting of a personal stay are well established. They are derived from numerous decisions of the High Court including The Queen v Glennon (1992) 173 CLR 592; [1992] HCA 16 ("Glennon"), Dupas v The Queen (2010) 241 CLR 237; [2010] HCA 20 ("Dupas"), Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions (2018) 266 CLR 325; [2018] HCA 53 ("Strickland"), The Queen v Edwards (2009) 83 ALJR 717; [2009] HCA 20 ("Edwards'"), Jago v The District Court of NSW (1989) 168 CLR 23 [1989] HCA 46 ("Jago"), and Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41.
2. Proceedings will only be permanently stayed in an "extreme or exceptional case": Jago at 34; Glennon at 605-606; and Agar v Hyde at [57]. Before I would accede to the accused's application, he must establish that there is a fundamental defect which goes to the root of the trial of such a nature that there is nothing the court could do to relieve against its unfair consequence: Jago at 34; Glennon at 605-606; Dupas at [18], [35]; and Strickland at [106].
3. The remedy of a permanent stay of proceedings is exceptional because there is an important public interest in the ordinary process of the criminal law resolving criminal prosecutions. As the High Court held in Dupas at [39], a trial judge determining whether to permanently stay proceedings must: "[39] ... take into account the substantial public interest of the community in having those who are charged with criminal offences brought to trial; the 'social imperative' as Nettle JA called it, as a permanent stay is tantamount to a continuing immunity from prosecution. Because of this public interest, fairness to the accused is not the only consideration bearing on a court's decision as to whether a trial should proceed."
4. In R v RD [2016] NSWCCA 84 ("RD"), Bathurst CJ observed the following at [54]-[56]: "[54] … [t]he yardstick is not simply fairness to the particular accused. Rather, it is whether the continuation of the prosecution is inconsistent with the recognised purpose of criminal justice and so constitutes an abuse of the process of the court: Jago at [13]. His Honour emphasised that to justify a permanent stay of criminal proceedings there must be a fundamental defect which goes to the root of a trial of such a nature that there is nothing the court can do to relieve against its unfair consequences: at [21]. That statement of principle has been followed consistently. [55] In R v Edwards [2009] HCA 20; 255 ALR 399 (Edwards) the Court, referring to Walton v Gardiner [1993] HCA 77; 177 CLR 378 at 392, stated a stay would be granted if the proceedings would involve unacceptable injustice or unfairness or whether the continuation of proceedings would be so unfairly and unjustifiably oppressive as to constitute an abuse of process. The Court emphasised the requirement that to justify a permanent stay, the proceedings must inevitably, rather than possibly, have that effect: at [23]-[24]. [56] In Walton v Gardiner, Mason CJ, Deane and Dawson JJ at [26], referring to Jago, stated that the question of whether criminal proceedings should be permanently stayed as an abuse of process falls to be determined by a weighing process involving the subjective balancing of a variety of factors and considerations including the requirement of fairness to the accused, the legitimate public interest in the disposition of charges for serious offences and the need to maintain public confidence in the administration of justice.
5. Most applications for a permanent stay rely upon either prejudice caused by pre-trial publicity (eg Dupas, Glennon, Dawson v R [2021] NSWCCA 117) or significant forensic disadvantage caused by delay (eg Edwards, Jago, RD, Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77). Although some forensic disadvantage was identified in the present application, the central argument was not that the trial itself would be unfair (in that the accused could not meet the case against him due to delay) but, rather, that it would be unfair for the Crown to run the trial given that the prosecution has been provided with the opportunity to "patch up" its case. Counsel accepted that there has been no other case in which a permanent stay has been granted on such a basis but relied upon the fact that the category of what constitutes a "fair trial" has not been closed.
6. Although it is to be accepted that the attributes of a "fair trial" are not exhaustively fixed, the principles derived from decisions of the High Court in assessing such a question are well settled. In Jago, Brennan J observed the following at 49 regarding a "fair trial": "By the flexible use of the power to control procedure and by the giving of forthright directions to a jury, a judge can eliminate or virtually eliminate unfairness. The judge's responsibilities are heavy but they are not discharged by abdication of the court's duty to try the case. If it be said that judicial measures cannot always secure perfect justice to an accused, we should ask whether the ideal of perfect justice has not sounded in rhetoric rather than in law and whether the legal right of an accused, truly stated, is a right to a trial as fair as the courts can make it. Were it otherwise, trials would be prevented and convictions would be set aside when circumstances outside judicial control impair absolute fairness. To take an obvious example, the administration of the criminal law in notorious cases could be brought to a halt by adverse media publicity. To admit a power to stay a case permanently for delay causing prejudice seems wrongly to undervalue the efficacy of the orders, rulings and directions of a trial judge in removing unfairness to an accused caused by delay or other misconduct by the prosecution."
7. This observation by Brennan J was applied in Dietrich v The Queen (1992) 177 CLR 292 ("Dietrich") in which Gaudron J observed the following in relation to the concept of a "fair" trial (at 365 - footnotes omitted): "A trial is not necessarily unfair because it is less than perfect, but it is unfair if it involves a risk of the accused being improperly convicted. If the only trial that can be had is one that involves a risk of that kind, there can be no trial at all." (Emphasis added.)
8. The principles derived from Jago and Dietrich as to what constitutes a "fair trial" are of assistance in considering the submission that the accused's trial would be so fundamentally unfair that the only remedy is a permanent stay. The following summary of those principles is taken from the decision of Garling J in R v Warwick (No.64) [2019] NSWSC 163 at [21]: "(a) the attributes of a fair criminal trial cannot be, and have not been, listed exhaustively: Dietrich at 300 per Mason CJ and McHugh J; (b) the requirement of fairness is independent from, and additional to, the requirement that a trial be conducted in accordance with law: Dietrich at 363 per Gaudron J; (c) the inquiry as to whether a trial will be fair necessarily depends upon the circumstance of the particular case, but that does not mean that the Court exercises its inherent powers according to idiosyncratic notions of what is fair and just: Dietrich at 364 per Gaudron J; (d) a trial is not necessarily unfair because it is less than perfect (Dietrich at 365 per Gaudron J; Jago at 49 per Brennan J) … (e) … (f) in judging fairness, the interests of the Accused cannot be considered in isolation without regard to the community's right to expect that persons charged with a criminal offence are brought to trial: Jago at 33 per Mason CJ …"
9. In considering the question of whether the accused can receive a fair trial in this matter, having regard to the principles I have set out above, the starting point is to acknowledge that this matter has had a most unfortunate procedural history. The pending trial will be the accused's fourth trial. The delay since the accused's conviction was overturned has been caused solely by the COVID-19 pandemic: his trial listed in June 2021 was vacated due to the cessation of jury trials during lockdown and his January 2022 trial was vacated on application of the accused for COVID-19 related reasons. Despite the long history, there has only been one prior finalised trial.
10. Although the delay has been most unfortunate, I am not satisfied that this is an exceptional case in which there is nothing I could do as the presiding judge to overcome the perceived prejudice caused by the delay. I have arrived at that conclusion for the following reasons.
11. First, Mr Woods accepted that the Director is under a continuing obligation to disclose evidence provided to it by police. It was not suggested that the Crown ought not to have served either the second statement of Mr Cusbert or the statement of Witness X nor could it have been given the terms of s 147(1)(2) of the Criminal Procedure Act which provides as follows: (1) The obligation to comply with the requirements for pre-trial disclosure imposed by or under this Division continues until any of the following happens - (a) the accused person is convicted or acquitted of the charges in the indictment, (b) the prosecution is terminated. (2) Accordingly, if any information, document or other thing is obtained or anything else occurs after pre-trial disclosure is made by a party to the proceedings, that would have affected that pre-trial disclosure had the information, document or thing been obtained or the thing occurred before pre-trial disclosure was made, the information, document, thing or occurrence is to be disclosed to the other party to the proceedings as soon as practicable.
12. Implicit in this statutory language is the acknowledgment that new evidence can be obtained right up until a matter is finalised. It was not adequately explained how the DPP's compliance with its statutory duty could result in unfairness which could then lead to a permanent stay.
13. Secondly, although a number of references were made in submissions to the unfairness caused by the "repeated re-running" of the trial, it was not suggested that after each trial the Crown adduced additional evidence, only since the last trial. The pending trial will be the first to proceed following the accused's successful appeal; an appeal in which no ground of unreasonable verdict was relied upon and in relation to which it was accepted that the appropriate order in the event of a successful appeal was that a new trial be ordered.
14. Thirdly, the usual approach taken when there has been "late" disclosure by the Crown is "time" and, in some extreme cases, a temporary stay until costs thrown away are paid by the Director: R v Michael John Issakidis [2015] NSWSC 834; R v Sparos (No 2) [2017] NSWSC 1462. It was not suggested on behalf of the accused that there had been "late" disclosure such that the accused has had insufficient time to deal with the new evidence.
15. Fourthly, as for the suggestion that the Crown has "opportunistically" "patched up" its case, the fact is that the statement of Witness X was obtained shortly after Mr Wiggins was convicted in circumstances where the fact that a new trial would be ordered could not be known. I do not accept that the "repeated re-running" of the trial permitted the Crown to "opportunistically" obtain that statement.
16. Fifthly, I am not satisfied that the Crown's foreshadowed intention to seek leave under s 38 of the Evidence Act to cross-examine Ms Ballardin is a significant change in its case. In submissions, Mr Woods' position was that at the last trial the "Crown's position was really to take no position". It is to be accepted that at the last trial her evidence was unchallenged, to the extent that the Crown did not cross-examine her nor refer to her evidence regarding the description of the motorbike in closing submissions. In those circumstances, the "change" is from not adopting her evidence (and in doing so distancing her evidence from the Crown case) to expressly challenging it.
17. One of the reasons why the accused's previous conviction was quashed was that the trial judge impermissibly suggested to the jury that Ms Ballardin might be wrong in circumstances in which that had not been suggested by the Crown prosecutor in his closing address. It is hardly surprising, given the findings of the Court of Criminal Appeal on this issue, that the Crown proposes to do so, if granted leave, at the pending trial. In any event, the suggestion that the witness will change her evidence is entirely speculative; the high point of any unfairness is that the Crown will seek to suggest to the jury in the closing address that the witness may be wrong.
18. Sixthly, as for the change in Mr Cusbert's statement, he is available to give evidence and be cross-examined on the identified change. It may well be that the jury accepts his first version. It may not. It cannot be known. In any event, the question of whether the Ryan motorbike was used by the gun man is not an intermediate fact: the Crown does not need to establish beyond reasonable doubt that the Ryan motorcycle was the motorcycle used in the commission of the offence.
19. Seventhly, following cross-examination of the OIC, the high point of any identified unfairness caused by the evidence of Witness X was that one of the two officers who took his statement is now unavailable to give evidence. The submission made as to the unfairness caused by this development was as follows: "The accused has lost the opportunity of exploring and interrogating the circumstances in which witness X came forward and came to provide information which was adverse to him. … From the defence perspective there is much to be gained in cases like this where there is an informal type witness, from being able to cross‑examine the witness including be reference to independent material which can be gleaned from cross‑examination of police officers, and other law enforcement officers. There are details about the events leading up to the provision of a statement which can be established by cross‑examination of police and other relevant independent witnesses. And, your Honour put to me, fairly, that, well in this case there will be witness X in the witness box himself, to whom various things can be put. That is true, but, the prospect of making an effective challenge to his credibility is much diminished when the accused cannot make that challenge by reference to independent evidence, which is, what was available in the other similar cases, where, the officers who were involved in taking accounts from certain witnesses were available."
20. It was not submitted that there was evidence of any impropriety on the part of the OIC in relation to how Witness X came to make a statement about this matter. Rather, the effect of Mr Woods' submission was that if Mr Brain was able to be cross-examined, evidence might be obtained which could be put to Witness X in cross-examination to diminish his credibility.
21. The Crown was made aware for the first time during the hearing of this motion that the accused contended that Mr Brain's absence would cause him significant prejudice, and that Craig Arnold was also present when Witness X's statement was taken. Accordingly, there was insufficient time for the Crown to obtain a statement from Mr Arnold before I reserved my decision on this application. It may be that the prejudice is reduced once that statement is obtained. Again, it is simply unknown at this stage. I indicated to counsel during the hearing that the question of unfairness arising from Mr Brain's unavailability and how to remedy it could be addressed further once Mr Arnold's statement is obtained. I am not otherwise satisfied that the relatively late emergence of the statement of Witness X either on its own or in combination with the other matters raised on behalf of the accused gives rise to prejudice of such a nature that the only remedy is a permanent stay of the proceedings.
22. Eighthly, it could not be said that any of the delay has been the result of Crown conduct. The first trial was aborted when the accused withdrew his instructions, and the second trial was hung. The accused appealed his conviction following the third trial. Both the Crown and the accused were anxious for the matter to be finalised in June 2021, but jury trials were suspended at that time due to lockdown. The most recent listing was adjourned on defence application, although opposition to that course was only faintly pressed by the Crown. Although there can be no criticism levelled at the accused regarding the procedural history, it seems to me that had the delay been the result of dilatory behaviour on the part of the Crown then that could have been a matter relevant to the application. The fact that the delay cannot be attributed to the Crown was ultimately a neutral fact on this application.
23. Finally, although I am satisfied that the accused has been prejudiced by the delay in this matter, in the same way that any accused is prejudiced from a delayed trial in which memories fade, I am also satisfied that this prejudice can be minimised by directions I can give to the jury: directions concerning forensic disadvantage, informer witnesses and identification evidence. In addition, two of the three bases for this application require the court's leave in any event (to cross-examine both Ms Ballardin and Mr Ferguson under s 38 of the Evidence Act). I would not grant leave at that time if some prejudice (which has not already been raised) becomes apparent at that time.
24. It was never expressly explained by the accused's counsel why directions addressed at dealing with the prejudice would not be sufficient. It seems to me that this follows from the fact that the primary argument was not that the trial itself could not be conducted fairly, but, rather, the fact that the trial was running at all was unfair, including due to the fading memories of witnesses which assisted the defence case.
25. It is to be accepted that memories fade over time but, unlike a trial when the witness statements were not taken until many years after the event in question, the witnesses in this trial not only made contemporaneous statements but have also given sworn evidence on more than one occasion. There could be no suggestion that any recollection has been lost due to the passing of time in that it has already been recorded.
26. I note that although Ms Khan deposed in her affidavit to the prejudice caused to the accused by the ongoing costs of the delay, it was not suggested that a stay was warranted on principles derived from Dietrich. The cost of defending the charge is a further unfortunate product of the delay in this matter but is not such as to warrant a stay either on its own or in conjunction with the other matters relied upon by the accused.
27. In concluding that the accused has not established that this is an exceptional case warranting the grant of a permanent stay, I have undertaken the requisite weighing process balancing, inter alia, the requirement of fairness to the accused, the legitimate public interest in the disposition of charges for serious offences and the need to maintain public confidence in the administration of justice.

ORDERS

1. Accordingly, I make the following order: 1. The application for a permanent stay of the proceedings is refused.

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