R v Singh

Supreme Court of NSW|2020-10-21|Before: Adams J, Mr J

Solicitors: Solicitor for Public Prosecutions (Crown) Michael Vassili Barristers and Solicitors (Accused) File Number(s): 2017/00330134

Judgment

Kulwinder Singh is to stand trial for the murder of his wife, Parwinder Kaur, on 15 February 2021. It will be the second time he will stand trial for that offence, the jury in his first trial being unable to reach a decision on 18 October 2019.
By Notice of Motion filed on 28 August 2020, Mr Singh sought the exclusion of some of the evidence adduced at the first trial from his re-trial. One of the matters sought to be excluded was evidence of a steak knife found near the deceased's mobile telephone phone at the time of the act which caused her death.

Factual background

On 2 December 2013, Parwinder Kaur emerged from her home in Rouse Hill with her clothing on fire. She died the following morning 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. The sole issue at trial is whether Ms Kaur set fire to herself (either intentionally or accidentally) or whether she was killed by her husband, the accused.
The forensic evidence at trial establishes that the fire was started in the laundry at the rear of the house. An accelerant had been poured on Ms Kaur's clothing and a cigarette lighter was found near the laundry door from which she emerged. The lighter was found to have both fingerprints and DNA with the same profile as the deceased but none of the accused. The only accelerant in the laundry was a tin of petrol in the laundry cupboard. The lid was back on it and the laundry door was closed. The petrol from the tin matched the accelerant on the deceased's clothing. Eleven fingerprints of the deceased were found on the petrol tin. No fingerprints or DNA of the accused was found on the petrol tin.
A biomechanics expert, Dr Andrew McIntosh, analysed the manner in which the fuel tin was handled, based on those fingerprints. He identified three potential cluster groups of fingerprints. Taken at its highest, the cluster is consistent with the deceased pouring the accelerant on herself.
The deceased's mobile telephone and one of her rings was found in the laundry close to a kitchen/steak knife, which is the subject of this application. The mobile telephone was used by the deceased to make a triple-0 call to police shortly before she was observed leaving her home by the rear entrance whilst alight.
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. Both of the fire experts, Mr Michael Forbes and Mr James Munday, agreed that there was a 5 to 10 minute delay between the application of petrol to her clothing and ignition. This was based on the absence of any significant burns to the deceased's head.
Other available evidence was that there was very little spillage of the accelerant in the laundry and the accused's clothing did not contain traces of accelerant. Nor did the accused have any "flamewash" damage to his clothing. There is available expert evidence that the accused was not in close proximity to the deceased at the time of ignition because of the lack of flame wash damage.

Evidence of the forensic testing of the steak knife at first trial

The steak knife was seized from the laundry by police on 3 December 2013 and secured. It has the appearance of an everyday steak knife. It was not clean and had a dirty appearance. A number of witnesses gave evidence that the deceased used a knife like it to cut vegetables in her vegetable garden, which was adjacent to the laundry.
A DNA swab was taken from the knife.
On 5 December 2013, the accused consented to providing his DNA to police by way of a buccal swab.
On 10 December 2013, the DNA swab from the knife was examined and the result was that it was a mixture that appeared to have originated from two individuals. Parwinder Kaur and an unknown male could not be excluded as contributors to the mixture.
Ms Sandra Trabuio, the DNA expert called by the Crown, did not compare the profile of the unknown male with the DNA sample provided by the accused.
On 29 November 2013, the DNA sample taken from the accused was destroyed.
At the first trial, by consent, Ms Sandra Trabuio, was permitted to give evidence that another analyst had compared the unknown male DNA with the accused and the accused could not be excluded as the male contributor to the mixture.
Following the jury being unable to agree at the first trial, police made an application under the Crimes (Forensic Procedures) Act to obtain the accused's DNA for the new trial. The accused does not consent to that application.

Ms Cunneen SC's submissions

It was submitted on behalf of the accused that the evidence that the accused's DNA was found on the knife is not relevant because the DNA evidence cannot identify that the accused is in fact a contributor. In addition, it cannot be concluded that his DNA was transmitted directly by him or whether secondary or even tertiary transmission occurred.
It was submitted that a steak knife is a household object and, thus, the accused's DNA could have come onto it in a variety of circumstances. Further, it is a moveable object, so his DNA could have been transferred to the knife in a room other than the laundry.
It was submitted that the relevance of the knife contended for by the Crown is that it links the accused with the murder, but it was submitted that it cannot in the circumstances.

Crown submissions

It was submitted that a fact in issue at trial will be whether or not the accused was downstairs in the marital home with the deceased at around the time that she made the triple-0 call and at the time that she was set alight.
It was submitted that the evidence supported the Crown case that the accused handled the knife when he was downstairs, possibly in the laundry, with the deceased when or shortly before they argued, and before or shortly after she called triple-0.
It was further submitted that the close proximity of the knife to the deceased's mobile phone on top of a cardboard box is a circumstance capable of supporting an inference that both items were left on top of the carton at about the same time, shortly after the deceased used the mobile telephone to call triple-0.
The fact that there are alternate explanations for the presence of the accused's DNA on the knife does not mean that the evidence is not relevant. Rather, any alterative propositions are matters for the jury. This goes for any transference argument as well.
It was further submitted that the probative value is not substantially outweighed by any of the considerations in s 137 of the Evidence Act 1995 (NSW). The probative value must be taken at its highest.
It was submitted that there is no risk of unfair prejudice so long as the evidence can bear the interpretation relied upon by the Crown.

Consideration

If I rule that the evidence of the steak knife is to be excluded, then there would be no basis for the police to press the Local Court application. If, on the other hand, I rule that it is admissible, there is little basis for the accused to resist the application.
The primary objection to the admission of the steak knife is a lack of relevance. Sections 55 and 56 of the Evidence Act provide that: 55 Relevant evidence (1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding. (2) In particular, evidence is not taken to be irrelevant only because it relates only to: (a) the credibility of a witness, or (b) the admissibility of other evidence, or (c) a failure to adduce evidence. 56 Relevant evidence to be admissible (1) Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding. (2) Evidence that is not relevant in the proceeding is not admissible.
If the evidence is not relevant, that is the end of the matter: Smith v The Queen (2001) 206 CLR 650 at 653; [2001] HCA 50 at [6] per Gleeson CJ, Gaudron, Gummow and Hayne JJ.
Section 55 of the Evidence Act was considered by the High Court in IMM v The Queen (2016) 330 ALR 382; [2016] HCA 14 ("IMM"). The majority (French CJ, Kiefel, Bell and Keane JJ) observed the following at [38]-[39]: "By s 55, evidence is relevant if it "could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding." There can be no doubt that the reference to the effect that the "could" have on proof of a fact is a reference of the capability of the evidence to do so. The reference to its "rational" effect does not invite consideration of its veracity or the weight which might be accorded to it when findings come to be made by the ultimate finder of fact."
Thus, the task of determining whether evidence is relevant requires an assessment of the capability of evidence rationally to affect the assessment of the probability of the existence of a fact in issue. That exercise is to be undertaken on the assumption that the jury will accept the evidence, an assumption that is compelled by the words "if it were accepted" in s 55: IMM at [49]. It is not the role of the trial judge, at the point of assessing relevance, to enquire into the weight that a jury may give to evidence. A piece of circumstantial evidence that gives rise to an inference consistent with guilt is probative unless that inference is preposterous or incredible in the sense explained by the majority in IMM at [39].
I am satisfied that the evidence is relevant. The deceased died as a result of her clothing catching fire in the laundry of her home. Everything found in the laundry at that time is part of the crime scene and thus relevant.
All of the crime scene evidence suggests that the deceased was in the laundry at the time of the ignition alone. Neither the accused's DNA nor fingerprints were found on the lighter or the accelerant. Nor was any flamewash found on his clothing. The weight of this evidence is that he was not in the laundry at the time that the fire was lit.
The evidence is that the deceased made the call to triple-0 at some point that was up to ten minutes before Ms Kaur's clothing was ignited with the lighter.
Although the forensic evidence suggests that the accused was not in the laundry at the time that the fire was lit, that is ultimately a matter for the jury. The forensic evidence is neutral as to whether the accused could have been in the laundry at some earlier time that day, such as before she made the triple-0 call.
I am unable to accept that a steak knife found next to the deceased's mobile telephone could not pass the low threshold of relevance.
The next question is whether the finding of the steak knife at the crime scene should be excluded under s 137 of the Evidence Act. I would be required to exclude the evidence if its probative value is outweighed by the danger of unfair prejudice to the defendant. In applying s 137 of the Evidence Act, I am required to balance the extent of the capacity of the evidence to support particular factual findings against the danger of unfair prejudice to the accused.
"Probative value" is defined in the Dictionary to the Evidence Act as, "[t]he extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue." In IMM, the High Court confirmed that the assessment of probative value for the purposes of s 137 does not require evaluation of the credibility, reliability or weight of evidence, those being matters properly left to the jury if the evidence be admitted.
The evidence of the finding of the knife does not raise any questions of reliability or credibility. The probative value of it being found with a mixed DNA profile from which the deceased and the accused cannot be excluded as contributors does not turn on issues of credibility or reliability but, rather, on which of a number of competing inferences the jury is likely to draw from its location.
The fact that the accused cannot be excluded as a contributor to the mixed DNA profile found on the knife is hardly surprising. He lives in the house. It is a moveable object. It could have got onto the knife in a variety of ways, including transference, at any time, in a room other than the laundry. I do not consider the probative value of the evidence to be high. It is somewhat odd that it was found on a cardboard box next to the deceased's mobile phone and one of her rings. It is consistent with the defence case that it was a knife that the deceased kept in the laundry to cut her vegetables with. It would be an unusual choice of a weapon, given that it is a dirty steak knife, whereas there is evidence that there were other kitchen knives that the accused could have obtained if he had meant to threaten the deceased in any way.
Section 137 requires me to exclude the evidence if its probative value is outweighed by the danger of unfair prejudice to the defendant. Although "probative value" is defined in the Evidence Act, the term "unfair prejudice" is not. It been held that the danger of "unfair prejudice" within the meaning of s 137 of the Evidence Act means a risk that the evidence would be misused by the jury in some unfair way that is logically unconnected with the purpose of its tender: see McHugh J in Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 at [91]. As Mason P observed in Colby v The Queen [1999] NSWCCA 261 at [97]: "[t]he focus is upon the danger that the tribunal of fact will use the evidence upon a basis logically unconnected with the issues in the case...".
In Festa v The Queen (2001) 208 CLR 593; [2001] HCA 72, Gleeson CJ observed at [22] that "unfair prejudice" "lies in the risk of improper use of the evidence, not in the inculpatory consequences of its proper use". In doing so his Honour referenced the decision of McHugh J in Papakosmas v The Queen at [91]- [97].
It seems to me that although the probative value of the evidence is low, I am not satisfied that there is any risk that the jury will use the evidence in a manner logically unconnected with the issues in the case. The presence of the knife cannot prove that the accused was in the laundry at any particular time. I will instruct the jury accordingly. Any risk that the evidence will be misused can be cured by directions that I propose to give to explain its limited relevance. 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: 31 March 2021

Crimes (Forensic Procedures) Act 2005(NSW)

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