Regina v Meher

The evidence which was led in the Crown case in relation to the events at the Temple

(a) Baldev Kaur 13 Baldev Kaur said that she went to the Temple with Narinder, Satbir and Kamaljit. She saw the Appellant in the kitchen, carrying a bag over his back. He nodded his head several times at her, an act which, according to her culture, she took to be a warning. The Appellant said words to the effect, "Today I am going to tell you all I am not going back without do this". 14 She heard the Appellant say to another woman (Gurdev Kaur), "I will talk to the priest of the temple, but I am going to tell these people and finish my things with them. I will let them know what I am going to do". She took this as another warning. 15 She went into the prayer hall. When the prayers were finished she moved to the table where food was served. The Appellant took his plate and went outside. After she finished eating she took her plate to the kitchen. When she came out she saw her son Amar Preet Singh, who had arrived from work. She asked him where his father was, and he replied that he was standing behind her. She turned and the Appellant stepped up to her. He was carrying a gun. He pointed it at her head and said, "Don't run away. Today I am going to finish you all". In cross-examination she also said that Amar Preet Singh had yelled out "he's got a gun". 16 Both she and Amar Preet Singh ran towards the Appellant. She heard a shot and felt a strong pain in her leg. She and Amar Preet Singh then took hold of the Appellant and shouted for help. Two men came up and one punched the Appellant. The gun was taken from him. 17 The shooting of Ms Kaur in the leg gave rise to Count 1. 18 Ms Kaur denied in cross-examination that she was making things up or exaggerating, in order to make the Appellant look bad. She also denied that it was her son, Amar Preet Singh, who had pulled out a gun and tried to shoot the Appellant, or that she told Amar Preet Singh that night, "Your father is here so don't do anything". She accepted that there had been no mention, in her first statement to police, about the nodding threat which she said, at the trial, had been made to her in the Temple kitchen. 19 Counsel for the defence tried to clarify with her the sequence of events before the first shot was fired. She said both that she and Amar Preet Singh had tried to wrestle the gun away after the first shot was fired; although she also said that as soon as they grabbed the Appellant the first shot was fired. 20 She agreed, in cross-examination, that she had transferred a plot of land in the names of the Appellant and herself to her brother without the Appellant's permission, and that she and Amar Preet Singh had felt unhappy and humiliated in relation to the disinheritance notice. She also agreed that, after Kamaljit's allegations of sexual assault, she had become very angry, and that the other children had turned against the Appellant because of it. Throughout the currency of the AVO she said that she had been having problems with the Appellant, including receiving threats from him.

(b) Amar Preet Singh 21 Amar Preet Singh said that on 26 January 2002 he had been warned by the Appellant "you know what I told you before. If Kamaljit leaves I will buy a gun and shoot you all and it will happen". He understood that the Appellant had called police to the railway station, where they had happened to meet, and where this conversation had occurred. He acknowledged having become angry with the Appellant, but denied threatening him. 22 He said that he had been at work, on 22 June 2002, and that, after 8:00 PM, he had received a telephone call from his sister Kamaljit, who informed him that the Appellant was at the Temple. He finished his shift around 8:30 PM and went to the Temple. Prayers were over and the distribution of food had begun. He went into the Temple to pray. When he came out, he saw the Appellant sitting near the food bench. He went to the kitchen and returned with some food. At that stage the Appellant was standing near the shoe rack outside the Temple. As he spoke to his friend Usha outside the kitchen, he noticed the Appellant walking past, carrying a dark backpack over his shoulder. 23 His mother came to speak to him and said, "Your dad is here so don't do anything". They continued talking. He saw the Appellant approach, and his mother asked, "Have you seen your dad?" he replied, "Yes, he has just gone to our right". He said that he then saw the Appellant drop the backpack onto his arm, open the zipper of the main compartment, and pull out something that looked like a gun. His mother was looking at the Appellant when he did this. 24 His mother said, "He's got a gun, he's got a gun". The Appellant began to walk towards them. Amar Preet Singh said that his father observed: "You took my property. I am going to kill you now". At this point he was about a metre away. 25 Ms Kaur began to run down the driveway and Amar Preet Singh followed her. The Appellant caught up with Ms Kaur after a few metres. He pointed the gun towards her upper body, at which point Amar Preet Singh pushed him and he tumbled sideways. Then he heard a loud noise and saw a light. He said that he was not touching the Appellant at this time. 26 Amar Preet Singh said that he then saw the Appellant do something with the gun. He grabbed the gun and the Appellant elbowed him in the stomach five or six times. Amar Preet Singh described the gun as having been black with a long barrel that he was able to hold on to, while he and the Appellant were wrestling with it. Amar Preet Singh lost his grip on the weapon, and he then heard the gun go off again. He tackled the Appellant to the ground. Then some other people came and jumped on the Appellant, at which point he went to his mother. 27 Amar Preet Singh denied having threatened to kill the Appellant, either at the railway station on 26 January 2002 or during a telephone conversation with him, on 28 October 2001. 28 He also denied that he had obtained a gun himself, or that he had tried to shoot the Appellant. He agreed that he had applied for membership of a pistol club, but said that he had not pursued this activity due to financial problems. 29 The elbowing of Amar Preet Singh in the stomach, by the Appellant, gave rise to Count 6; while the subsequent shot gave rise to Count 5. The alleged possession by the Appellant of the gun, a .22 Ruger pistol, used in the shooting, gave rise to Count 7.

(c) Satbir Singh 30 Satbir Singh said that he noticed that the Appellant had a black backpack at the Temple. He went over to the kitchen and spoke to his brother Amar Preet Singh after his arrival. He asked Amar Preet Singh to see where their mother was, and to bring her back to the kitchen. 31 Whilst he was still at the table he said that he heard a blast, and then another two blasts. After that he heard some yelling. He went to where the noise was coming from, and saw his mother, brother and the Appellant, who was saying something loudly. His mother was also yelling. 32 He also gave evidence of having been spoken to by the Appellant, by phone in February 2000, while he was in India, on which occasion the Appellant had said "you trying to take my home and land and everything and if I come there I will kill you all".

(d) Narinder Kaur 33 Narinder Kaur said that she saw the Appellant at the Temple during the prayers. Her brother Amar Preet Singh arrived after the prayers finished. She was still inside with her sister when she heard yelling and ran outside. Her mother ran towards her, telling her to go inside, and that she had been shot by the Appellant. 34 She agreed, in cross-examination, that there was nothing in her police statement about her mother saying that it was the Appellant who had shot her. She denied that she had made this up. She also denied exaggerating her evidence to make the Appellant look bad.

(e) Kamaljit Meher 35 Kamaljit Meher said that she had phoned Satbir, and Amar Preet Singh, after she had seen the Appellant at the Temple. Whilst she was still inside she heard her mother yelling and crying. She went outside and saw her mother sitting on the ground. Her mother told her to go back inside. She agreed that, in her police statement, she had not mentioned having rung her brother Amar Preet Singh that night. 36 She also gave evidence that before leaving the Appellant's home he had warned her "if you leave the home I will kill all of you, both of your brothers and both of your sisters." She denied ever having abused the Appellant by telephone, although she had conceded doing so in the trial of the Appellant in relation to the alleged sexual abuse. She denied that she was trying to cover up for her brother, or that she had gone to her father's house on the night of his arrest for the sexual assault charges and stolen his belongings.

(f) Manjit Singh 37 Manjit Singh said that he was behind the kitchen when he heard a sound like a stick hitting a pole. He heard this noise a couple of times. He ran out and heard someone shouting, "He's got a gun…catch him". He saw the Appellant with a gun in his hand, on the ground, trying to struggle from underneath Amar Preet Singh. In cross-examination he said that the Appellant was holding the gun with both hands, and that Amar Preet Singh was holding the Appellant's hands and pushing them down. 38 He said that he had attempted to obtain the gun and that he had given the Appellant "one sort of small knuckle", before noticing the gun had been taken away. Amar Preet Singh was led away, and the Appellant said "Where are they… don't let him go, I'll kill, I'll kill him". He said that he had asked the Appellant why he had come to the Temple with a gun and had received a reply "who got the gun, where is the gun, give it to me". Manjit Singh said that he responded "Yeah, I saw it in your hand with my naked eyes". The Appellant disagreed. 39 In cross-examination he agreed that, after the shooting, the Appellant was saying, "They took all my property and now they are trying to kill me".

(g) Haprit Chopra 40 Haprit Chopra said that he had heard two bangs after which he ran outside. He then saw the Appellant and Amar Preet Sing rolling on the ground. The Appellant had a gun in his right hand. He said that he took the gun from the Appellant and kept it until the police arrived. He heard the Appellant say, "You are trying to take my land [or property]".

(h) Usha Singh 41 Usha Singh said that after she arrived at the Temple, she had moved into the kitchen area. As she was leaving that area she said a few words to Amar Preet Singh. She saw the Appellant at the shoe rack outside the Temple. She saw Ms Kaur walking towards the kitchen area. The Appellant was following her, carrying a backpack. In cross-examination she also said that she also saw Ms Kaur and Amar Preet Singh talking in the kitchen area before the shooting. 42 As she left to walk to her car she said that she had heard a "couple of noise", and then she heard yelling and shouting. She looked over and saw Amar Preet Singh, Ms Kaur and the Appellant all on the ground. People started to run over to sort out the fight.

(i) Other witnesses 43 Several other witnesses, Gurpreet Singh, Padam Singh and Karamjit Singh gave evidence of hearing gunshots and seeing the aftermath of the altercation.

(j) Natalie Dodd 44 Natalie Dodd said that she treated Ms Kaur at the Temple for two gunshot wounds to her right thigh. Ms Kaur told her she had been shot by her husband. In the ambulance she gestured that a gun had been put to her head and that, after it had been pushed away, it had gone off into her leg.

(k) Forensic evidence 45 No forensic evidence was obtained from the gun or from the Appellant that proved that he had been in contact with the weapon. There were no identifiable prints on the weapon (Detective Turner) and DNA testing (Detective Altamura) did not produce a sufficient sample for comparison. Swabs taken up to four hours after the shooting from the Appellant's hands and jumper, were negative for gunshot residue (GSR). There was expert evidence to the effect that, while this did not support the proposition that the Appellant had recently been in contact with a firearm, it also did not preclude him from having fired or handled a weapon, if that had occurred, several hours before the samples were taken (Stephanie Hales), having regard to the ways in which gunshot residue is dissipated by activity, and over time.

(l) The Weapon 46 The weapon was found to be in working order (Lucas Van Der Walt). It had been stolen on 6 August 1999, and the Appellant did not hold a licence or permit in relation to it (Detective Altamura).

(m) Sergeant Smith 47 Sergeant Smith gave evidence confirming that he had attended Central Railway Station on 26 January 2002 in response to the Appellant's phone call and complaint of having been harassed by Amar Preet Singh.

(n) Detective Sergeant Hales 48 Detective Sergeant Hales gave evidence of examining the Appellant's backpack which included clothing, divorce and citizenship papers, a last will and testament by which the Appellant left his entire estate to the Royal Blind Society, as well as the handwritten letter (Exhibit B) which was in the following terms: "My son Amar Preet discuss with me a number of times that mother has give our property to her brother and we left with nothing…He used to ring me on mobile after every two three weeks and we discuss the situation then we get together on Australia Day in city Central Station we further discuss the matter. He adamant that daddy I want kill mother why she my father's property gave to her brother. He told me that day daddy I know of one my friend's friend dealing with the guns so I will buy a gun and shoot the mother I said to him no if you can not tolerate then you buy a gun and I will do it he said OK daddy you give me one thousand dollars which I gave him so after 4/5 weeks later he rang me daddy I bought the gun and I told him straight come to me at Kingsgrove station he gave me because he could not keep it home…" 49 He also gave evidence concerning the shortened .22 calibre Ruger single action 6 shot revolver that was found near the kitchen. It contained two fired cartridges, which were positioned on either side of an unfired cartridge.

(o) Sergeant Adams 50 Sergeant Adams gave evidence that the cylinder of the revolver did not lock into the next position after being fired, but added that it can move if bumped, for example, when people were wrestling over it.

(p) Detective Altamura 51 Detective Altamura gave evidence in relation to the ERISP that was conducted with the Appellant in the early hours of 23 June. It contained the following questions and answers: Q&A 107: What does this document [Exhibit B] relate to? Well, if someone shoot me. Then we know, we know that, what happened.

… Q&A 132: Did you have a gun at all tonight? Tonight? Q&A 133: Yeah. That is the one my son gave it to me. … Q&A 169 And how much money did you pay him for the gun? $1,000. "

52 From Q&A 267 onwards the Crown case was put to the Appellant. He denied pulling a gun from his backpack, saying however that he did pull out a black cap or beanie because it was cold outside. He never heard anyone say anything about a gun. He did not point a gun at his ex-wife or run after her. He did say to her that she had taken his property and that she had no right to do so (Q&A 291). He was standing near her in the Temple kitchen area at that time: "Q&A 306: All right. It's then alleged that when you were pointing the gun at your ex-wife, that your son Amar has then pushed you from the side, which caused you to move side, sideways. What do you say about that? Yeah they, they … somebody I don't know how is pushing each other something like that. Q&A 307: So, there was a bit of a scuffle there? Yeah, there was yeah. Q&A 308: It's been alleged at that point in time, during that scuffle … Mmm. Q&A 309: … that the gun went off? Mmm. Q&A 310: What do you say about that? I don't know. I heard some bang.

… Q&A 322: Was, were, was there a gun? I, I heard after there is a gun like when I say I don't have a gun.

… Q&A 324 Which, did you think that [the sound he heard] might have been the gun shot? A gun … maybe, yeah. Maybe gun, somebody say, ask me, where is the gun, I say I don't have any gun."

53 From Q&A 325 onwards the Appellant accepted that there was a struggle over the gun, after first having said that he did "not know what [the Detective] was talking about". He said that Amar Preet Singh was involved in the wrestle, that his ex-wife became involved, and that then maybe another two people. He said that he was being grabbed, and was punched on the nose: "Q&A 361: Yeah, they [the other people that then came over] said that you were holding the gun? I did not hold of the gun. I did not hold.

… Q&A 388: How would the police have the gun that your son gave you tonight? I give a little over a month ago I give him back. Q&A 389: You gave it back to… Yeah, I give it back. And then he might bring it with him to again. Q&A 390: You're saying that your son … He bring it back today, when … … Q&A 393: Did you see the gun he had tonight? No, not closely. Q&A 394: Then, how would you know that it, it was the same gun? Or maybe same, I don't know. Which gun he gave to me. … Q&A 469: How did you think this [the handwritten letter, Exhibit B] would assist whoever found it, if something had happened to you, if it refers to the mother being killed? I, I could be killed too, if I kill them [corrected at trial from "then" in the transcript of ERISP] or anyone, anybody know who kill him. Q&A 470: Right. But in this letter, do you agree that it talks about Amar Preet wanting to kill his mother? Mmm. Q&A 471: How did you think if something happened to you that that, that this letter would assist whoever found it? Because this can happen to me too." 54 Detective Altamura acknowledged that he was aware that the Appellant had alleged that some of his belongings were stolen after he had been taken into initial custody in relation to the sexual assault charges. 55 It was the Crown case, as summarised in the closing address, that the Appellant had deliberately attended the Temple, on a Saturday, rather than on his usual day of worship (Sunday) armed with a Ruger firearm concealed in his backpack, with the intention of killing his wife, and that having followed her out of the kitchen he fired a shot at her before there was any struggle over the weapon. His motivation, the Crown submitted, lay in his belief that his property had been fraudulently taken by the family, and in the fact that he had been made the subject of a sexual assault prosecution as a result of his daughter's allegations. 56 In support of that case, it placed considerable reliance on the evidence of Amar Preet Singh, and distanced itself from so much of Baldev Kaur's account that was inconsistent with it. Reliance was also placed on the letter found in the backpack, which it was suggested had been drafted to set up Amar Preet Singh for the killing, and upon the bizarre explanation which the Appellant had given for it. Reliance was similarly placed on his admission to having told a number of lies in the ERISP although it would seem not as a display of a consciousness of guilt, but rather as a matter going to his credibility. The presence in his backpack of important personal documents, and clothing, was relied upon as evidence of an intention to flee the area after a shooting which had been pre-planned. 57 The Crown identified as the principal issue in the trial, whether it was Amar Preet Singh or the Appellant who had taken the gun to the Temple, and had then produced it, and with what intention. It recognised that the credibility and reliability of Baldev Kaur, Amar Preet Singh and the Appellant were crucial for the determination of this issue, but invited acceptance of the Crown case in the light of the background of bitterness and hostility on the Appellant's part. The irregular attendance of the Appellant at the Temple on a Saturday, his movements within the Temple which were consistent with him carrying out reconnaissance and waiting for an opportunity to shoot his wife, the presence of the backpack containing important personal documents and clothing, the somewhat bizarre letter, and the somewhat strange account which he had given in the ERISP in relation to the acquisition and subsequent possession of a gun by himself and Amar Preet Singh, were also relied upon in support of its case.

(a) The Appellant 58 The Appellant gave evidence that he had arrived at the Temple at around 7:00 PM. He had taken off his shoes and washed his hands in the kitchen area. He left his bag outside the Temple and went in to pray. He had seen his wife in the kitchen area and he also saw his son Satbir in the Temple. After the service he collected his meal. After returning the plate to the kitchen area, he went to the toilet. He next went to the shoe rack and put his shoes back on. He placed his bag on his shoulder before returning to the area behind the kitchen to wash his hands. He then walked towards the nearby driveway and took out his beanie from his backpack to put it on. 59 As he came to the kitchen corner he said that he saw his son Amar Preet Singh in front of him, with a gun in his hands. He said that he grabbed Amar Preet Singh's hands, in an attempt to get the gun. There was a struggle between them. 60 He said that he tried to keep the gun pointing down to the ground in case it went off. Then his ex-wife entered the struggle, and the three of them tried to obtain control of the weapon. During the struggle the Appellant said that he heard a loud bang, which deafened him. At one point he said Satbir came up and punched him in the nose, which started to bleed. 61 Other people then started to gather in a circle and the struggle ended. He was semi-conscious for some seconds, and could not remember exactly what had occurred, although he recalled people asking him questions. At one point he agreed he said "Yesterday they took my property now they want to take my life". 62 He relied upon parts of his ERISP with police, but he said that other parts had not been true, due to the fact that at the time of the ERISP he had been shocked and confused. 63 In relation to the letter which police later found in his backpack he said in his evidence that he had written it because he had heard that Amar Preet Singh had joined a pistol club and as a result he had become afraid. He then wrote a false story to leave a clue behind, if Amar Preet Singh, or another family member, shot him. He said that it was also not true that he had kept a gun in his house or that he had dealt with one although, he said, his son had done so. 64 He said that he had been threatened by Amar Preet Singh on a number of occasions, including an occasion on 28 October 2001 when Amar Preet Singh had said to him over the phone "I will chop you off then you will come back out of gaol". There was another occasion, at Central Railway Station, on 26 January 2002 when, according to him, Amar Preet Singh had said, "you have plenty of money, don't you, you won't be able to spend, I'll kill you". He said that he had felt intimidated and threatened to call the police, which he then did. However, he said, he had caught a train and had left the station before the police arrived in response to his call. 65 He denied having threatened his ex-wife by nodding at her in the kitchen area of the temple, or when speaking to another lady in her presence. 66 In cross-examination he admitted that he had ordered a revolver in Germany, although he said that he had never received it. He had heard that his family sometimes went to the Temple but had been stunned to see them there on this day, as arrangements had been made through his solicitor for them to attend a different Temple since they had a motor vehicle in which they could drive there. He had no vehicle and the Revesby Temple was within walking distance for him. His usual day to attend the Temple was a Sunday although he also attended on other days when there were special occasions. 67 He denied that the reason that he had clothing and other personal items in his backpack was because he was planning to shoot his ex-wife, and to then go on the run. He also denied that the bag had been padlocked because he kept a gun in it. He said that he had been thinking of spending a few days at a friend's place at Liverpool. He said that he had his will and citizenship papers with him as he carried them at all times, so as not to lose them. This he had done because, at the time of his arrest for the sexual assault allegations, some of his belongings had been stolen. He had reported that loss to police, and had received his divorce and citizenship papers back after police had spoken to Kamaljit, who had made a claim of right over other items which she admitted to have taken. 68 He denied that he had written the letter (Exhibit B) in order to set Amar Preet Singh up for the killing of his ex-wife, or that the reason for waiting at the Temple, until Amar Preet Singh arrived, before taking out the gun was in furtherance of any such set up. He denied that he had gone to the kitchen to wash his hands, after having his meal, in order to search for his ex-wife. 69 In re-examination he said that, when he answered question 469 of the ERISP ("…if I kill them or anyone, anybody know who kill him") he had meant that in a scuffle, anyone could be killed. 70 He claimed never to have threatened his family or to have physically assaulted them, and said that he had supported them while they were in India, and had organised and paid for their travel to Australia. He said that he had placed the disinheritance notice in the newspaper and made out a new will, because his wife had transferred a joint property to her brother, using a Power of Attorney, but without his permission.

(b) Karam Ramarakha 71 Karam Ramrakha, the Appellant's solicitor was called in his case. He confirmed that on the day following the Appellant's arrest for the sexual assault allegations, the Appellant had reported that his flat had been cleaned out. He forwarded to the police, on the Appellant's behalf, a list of the items, which were said to have been stolen. He confirmed additionally that he had received a telephone call from the Appellant complaining of the abusive phone call of 28 October 2001. He also confirmed that he had been involved in discussions with the Director of Public Prosecutions, following the Appellant's committal on the sexual assault charges, in relation to the family and the Appellant attending different Temples. This had arisen in the context of a condition, which police and the DPP had initially sought, to the effect that the Appellant not attend the Revesby Temple. 72 It was the Appellant's case, in summary, that it was his son Amar Preet Singh who had taken the gun to the temple, with the intention of shooting his father, because of the sexual assault allegations made by his sister Kamaljit. The Appellant never had any intention of shooting his ex-wife Baldev Kaur. There was a struggle as the Appellant tried to wrestle the gun free from Amar Preet Singh and it was after this struggle began, that the gun discharged accidentally. The Appellant was never in possession of the gun and never discharged it, although he may have touched it during the struggle. The Appellant also relied upon self-defence in relation to the assault charge. 73 As appears from the closing address, his Counsel:

(i) Relied upon the evidence as to the existence of bad blood between the other family members and the Appellant to suggest that it was Amar Preet Singh who had been the aggressor and the person who had taken the weapon to the Temple, rather than himself;

(ii) Asserted that there had been a conspiracy, in which an AVO had been sought by his wife, in order to secure permanent residency for her;

(iii) Challenged the evidence of the Crown witnesses as to the making by him of threats;

(iv) Pointed to the absence of any independent support for the evidence of Ms Kaur as to the making by him of a threat to her in the kitchen;

(v) Emphasised the inconsistencies between Ms Kaur and Amar Preet Singh concerning the circumstances in which, and the time at which, the weapon was fired, and otherwise, in support of the proposition that they were neither truthful nor reliable witnesses;

(vi) Emphasised the absence of any forensic connection between the Appellant and the weapon, and pointed to the Appellant's co operation in providing a buccal swab and submitting to the GSR tests;

(vii) Drew attention to the Appellant's explanation for the challenged answers in the ERISP, upon the basis that he had been in shock and was tired, confused and nervous as a result of what had occurred; and also for the letter upon that basis that it reflected what had in fact occurred, making due allowance for the Appellant's problems with the English language;

(viii) Suggested that the motive for killing Ms Kaur which the Crown had advanced, namely to stop her giving evidence at his trial for the sexual assault allegations, failed because there was no intention of her doing so;

(ix) Drew attention to the reason, which the Appellant had given in relation to the presence and contents of his backpack, and to the fact that by reason of the arrangements which had been made, supported by his solicitor, he had not expected to see his family at the Temple;

(x) Suggested that reliance should be placed upon the Appellant's immediate protestation, after the shooting, that they had taken his property, as had been the case, and that "now they were trying to kill him". 74 In the result, counsel submitted, the jury should entertain a reasonable doubt as to whether the Applicant, as distinct from Amar Preet Singh, had taken the gun to the Temple and had been the aggressor.

Ground 1: The trial miscarried because the learned trial judge's summing up was unbalanced;

Ground 2: The trial miscarried because his Honour included factual arguments in favour of the Crown not addressed on by either the Crown Prosecutor or Counsel for the Appellant;

Ground 3: The trial miscarried by reason of his Honour's frequent references to the Appellant as a liar and that as a result his testimony might be unreliable 75 These are related grounds which fall within a general submission that the summing up was unfairly balanced in favour of the Prosecution, and did not adequately present the defence case. They need to be considered together since, while individual complaints concerning aspects of a summing up may not give rise to appellable error, a different result might arise when the summing up is viewed as a whole. 76 It is trite law that the fundamental task of a trial judge is to ensure a fair trial. That will involve not only instructing the jury about the law. It extends to identifying the issues, relating the law to those issues, and assisting the jury to understand how it is that the accused may be guilty of the offence charged in the indictment, or of any alternative offence open upon that indictment. It also requires the judge to explain why it is that the accused asserts that his guilt has not been established beyond reasonable doubt and to give any directions which, in accordance with the Evidence Act or established case law, call for a particular explanation or caution. So far as the accused is concerned, it is the case which the defence makes that the jury must be given to understand, including any matter that is properly open upon which they might find for the accused: Pemble v The Queen (1971) 124 CLR 107. 77 There is no obligation to go beyond those matters that are of direct relevance for the trial, nor is there a need for a judge to painstakingly read all of the evidence to the jury, or even to analyse all of the conflicts in it: Domican v The Queen (1992) 173 CLR 555 at 560-561. What is required is a fair and balanced summary of the law, the issues, and the respective cases for the prosecution and the defence. 78 This does not preclude judicial comment on factual issues, even strong comment, so long as it is fair and appropriate: Tsigos v The Queen (1965) 39 ALJR 76n, B v The Queen (1992) 175 CLR 599, RPS v The Queen (2000) 199 CLR 620, and R v Inamata (2003) 137 A Crim R 510 at para 38. 79 In B v The Queen, Brennan J (with whom Mason CJ and Deane J agreed) said (at 605) in this regard: "A trial judge has a broad discretion in commenting on the facts and in choosing the strength of the language employed in commenting on the facts, but the comment must stop short of overawing the jury. It must exhibit a judicial balance so that the jury is not deprived "of an adequate opportunity of understanding and giving effect to the defence and the matters relied upon in support of the defence." 80 In RPS v The Queen (2000) 199 CLR 620 in a joint judgment Gaudron ACJ, Gummow, Kirby and Hayne JJ said (at 637): "But none of this must be permitted to obscure the division of functions between judge and jury. It is for the jury, and the jury alone, to decide the facts. As we have said, in some cases a judge must give the jury warnings about how they go about that task. And, of course, it has long been held that a trial judge may comment (and comment strongly) on factual issues. But although a trial judge may comment on the facts, the judge is not bound to do so except to the extent that the judge's other functions require it. Often, perhaps much more often than not, the safer course for a trial judge will be to make no comment on the facts beyond reminding the jury, in the course of identifying the issues before them, of the arguments of counsel. To attempt to instruct the jury about how they may reason towards a verdict of guilt (as distinct from warning the jury about impermissible forms of reasoning) leads only to difficulties of the kind that have arisen in the present case." 81 See also R v Courtney-Smith (No 2) (1990) 48 A Crim R 49 where the Court pointed out (at 56) that the trial judge is entitled to express opinions on the facts provided that it is made clear to the jury that factual disputes are exclusively for them to decide. 82 It is essential, if a summing up is to be fair and balanced, that the defence case be put to the jury. 83 In Regina v Schmahl [1965] VR 745, Winneke CJ (with whom Scholl and Pape JJ agreed) said, in this respect (at 748): "…Failure adequately to put the defence is, of course, a well-recognized ground of appeal. See the case of R v Wilson (1913) 9 Cr App R 124. In a case like this where the evidence was lengthy, and by no means easy to unravel, and where it related to a conversation which had taken place so long before, the interests of justice required that the defence of the applicant should be clearly and fully presented to the jury. Failure to make such a presentation where it relates to an important part of the defence makes it dangerous, in my view, to allow the verdict to stand. In such circumstances, the recent decision of the High Court in Raspor v R (1958) 99 CLR 346; [1958] ALR 1062, shows, if authority for such a proposition be needed, that it is not only the function but the duty of this Court to hold that a miscarriage of justice has occurred. In such a case it is not possible to save the verdict by the application of the proviso to s568(1) of the Crimes Act 1958…" 84 In Regina v Tomazos NSWCCA 6 August 1971 this Court approved the passage quoted above. Isaacs J added: "In the result the conclusion appears to me to be inevitable that not only has there been a miscarriage of justice but a substantial miscarriage. The Appellant has not had what in law he is entitled to have, and that is a trial according to law. A trial according to law includes as an essential prerequisite that the trial judge has put fairly, cogently and with clarity to the jury the accused's defence. The weaker the defence the more essential it is for his defence such as it is to be put to the jury so that they can consider it in the light of the Crown case and evaluate it as part of their assessment together with the Crown evidence to see whether the Crown has discharged its onus of proof. It can properly be said that the accused fairly lost a chance of acquittal because his case was never put to the jury by the trial judge. It is completely insufficient for a trial judge simply to say to the jury in effect, "Well, you have heard all that has been said on behalf of the accused by his counsel; it is unnecessary for me to say anything more". The trial judge must lend the weight of his judicial position and authority to putting before the jury himself the case for the accused." 85 Similarly in R v Malone NSWCCA 20 April 1994 Blanch J (with whom Grove and Studdert JJ agreed) said: "What is of paramount significance in assessing a summing-up is to determine whether the defence has been fairly put thus allowing a jury properly to consider the issues raised on the accused's behalf. If a jury is not given the opportunity fairly to consider the defence case, then there has been a miscarriage of justice. Another way this can occur is illustrated in Van Leeuwen v The Queen (1981) 55 ALJR 726 where Gibbs CJ at page 728 said: 'A trial judge is not bound in his summing up to comment on all of the evidence or to refer to all of the contentions on which the accused has relied. The adequacy of a summing up in its references to questions of fact must depend upon the circumstances of the particular case. In the present case the learned trial judge not only failed to indicate to the jury the significance of the important piece of evidence but by stating that he did not follow the argument of counsel might have been through by the jury to be depreciating its importance.'" 86 Whether there has been a balance in the summing up, or not, does not however depend upon a comparison between the time that was spent on the prosecution and defence cases, respectively. Almost inevitably the bulk of the evidence is led in the prosecution case, and more often than not more time will need to be spent on it: see R v Courtney-Smith (No 2) where the Court (Gleeson CJ, Kirby P and Lusher AJ) said at 56: "…It is not the length of the time devoted to the case of the Crown or the accused which is in issue. It is the fairness, balance and impartiality of the summing up which the appellate court must review and safeguard." 87 Finally, it may be observed that trial judges should normally refrain from advancing an argument in support of the Crown case that was not put by the Crown. It is one thing to bring to the attention of a jury an alternative lesser count, that is fairly open on the evidence, or an available defence, even though it was not mentioned by the Crown Prosecutor and defence counsel, in their closing addresses, for example manslaughter in a case where the accused was indicted on a count for murder. It is quite another thing for a judge to advance an argument, on behalf of the Crown in support of the Prosecution case, which the judge considers was available, but was either overlooked, or not used by the Prosecution. 88 There are two reasons for the unacceptability of a judge using the summing up as a vehicle for strengthening the Prosecution case. First it is inconsistent with judicial impartiality. Secondly, to do so denies the Prosecution and the defence the opportunity either to disavow, or to meet the argument. 89 The observations of this Court in a joint judgment (Spigelman CJ, Wood CJ at CL, and Kirby J) in R v RTB [2002] NSWCCA 104 are apposite: "55 In the present case, both of the issues that have arisen were of a character that could have been put by the Crown as a suggestion to the jury. In neither case was there any necessity for the trial judge to say anything to the jury. There was no suggestion of any unfairness to the Crown in the way the case was conducted. Nor was there any other reason for the trial judge to put an argument not advanced by counsel. (see e.g. R v Heuston (1995) 81 A Crim R 387 at 393). … 59 In each of the two respects of which complaint is now made, the intervention of the trial judge urged upon the jury a particular mode of thought. His Honour suggested that there could have been an explanation for the deficiency in the complainant's evidence, of a character which was not of itself based on any evidence but which, to a legal mind, would appear to be in each case a logical possibility. Juries are not required to think like that. 60 The fact that each of these 'possibilities' was put to the jury by the trial judge, rather than by the Crown, may have directed that the jury's collective mind in assessing credibility in a particular way. Specifically, the thrust of the trial judge's directions, on each of the two occasions, was that, notwithstanding the appearance of inconsistency in each of the two respects, there was a possible explanation. Such matters of speculation, whilst perhaps appropriate for counsel, should not receive the added weight of the intervention of the judicial officer. In each respect the jury could have understood the trial judge to be suggesting that, because there may have been an explanation as a matter of logic, they should not take these matters into account in determining the credibility of the complainant. 61 In the event, in our opinion, the directions to the jury were, in a critical respect, lacking in the appropriate balance." 90 The permissible area within which a trial judge may draw to the jury's attention an argument that was not put by Counsel, was conveniently noted by Hunt CJ at CL in R v Heuston (1995) 81 A Crim R 387 at 393: "Sometimes, of course, a judge is obliged - even in what might be described as the ordinary case to draw the attention of the jury to an argument which has not been put by counsel, if it is necessary to do so in order to ensure that the jury has sufficient knowledge and understanding of the evidence to discharge their duty to determine the case according to the evidence. Some such occasions are obvious - where, for example, the principal "defence" is one of alibi, yet there is clear evidence of intoxication which would be relevant to specific intention in the event that the alibi fails. Everyone realises that, from a tactical point of view, if counsel were to address upon such an issue of intoxication it would weaken the strength of his client's case on alibi, and trial judges should usually discuss the need to give directions as to such matters with counsel (in the absence of the jury) before the summing up commences. Other such occasions are not always so obvious, and - again, stated in very general terms in relation to the ordinary case - there will be no miscarriage of justice if arguments which may have been available on the evidence are not put by the judge in the summing up if they had not already been put by counsel. Sometimes, indeed, it may produce positive mischief if the judge raises arguments which could have been but which were not put or requested by counsel." 91 Additionally, occasion might arise for the judge to draw attention to some matter which had not been dealt with by the Crown, where that is necessary to restore a balance to the trial, and where the Crown Prosecutor had no reason to foresee it, or any opportunity to deal with it. 92 As Blanch CJ also said in R v Malone: "In this case it is clear that the remarks complained of were made by the trial judge in the context of criticisms made of the Crown case not foreshadowed during the course of the trial and not anticipated by the Crown Prosecutor in his address. This Court has drawn attention before to the fact that judges may find it necessary to become involved in forensic argument insofar as it is necessary to deal with matters raised by defence counsel who make the last address to the jury - see for example R v O"Donoghue (1988) 34 A. Crim. R. 397, R v William Booth , (C.C.A. (N.S.W.) unreported 29 September, 1993 and R v Gluscheski (1987) 33 A. Crim. R. 193." 93 It is, in the light of these principles, that it is necessary for this Court to evaluate the complaints which have been made in the context of the summing up as a whole, in order to determine whether there has been a miscarriage of justice by reason of a lack of balance that deprived the appellant of a fair trial. If that conclusion is reached then this Court must intervene and direct a new trial: R v Courtney-Smith at 55 and R v Broadhurst (1964) AC 441 at 462.

Ground 1 Complaints 94 The complaints brought within this ground were to the effect that:

(a) His Honour confused the issue of whether there was a struggle before the gun was fired, with the issue of whether shouting was heard before the gun was fired;

(b) His Honour wrongly stated that the witness Harpreet Singh Chopra gave evidence that there was no struggle for the gun before the shooting;

(c) His Honour's summing up of the Crown case amounted to instructions about how to reason towards a verdict of guilty; and that

(d) His Honour did not adequately summarise the Appellant's case. 95 At the outset it may be observed that his Honour:

(i) Gave a clear and firm direction to the effect that the area of fact-finding was exclusively reserved for the jury;

(ii) Cautioned that while he would draw their attention to some passages in the evidence and would make some comment upon those passages, any such comment was not binding upon them;

(iii) Pointed out that what counsel had said from the bar table was not evidence, but rather was an attempt by them to summarise the evidence and to put, from their respective standpoints, arguments that they were not bound to accept;

(iv) Repeated that if it appeared from the summing up that he had formed an opinion about the case then it should be disregarded; and

(v) Emphasised that it was necessary for them to take into account the whole of the evidence, not just that to which he or counsel had referred. 96 These were entirely correct and appropriate directions. 97 Equally correct directions were given in relation to the onus and standard of proof, and in relation to the elements, as a matter of law, that needed to be established for each of the counts in the indictment, including the alternative counts. In the course of doing so his Honour appropriately and correctly identified the issues that arose in relation to each count, and at the request of both counsel gave a direction as to the relevance and permissible use of the background evidence, in accordance with the decision of this Court in R v TAB [2002] NSWCCA 274.

Particulars (a) and (b) 98 Having done so, his Honour proceeded to deal with the evidence of Ms Kaur, Amar Preet Singh and the other persons who were present at the Temple, in a way which is the subject of these two particulars. 99 His Honour began with a reference to Ms Kaur, noting that she was the "victim whose evidence occupied the Court for a longer time than any other witness." His Honour continued: "However, I do not propose to go into any great detail in respect of her evidence and for good reason. It is of course true that the Crown Prosecutor yesterday read to you certain extracts from her evidence which would perhaps tend to support the Crown case but you will remember the events of last Tuesday when the witness Mrs Kaur was being cross-examined by Mr King. He spent a great deal of effort endeavouring to establish just what it was that she says now did happen at the temple. You might think that Mrs Kaur was an unsatisfactory witness . Certainly the trial was prolonged by her attempts to avoid directly answering counsel's questions. Eventually I thought it fair to intervene. Experience shows that sometimes when counsel is not getting the witness to answer the question, if the judge asks the question, then sometimes the witness will answer it. Let me read to you what happened on this occasion. After a very long and unproductive series of questions, Mr King asked this: 'The first bang, the first bang of the gun was after you were all wrestling for the gun, correct?'. A. 'I was so scared that we tried to grab him and we got somebody's help to grab the gun off him.' Now again that was no answer at all to what Mr King was putting so I intervened, not because I was trying to push the evidence one way or another but because I thought Mr King was entitled to have his question answered. I asked the next question; 'Q. You haven't answered Mr King's question. He wants to know which came first, the fighting for the gun or the first shot?' And she answered this time, 'A. As soon as we grabbed him the shot was fired at me. The time we pushed him, the same time I got - I had been shot.' And having heard that evidence Mr King, very wisely, left the matter alone so far as that witness was concerned. … So that Mrs Kaur was saying, at that point of her evidence anyway, that she and Amar, the youngest boy, had hold of the Accused before the important shot went off. Now if that were the whole of the Crown case, the Crown would fail on this first count of wound with intent to kill because the Crown would not be able to exclude the possibility that the physical intervention of Amar and his mother might have caused the weapon to go off, rather that it be a deliberate act of the Accused. However, that is not the whole of the Crown case . There are a number of other witnesses who were called and, as I said to you earlier on, it is a matter for you to choose what evidence you accept and what you reject." 100 His Honour then reminded the jury of Amar Preet Singh's evidence, the effect of which he summarised in the following passage: "So that you will note that Amar says that it was after he pushed his father that he heard the shot. He does not suggest that the mother was, in any way, involved in any exchange of physicality with the Accused. And you will note that Amar further says that he was not in contact with his father at the time that he heard the shot. Now it is a matter for you, but if you accept that evidence it would be open to you to find an act of the Accused causing the wound. And it would also speak to you of the Accused's intention." 101 His Honour then drew attention to the cross-examination of this witness, pointing out to the jury in relation to this segment of his evidence: "Let me just emphasis there that again he is saying to Mr King, as he had said to the Crown, that it was after the pushing that he heard the gunshot." 102 After reference to some further questions and answers, his Honour said, by way of a summary of the evidence in chief, and in cross-examination, of this witness: "On that evidence, if you accept it, it is open for you to find that there was no wrestle in progress before or at the time of the first shot. Amar says that he had pushed his father and then after that, 'I hear a loud noise'. You might think that Amar's evidence was unshaken in the course of cross-examination." 103 His Honour then reminded the jury of the evidence of Amar's elder brother (Satbir), noting that he had not seen the gun when the bullets were fired. He moved on to the evidence of Narinder, pointing out that she did not hear the shots, and that the first noise that she heard was "the yelling". So he said: "she is in no position to assist you on the order in which events happened." 104 The relevant portions of Manjit Singh's evidence were next read, and in relation to the "hitting" sound that he described having heard, his Honour said: "It would be open to you to think that what he was hearing there were the gunshots. And if you thought they were the gunshots, he then goes on to say that after that he heard the shouting. It is a matter for you, but it is open to you to find, on the evidence of Manjit Singh, if you accept him, that the shots were fired first and then the shouting came afterwards." 105 In introducing Harpreet Singh Chopra's evidence, his Honour said: "He did not see a great deal. He certainly cannot help you on this issue of which happened first , the shots or the other activities." 106 Reference was next made to the evidence of Gurpreet Singh, Padan Deep Singh, Karanjit Singh, Kamaljit Meher, without any particular comment other than the observations that were made in relation to Kamaljit and Gurdev that they were of no assistance as to the sequence of events. 107 His Honour finally came to Usha Singh and read relevant extracts from her evidence, both in chief and in cross examination, observing at the conclusion that: "Members of the jury, if you accept the evidence of Usha Singh, the noise of the shots comes before the other noise, the yelling and so on, that you might think goes with the struggle between the Accused on the one hand and the mother and son on the other. Usha Singh gives the most comprehensive description of these events, you might think. Most of these twelve witnesses, however, throw no light on the sequence of events. Four of them do. Amar, the youngest son, Usha Singh, whose evidence I have just dealt with and Manjit Singh and Harpreet Singh Chopra. Especially Amar and Usha. Both of them have the shot preceding (any wrestle) or yelling. Amar does say he had pushed his father, but he goes on to say that there was no contact between them when the gun went off. Usha, you might think, is independent. You might think she was an intelligent, an impressive witness. She clearly puts the shots as being in advance of the yelling. You will remember that I told you that the Crown must negative that Amar executed any force that caused the gun to go off. That is a central issue in this case and that evidence that I have just read to you, some of it tells you nothing about that issue, but other witnesses, I suggest to you, particularly Amar and Usha, will enlighten you on that issue. " 108 His Honour then turned to an aspect of the defence address concerning the forensic evidence, which is the subject of separate complaint to be considered later, observing: "Yesterday in the course of his final submissions, Mr King of counsel said something, which I do not think he really meant to say. He had been dealing with the forensic evidence, or the lack of it, the fingerprint, DNA, gunshot material, or lack of it. I do not propose to go into all that material. We would be here all day if I dealt with all the evidence. But having dealt with that evidence, Mr King was entitled to argue that there was nothing in the gunshot, fingerprint, DNA evidence that demonstrated that the Accused fired the gun. However, as I said, he said something that I do not think he meant to say . What he did say, having dealt with that evidence, that there is no evidence before you that the Accused fire the gun and that the Crown might like there to be such evidence. Well, of course, that is not a valid submission . What he says about the lack of the gunshot et cetera, material, might well be the truth, you might think, but when he says there is no evidence before you that the Accused fired the gun, that is simply not so. The evidence of Usha, in particular, and Amar, and of the other two gentlemen that I mentioned, is evidence that the Accused fired the gun. It is not the whole of the evidence, of course, it is for you to determine what you accept." 109 It was submitted on behalf of the defence, correctly, that his Honour erred, in so far as he had suggested that Harpreet Singh Chopra had given evidence, which threw light on the sequence of events. He gave no such evidence, although that almost certainly would have been apparent to the jury who had heard him in the witness box, and had shortly before this observation received the benefit of his Honour's reading of it, and of his express observation that he "certainly cannot help you on the issue of what happened first, the shots or the other activities" (by which latter expression he presumably meant the wrestling and or shouting). 110 It is unfortunate that this error was not immediately corrected by trial counsel, although by itself, the obvious nature of it, would not have led to a miscarriage of justice. 111 More importantly, however, so far as the defence argument on appeal is concerned, is that his Honour placed considerable emphasis on the argument that if the shots had occurred before any yelling or shouting, then that assisted the Crown on the central issues in the case, namely, whether it was the Appellant or Amar Preet Singh who took the gun to the Temple and commenced the incident, and whether the gun was discharged accidentally in the course of a struggle over it. 112 What this submission involved was the proposition that the shouting must have accompanied the wrestle for the gun, so that if the shots preceded the shouting, then the gun must have been discharged before there was any fight over it, thereby suggesting that Amar Preet Singh's version was correct, while that given by Ms Kaur in cross-examination was incorrect. 113 There are a number of problems with this. First, and most obviously, it was not an argument that the Crown Prosecutor advanced, and the defence had no opportunity of meeting it. Secondly it did not confront the possibility that when the struggle over the gun commenced, none of those involved, or any bystanders yelled out, leaving open the possibility that there had been a struggle before the first shot was fired. 114 Thirdly, there was no clear evidence, except perhaps from Amar Preet Singh, dealing with the precise time that the shouting began in relation the commencement of the struggle, yet it was in support of his account that this argument was developed by his Honour. While his Honour suggested that Usha Singh also placed the shot as preceding the wrestle, in fact she said that she had been walking down the driveway when she heard the shots followed by the yelling. She had not been in a position to see when the wrestle began. 115 Fourthly, these observations to the jury effectively blurred the issue whether the gun went off while Amar Preet Singh and the appellant were struggling over it, with the issue whether there was any shouting before the shots were fired. 116 In substance, his Honour was advancing an argument based on a gap between the shots and the shouting, as circumstantial proof in support of the critical issues in the case, without having given consideration to any other rational inference that was open, and in a situation where neither counsel had addressed it. It had also followed upon his criticism of Ms Kaur as an unsatisfactory witness, an observation that did not assist the defence since her description of the manner in which the gun discharged accorded with its case; as well as upon his observation to the jury that they might think that Amar Preet Singh's evidence had been unshaken in cross-examination.

Particulars (c) and (d) 117 In support of these grounds counsel relied upon the matters already identified as providing instructions as to the way in which the jury could reason to a finding of guilt. 118 Additionally he made reference to:

(i) The dismissive way in which his Honour dealt with the absence of any forensic evidence, linking the weapon to the Appellant, which was noted in the passage last cited, even though it had been an important plank in the defence case.

(ii) The concentration in the summing up, so far as the Appellant's evidence was concerned, on the more damaging aspects of the cross-examination.

(iii) The fact that the defence address, which contained the arguments extracted earlier in these reasons, was not summarised by his Honour, at all.

(iv) The fact that the only references to that address were critical. 119 In this latter regard, his Honour dealt with the cross-examination in relation to the Appellant's admitted attempts to order a gun in Germany, and with the defence submissions concerning it, in the following passage: "Now that is something of significance, you might think, when you come to consider the credit of the accused. Let me also say that there is no explanation here, on the evidence before you, as to where these commercial documents or Customs' documents from Germany or India came from. We have not seen them. We do not know whether they are they were generated in Germany or in India or both. They relate to the gun, it would seem, on the accused's own acknowledgement, relate to a gun that he had tried to buy in Germany. You were invited yesterday by Mr King to speculate and he did not spell it out very clearly, but he seemed to be suggesting, as I listened to him, that these documents were taken from the possession of the accused by some member of his family. Now there is no evidence of that and there is no call for speculation and there is no room for speculation on that question or any other question in this or any other criminal trial you put that suggestion out of your mind." 120 Next, in relation to the defence reliance on the answers extracted from Ms Kaur in cross-examination, his Honour said: "I have already suggested that her evidence might appear to you to be unsatisfactory. You might care to consider that her thinking and her recollection are clouded by the injury itself. This, after all, is the lady who has got the wound in the knee to prove that a shot was fired and that it injured her. You might think that at the time this happened, she believed that she was going to die. You might think that has some effect on her capacity to recollect, with accuracy, what it really was that happened. You might consider that she shifted from post first shot, to post second shot, the wrestling, that her memory has played a trick on her and that when she describes to you the wrestle and the gun going off, that that is the second shot that she is talking about." 121 Then there was the observation previously mentioned to the effect that defence counsel had said something that his Honour, "did not think he meant to say", in his submission that, "there is no evidence before you that the accused fired the gun". It was put that in context, it was clear that counsel had been dealing with the absence of forensic evidence to establish the fact, and that what had amounted to a slip of the tongue had not justified the response that "it was not a valid submission", or the observations which had followed that remark. 122 Finally in this context were the observations later dealt with in the context of Ground 3, but which had begun with an observation that, while counsel had put to a number of the Crown witnesses that they had been lying, none of them had accepted that to be the case. This was, an innocuous observation, in so far as it reflected the evidence. Considered alone it was not capable of being understood as an unfair criticism of the defence address. Its vice, however, lay in what followed, to which I will return. 123 Otherwise the point is made good that, although the central issue in the trial was stark and obvious, the defence case was not adequately put to the jury. That was a matter of some importance, if a balance was to be maintained, having regard to the favourable attention that was given to the Prosecution case, for the reasons identified, in particular, in R v Tomazos earlier cited. 124 The point was appropriately taken by Counsel for the Appellant at the trial, since he sought a discharge of the jury during the summing up on the evidence, in the following terms: "KING: the first application is for a discharge of the jury. The basis of this application is that your Honour's summing up through the trial has been balanced so far in favour of the prosecution that a fair trial for Mr Meher appears to be in jeopardy because of the methodology that your Honour's employed. There have been a number of matters that your Honour has raised and emphasised on the Crown case, many of those had not even been raised by the Crown. Your Honour is not entitled to do that. But your Honour the way you have emphasised it throughout, it appears clear that your Honour has been summing up for a conviction in relation to the first charge in the indictment. Your Honour's summing up commenced at roughly 10 past 10, finished about 11.40 dealing with that charge, in which you start off fairly pointing out problems with Miss Kaur's evidence. But from that point on picked out all the material that could be used to support a conviction and your Honour's comments throughout that summing up indicated, I would submit, that your Honour's view was that he is guilty of the offence, albeit your Honour has indicated to the jury that if your Honour does give a view, that they are to disregard it unless it accords with their own. My submission is that it has come over so strongly that it would overwhelm the jury and the jury would not be able to fairly - with the judicial imprimatur your Honour has given it, it would overwhelm the jury." 125 Counsel invited attention to most of the aspects which have been developed before us in support of the appeal, indicating that if his Honour was not minded to discharge the jury, then he requested that these points be addressed. 126 His Honour declined to discharge the jury, but in response to the alternative request, read portions of Manjit Singh's evidence, and then said: "I have made some comment upon a number of aspects of the evidence, both on the Crown's side and on the defence aside. Those are no more than my comments. As I told you earlier, if you disagree with any comment that I have to make about any of the evidence, that is entirely - it is your obligation to ignore what I have said. You are the Judges of the fact. I am allowed by the law to make comments, but if the comments do not accord with your own views, then you will ignore what I have had to say".

Ground 2 complaints 127 Included within this ground were submissions that his Honour advanced arguments in favour of the Crown, that had not otherwise been addressed, in relation to:

(a) the ERISP which included the expression "I could be killed too if I killed them or any one", when asked to explain the letter Exhibit 3;

(b) the potential use of the urn/bucket near the shoe rack. 128 In relation to the first of these points it was the Appellant's explanation, given both in cross-examination and re-examination, that he had meant, "in a scuffle anybody could be killed". 129 His Honour said in the summing up, in relation to this: "So what the significance of this, you might think, is that the accused is conceding just what I had suggested to you that the word in the transcript of the record of interview was not "then" as in "now and then", but it is "them" as in "us and them". And he concedes that that was the answer he gave to the police. "I could be killed too if I killed them". You might think that he is canvassing there, in the police station, during the course of that interview, his state of mind as at that night. There was the contemplation in his mind then that there had been an intention to kill. Of course he was being asked about his state of mind, not at that particular night, he was being asked about his state of mind at the time he wrote this document "My statement". A very curious document you might think, but nevertheless it is his document, it is writing, it is his signature, it is in his backpack and he takes it to the temple with him on the night that these events occur. He has given his explanation as to how it was prepared. You might think that at the time he prepared it, he had an intention to kill . If you thought that, that intention then, at whatever time he prepared it, and it may have been months before, does not carry over and become an intent to kill in the temple. That intention, if you thought there was an intention to kill them, is sufficient to demonstrate, to prove beyond reasonable doubt, the necessary intention that is an ingredient of the first count. But it is relevant to that, it is that the intent that you might spell out of the document he had in his backpack, is relevant to consider what was his intention when he came into the temple that night." 130 The difficulty with this is that there was no cross-examination of the Appellant to this effect, nor was any argument developed by the Crown Prosecutor to that effect. Again this meant that the Appellant had no occasion or opportunity to meet an argument that this statement had been reflective of his intention on the night of the shooting. 131 The position is less clear in relation to the second matter raised under this heading, since the Appellant was cross-examined to suggest that he could have washed his hands at the basin near the shoe rack, and that his reasons for going to the kitchen had not been to wash his hands, but rather to look for his wife. A submission to that effect was made by the Crown prosecutor, in his address to the jury. 132 It was also taken up by counsel for the Appellant who dealt with the argument in this way: "The Crown also says one of the telling parts of Mr Meher's version is that he didn't wash his hands near the bucket. He wanted to go to the kitchen. You've got the exhibit … which is that photograph of what appears to be a bucket on the ground and above it a silver urn or a Silverwater container. There's been no evidence from anybody from the temple to say whether that was a hand washing bucket or what it was, but when you look at that you might wonder is that a hand washing bucket or is it hot water for tea. You might notice on the milk crate just to the right of it there's a Styrofoam cup appears to be sitting on it. What is the purpose of that bucket? Can you jump to a conclusion that that was for washing or what is it and I'd ask you to be careful with that piece of evidence." 133 During the summing up, his Honour invited the jury to consider the photograph of the shoe rack. Then his Honour said: "You will see on the other side what looks like an urn with a tap in the front of it and a bucket underneath to catch water that runs down. But you will also see between the rack and the urn, but closer to the urn, hanging on a peg, is towel. I had not noticed that when I invited you to look it afresh the other day, but it is there and you will see it. And, of course, you will remember that the Crown says it may be that he went down behind the kitchen to wash his hands after he had had his meal, or wash his hands after he had been to the toilet, but when he came back and put his shoes on at the rack, if the act of putting his shoes on required that he needed to wash himself further, wash his hands further, then the place to do that was there using the facilities provided and not to go back down past where he knew his ex-wife to be." 134 The point that was made to us was that there had been no suggestion prior to the summing up that the presence of this towel indicated that the purpose of the urn was to provide a facility for people to wash their hands. 135 This is a submission of no moment. Clearly there was an argument that was available to the Crown, and that was put by it, to the effect that the Appellant could have washed his hands at the urn. By itself this portion of the summing up would not have led to a miscarriage of justice. However, taken in conjunction with the remaining matters, it was a further indication of the way in which the summing up was balanced heavily in favour of the Crown.

Ground 3 complaints 136 This complaint arises out of the following passages in the summing up: "A number of witnesses have faced the accusation that they are lying. This proposition was put by Mr King to a number of the Crown's witnesses. None of them accepted that he or she was lying. The accused, of course, acknowledges himself to be a liar . That is where he started his evidence in the witness box here last week. He told you who he was and then he told you that he had been telling lies in exhibit B, the document he had in his bag and that he had told some lies to the police in the course of the interview. Where you find somebody to be telling lies, you are entitled to take that into account as a mark against that witness' fresh evidence." 137 This was tempered to a degree, but not wholly, by the direction which followed: "The fact that you conclude that someone has told lies about a particular matter might give you pause to wonder whether you can rely on the evidence about other aspects of the case that the witness gives to you. But let me warn you, the telling of lies does not equate with guilt. Because you find that the accused is a liar , does not mean you just jump from that point to a verdict of guilty. That is not the approach to be taken. You use, in assessing his evidence to see whether you can see what, in the context of the whole body of evidence you are satisfied beyond reasonable doubt of his guilt, you use, in assessing his evidence, the fact that it might be unreliable because you know he is a liar . But you do not find him guilty of anything just simply because he is a liar ." 138 I say that it was not wholly tempered because it was phrased in terms that spoke of the accused as "a liar", rather than having told lies in relation to some identified matters. To categorise a person, in general terms, as a liar, is a significant matter, and His Honour's treatment of the Appellant unfortunately invited acceptance of that proposition. Moreover, the Appellant had not conceded, in general terms, to have been "a liar"; as distinct from having given a false story in the letter (Exhibit B) and in portions of the ERISP. 139 It was of some relevance, additionally, that in dealing with the letter and the explanation which the Appellant had given for it, during the trial, his Honour said: "Well it is clear that he concedes that the document itself is not true, but you might think that his explanation given here in the witness box to you is also untrue. Let me repeat, "All my purpose to left some clue behind if he or other family member shot me". When you read exhibit B you will see it contains no suggestion of any threat at all from Amar to the Accused. But that is the explanation that he gives for this falsity that he was carrying in his backpack on the night in question. You might think that he sought to explain one lie by resorting to another." 140 Read in their full context, and in particular in circumstances where the observations concerning the credibility of the Crown witnesses and of the Appellant were made in juxtaposition, this portion of the summing up strongly favoured the Crown case.

Ground 4: The trial miscarried as a result of the Crown Prosecutor expressing a personal opinion in the course of his address 141 This ground relates to the following submission which was made by the Crown Prosecutor in his closing address: "I invite you to look at that video and see what the accused was doing at the time before that residue sample was taken. Like I said I am not suggesting at all that it was a deliberate act because it is abundantly clear that during the course of the interview with the police he's doing the same thing which I will say something about too because he says he was in deep shock at the time. It looks to me like he wasn't in deep shock at all. It looks to me he was contemptuous of the whole thing that it was happening before him. Sitting back with his arms folded. It didn't look to me like he was in shock but that's a matter for you." 142 This observation was made in the context of the Crown's submission that, having regard to the lapse of time between the events at the Temple and the time that the appellant was swabbed for GSR, and having regard to the way that for some of the time he placed his hands underneath the desk in the interview room, the absence of GSR findings was unimportant. 143 The Crown returned to the question of demeanour, later, observing: "In this trial the accused has given evidence and he also participated in an interview with the police on the evening of his arrest and he had told you in his evidence that he told deliberate lies to the police during the course of the interview. Members of the jury, I want you to view that tape, if you think it necessary, to see his demeanour during the course of that interview with the police because he asserts that the lies were a result of his confusion, his state of shock. That is the reason he gives. He refers to being distressed, shocked and his mind was unstable. That's the reason he gives for the lies he tells the police in that interview and I would ask you to observe the tape and the stance he takes and I would respectfully submit to you that what you really observe of the accused during the course of that interview is arrogance. Perhaps the same arrogance that you observed when he laughed during the course of Baldev Kaur's evidence and Narinder's evidence. The arrogance of a man who goes to a temple with a gun and a document drafted by himself for the purpose of implicating his son as the killer of his wife." 144 On this occasion the submission was spared the personal observation of the Crown Prosecutor, which had been quite inappropriate, for the reasons identified in R v Rugari (2001) 122 A Crim R 1 by Carruthers AJ (with whom Spigelman CJ and Sperling J agreed): "60 There is one further matter which, although it was not raised in submissions, warrants some comment. At an early stage of his address the Crown Prosecutor said referring to matters that were part of the case raised by the appellant: - " I know we went to clubs: I know I went to the grave side of my daughter with her; I know I went to look at houses, but, you know, we weren't boyfriend and girlfriend. Sounds like a girlfriend to me… ". [My emphasis].

That phrase "sounds like a girlfriend to me" involved an expression by the Prosecutor to the jury of his own view of the quality of the evidence given by the appellant. It is not appropriate for counsel, whether they be for the defence or for the Crown, to express their own views about the evidence, that is a matter for the tribunal of fact, particularly so where that tribunal is a jury. 61 In my view, it would have been impossible for the trial judge to have given any directions which could have rectified the possible harm which may have been done by these various breaches by the Prosecutor of the appropriate course of conduct. Regrettably, the possibility cannot be excluded that in convicting the appellant the jury were actuated, partly at least, by the inappropriate and prejudicial remarks made by the Crown Prosecutor: see McCullough at p 286. Thus the intervention of this Court is called for." 145 No point was taken at the trial, and Mr Stratton SC concedes that the submission concerning it is not his strongest point. I have reached the conclusion that R v Rugari can be properly distinguished, and that leave to appeal should be refused in relation to this ground, for the reasons that:

(a) In the first passage the Crown also made it clear that it was for the jury to assess, by reference to their own examination of the video, whether what was being put was a fair assessment of the situation or not;

(b) In the repetition of the submission, there was no mention of the Crown Prosecutor's personal opinion; rather the jury were again encouraged to look at the tape and to make their own assessment, and

(c) his Honour gave a clear and ample direction to the effect that the submissions of Counsel were not evidence, and that it was for the jury exclusively to weigh the evidence and to determine all questions of fact. 146 This is not to excuse what occurred at trial, since Crown Prosecutors must respect the clear distinction between permissible comment upon the evidence, and the intrusion of personal opinions, when addressing a jury.

Conclusion 147 It is undeniable that the Prosecution case was a potentially strong one. There were however critical issues for the jury to decide, concerning who it was that had taken the weapon to the Temple; and if it had been the Appellant who had done so, whether it was discharged accidentally in the course of a wrestle between him and Amar Preet Singh and/or his wife, to gain control of it. 148 Each of those issues went directly to the proof of each of the counts upon which the Appellant was convicted. There were some associated issues of self defence. 149 The Crown case depended very substantially upon the jury accepting Amar Preet Singh's evidence, and a good deal of that given by Ms Kaur, and rejecting that of the Appellant. There were no other witnesses who gave evidence going directly to the shooting, or to the commencement of any wrestle over the gun, or to the identity of the person who first produced the weapon. 150 It was important that there be a balance in the summing up, and that the defence case be properly put. While his Honour carefully and correctly identified the issues and gave impeccable directions on the law, including those that went to the onus and standard of proof, and to the elements of the offences charged, I have reached the conclusion that the summing up was unbalanced, and that a miscarriage of justice occurred. 151 I have come to this conclusion in the light of an evaluation of the summing up as a whole, rather than by reference to any single complaint. Taken alone these individual complaints would not have been enough. In combination, the summing up was so heavily directed in favour of the Crown, and so little attention was given to the defence case, that, in my view, the conviction should be set aside. 152 The orders I propose are as follows:

1. Appeal against conviction allowed; 2. Convictions and sentences below quashed; 3. Direct that there be a new trial. 153 In the light of these conclusions there is no occasion to consider the application for leave to appeal against the sentences that were imposed. 154 BUDDIN J: I agree with Wood CJ at CL. 155 SHAW J: I agree with Wood CJ at CL. **********

Last Modified: 10/22/2004 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.