R v Wiggins; R v Nikolovski (No. 2)

1. [1]

   On the 18th day of the trial (3 April 2017) the Crown applied for the jury to be discharged. The circumstances leading to that application were these.

2. [2]

   On the 12th day of the trial (22 March) the DNA expert Moragh Campbell commenced to give her evidence. Ms Campbell gave evidence of having prepared three reports. The third of these reports concerned DNA of the accused Matthew Wiggins on a balaclava. Numerous witnesses gave evidence that the person on the motorcycle who shot the deceased was wearing a balaclava, initially under a motorcycle helmet.

3. [3]

   Shortly after Ms Campbell had given evidence of preparing the three reports, the Crown prosecutor asked for a short adjournment so that relevant portions of the three reports could be copied so that they could be provided to the jury. Upon resumption the Crown Prosecutor informed me in the absence of the jury that Mr Turnbull had indicated to him that he had not seen the third report of Ms Campbell. Mr Turnbull then informed me that the third report had not been served. Further evidence was led from Ms Campbell but not anything to do with the third report. Her evidence was then interrupted when Mr Nikolovski became unwell.

4. [4]

   The following day, 23 March, Mr Turnbull said that he would be making a number of applications in relation to the third report of Ms Campbell. It was agreed those applications would be dealt with the following day.

5. [5]

   On 24 March, Mr Turnbull made an application to exclude the third report on the basis that it had not been served. I heard that application and it was adjourned part heard to Monday, 27 March 2017. At that point the Crown had led evidence from which it could be inferred that the report had been served and which, in any event, provided a strong basis for a conclusion that the solicitors for Mr Wiggins had notice of that report. Mr Turnbull indicated that during the weekend an affidavit would be prepared on behalf of Mr Wiggins’ solicitors to answer the Crown’s evidence.

6. [6]

   On the morning of Monday, 27 March 2017 and in the absence of the jury Mr Turnbull said this:

7. [7]

   The following exchanges then occurred:

8. [8]

   Subsequently the jury was brought into Court and I said this to the jury:

9. [9]

   The matter was mentioned on 28 March when a solicitor, Mr W Korn, appeared as amicus curiae to update me on Mr Wiggins’ behalf of the position with regard to his obtaining further representation. Ultimately there was no objection by the remaining parties to the matter being adjourned until the following day but I indicated that I intended to proceed with the trial on Thursday, 30 March 2017.

10. [10]

    When the matter was mentioned again on Wednesday, 29 March Mr J Korn of counsel appeared instructed on a limited basis for Mr Wiggins. He provided me with some information concerning attempts by Mr Wiggins to find further legal representation. He informed me that he was not able to accept the brief by reason of other commitments. Mr Korn explained Mr Wiggins’ financial position from which it could be concluded it was unlikely he would be able to afford further private representation that he had had to that point in the trial.

11. [11]

    Significantly, Mr Korn also said this in reference to what Mr Turnbull told me on 27 March 2017. Mr Korn said:

12. [12]

    When the matter was adjourned on 29 March there was some expectation and hope that Mr Turnbull would be able to return to complete the argument on the application to exclude the third report of Ms Campbell. On that basis I adjourned that application to Monday, 3 April and directed that the jury return on 4 April with the intention that the trial would continue.

13. [13]

    On the morning of 3 April 2017 the Crown applied to discharge the jury. It did so on the basis that Mr Wiggins did not have new lawyers and the position simply was that an application had been made to Legal Aid on his behalf. Ms Rowan on behalf of Mr Nikolovski opposed the discharge application. Mr Warwick Korn again appeared as amicus to assist Mr Wiggins and supported the Crown’s application.

Submissions

1. [14]

   The Crown submitted that, ordinarily, where an accused person withdraws instructions from his legal representatives during a trial, the trial should continue notwithstanding that he is unrepresented, unless it was reasonable for him in the circumstances to withdraw his instructions: R v Rogerson; R v McNamara (No 42) [2016] NSWSC 405. Nor, the Crown submitted, is it controversial that ordinarily, where counsel and/or instructing solicitor withdraw properly for ethical reasons and where the accused wishes or needs to be represented, the trial judge may, but not necessarily will, abort the trial and discharge the jury.

2. [15]

   The Crown submitted that the evidence led by it on the application to exclude Ms Campbell’s third report demonstrated that the third report had been the subject of disclosure before the trial. It appeared, the Crown submitted, that that report had been overlooked, ignored or misplaced by the solicitors for Mr Wiggins although it was accepted that Mr Turnbull had not been made aware of the report.

3. [16]

   The Crown identified the aspects of the evidence still to be led. It submitted that whilst it was not impossible for Mr Wiggins to represent himself, some of the issues relating to further evidence would be difficult even for experienced counsel. The Crown submitted that the position of the jury and the impression it may have concerning Mr Wiggins in the circumstances in which delays have occurred within the last six days of the trial, had to be considered.

4. [17]

   The Crown submitted that it would inappropriate for the trial to continue simply against Mr Nikolovski. Mr Nikolovski was charged as an accessory before the fact and the Crown case was that he organised for Mr Wiggins, and not any person in general, to shoot the deceased. A separate trial of the two accused might result in inconsistent verdicts if Mr Nikolovski was first convicted and Mr Wiggins was subsequently acquitted.

5. [18]

   Mr Nikolovski opposed the discharge of the jury relying on material in his solicitor’s affidavit and an affidavit of his mother. The thrust of that material was the length of time the proceedings have been hanging over Mr Nikolovski and the effect of that on his physical and mental health. Mr Nikolovski also relied on the effect of the proceedings on his family, particularly his mother with whom he is required to live under his bail conditions.

6. [19]

   Mr Nikolovski submitted that exceptional circumstances should be required before a court will move to discharge the jury from their sworn duty because of the impact such an order would have upon an accused.

Legal principles

1. [20]

   Many of the cases involving the discharge of a jury have occurred in circumstances where some evidence has been given that is inadmissible or prejudicial or both. The case that laid down the general common law principle in relation to discharge of a jury, Crofts v The Queen [1996] 186 CLR 427, was such a case. Whilst the majority (Toohey, Gaudron, Gummow and Kirby JJ) in that case directed their statements of general principle to the situation where inadvertent or prejudicial material had come before the jury (see at 440-441), they also said that the enquiry was whether a refusal to discharge a jury occasioned the risk of a substantial miscarriage of justice.

2. [21]

   Dawson J said (at 432):

3. [22]

   The authorities also demonstrate that the stage which a trial has reached is a significant but not determinative factor: Ahola (No 6) at [19]; R v Rogerson; R v McNamara (No 34) [2016] NSWSC 259 at [53].

4. [23]

   After reviewing the authorities, Button J said in R v Ahola (No 6) [2013] NSWSC 703 at [18] that:

5. [24]

   Justice Bellew had to consider a similar situation to the present in R v Rogerson; R v McNamara (No 42). In considering the matter his Honour reviewed the authorities as follows:

Should the trial proceed against Mr Wiggins?

1. [25]

   Although I said that the position in McNamara was similar to the present, there are differences. The present is not an application by or on behalf of Mr Wiggins to discharge the jury. It is an application by the Crown. I accept in that regard that the solicitor appearing as amicus to assist Mr Wiggins supported the Crown’s application.

2. [26]

   Secondly, although I was given conflicting information about how Mr Wiggins’ solicitors ceased to act for him, there can be little doubt that the matter was related to those solicitors being unaware of the third report of Ms Campbell. Whilst, because the application to exclude that third report was not concluded, I cannot and should not come to a final view on whether that third report was served in accordance with the Crown’s obligations under the Criminal Procedure Act 1986 (NSW), I am comfortably satisfied by the evidence that Mr Wiggins’ solicitors were aware of the third report both by express reference to it by Ms Campbell to those solicitors and by references to it in indices and other documents provided to those solicitors by the Crown. In that regard, I accept the Crown’s submission that there is some prospect on any appeal in the present matter that it might be held that Mr Wiggins had suffered prejudice from his legal representation in accordance with what was said in R v Birks) 19 NSWLR 677 and cases which have followed it.

3. [27]

   The significant matter is that I cannot reach any satisfactory view on the evidence I have that the reason Mr Wiggins’ lawyers ceased to act for him can be attributed to fault on the part of Mr Wiggins. The more likely conclusion is that even if he withdrew their instructions, that could be said to be without fault on his part in the sense of that concept discussed in the authorities. It cannot be said, in the circumstances of what occurred concerning the third report of Ms Campbell, that it was unreasonable for Mr Wiggins to withdraw his instructions from the solicitors if that was what occurred as Mr Turnbull informed me. It follows that if those solicitors withdrew for ethical or other reasons, no fault can be attributed to Mr Wiggins in that regard.

4. [28]

   The Crown has identified a number of significant categories of evidence still to be dealt with in the trial as follows:

5. [29]

   I accept the Crown’s submissions that it would be very difficult for any unrepresented person to seal with this evidence in a way that minimised prejudice to them. The judge’s role is limited particularly if objection is not taken by the accused.

6. [30]

   Further, the jury is aware that the delays occasioned since 23 March have concerned Mr Wiggins because of the withdrawal of his legal advisors. If Mr Wiggins is required to defend himself for the remainder of the trial there will be no doubt that the trial will extend considerably beyond the estimates previously given by counsel and, therefore, given by me to the jury. There is a risk which cannot be discounted that the jury may take the view that the delays, which may inconvenience some or all of them, are the fault of Mr Wiggins. That would not be fair to him and it is difficult to see how the limited information that could be provided to the jury about the reason for those delays could assuage any unfairness that might flow to Mr Wiggins from the jury’s view in that regard.

7. [31]

   I accept that there will be cost and expense involved in discharging the jury after the trial has been running for three weeks. Whilst that is a matter of some significance it cannot be determinative where an accused through no fault of his own is left unrepresented when facing one of the most serious charges in the criminal calendar.

8. [32]

   I accept also that there is necessarily unfairness to the co-accused, particularly where the murder took place almost five years ago to the day and, in this present case, by the co-accused’s health problems, both physical and mental. I accept that the co-accused has had this charge hanging over him for a lengthy period of time and in circumstances where the charges were abandoned and then reinstated. I accept in that regard that the co-accused has been living under strict bail conditions since 5 September 2013 although I do not accept the description of “house arrest” given to them by his solicitor. Whilst he is subject to a curfew, he is otherwise free to move around the community. Significantly, he has been remanded on bail and not in custody for more than three and a half years of that five year period.

9. [33]

   The focus of the authorities is concerned with whether a miscarriage of justice would occur if the jury were not discharged. The focus of that concern is the person who will be without legal representation if a discharge is not granted. Matters of unfairness to a co-accused would rarely if ever themselves amount to a miscarriage of justice by reason that the jury would be discharged. In my opinion, issues of unfairness to a co-accused are more properly dealt with, not when considering whether the trial against Mr Wiggins should proceed at all, but when considering whether it should proceed separately and at a later time from the trial against Mr Nikolovski.

10. [34]

    I am satisfied that proceeding with the trial against Mr Wiggins is likely to result in a miscarriage of justice. The principal reasons for this are the difficulty in Mr Wiggins being able to represent himself for the remainder of the trial, and because of the apparent unpreparedness of Mr Wiggins to deal with the third report of Ms Campbell by reason of what, on the available evidence, appears to be the failure of his former solicitors to have regard to that report.

Should the trial proceed against Mr Nikolovski alone?

1. [35]

   Ms Rowan submitted that of the three unpalatable alternatives (the trial continuing against both accused, the jury being discharged in relation to both accused, and the trial proceeding against Mr Nikolovski alone) the last of those is the least unpalatable.

2. [36]

   Ms Rowan accepted that if there were separate trials there might be inconsistent verdicts but such a situation may not arise and the damage that has been done to the co-accused now by an adjournment of the joint trial would not be able to be cured. Ms Rowan submitted that there was no argument put forward by the Crown about the danger of inconsistent verdicts if the trials were separated at the separate trial application that was made by both accused before Matthews AJ in 2016. The issue at that separate trial application went to prejudicial material in the evidence of witness F against Mr Wiggins.

3. [37]

   Ms Rowan accepted that the presumption is that co-offenders should be tried together. However, she submitted that the trial had run for four weeks and in light of the evidence concerning the history of the proceedings and the effect of them on Mr Nikolovski and his family, the lesser evil was that the trial should proceed against him now.

4. [38]

   The authorities make clear that there are strong reasons of principle and public policy for persons charged with committing an offence jointly to be tried together: Webb & Hay v R (1994) 181 CLR 41 at 88-89. These public interest concerns include conserving costs, avoiding inconvenience to witnesses and the desirability of common enterprises being jointly tried so as to avoid inconsistent verdicts: Symss v R [2003] NSWCCA 77 at 68.

5. [39]

   The evidence concerning Mr Nikolovski’s health and wellbeing is to be found in the two affidavits relied upon by him to support a continuation of the present trial against him. The affidavit of Mr Kernaghan sets out the history of the proceedings. Mr Nikolovski had been arrested in January 2013 and charged with murder. Those proceedings were terminated by the Director of Public Prosecutions on 25 September 2013. Mr Nikolovski was originally held bail refused and a bail application in April 2013 to this court was unsuccessful. On 5 September 2013 he was granted bail on strict conditions.

6. [40]

   In September 2014 the ODPP informed Mr Kernaghan that they intended to recommence the proceedings against Mr Nikolovski. He appeared before Port Kembla Local Court on 29 October 2014. He was also charged with an unrelated matter of affray. Bail was not opposed in relation to the murder charge but was opposed for the affray. However bail was granted with similar bail conditions to those imposed by this Court in September 2013.

7. [41]

   A committal took place on 17 and 18 December 2015 in Goulburn. He was committed for trial. A separate trial application was made by Mr Turnbull SC on behalf of Mr Wiggins before Matthews AJ in 2016. Mr Nikolovski joined in that application although he had not formally been arraigned in this Court. The application was concerned particularly with evidence that was prejudicial to Mr Wiggins in the evidence of witness F. A reading of the transcript of the argument for the separate trial applications discloses that the parties worked from the starting point that the co-offenders should be tried jointly but that the evidentiary material was so prejudicial that a separate trial should be ordered. That was ultimately refused by Matthews AJ after parts of witness F’s statement were redacted.

8. [42]

   There were difficulties in February 2017 in relation to who should represent Mr Nikolovski as counsel. Ultimately Ms Rowan was briefed but the trial started a week late to enable her to acquaint herself fully with the brief.

9. [43]

   Mr Kernaghan also gave evidence of difficulties with the bail conditions that ultimately came before Bellew J in August 2016.

10. [44]

    Throughout the period since Mr Nikolovski was first charged, but particularly since the proceedings were re-commenced by the ODPP Mr Kernaghan said that Mr Nikolovski was extremely distressed and at times physically unwell from diverticulitis. He also referred to the distress particularly on Mr Nikolovski’s mother. She confirmed the effect the matter has had on her in her affidavit and also gave evidence about her son’s mental and physical problems.

11. [45]

    Mr Kernaghan annexed two reports from a psychiatrist, Dr Irwin Pakula. The first of these reports dated 10 February 2017 appears to have been prepared with a view to having Mr Nikolovski observe the trial by AVL so that he did not have to come to Sydney each day. No such application was made to me in that regard.

12. [46]

    Dr Pakula said that he had been treating Mr Nikolovski since 9 March 2010 and set out the 10 dates since the first consultation that he had seen Mr Nikolovski. In the report he said this:

13. [47]

    The second report dated 24 March 2017 referred to a further consultation on that day and went on to say:

14. [48]

    Mr Kernaghan also said in his affidavit:

15. [49]

    Mr Kernaghan made reference to Mr Nikolovski’s brother who disappeared in October 2011 and is presumed to have been murdered. His death is connected with the present trial because there is a suggestion that Darko Janceski may have been responsible for Goran Nikolovski’s death and that that in turn led to the killing of Darko Janceski. Ms Nikolovska’s affidavit suggested that the Crown prosecutor’s opening to the jury that Goran Nikolovski was presumed dead had added distress to Mr Nikolovski and his family.

16. [50]

    It may be accepted that any person charged with murder would suffer a good deal of stress up to and through any trial. Nor can the matter be made easier by the fact that the circumstances of Goran Nikolovski’s disappearance have been aired in evidence.

17. [51]

    Further, it is clear that Mr Nikolovski suffers from certain physical and mental conditions. However, his mental health is not said by Dr Pakula to have been caused by his being charged with murder because his diagnoses predated that occurring. Nor is there any medical evidence to suggest that Mr Nikolovski’s physical health problems are related to his being charged with murder. Again, it can be accepted that his physical and mental wellbeing may well be impaired by having to undergo the trial and by the time it has taken for the matter to come to trial.

18. [52]

    Nevertheless, these matters are one consideration amongst a number of others when deciding whether or not the whole of the present trial should be brought to an end or whether it should continue against Mr Nikolovski alone. The principal enquiry must be how best is a fair trial able to be held. Fairness must be considered in relation both to the accused as well as the Crown.

19. [53]

    The Crown case is that Mr Nikolovski and Mr Wiggins are the two participants in the murder. Mr Nikolovski was an accessory before the fact and he organised Mr Wiggins to commit the murder. There is a real potential for inconsistent verdicts if separate trials are held. Moreover, the worst possible arrangement is a separate trial with Mr Nikolovski being first tried. That is because Mr Nikolovski’s guilt is dependent upon Mr Wiggins being found to have been the shooter. The Crown case is not that Mr Nikolovski arranged for any non-particular person to shoot the deceased. The Crown case is that he organised Mr Wiggins to do it. If Mr Nikolovski’s trial is held first and he is convicted and thereafter Mr Wiggins is acquitted at his trial there is a strong likelihood that the inconsistency in the verdicts would mean that the verdict against Mr Nikolovski was an unreasonable one. The case against Mr Wiggins, as the Crown put it, is a threads in a rope type of circumstantial case but although the case against Mr Nikolovski has threads in a rope aspects to it there is also a necessary link in the chain in the case against Mr Nikolovski, that is, that Mr Wiggins is found to be the shooter.

20. [54]

    I also accept the Crown’s submission that if there were a verdict of not guilty against Mr Nikolovski there is a risk that otherwise admissible evidence against Mr Wiggins will be rendered inadmissible. This includes evidence of Mr Nikolovski’s communications with Mr Wiggins relating to Mr Nikolovski’s asserted motive for wanting Mr Janceski dead.

21. [55]

    Ms Rowan said that there is no error of law in prosecuting two co-accused separately in a case such as the present. So much, it is said, can be shown because the co-accused may become unavailable due to death or indisposition or having fled the jurisdiction of the Court. However, those are not the circumstances that obtain in the present case. The co-accused is available and has pleaded not guilty.

22. [56]

    I do not consider that the evidence concerning the health of Mr Nikolovski nor the effect that the trial and the delay has had upon him and his family is sufficient to displace the usual rule in a case of this sort that the co-accused should be tried together. The Crown is entitled to a fair trial in that regard.

23. [57]

    In my view, the appropriate course to take in the present case is to discharge the jury.