R v Wiggins (No 5) [2022] NSWSC 1055

R v Wiggins (No 5) [2022] NSWSC 1055

The accused did not establish an exceptional case warranting a permanent stay. Although the procedural history and delay were unfortunate and prejudicial in the ordinary way, the Crown had a continuing disclosure obligation, the new or changed evidence did not create a fundamental defect, and any unfairness could be addressed through cross-examination, rulings on leave applications under s 38 of the Evidence Act, and jury directions concerning forensic disadvantage, informer witnesses and identification evidence. The public interest in the disposition of serious criminal charges also weighed against a stay.

Jurisdiction
Australia
Judgment Date
05 August 2022
Procedural Posture
Criminal Procedure Application for a Permanent Stay of Proceedings in a Prosecution for Murder and Intentional Infliction of Grievous Bodily Harm / Pre Trial Ruling Before Trial Listed to Commence on 8 August 2022
Outcome
The application for a permanent stay of the proceedings is refused.
Legal Topics
['permanent Stay of Proceedings' 'delay' 'fair Trial' 'abuse of Process' 'prosecution Disclosure' 'new Evidence' 'cross Examination of Own Witness' 'informer Witness Evidence' 'forensic Disadvantage']
['criminal Law' 'criminal Procedure' 'evidence'] ['permanent Stay of Proceedings' 'delay' 'fair Trial' 'abuse of Process' 'prosecution Disclosure' 'new Evidence' 'cross Examination of Own Witness' 'informer Witness Evidence' 'forensic Disadvantage']

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Procedural Posture

Criminal Procedure Application for a Permanent Stay of Proceedings in a Prosecution for Murder and Intentional Infliction of Grievous Bodily Harm / Pre Trial Ruling Before Trial Listed to Commence on 8 August 2022

Legal Issues

  1. 1 ['Whether the accused established an exceptional case warranting a permanent stay of the criminal proceedings.' 'Whether delay and repeated trials had unfairly enabled the Crown to reshape or patch up its circumstantial case with new evidence.' 'Whether proposed reliance on a second statement from Russell Cusbert, a s 38 Evidence Act notice concerning Carmen Ballardin, and evidence from Witness X created irremediable unfairness.' 'Whether any prejudice from delay, fading memories, new evidence or unavailable witnesses could be addressed by trial rulings and jury directions.']

Ratio Decidendi

The accused did not establish an exceptional case warranting a permanent stay. Although the procedural history and delay were unfortunate and prejudicial in the ordinary way, the Crown had a continuing disclosure obligation, the new or changed evidence did not create a fundamental defect, and any unfairness could be addressed through cross-examination, rulings on leave applications under s 38 of the Evidence Act, and jury directions concerning forensic disadvantage, informer witnesses and identification evidence. The public interest in the disposition of serious criminal charges also weighed against a stay.

Court Disposition

The application for a permanent stay of the proceedings is refused.

Orders

  • ['The application for a permanent stay of the proceedings is refused.']