R v Singh

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

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

Judgment

The accused, Kulwinder Singh, is charged with the murder of his wife.
By Notice of Motion filed on 28 August 2020, Mr Singh sought the exclusion of four categories of evidence. The motion was heard over three days on 19, 20 and 21 October 2020. I reserved my decisions at that time. I subsequently ruled on three of the four objections: R v Singh (No 3) [2020] NSWSC 1911; R v Singh (No 4) [2021] NSWSC 75 and R v Singh (No 5) [2021] NSWSC 76. The remaining objection was to the entirety of the evidence of Detective Ryan Mitchell. Final submissions in relation to that objection were deferred until the trial in order to afford senior counsel for the accused access to certain police documents relevant to the ruling.

Factual background

On 3 December 2013, Parwinder Kaur died as a result of complications from extensive thermal injuries, having received 90% full thickness burns to her body. At the time of the ignition of the fire which caused her death, the accused was the only other person in the premises. 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 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 found in the laundry cupboard. The lid had been placed back on the tin and the cupboard 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 were 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 and 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 accused's clothing did not contain traces of accelerant.
The Crown case is that the accused ignited the deceased's clothing in the laundry and then followed his wife around to the front of the premises and down the driveway where he was seen attempting to put out the fire.
The defence case is that the accused was upstairs when he heard his wife screaming and ran downstairs and out the front door where he met up with her somewhere near the top of the driveway as she moved down the driveway in flames. The accused participated in an ERISP on 3 December 2013 (Exhibit N) and a "walk-through" video with police on 11 December 2013 (Exhibit U) in which he said that he was upstairs in the bedroom packing a suitcase when he heard the deceased scream and ran downstairs.
Given that all of the forensic evidence is consistent with Ms Kaur setting fire to herself, the Crown relies upon lies to establish its case. One lie in particular is that the accused was still packing his clothes at the time of the scream. In order to establish this lie, the Crown seeks to prove that the accused could not have run downstairs in time to meet his wife on the driveway, and that although there were suitcases found in his car, there were no suitcases found in the bedroom when police searched the premises later that night.
In order to prove the latter of these two facts, the Crown relies upon the evidence of Detective Ryan Mitchell, along with EFIMS records, which indicate that a backpack, laptop bag, and suitcase were found in the accused's car, and not in the bedroom. This evidence is inconsistent with the accused's evidence that he was packing a suitcase in his bedroom. Mr Singh objected to the admission of this evidence.

Ms Cunneen SC submissions

Senior counsel for the accused submitted that the evidence was inadmissible under s 55 of the Evidence Act 1995 (NSW) or in the alternative ought to be excluded under ss 135 or 137 of the Evidence Act. The issue of relevance under s 55 was not pressed in oral submissions.
The nub of the application was that the probative value of the evidence was low due to the unreliability of the witness and the EFIMS records. It was further submitted that the danger of unfair prejudice was high, due to the risk that the jury would place undue weight on the evidence by concluding that it established a lie by Mr Singh. Ms Cunneen SC submitted that because the alleged lie had become such a fundamental part of the Crown case, the evidence was likely to be given undue weight in proving this lie.
The unreliability was said to arise from, inter alia: 1. The fact that Detective Senior Constable Mitchell states that he conducted a search on the orders of his superior, while his superior officer asserts that the search was conducted against his orders; 2. The fact that several bags were seized from both the car and the house, and some were seized as exhibits while others were returned to the car; 3. That the bags from the car and the house were dealt with in the same search and collection; 4. That the contents of one suitcase said to have been found in the car indicated that it had not yet been packed; 5. That Detective Senior Constable Mitchell only provided a formal statement in 2016, some three years after the events in question; and 6. That Detective Senior Constable Mitchell did not follow protocol as he did not examine the scene with a partner, did not record the placement in photographic form of the exhibits seized and did not maintain his duty book correctly.
In written submissions counsel for the accused also submitted that Detective Senior Constable Mitchell's evidence was a reconstruction and ought to be excluded as opinion under s 76 of the Evidence Act. This issue was not pressed in oral submissions.

Crown submissions

The Crown submitted that the probative value of the evidence was high, as it was capable of proving that the accused lied about his location at the time the fire started. The Crown further submitted that issues of credibility and reliability should not be taken into account when assessing probative value: R v Shamouil (2006) 66 NSWLR 228; [2006] NSWCCA 112; R v XY (2013) 84 NSWLR 363; [2013] NSWCCA 121. The Crown submitted that the issues of reliability raised by counsel for the accused (summarised above at [13]) were questions for the jury.

Consideration

I am satisfied that the evidence is relevant and it was not ultimately contended otherwise.
Section 137 of the Evidence Act provides: 137 Exclusion of prejudicial evidence in criminal proceedings In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor 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 has 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 issues in the case: see McHugh J in Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 at [92]. 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 ...".
The application of s 137 was considered by the High Court in IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 ("IMM"). In IMM, French CJ, Kiefel, Bell and Keane JJ held that the assessment of probative value requires that the evidence be taken at its highest, without considering credibility or reliability (at [44], [52]). The circumstances surrounding the evidence may however mean that, taken at its highest, the evidence nonetheless has low probative value. For example, "an identification made very briefly in foggy conditions and in bad light by a witness who did not know the person identified" would have low probative value as the identification is "simply unconvincing" (at [50]). Alternatively, evidence that is "so inherently incredible, fanciful or preposterous that it could not be accepted by a rational jury" would be inadmissible on the basis of relevance (at [39]).
More recently in The Queen v Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40 the High Court held, in relation to probative value under s 97 of the Evidence Act that: "[70] … provided evidence is rationally capable of acceptance, the possibility of contamination, concoction or collusion falls to be assessed by the jury as part of the ordinary process of assessment of all factors that may affect the credibility and reliability of the evidence."
Thus, the application of s 137 of the Evidence Act requires me to balance the extent of the capacity of the evidence to support particular factual findings against the danger of unfair prejudice to the accused.
There are clearly a number of problems with the manner in which Detective Senior Constable Mitchell seized the relevant exhibits. He did it alone, mistakenly believing he was ordered to do so, did not film or photograph it, put the exhibits on a bus with others and then moved them to his own car. It is entirely possible that the jury might find his evidence as to whether he seized the suitcases and other items to be unreliable on this basis, but that is a matter squarely for the jury.
As for the risk of unfair prejudice, I am not satisfied that there is a risk that the jury would misuse the evidence in a way logically unconnected with the issues in the case. If they accept his evidence, it is possible that that might conclude that the accused is either mistaken or lying about whether he was still packing, as opposed to having finished packing, at the time that he heard his wife screaming. If they do not accept his evidence then it goes nowhere.
I am not satisfied that there is any basis to exclude the evidence of Detective Senior Constable Ryan Mitchell as to what he seized and what he recorded about that seizure on 2 December 2013. 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

Evidence Act 1995(NSW)ss 55, 76, 97, 135, 137

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