Solicitors:
Solicitor for Public Prosecutions (Crown)
Michael Vassili Barristers and Solicitors (Accused)
File Number(s): 2017/00330134
[2]
Judgment
On 9 October 2019, I ruled that the Crown could not leave its case for murder to the jury on the alternate bases upon which he had opened to the jury. The Senior Crown Prosecutor asked me to provide reasons for doing so. These are my reasons.
[3]
Background
On 2 December 2013, Parwinder Kaur emerged from her home in Rouse Hill with her clothing on fire. Accelerant had been poured on her clothing and a cigarette lighter was found near the laundry door from which she emerged. Ms Kaur died the following day as a result of complications from extensive thermal injuries. She had received 90% full thickness burns to her body with sparing of the scalp and most of the face. At the time she emerged from her home the only other person in her home was her husband Kulwinder Singh. Nearly four years later, on 1 November 2017, he was charged with her murder.
On 12 August 2019, Mr Singh pleaded not guilty to the murder of Ms Kaur in Rouse Hill on 2 December 2013. A jury was empanelled and a trial commenced. On that day, the Senior Crown Prosecutor, Mr C Maxwell QC, opened the Crown case to the jury. Before doing so, he indicated that he proposed to open on alternate bases based on the principles derived from Royall v The Queen (1991) 172 CLR 378; [1991] HCA 27. Senior counsel for the accused, Ms M Cunneen SC, indicated that although Royall v The Queen was a very different case, the Crown opening on that basis would not pose any difficulty. The Crown then opened its case on four alternate bases as follows:
"In the circumstances where Ms Kaur is obviously not here, it is open to the Crown to present its case on alternate bases. Either: 1, that Mr Singh doused his wife with petrol and he lit it or, 2; by some act or words he placed her in fear and forced her to douse herself and then he lit it, or, 3; that Mr Singh doused her and, by some act or words, he placed her in fear and forced her to light it, or, 4; that Mr Singh, by some act or words, placed her in fear and forced her to douse herself and her to light it.
The act which caused her death is in fact one act, that is, the lighting of her petrol soaked body. The Crown case is that Mr Singh is responsible for the death of Ms Kaur either because he did the lighting or because he did the act or words which forced her to light herself regardless of who did the dousing. So the act causing the death is the lighting of her petrol soaked body."
On 26 August 2019, the jury wrote the following note which was marked MFI 11:
"Your Honour, may the jury have the five points of the opening address by the Crown relating to the charges."
After hearing from counsel it was agreed that Mr Crown should re-read the portion of his opening address extracted above at [3], which he subsequently did.
By the time of closing addresses eight weeks later, 195 exhibits had been tendered and 68 witnesses had given evidence, including a large number of expert witnesses. The accused gave three interviews to police: two on 2 December 2013 and a lengthy walk-through on 11 December 2013. The walkthrough videos of two neighbours who were first on the scene, Ms Tracey Valle and Ms Michelle Hartmann, were also before the jury. Putting to one side for the moment the areas of contention, by the time of closing addresses the following evidence was not in dispute.
1. As at 2 December 2013, the deceased and the accused had been married for nearly eight years. They had no children and had been seeking fertility treatment.
2. There was an ongoing problem in the marriage about money. The accused worked as a security officer at Rail Corp and the deceased worked as a mushroom picker. All of their money went into a joint account in the accused's name and that was used to pay the mortgage, which was in both of their names. They owned their home in Rouse Hill as joint tenants. From time to time throughout the marriage the deceased would divert either some or all of her pay into other accounts and the accused would ask her to keep contributing to the mortgage.
3. About a month before her death the deceased had again stopped contributing to the mortgage.
4. On 12 November 2013, there was a default on the mortgage, according to the Commonwealth Bank home loan summary documents in the name of Kulwinder Singh and Parwinder Kaur.
5. Earlier that year, on 5 January 2013, the deceased had telephoned triple-0 then hung up. The operator called her back. Senior Constable Atkinson and Constable Kurukchi subsequently attended Ms Kaur's Rouse Hill home. The deceased told police that her husband had become unhappy at the fact that she opened up a new account, as he preferred to control the family income. She said that she heard her husband say words to the effect of "come kick her out of the house". As the deceased's accent was quite strong, the officers could not determine whether she said "kick" or "kill", but they then clarified that what was said by her husband was words to the effect of "kick me from the house". The deceased then signed a statement in Constable Kurukchi's notebook which read "I, Parwinder Kaur, do not hold any fears for by safety. There were no threats or assault and do not wish for any further police action".
6. The deceased had two siblings and parents residing in India. She wanted to bring them all to Australia to live. The deceased was a citizen of India at the time of her marriage, after which time she moved to Australia and became a permanent resident. The accused is and was an Australian citizen. The deceased's family were all very keen to migrate to Australia.
7. In 2009 the deceased's brother Mr Sukhvinder Singh and sister-in law Ms Amanpreet Kaur came to Australia on a study visa and stayed with the deceased's in-laws when they first arrived.
8. In 2012 and 2013, efforts were being made to bring the deceased's remaining sibling Ms Gurvinder Kaur to Australia. After a number of attempts failed, in October 2013 the deceased arranged for her sister to marry one of the deceased's co-workers, Mr Rohit Kalra. This marriage was kept a secret from the accused and his family and the deceased's best friend, Ms Seema Chaudhary.
9. The deceased had the accused's name in her mobile telephone as "Jaan Jaanu" or "love of my life".
10. On or about 1 December 2013, the deceased had asked to adopt the child of her brother Sukhvinder Singh and Amanpreet Kaur (as the deceased was infertile) and been refused.
11. In the afternoon of 2 December 2013, the accused came home and found the deceased watching a movie. He asked her to resume contributing to the mortgage but she refused. The accused told police that he then told her that he would be staying with his mother for two nights. He told police that he hoped that she would either say "please stay" or offer to contribute but she did not (although many parts of the accused's interviews with police were challenged by the Crown; this part was not).
12. At 2:05pm, the deceased telephoned her brother, Sukhvinder Singh. The call lasted 27 seconds. Mr Singh's evidence about this call was as follows:
"Q. What did she say?
A. INTERPRETER: She said that 'He's telling me again to put money into his account'. I told her and I said, like, 'This is an everyday thing of today and I am at work at the moment'. I told her that, 'I will knock off at 5 o'clock. If you could call me or otherwise I'll call you'. And that's it.
Q. Can you describe her voice during that call?
A. INTERPRETER: The voice was all right, like, but she was speaking softly and I knew she was at home and she said that she was at home."
1. The Vodafone records reveal that nine seconds after this conversation with her brother, the deceased called triple-0 and gave details of her name and address and then stated that "my husband nearly kill me". When the operator asked her what he had done she hung up.
2. Some minutes later, the deceased emerged from her home through the back laundry door, down the side of the house and down the steep driveway with her clothing on fire, according to the evidence of Ms Valle.
3. The deceased was still able to speak for a period of time before she was taken to hospital and lapsed into unconsciousness. According to Ms Valle's evidence, the deceased first called out "help, help", she later said "cover my bottom" as her clothes burned off her. When asked where it hurt by an ambulance officer she responded "everywhere" and when asked by police two or three times "did your husband do this?" she did not respond and simply turned her head. The police witnesses gave evidence that they asked "who did this?" as an open question, whereas a neighbour, Paul Ciantar, gave evidence that police asked her "did your husband do this?" The deceased did not implicate the accused.
The forensic evidence, which was not in dispute, reveals the following:
1. The fire was started in the laundry at the rear of the house.
2. A lighter was found in the laundry. It had both fingerprints and DNA of the deceased on it but no fingerprints or DNA of the accused.
3. A tin of petrol was found in the laundry cupboard. The lid was back on and the laundry door was closed. The petrol from the tin matched the accelerant on the deceased's clothing. This tin was usually kept in the garage as it was used for a whipper snipper. Ten fingerprints of the deceased were found on the petrol tin. No fingerprints or DNA of the accused were found on the petrol tin.
4. A biomechanics expert, Dr Andrew McIntosh, analysed the manner in which the fuel tin was handled based on the deceased's fingerprints and he identified three potential cluster groups of fingerprints. The first cluster was consistent with holding it with the left hand and supporting the can from underneath and was also consistent with using the little handle with the right hand to pour elevating the bottom of the can. The second cluster was consistent with holding the tin in an upright position with the arms extended and then potentially bringing the arms up while inverting the can. The third cluster involved the hands being placed on the side of the can with the fingers pointing downwards. This was consistent with tipping the contents back on to the person holding the fuel can. However, it was also consistent with lifting and moving the fuel can and it was noted that the fingerprints may not necessarily have been placed at the same time.
5. The deceased's mobile telephone and one of her rings was found in the laundry as well as a kitchen/steak knife. A large number of witnesses gave evidence that the deceased used a knife to cut vegetables in her vegetable garden which was adjacent to the laundry.
6. The cardigan worn by the deceased was identified by Dr Katarina Burda as consisting of an acrylonitrile based copolymer that was readily ignited and continued to burn after ignition.
7. Both of the fire experts, Mr Michael Forbes and Mr James Munday, agreed that there was a five to ten minute delay between the application of petrol and ignition. This was based on the absence of any significant burns to the deceased's head.
8. At post mortem, the deceased had a 3.5 x 2 centimetre bruise near her scalp hairline and two transverse lines of pink/purple contusion on her right upper eyelid. Expert evidence differed about this but can be summarised as follows. Dr Rebecca Irvine, a forensic pathologist, opined that the bruising was from two different impacts because of the sparing of the skin between the two areas. Dr Johan Dulfou, on the other hand, preferred the opinion that they were sustained at the same time and the bruise could have migrated from a higher part of the forehead. Both experts agreed they were blunt object injuries and could have been caused by a number of things including hitting a wall or doorway, or falling to the ground.
9. The accused received burns to his hands from allegedly trying to pat out the fire as he was following the deceased down the driveway. Expert evidence differed on this issue. Professor Peter Maitz indicated that he would expect that an attempt to pat flames would result in a burn injury that was more diffuse and would accompany the whole palm as compared with the photographs he was provided of Mr Singh's hands where the burn injury was confined primarily to the fingers. Dr Duflou, on the other hand, stated that the burns to the accused's hands were flame burns and could have been caused by the accused patting the deceased whilst she was on fire. His evidence was that he did not think there was a standard approach that people would take to patting out a fire in an emergency situation. Dr Margaret Stark, a forensic physician, also gave evidence that the injuries were consistent with the accused patting out the fire.
10. The deceased had about 300-500ml of accelerant on her clothing including her shoes.
11. There was very little spillage of the accelerant in the laundry.
12. The accused's clothing did not contain traces of accelerant.
13. The expert evidence as to how the fire started differed. Mr Forbes identified an external and internal area of origin in the laundry. He did not see any evidence of sustained burning in the laundry and his evidence was that a flash fire did not occur. He also explained that, in his opinion, there had not been a deflagration, which is a subtype of combustion explosion. Mr Munday agreed that there was no high-energy deflagration, but stated that there could have been a low-energy one, which is called a "flamewash".
14. The accused did not have any "flamewash" damage to his clothing. As indicated above, "flamewash" was explained by Mr Munday as being a type of low-energy deflagration. Mr Munday tested the accused's clothing for evidence that it had been exposed to "flamewash" and he did not find any evidence that it had been. His opinion was that the accused was not in close proximity to the deceased at the time of ignition because of the lack of flame wash damage.
A significant portion of the Crown case was taken up with evidence from family members. The blood relatives of the deceased gave "relationship evidence" that the accused was abusive to the deceased in that he restricted her life, was frugal with money and would not let her go anywhere. Other evidence was called to rebut this. Evidence was also given that on one occasion, two and half years before she died, he hit her with a shoe (this was denied) and that about 15 months before she died he had raised his hand in the air in front of her family and her brother intervened. This evidence was also disputed. There were credit issues pertaining to some of these witnesses which arose during cross-examination but it is not necessary for the purpose of these reasons to consider that evidence.
The accused's case, as explained in his three interviews with police, was that after the deceased refused to contribute to the mortgage he started going up and down the stairs of their five-bedroom home packing his clothes to stay with his mother. His car was found by police to have bags of clothing, shoes and other clothes on hangers in it. On one occasion during this packing he was upstairs when he heard a scream. He ran out the front door of his home and caught up with his wife down the driveway (it was common ground she had travelled out the back laundry door and down the side of the house whilst she was on fire). He was seen to try and pat out the flames. It was put to the jury by senior counsel for the accused that when the accused threatened to leave her, if only for two days, the deceased self-harmed, without meaning to harm herself in any significant way, as a cry for help and things got out of hand.
The Crown case was that the accused was lying when he said he was upstairs. He sought to establish this by reference to alleged inconsistencies as to what he told witnesses at the scene and as to how close he was to the deceased when first seen by witnesses. The Crown case was that the accused killed the deceased because she would not contribute to the mortgage.
[4]
Crown closing address
On 8 October 2019, counsel made submissions as to the various legal directions to be given in the summing up. During this discussion Ms Cunneen queried how the principles to be derived from Royall v The Queen were applicable in this case given that the facts were so different. I indicated that Mr Crown should be in a position to explain how the Crown put its alternate cases the following morning.
Before recording the Crown submissions on this issue, it is pertinent to have regard to what the High Court said in Royall v the Queen due to its significance to the Crown's argument.
[5]
Royall v The Queen
The facts in Royall v The Queen can be found in the judgment of Mason CJ (at 382). The deceased in that matter died in the early hours of the morning when she fell from the bathroom window of a sixth floor flat in Kings Cross. There was evidence before the jury that the accused had admitted to punching her in the face, shaking her and pulling her hair. There was also evidence of blood in various parts of the flat quite apart from the bathroom from whence she fell. In the bathroom itself there was a chipped glass ashtray in the washbasin as well as hair and glass chips on the bathroom floor. There were marks on the bathroom wall consistent with an arc created by someone swinging his or her right arm while holding an object such as the ashtray.
There was also evidence of a forcible entry into the bathroom, and of a struggle. The deceased was naked when she was found in the street and her hair was wet. There were no marks on her scalp to indicate that she had been struck by the ashtray. There was also medical evidence indicating that the injuries to the deceased's head had been sustained before her fall, as described in the judgment of Toohey and Gaudron JJ at 418.
The Crown put its case to the jury in Royall v The Queen on three alternate bases.
1. The first basis was that the deceased was forced or pushed out of the window by the accused.
2. The second basis was that the deceased fell from the window while avoiding a blow or attack from the accused.
3. The third basis was that at the time immediately before her fall from the window, the deceased had a well-founded and reasonable apprehension that if she remained in the bathroom she would be subjected to such further violence as would endanger her life. In those circumstances she sought to escape by jumping out the window thinking that by so doing she had a better chance of saving her life than by staying inside.
It is the third of these three bases that is relevant for the present trial. The deceased's act in jumping was described by Mason CJ at 388 as an "act of "self-preservation". Brennan J (at 402) described this act as the deceased having "a well-reasoned and reasonable apprehension of violence and jumped out the window to save herself". His Honour also noted that the third alternative was "[i]n circumstances where the window offered the only possible avenue for escape from the accused's further violence". His Honour accepted that this was a valid alternative theory that could be put to the jury, so long as it was subject to a reasonableness enquiry.
Brennan J went on to state:
"Where in a case of that kind the charge is murder, the prosecution must not only prove that the accused caused the death by inducing a well-founded fear or apprehension on the part of the deceased such as to make it a natural consequence that he or she should take steps to flee or escape."
It was the third basis put to the jury that Mr Crown sought to invoke in the present case.
[6]
Submissions
Before court on 9 October 2019, I caused an email (later marked MFI 139) to be sent to the parties seeking articulation from Mr Crown as to how, by way of analogy with the principles in Royall v The Queen, the deceased's actions in putting accelerant on herself and setting herself on fire could be seen as an act of self-preservation or escape.
Although no written submissions were provided by the Crown on this issue, when court resumed that day the following oral submissions were made on behalf of the Crown:
1. "..the Crown says that there is evidence to support the proposition that at the time she was ignited, she had a well‑founded apprehension of physical harm, such as to place her in great fear and to force her to light herself".
2. "Royall was a case which obviously had certain facts and different facts to these, clearly enough, and the proposition there was for the third alternative that she was so frightened that she thought it a better chance to jump from the window to save herself. But that is a different factual scenario".
3. "The Crown puts it that Royall is authority ‑ it is not just about causation and breaking the link of causation. It is also a recognition by the High Court that in certain situations, it is open to the prosecution to put a case on alternate bases…And the basis that the Crown puts it, is not in terms of any act of saving herself or self‑preservation, but the act relied upon is that by some physical threat that was occasioned to her at or around the time that she was ignited, caused her such fear as to light herself".
Mr Crown conceded that that there was no evidence of any particular act or threat relied upon by the Crown as causing the deceased to kill herself but it was submitted that the Crown did not need to identify any such act. Reliance was placed on the bruise on the deceased's forehead, the triple-0 call and the kitchen knife in the laundry to establish such a threat beyond reasonable doubt.
On behalf of the accused, Ms Cunneen submitted that the Crown "is required to identify what act or acts of the accused it relies on that were done with intent to kill or cause grievous bodily harm or with reckless indifference, knowing she would probably die and also how those acts caused her to set fire to herself".
[7]
Consideration
As I ruled on 9 October 2019, I was not satisfied that there was an alternate case for the Crown to put to the jury, based on variations of the proposition that even if the jury was satisfied that the deceased had put the accelerant on herself and later ignited herself, that the accused could still be guilty of her murder on the basis that she self-harmed out of fear of him.
Of the three alternate cases the Crown proposed to put to the jury, three of them relied upon the deceased putting the accelerant on herself out of fear and/or igniting herself out of fear. Although four alternate scenarios were opened to the jury, the Crown put to the jury that the act causing the death was the act of ignition and that whether he or she did it, it was still murder.
Putting to one side reckless indifference to human life (which was not the Crown case), the elements of murder are that an accused person does an act which causes the death of a person and that at the time of that act he or she either intended death or grievous bodily harm. In Royall v The Queen there was evidence of the acts that the accused had done with the requisite intent for murder (the evidence of the head injuries, the bloodied ash tray and forcible entry to the bathroom). The High Court held that if the deceased jumped out the window to escape that violence and died, there was no break in the criminal acts causing her death so long as it could be established beyond reasonable doubt that the act(s) of the accused significantly or substantially contributed to her death. This was in circumstances where the window offered the only possible avenue for escape from the accused's further violence". As Deane and Dawson JJ:
"Of course, there may be no single cause of the death of the deceased, but if the accused's conduct is a substantial or significant cause of death that will be sufficient, given the requisite intent, to sustain a conviction for murder. It is for the jury to determine whether the connexion between the conduct of the accused and the death of the deceased was sufficient to attribute causal responsibility to the accused: Reg. v. Pagett (91)."
Unlike in Royall v The Queen, there is no evidence of any act or acts done by Mr Singh with intent to kill or inflict grievous bodily harm. The high point of the Crown case is that the deceased made a triple-0 call to police nine seconds after speaking to her brother. No complaint of any violence was made in the call to her brother. There is also expert evidence that the bruise on her forehead could have been caused by a blunt impact from any number of surfaces. There is also evidence that the slightly dirty steak knife found in the laundry was consistent with that being the knife the deceased used to cut the vegetables from her nearby garden. The unchallenged evidence is that the accelerant was put on the deceased five to ten minutes before her clothing was ignited by the lighter in the laundry. No sound of any raised voices or screams were heard by the next door neighbour nearby (who was the first person to see the deceased emerge from the house on fire).
It is to be accepted that, as a general rule, legal principles can be applied to very different factual situations. But the difficulty with the Crown's position is that it is not only the facts but also the principles in Royall v The Queen that are inapplicable to this trial. The Crown Prosecutor submitted that although the principles in Royall v The Queen applied, the facts differed so that the Crown could rely upon the act causing death being self-harm by the deceased (igniting herself) due to fear. Even putting aside the fact that I am not satisfied that Royall v The Queen is authority for the proposition put by the Crown, it is difficult to imagine what an accused person would have to do to lead a victim to be put in such fear that she considered it a safer option to put accelerant on herself and set herself on fire. None were advanced by the Crown and even if they had been, it would have been a matter of pure speculation.
Despite the Crown citing the High Court decision in Royall v The Queen as a proper basis to put the alternate cases, when I asked which particular passages from that High Court decision were relied upon as authority for this proposition, none were identified. Nor was any other decision cited as authority for the proposition the Crown sought to advance.
It is important to be clear as to what the Crown's alternate case was: that the accused put the deceased in such fear that she poured accelerant over herself, waited five to ten minutes and then set fire to herself. The Crown's alternate case was not that the deceased put the accelerant on herself and threatened to self-harm and the accused taunted her to do so, or ignored her threats to do so. There was no evidentiary basis for the Crown to put this case and again, it would have been pure speculation. But even if there was evidence to put the Crown case in this way, that would not be a case of murder; although it could possibly be a case of aiding and abetting or inciting a suicide.
It is not necessary for the purposes of these reasons to consider whether, as a matter of general principle, if there was evidence that a person had threatened a victim by, for example, telling him or her if they did not kill themselves their loved ones would be harmed, this could establish a case of murder. In any event, that is a factual scenario far removed from this case and not one of the three alternate bases upon which the Crown opened to the jury. Nor could it have been; there was no evidence at all of any such verbal threat.
I was satisfied, for these reasons, that, in the absence of direct evidence of any threat by the accused, there was no basis for the Crown to put a case that, even if the deceased had poured the accelerant on herself and then later set herself on fire, the accused was guilty of murder if she did it because he had put her in fear by unknown means.
[8]
Amendments
10 May 2021 - Publication restriction lifted
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: 10 May 2021