Solicitors:
Solicitor for Public Prosecutions (NSW)
Khan Law & Associates
File Number(s): 2013/13092
[2]
Judgment
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.
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.
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.
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.
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.
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.
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.
[3]
The correspondence and affidavit
In addition to Ms Khan's affidavit, Mr Dalton relied on emails sent by him to my associate on 3, 6 and 16 January 2022. The contents of that material can be summarised as follows.
Mr Dalton's email of 3 January 2022 (exhibit A) disclosed that the accused had recently contracted COVID-19 and was unable to attend pre-trial conferences with his legal representatives prior to 17 January 2022. Mr Dalton queried therein the feasibility of running the trial given the likelihood of delays caused by the current wave of the Omicron variant.
A further exchange of emails took place on 6 January 2022 following a request for particulars by my associate (exhibit B). Mr Dalton indicated that he had instructions to make application that the trial be vacated. Mr Barrett sought instructions and informed the Court by email that the DPP did not oppose an adjournment until 31 January 2022 but that any further adjournment would be opposed. On 6 January 2022, I made orders in chambers, including that the trial be stood over until 31 January 2022 and the notice of motion seeking to vacate the trial date be heard on 17 January 2022.
On 14 January 2022, the notice of motion and affidavit in support were emailed to my associate. These documents were subsequently filed in court on 17 January 2022. In her affidavit Ms Khan set out the history of the matter, the financial difficulties the accused would suffer if the trial were prolonged. She also provided an outline of international trends in the Omicron variant and the likelihood of delay or disruption to the trial. She asserted that in these circumstances it would be unfair to force the accused on for trial at this time.
Annexure A to Ms Khan's affidavit was a news article on the outbreak of the Omicron strain of COVID-19 overseas published on 5 January 2022. It noted that there were "early, tentative signs" that the Omicron variant was "peaking" in certain countries, including South Africa, where it was first detected in late November 2021. The article further noted that infections appeared to be reaching a "plateau" in London and that authorities in one province of South Africa believed that the number of infections had peaked within four weeks of the initial outbreak.
Mr Dalton sent a further email on 16 January 2022 (exhibit C) advising that Ms Khan was a close contact and was required to self-isolate for seven days. This meant that it was not possible for Ms Khan to participate in pre-trial conferences at which various material was to be played and instructions sought.
[4]
Mr Dalton's submissions
On behalf of the accused it was submitted that he would suffer significant unfairness if the trial were to proceed on 31 January 2022 for the following reasons:
1. The anticipated length of the trial. It was submitted that the original estimate of five to six weeks would be at least doubled considering the need to adjourn each time a person involved in the trial was required to self-isolate;
2. This would be the accused's fourth trial;
3. The accused has previously been denied Legal Aid;
4. The accused has spent over $800,000 funding his defence thus far and could not afford another trial that would run in excess of five to six weeks;
5. The proper conduct of the case was likely to be prejudiced by numerous adjournments and long gaps in the presentation of the evidence; and
6. There were several witnesses who would be required to give evidence in person, rather than by AVL, and the progress of the trial would be further prejudiced should these witnesses be required to self-isolate.
Mr Dalton submitted that if, as is currently anticipated by health authorities, the outbreak were to peak in the next month, the trial could be delayed by at least one month and still be finalised in approximately the same amount of time.
[5]
Crown submissions
The Crown Prosecutor submitted that he was instructed to oppose any adjournment on the basis that it would be undesirable for this trial to be significantly delayed.
Despite the Crown's instructions to oppose the adjournment, it was submitted that an adjournment may be in the interests of justice in that it would avoid lengthy delays during the trial. The Crown noted the anticipated difficulty of arranging for witnesses living in other parts of New South Wales to travel to Sydney and give evidence in person, and the potential delay due to unavailability of those witnesses due to illness or self-isolation. The Crown did not take issue with any of the matters put to the Court by Mr Dalton.
In response to questions by me, the Crown submitted that in his view, no significant prejudice would be caused by further delay insofar as the recollections of witnesses were concerned given that the matter had already been delayed for some nine years. The Crown also noted that most of the key witnesses had given evidence in previous trials and the transcript of that evidence was available.
[6]
Consideration
The joint position of both the Crown prosecutor and Mr Dalton was that the trial ought to be adjourned for a short period until after the anticipated peak of Omicron infections, with a view to commencing the trial in late March 2022. That would have been a suitable outcome were it possible. Unfortunately, due to a lack of available court rooms, it is not possible to adjourn the trial until March 2022. The suspension of jury trials for two significant periods since the COVID-19 outbreak in March 2020 has led to a backlog of jury trials in both the Supreme and District Courts. The earliest date at which a suitable court room would be available is August 2022. Accordingly, the question is whether it is in the interests of justice that the trial date of 31 January 2022 be vacated and the trial re-listed in August 2022.
I have considered the submissions made by the parties on this issue. It is to be accepted that there is a considerable degree of speculation as to whether all or none of those involved in this matter could test positive during the trial and/or become close contacts. Despite this, I accept that there is a real prospect of delay given the material presented, the submissions of counsel and what I know of other trials that were listed to commence in this Court either this week or last week. Although I cannot predict what will happen, given the high rates of Omicron in the community and its highly infectious character it seems probable that there will be some delay. The trial would have to be either adjourned for up to seven days at a time or aborted for any of the following reasons.
First, should I or any legal practitioner test positive or become a close contact of a positive case, the trial would need to be either adjourned or aborted depending on the timing. This is so even accounting for all involved taking a very cautious approach in their respective personal lives.
Secondly, a significant number of the witnesses will be travelling to Sydney to give evidence. Although some could give evidence by way of AVL, it was common ground during the hearing of this motion that many witnesses will be required by either party to give evidence in the court room for several reasons. Should a pending witness either test positive or become a close contact, further delay could be caused.
Thirdly, even assuming that a jury of 15 is empanelled, if over the potentially 10-12 weeks of the trial any one of the jurors either tests positive or becomes a close contact, they would either be discharged or the trial adjourned for a week depending on a number of factors including the stage of the trial and the application of the relevant provisions of the Jury Act 1977 (NSW). Should six jurors be discharged on this basis, the trial would need to be aborted unless the accused consented to a jury of nine.
Given that I am satisfied that the parties have properly identified the risks of further delay, the question is why I would adjourn this trial when other trials have commenced and are due to commence on or before 31 January 2022. There is a significant public interest in commencing trials given the backlog of jury trials generally. There is also no guarantee that the level of infection in the community will be any lower in late 2022; Omicron may not peak as predicted and/or another variant may cause the same difficulties.
I have given these factors serious consideration. I am satisfied that there are characteristics of this trial that, cumulatively, place it in a different position to other pending trials. Although some other pending trials may have one or more of these characteristics, it seems to me unlikely that any trial would have all of them.
The first factor is the inordinate delay in this matter. The accused was first charged in 2013. His trial has been listed five times since 2017 and has been conducted twice fully and once partially already. Although on the one hand this factor militates in favour of pushing on regardless of the risks, on the other hand, the impact on the witnesses, the family of the deceased, the accused and all involved of commencing yet another trial which may not run to completion is greater than if this was a trial listed for the first time.
The second factor is that the accused has already been granted bail on his murder charge due to the delay in this matter. To some extent this weighs in favour of running the trial. It would permit the Court to sit longer days to save time (which is not possible when accused persons are in custody as the prison van must leave at specified times). It also means that it is less likely any COVID-19 staffing issues experienced by Corrective Services NSW would impact on the trial. On the other hand, the fact that the accused is on bail means that any adjournment would not extend his incarceration on remand.
The third factor is that nearly all the witnesses reside outside of Sydney and it will not be possible for them all to give evidence by way of AVL. Counsel have explained why certain witnesses are required to give evidence in person and I accept those explanations. This factor creates significant logistical issues for the conduct of the trial.
The fourth factor is that the trial is privately funded which means the accused will bear the cost of any increase in the length of the trial.
The fifth factor is that the regrettable procedural history of this matter means that the accused has spent approximately $800,000 on his defence thus far. This means that the risk of a trial extending beyond its estimate will impact on him more than on an accused who is facing trial for the first or even second time.
The final factor is that this is a reasonably complex murder trial which could potentially become a 12-week trial for any of the reasons I have identified above. The Crown relies on a circumstantial case, the progress of which would be negatively impacted by constant adjournments. Again, although this may be a feature of many trials, it must be considered in the context of all the other matters I have referred to above. Mr Dalton's submission that it would be a "false economy" to run a 12-week trial now when it could be run as a six-week trial later has some force. If the trial runs over its allocated time it could prevent other trials from commencing.
Although Mr Dalton also initially raised as a further basis for adjourning the 31 January 2022 date the fact that he might become double-booked given other trial obligations he has, he accepted during the hearing that this trial has to have some priority and he was warned that this might give rise to the need to return one or more other briefs to accommodate that.
Since hearing this motion, the two other trials due to commence in this Court last week were delayed but have now commenced. There has been insufficient time to gain any real assistance from the progress of those trials.
As stated above, but for the lack of availability of other court rooms I would have permitted a relatively short adjournment of six weeks. In the absence of that option, and considering the unusual factors of this case, I am satisfied that it is in the interests of justice that the trial date in this matter be vacated.
[7]
ORDERS
I make the following orders:
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.
[8]
Amendments
19 September 2022 - Publication restriction removed
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Decision last updated: 19 September 2022