R v Kulwinder Singh (No 1)

[2019] NSWSC 1000

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Kulwinder Singh (No 1) [2019] NSWSC 1000
Hearing dates:	5 and 6 August 2019
Date of orders:	08 August 2019
Decision date:	12 August 2019
Jurisdiction:	Common Law - Criminal
Before:	N Adams J
Decision:	The evidence of Ms Jatinda Kaur is inadmissible.
Catchwords:	EVIDENCE – opinion evidence – exceptions – expert opinion– report on domestic violence within Indian/Punjabi culture and Sikh faith– murder trial – accused and deceased adhered to Sikh faith – relevance of report – expertise of witness – whether she had "specialised knowledge" – whether report unfairly prejudicial – whether evidence of “cultural tendency”
Legislation Cited:	Coroner’s Act 2009 (NSW), 78(1)(b) Evidence Act 1995 (NSW), ss 55, 56, 76, 79, 108C, 137
Cases Cited:	A2 v R; Magennis v R; Vaziri v R [2018] NSWCCA 174 ASIC v Rich [2005] NSWCCA 152 Bellmore v Tasmania (2006) 16 Tas R 364 CA v R [2017] NSWCCA 324 Chen v R [2018] NSWCCA 106 Colby v The Queen [1999] NSWCCA 261 Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21 DJV v R (2008) 200 A Crim R 206; [2008] NSWCCA 272 Haoui v Regina [2008] NSWCCA 209 HG v The Queen (1999) 197 CLR 414; HCA 2 Honeysett v The Queen (2014) 253 CLR 122; [2014] HCA 29 IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 Ingles v R (Tasmanian Court of Criminal Appeal, 4 May 1993) KJS v R (2014) 86 NSWLR 603; [2014] NSWCCA 27 Li v The Queen (2003) 139 A Crim R; [2003] NSWCCA 290 Norman v R [2012] NSWCCA 230 Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 R v Adams (No 2) [2016] NSWSC 1359 R v C (1993) 60 SASR 467; 70 A Crim R 378 R v Quach (2002) 137 A Crim R 345; [2002] NSWCCA 519 R v S (2001) 125 A Crim R 526; [2001] QCA 501 Smith v The Queen (2001) 206 CLR 650; [2001] HCA 50 Sydney South West Area Health Service v Stamoulis [2009] NSWCA 153 Wood v R [2012] NSWCCA 21 Wilson v The Queen (1970) 123 CLR 334; [1970] HCA 17
Texts Cited:	Anna Karenina (2006, Penguin Classics)
Category:	Procedural rulings
Parties:	Regina (Crown) Kulwinder Singh (Accused)
Representation:	Counsel: Mr C K Maxwell QC/ Ms H Kemp (Crown) Ms M Cunneen SC (Accused)   Solicitors: Solicitor for Public Prosecutions (Crown) Michael Vassili Barristers and Solicitors(Accused)
File Number(s):	2017/00330134

Judgment

Introductory remarks

1. On 3 December 2013, Parwinder Kaur died as a result of receiving significant burns to nearly 90% of her body. She was 32 years of age. Her husband Kulwinder Singh is to stand trial for her murder.

2. In late 2015, the deceased was the subject of a coronial inquest. The inquest was suspended in late 2015 and the matter was referred to the Director of Public Prosecutions under s 78(1)(b) of the Coroner’s Act 2009 (NSW) on the basis that the Coroner had formed the opinion that:  the evidence was capable of satisfying a jury beyond reasonable doubt that a known person has committed an indictable offence, that there was a reasonable prospect that a jury would convict the known person of the indictable offence, and  that the indictable offence would raise the issue of whether the known person caused the death with which the inquest or inquiry is concerned.

3. On 1 November 2017, the accused was charged with his wife’s murder. He was granted bail on 1 December 2017. On 7 December 2018, his trial was listed to commence on 5 August 2019.

4. At the time of receiving her fatal burns the deceased and the accused were alone in the family home in Rouse Hill. The sole issue in the trial is whether the Crown can prove beyond reasonable doubt that the accused set fire to his wife. The defence case is that the burns were self-inflicted.

5. The Crown seeks to admit an expert report of Ms Jatinder Kaur pursuant to s 79 of the Evidence Act 1995 (NSW). The report addresses cultural, religious and behavioural elements of Indian-Punjabi culture and the Sikh religion. The Crown submitted that this report will enable the jury to better understand events leading to the deceased’s death, namely why she acted the way she did during the marriage, the significance of divorce and why she did not report previous instances of violence by the accused to police. The Crown also submitted that the report is admissible under s 108C of the Evidence Act, which allows an expert to give evidence about the credibility of another witness (in this case, the deceased).

6. Prior to the commencement of the trial the accused objected to the evidence of Ms Kaur on a number of grounds, namely relevance, expertise and unfair prejudice caused by, inter alia, bias. The trial was stood over for a week until 12 August 2019 so that a number of pre-trial matters could be attended to, including the objection to Ms Kaur’s evidence. A two day voir dire was conducted during which Ms Kaur gave evidence and was extensively cross-examined. At the conclusion of submissions on 6 August 2019, I reserved my decision. On 8 August 2019, I ruled that the evidence of Ms Kaur was inadmissible. These are my reasons for that decision.

The Crown case

7. The accused and the deceased were married in India in 2005. Their marriage was arranged. Both adhered to the Sikh faith. At the time of their wedding the accused already resided in Australia and the deceased was to emigrate to Australia to be with him. In July 2006, the deceased moved to Australia and resided with the accused and the accused’s parents in Kellyville. At some point after moving to Australia the deceased became a permanent resident and commenced employment at Moonlight Mushrooms in Graths Hill. According to the Crown case statement, the deceased was also required to complete domestic chores (such as cooking, gardening and cleaning the house) for the accused’s family. The deceased’s sister observed the accused and his parents calling the deceased derogatory names and reprimanding her.

8. In 2011, the accused and the deceased built a house in Rouse Hill where they eventually lived together. The deceased saw her brother and sister regularly but told them that she had to hide their visits from the accused. On one occasion they observed bruising to her face. The deceased’s brother also observed the accused and the deceased arguing about money. Later the deceased told family members that he physically abused her (by “bashing” her, hitting her with a shoe and kicking her in the stomach).

9. During the period from July 2011 to February 2012, the deceased deposited amounts totalling $1 500 into her sister’s bank account. The deceased told her sister that this money was required to pay for her fertility treatment because the accused would not pay for it. The treatment was ultimately unsuccessful.

10. In January 2012, the deceased told her sister that she was fearful of the accused and that she had overheard him saying to his parents that “now she is staying you arrange for someone to finish her off”. In March 2012, the deceased opened an account with the Commonwealth Bank in her own name.

11. On 5 January 2013 at 9:40pm, the deceased made a call to emergency services which was disconnected. Emergency services returned her call and she said that “but now my husband…maybe kill me, my family and my, some friend, my husband’s family, and my husband some friend”. When police attended the Rouse Hill property, the deceased told them that she and the accused had been arguing about finances. She further stated that her husband had called an unknown person and said “kick or kill her”. English was the deceased’s second language and there is evidence that the police officer found her difficult to understand. No further action was taken by police at that time.

12. In October 2013, the deceased asked her employer to deposit her wages into an account that she had opened in her own name. When she commenced employment with Midnight Mushrooms, all of her wages were initially paid into the accused’s mother’s account. Later, they were paid into the accused’s account. The deceased told her work friend, Seema Chaudhary, that the accused was angry about this but that she was fed up with his verbal abuse. In mid-November 2013, the deceased requested some time off work, which she claimed was in order to compromise with the accused. The deceased told her sister that she wanted the accused to either open a join bank account or agree to a divorce.

13. In or about November 2013, the deceased met with “Aunti Binder”, who is an elder in the Sikh community. She told Aunti Binder that she had opened a bank account in her own name and that she was depositing $100 per week into this account. On 20 November 2013, the deceased attended Auntie Binder’s home and showed her documents relating to the accused’s bank account. These documents showed that a significant amount of the deceased’s wages had been placed in this account. They also showed withdrawals by the accused of amounts of $25 000, $20 000 and $30 000. The deceased told Aunti Binder that once she had discovered these withdrawals she started having her wages deposited into her own account. She further told Aunti Binder that she was willing to give the accused the money in her account, sign over the house and leave if the accused was content with that.

14. Around this time, the deceased obtained her father’s approval for a divorce from the accused. On 23 November 2013, the deceased told the accused that she wanted a divorce. On the evening of 1 December 2013, the deceased watched a film with her brother and sister at her sister’s house. Her sister observed that the deceased was upset and was told that the accused had not spoken to her in a couple of days. The deceased left, telling her brother and sister that she would watch the rest of the film with them another time.

15. On 2 December 2013, the accused finished work and returned to the Rouse Hill property at around 1am. At 6am the deceased travelled to work with Ms Chaudhary and worked until 11:15am. She then returned home. At 11:26am, the accused visited his mother and told her that he would travel to work from her place for the next two days. At 1pm he returned to the Rouse Hill property. He and the deceased argued and a neighbour reported hearing loud voices. At 2:04pm, the deceased called her brother and told him that the accused was asking her for money. At 2:07pm, the deceased made a call to emergency services saying that “my husband nearly kill me”.

16. According to the Crown, the deceased was then doused in petrol and set alight. She left the house and walked to the street, where neighbours called emergency services. The deceased was asked twice by police “who did this to you?” but she did not respond. A neighbour, Paul Ciantar, heard the deceased say “please cover me up, please cover me up” as police were attending to her. She was declared dead at the Royal North Shore Hospital on 3 December 2013.

17. The Crown case statement discloses that the deceased’s fingerprints were located on a lighter and the base of a fuel container. A steak knife was located in the area where the deceased was allegedly set alight. This knife had a mixed DNA profile: both the deceased and accused could have been contributors. It was not possible to tell when the fingerprints and DNA were deposited.

Relationship evidence

18. The Crown proposes to adduce evidence of representations made by the deceased to other people about the state of her marriage as well as evidence of observations made by witnesses of injuries or acts of violence by the accused on the deceased during the marriage. The Crown has served a table specifying this evidence. It is sufficient for the purpose of these reasons to note that the evidence the Crown proposes to call from these witnesses is set out under the following headings: injuries or acts of violence by the accused on the deceased as seen by witnesses, injuries (bruising) seen on the deceased post mortem, representations about general control of the deceased, representations about financial control and arguments, representations about general treatment of the deceased, representations about prior violence or abuse, representations about not reporting violence or downplaying abuse, representations about fertility treatment and children, representations about the deceased’s desire for a divorce, representations made about general discord and representations made in the days leading up to her death.

19. It is common ground that evidence of the relationship between the accused and the deceased prior to 2 December 2013 is relevant and admissible evidence. In Wilson v The Queen (1970) 123 CLR 334; [1970] HCA 17 the High Court held that such relationship evidence was admissible in a trial where the accused was charged with the murder of his wife. His defence was that the shooting had been an accident. The animosity between the accused and the deceased prior to her death was held to be relevant in order to rebut the defence of accident.

20. Although “relationship” evidence is often relied upon by the Crown in spousal murder trials, this category of evidence arises more commonly in sexual assault and child sexual assault trials. Despite this, the principles are the same. I have earlier considered the relevant authorities in CA v R [2017] NSWCCA 324 at [64]-[76]. They include Norman v R [2012] NSWCCA 230 at [33]; R v Quach (2002) 137 A Crim R 345; [2002] NSWCCA 519; DJV v R (2008) 200 A Crim R 206; [2008] NSWCCA 272 and KJS v R (2014) 86 NSWLR 603; [2014] NSWCCA 27. The principles derived from these decisions can be summarised as follows. Evidence of relationship can be relevant to place the complaint (in this case the murder of a spouse) in its proper context. What is necessary in each case, however, is to first identify the relevance of the evidence and the purpose for which it is being tendered.

21. I am satisfied that, in a trial where the Crown case is that the accused set fire to his wife and the defence case is that the deceased set fire to herself, evidence of the state of the marriage is relevant and admissible, presuming it is not excluded by other provisions of the Evidence Act.

The expert report of Ms Jatinda Kaur

22. On 25 February 2019, the Officer in Charge of this investigation, Detective Senior Constable Scott Brame, emailed Ms Kaur asking her if she could produce a “cultural statement” in relation to this case. In the email, Detective Senior Constable Brame indicated that his instructions from the ODPP had been to obtain a cultural statement “regarding relevant aspects of the Indian culture, including females being in a state of undress in front of people and in particular in front of males (re Parwinder requested to be covered up by a blanket)”.

23. Detective Senior Constable Brame made contact with Ms Kaur after reading her submission to a 2018 Commonwealth Parliamentary Inquiry into the Practice of Dowry and the Incidence of Dowry Abuse in Australia. In the email of 25 February 2019, he noted that Ms Kaur had mentioned the death of the deceased on page 6 of her submission.

24. Ms Kaur replied and indicated that she could complete a report. In an email dated 28 February 2019, she forwarded two social work reports she had completed for Indian domestic violence victims who were making applications with the Department of Immigration as well as a child protection report.

25. Ms Kaur was officially engaged by NSW Police on 5 March 2019 to prepare a report on domestic violence issues. She was asked to address the following: “Information and specifics about Marriages and the process, Information and specifics about Divorce and the process, and rates of divorce; Information about seeking permission about getting a divorce (if considered) and who you seek permission from; Information about Domestic violence within the Indian Community (any statistic or general information from your experience); If there is any Cultural significance about an Indian female being undressed or naked in front of Males not known to her?...Information in relation to Dowry and DV related abuse within the Indian Community; The significance and benefit of the Senate inquiry into Dowry and Domestic Violence abuse”.

26. Ms Kaur’s initial report was dated 14 May 2019, with an updated version dated 20 May 2019. There was no substantial difference between the reports except for the correction of some typographical errors in the 20 May version. In general, the opinion expressed in it is that aspects of Sikhism and Indian/Punjabi culture generally, encourage domestic and family violence. To support this, the author refers to research literature, Sikh religious beliefs and power relationships within arranged marriages. She also makes reference to the practice of dowry abuse, the prevalence of domestic violence within Indian migrant families and cases of domestic homicides in Australia which involved Indian victims.

27. Ms Kaur refers to a Thomson Reuters report which describes India as the most dangerous country in the world for women, along with a series of statistics about gang-rape, dowry murders and domestic violence in India. The report also detailed elements of “Punjabi Sikh culture” which allow domestic and family violence to occur. By using the term “Punjabi Sikh culture” I understand Ms Kaur to mean the culture practised by those who reside in the Punjab and practice the Sikh religion. The elements of this culture she highlights as allowing domestic violence to occur are the “collectivist culture” and the “Patriarchy structures”. The report also discusses the importance of marriage and the marriage ceremony and asserted that many Sikh weddings are arranged marriages.

28. The report outlines the prevalence of “dowry abuse” and records that an Australian based psychiatrist, Dr Manjula O’ Connor, lobbied for dowry-related abuse to be considered part of domestic violence. The report also discusses the 2018 Senate Inquiry into the practice of dowry abuse in Australia and statistics from the World Health Organization about the global prevalence of physical and/or sexual intimate partner violence among all “ever-partnered women”. The author notes that in her professional experience as a social worker she has dealt with over 30 cases of domestic violence within “Indian” couples. Over half of these cases, in her opinion, involved dowry-related abuse.

29. Included in the report is a table under the sub-heading “Domestic Homicide and Coronial inquest findings”. This table comprises a list of cases identified by the author (from reading media reports) of “domestic homicide cases of “Indian” women and children in Australia” between 2009 and 2019. The deceased is listed as the eighth entry in this table.

30. This table is followed by the author’s professional opinion on the present case, including her observations that it was alleged that the accused physically assaulted the deceased, that there was financial abuse, that the deceased was treated as a “slave/servant” by the accused’s family, that she had fertility issues and that she was subjected to emotional abuse by the accused. Ms Kaur concludes that:

“I believe that Kulwinder Singh holds very strong traditional patriarchal beliefs which enabled him to justify the domestic violence and abuse towards his wife Parwinder Kaur. He felt entitled to control her money, body and movements and when she tried to separate or attempt to become more independent this outraged him. As it is reported that Parwinder was trying to separate from her husband, this would have also enraged him in the context of losing money she brought to marriage and his ability to control her finances.”

31. The Crown indicated that it did not seek to rely upon any of the opinion evidence I have already referred to. Rather, it was submitted that the Crown only sought to adduce the evidence (broadly) related to arranged marriages in India, wives “obeying” their husbands, power dynamics, the importance of money and relationships with in-laws. The relevant parts of the evidence relied upon by the Crown can be summarised as follows.

31. The first part of the report relied on by the Crown involves general commentary on traditional cultural factors within Indian society (rather than the Punjabi Sikh society in particular. Two paragraphs of the report explain that Indian society is patriarchal and that men’s needs are prioritised over those of women and girls. It states, for example, that:

“Traditional patriarchal beliefs are very strong and prevalent within Indian societies, ‘where women are considered second-class citizens, whose worth is defined by their husband position in society’, and that this male dominance has manifested within Indian society through the practice of female infanticide, sati and bride-burning (Natrajan, 2002, p8). According to Liao, M, 2006) ‘Patriarchal structure prevalent in Asian-Indian culture which predisposes men to believe they are entitled to control women’s bodies… can lead to higher risk of domestic violence’ (p6). The Indian women and tolerance of violence (concepts of shame) social sanctioned subordination of Indian women, as their roles defined by being a wife, mother and daughter.. (p7).”

33. Other “key concepts” of “Indian culture” (rather than the Punjabi Sikh culture in particular) outlined in the report include satkar (respect), izzat (family honour) and sharam (shame). It further notes that:

“The patriarchal beliefs related to DFV are based around the notion to ‘To maintain their power, husband will resort to abusing their wives’ (The patriarchal beliefs may make the women in these families feel as if the abuse is justifiable which prevents them from acknowledging and speaking up about the abuse (p23-24)”

34. The report then sets out several Sikh religious beliefs. This part notes that the first Sikh Guru emphasised the equality between men and women and spoke out against social practices such as sati (widow burning) and the dowry system. Another part of the report relied on by the Crown is concerned with arranged marriages. The particular extract relied on is as follows:

“The cultural norm is that majority of Indian and Punjabi young people will marry within their own cultural community group and usually through arranged marriage or a matchmaker. Majority of Indian young people do not marry outside of their culture or ethnic group or from different race or religion. The family unit is very important within Indian culture and there is preference that you will form connection with your relatives.

Women in India who are raised to ‘obey’ their fathers, brothers, husbands and their sons do not have the confidence and the courage to speak up. Daughters are advised by their parents when they get married that their new home is with their husband’s family and this puts undue pressure on her as she feels she cannot return back to her parents when she needs help. Young girls are groomed in Indian culture to believe that they are a burden to their family as parents have to pay a lot of money to get them married. Therefore, if women are raised in a culture that has trained them to think and believe that being subservient to their husbands is the key to a successful marriage, it would be very challenging for her to leave a husband who is abusing her. Indian men are typically raised in with ‘Patriarchal values’, whereby Indian men are seen and assume the role of ‘head of the family' or ‘breadwinner’ of the family and is shown respect and honour according to their seniority by their wife and children/ grandchildren. Indian family structure is based on the ‘traditional collectivist’ culture, whereby the male members of family will undertake employment and the women will traditionally remain at home (house wife) and raise the children. Indian families still hold onto these practices when migrating to western countries. As part of the collective culture there is belief and practice that ‘family issues’ are to remain within ‘family domain’ and are not discussed outside the family unit or community.”

35. These paragraphs of the report were relied on by the Crown to support the assertion that there was an expectation that the deceased would obey the accused. The Crown also relied on the following paragraph to support the assertion that the deceased was treated like a “slave” by the accused and his family:

“Most commonly, Indian couples once married will live with joint families, this can include husband and wife, living with husband’s parents (Parents-In-Law and grandparents or other extended family members e.g. husband’s younger unmarried siblings). If the Punjabi In-Laws family hold traditional patriarchal beliefs, the status of new bride decreases and the elder woman (usually Mother in Law) has most of the power, which makes the new bride vulnerable to abuse from In-laws, usually newly arrived brides tend to be submissive to their mother-in-law (Kaur, N, 2018, p23-24). There is tendency to keep issues that may arise within the family and accessing external social welfare services is not encouraged or promoted.”

36. The next part of the report details Ms Kaur’s view that divorce is “looked down upon” in “Indian” culture. The Crown submitted that this evidence was relevant because it demonstrated the significance of the deceased’s ultimatum of 23 November 2013 to the accused that she would divorce him unless he opened a joint account. The report states:

“For example, a single parent or divorcee is ‘looked down upon’ and rumours usually circulate that 'she was of bad character' or ‘victim blaming’ that is why she is separated without any proof. It is expected after marriage that the Indian wife will perform all of ‘house chores (cooking, cleaning) and to serve their husband and his family (in-laws). Majority of Indian parents will train their girls to be raised within this ‘cultural value’, the challenge arises when the girls adopt western cultural values and assert their independence and demand gender equality within household or relationship. A large proportion of Indian families still hold onto these traditional values when migrating to western countries including Australia. Research has highlighted that usually Indian women don’t leave abusive relationship, as ‘her identity involves being part of her community’. She will be ostracised for trying to leave abusive marriage and divorce is often not perceived as an option, divorces /widowed women are extremely stigmatized – these factors become deterrence to leave as well loss of financial security, children’s custody (Liao, M, 2006).”

37. The Crown relied on another part of the report to emphasise the alleged importance of money in “Indian culture” and the significance of the fact that the deceased’s money was deposited into her husband’s account (until she opened her own account). Further parts of the report discuss the dowry system. It indicates that the dowry system is still “very prevalent” in contemporary India and that it is practiced by Indian communities in Australia. It states that Indian women are prone to victimisation if they are removed from their social support, isolated, powerless to resist domestic and family violence, unable to perform house chores, infertile or without income.

38. Another part of the report relied on by the Crown is titled “Help-seeking behaviours of Indian women”. It states that the majority of “Indian” women arrive in Australia on temporary spouse visas and are dependent on their husbands. It further states that barriers for migrant women include being economically dependent and not having the skills to obtain gainful employment. Migrant women (from a range of cultural and linguistic groups) are more likely to under-report domestic violence.

39. The final parts of the report relied on by the Crown are titled “Indian practice of ‘Bride burning’ or ‘honour killings’” and “‘Please cover my body’ – last words”. In her discussion of honour killings Ms Kaur states that the practice had been outlawed since 1861 but it is still practiced in India, with burning as the preferred method. The “Please cover my body” part of the report is in these terms:

“As outlined in this report Parwinder would have been raised in traditional Indian-Punjabi culture and concepts of shame and honour is ingrained into Indian women’s psyche. Modesty is important attribute of Indian women whereby Indian women usually won’t wear revealing clothing and cover up their bodies to demonstrate that 'they are respectable'. Indian women also would never show their bodies to other male (who are not their husband) as this interpreted as 'shameful' behaviour. By her asking 'please cover my body', this would have been an attempt to preserve her honour (Izzat) and keep her clothed appropriately.”

Expertise of Ms Kaur

40. When Ms Kaur’s report was served it was not accompanied by her Curriculum Vitae (“CV”). Her CV was provided on the first day of the hearing in relation to the admissibility of her evidence. The CV contains evidence of Ms Kaur’s qualifications and research projects that she has been involved in. In brief, it stated that Ms Kaur is an Accredited Mental Health Social Worker and has experience across various areas, including research, child protection, family support, refugee settlement, mental health, policy roles and teaching social work practice. She holds Bachelor of Arts degree with double major in Psychology and a master of social administration and master of social work from the University of Queensland. She is currently enrolled in a PhD degree at the University of Melbourne. She also works for JK Diversity Consultants. She has been employed as a social worker, counsellor and researcher in relation to domestic violence. She has been involved in research projects into family violence in migrant and Indigenous communities.

41. In her examination-in-chief, the Crown asked Ms Kaur about her submission in 2015 to the Victorian Royal Commission into Family Violence. She explained that her submission focused on the issues faced by Indian migrant women and how domestic and family violence occurs within Indian communities. The submission also addressed dowry abuse and the barriers for Indian women in seeking assistance in domestic violence situations. The Crown asked Ms Kaur about her work in 2016 in Cairns. She stated that in 2016 she travelled to Cairns to conduct a domestic violence workshop for professionals after a double murder in the Sikh community in that area. These professionals included police, corrections staff, teachers, social workers and domestic violence sector workers. The workshop dealt with understanding domestic and family violence within the Indian community.

42. Ms Kaur then elaborated on her experience in October 2017 as the keynote speaker at the Domestic Violence in Faith, Spiritual and Multicultural Communities Symposium held at the University of South Australia. She represented the Sikh community. In the following year she helped to establish the first domestic violence refuge for Indian women in partnership with the Brisbane Sikh temple Gurdwara. She clarified that this refuge is for any Indian national, whether Sikh or Hindu. In the same year she also made a submission to the Commonwealth Inquiry into Dowry Abuse.

43. In cross-examination, Ms Kaur stated that she was from the Sikh faith and Indian/Punjabi culture. She said that she was born in England and had emigrated to Australia. She had not lived in India but spoke Punjabi. She stated that in her view domestic violence in Indian Sikh culture was a research area in the “very early stages” and that there was no course on Sikh or Indian culture in relation to domestic violence. When questioned, she clarified that her area of expertise was “understanding domestic and family violence within the Indian community”. She confirmed that she had undertaken a quarter of her PhD thesis. She described herself as an “advocate and researcher” about the issues faced by Indian women.

44. Ms Kaur was questioned about expert opinion in her report that the practice of sati was outlawed by the British Government in 1861. When it was put to her that sati was in fact outlawed in 1829 by the Sati Prohibition Act, she stated that the 1861 date was based on the information she could find online, potentially on Wikipedia or a similar site, although she would have to go back to her notes to confirm this.

Evidence of Ms Kaur’s impartiality

45. Ms Kaur made no reference in her report or evidence to having read the Expert Witness Code of Conduct. She did, however, state that she was “independent and impartial” because she did not know the deceased nor did she know the accused. She was aware of the case before preparing this report for court as it had been reported in the media “and the coronial inquest in 2015”. She provided a hyperlink in her report to an article by Ben Hills on SBS Online, which was published on 7 December 2015. This became an exhibit on the voir dire. She also stated in her report that she had complied with the Australian Association of Social Workers Code of Conduct and Ethics.

46. During her cross-examination Ms Kaur provided a number of answers to questions that are relied upon by the accused to found a submission that she is not, in fact, an impartial and objective witness.

47. When asked in cross-examination whether she had researched this case before she had been asked to comment on it, Ms Kaur replied that she was only aware of the Coronial Inquest and that “the Coroner suspended the inquest because she was of the view that it was not a suicide”. She stated that she relied on an Australian Broadcasting Corporation (“ABC”) journalist for information about this case (presumably in addition the SBS Online article noted above at [45]). Her evidence was:

“A. I ‑ I'm only ‑ the only information that I relied upon or that is in the public domain was a reference made in a media article and the Coronial Inquest. Outside of those two, I don't have any other information.”

48. The following exchange later occurred:

“Q. Before you were ever asked to do a report about this case, you had formed the view, had you not, that Mr Kulwinder Singh had killed his wife, Ms Parwinder Kaur?

A. I think in preparing this report my opinion is stated in there that I believe that she was a victim of domestic violence and I don't believe that it is a suicide. I do believe that she was murdered. That is my opinion.

Q. When did you form that opinion?

A. That as part of collecting this information and as part of preparing this report, I would have ‑ as part of putting my conclusion in my opinions which are on page 11, those ‑ that would be my opinion.

Q. That is your opinion, that this is a murder case?

A. Correct.

Q. That this is a murder?

A. That's correct.”

49. And later:

“Q. And so you accept that, that someone dowsed her on fire?

A. That's correct.

Q. She didn't do it herself?

A. Yes.

Q. You accept it because it was in the news?

A. I don't have anything else to disprove”.

50. Ms Kaur stated that her opinion was based on her experience and knowledge of supporting 30 Indian victims of domestic violence. She was then asked whether she had already formed an opinion that the accused was guilty before she was asked to provide an expert report in this case. Her answer was:

“A. …no, because I have only just written this report for the prosecutions

this year. So how could I have formed that opinion?”

51. Ms Cunneen later returned to the topic when asking Ms Kaur questions about her 2018 submission to the Senate Committee on Dowry Abuse in August 2018. Ms Kaur had included the deceased in a list of Indian victims of murder or murder/suicide. The evidence was as follows:

“Q. I am just asking you first, can you tell me whether you had formed the opinion, in August 2018, that this gentleman here, my client Mr Singh, killed his wife in December 2013? Had you formed that view in August 2018?

A. No. I formed that view that I believe that he's killed Ms Parwinder Kaur as part of preparing this report now. I ‑ I ‑ I would have maybe put it on the fence. I mean, it's alleged. You know, until we go through the court process we can't ‑ you know, we don't know.

Q. We don't, do we? That's true, isn't it?

A. That's correct.

Q. Well, why is it then, Ms Kaur, that you put this case in a list of twelve Indian victims who were killed by their husband or father in August 2018 at page 6 of your dowry report?

A. So it was part of highlighting the domestic homicide cases. So, yes, you're correct that I should have put 'alleged'. I was not aware at that time in ‑ where the trial process was.”

52. The following exchange took place on the same topic.

“Q. But it is very misleading, isn't it, if you have a list of people that you say are murderers when even one of them is about someone who is not convicted at all?

A. If you look at the table, I have put it‑‑

Q. No, but isn't that a fair proposition, that if you put in your list someone who is not convicted, that gives a very inaccurate position to the reader, doesn't it?

A. Yes, I can ‑ I can agree to that point.”

53. Ms Kaur’s attention was then drawn to her report prepared for the present proceedings at page 9 where she had listed the deceased under the heading “Domestic Homicide and Coronial inquest findings” (detailed above at [29]). She defended this part of the report by noting that on page 10 the report noted that “the case studies identify the following victims of domestic or murder‑suicide within the Indian community” and that she had stated that the accused was “awaiting trial”. The following exchange then took place:

“Q. We will return to your report in any event. May I get back to the question that I asked you? Did you realise, when you signed off on this report, that you had inadvertently left in it the case of Parwinder Kaur of 2013, included in a list of cases of domestic homicide?

A. If you look at the table, it says 'Details of Death' and I have put in there in the italics 'domestic homicide or murder‑suicide'. So, yes, you are correct that I have included Parwinder Kaur's. Part of my rationale in putting into this table was to illustrate that her death isn't an isolated death; that there have been victims or similar deaths prior to Parwinder Kaur's and consequently after Parwinder Kaur's. And this is a challenge that we have, you know, in our system because it's cross‑jurisdictional, that this analysis hasn't been done by the Courts or coronial or contextual understanding. So, yes, you are correct that I have included her into this but it's ‑ but I also have put that caveat at the top of the table as stating 'Details of Death'. So either domestic homicide or murder‑suicide.

Q. Don't you just mean there, madam ‑ and I am sure you are not being disingenuous, but isn't the top just to mean that you have in this list cases that are either homicide, that is A kills B, or murder‑suicide, that is A kills B then kills A?

A. No.

Q. That is what you mean, isn't it?

A. No, because on page 10 I have put another caveat there that 'the case studies identify the following victims of domestic or murder‑suicide within the Indian community'. I have then tried to provide a bit of an example of how many were children, how many were women, what were the perpetrators and what were some of the common themes. Without having a much more detailed analysis of all or each of those cases, this is an area that does require further research.”

54. Ms Kaur was later asked about whether she had tweeted the result of the suspension of the Coronial Inquest into the deceased on 12 November 2015”. Her evidence was as follows:

“Q. And did you do a Tweet after the Coroner had suspended the inquest into the death of Parwinder Kaur on 27 November 2015?

A. I don't know if I had Twitter back then. You will have to tell me if it's from my Twitter account.

Q. Maybe I could show you, because there may be many other people with your name perhaps?

A. That's correct, yes.

HER HONOUR

Q. Do you use your name as your‑‑

A. I think my Twitter account is ‑ and I don't use it that often ‑ I would be surprised if I did ‑ 'jkaurconsult', that is my Twitter account.

CUNNEEN

Q. I may be doing you a disservice, ma'am, but would you have a look at that and see if that Jatinder Kaur is you, (shown)?

A. Without knowing what the Twitter account is, I mean it could be me, that's correct, but I don't know if that's my Twitter.

Q. Might it be your Twitter, or Tweet?

A. If I have retweeted what the media ‑ I would have to look. My ‑ no, the phone that I have ‑ I can check and let you know.”

55. After she was given the opportunity over the luncheon adjournment to check her records, Ms Kaur accepted that she had tweeted a Sydney Morning Herald article about the suspension of the Coronial Inquest into the deceased on 12 November 2015. Her explanation for this was she had forgotten about the tweet.

56. Ms Kaur stated that she believed that women who arrive in Australia on spouse visas may become more vulnerable to domestic and family violence. Later she added that she believed that “Indian” Sikh women are more disadvantaged than refugee humanitarian entrants. However, she stated that she believed that a Sikh couple in Australia might buy a house and put it in both names if “they believed in gender equality”. (The evidence in this trial was that the deceased and the accused were joint owners of the property). She also admitted that some claims of domestic violence might be fabricated.

57. Finally, Ms Kaur was referred to a lecture she had given earlier this year, on 16 February 2019, in San José which had been uploaded onto YouTube. One of the slides in this presentation said “In remembrance of all the Indian victims killed due to domestic and family violence in Australia”. At another point in the lecture there was another slide where Ms Kaur had listed eleven “Indian” victims of family violence who were killed by their husband or father. The deceased was named on this list along with a description, which read:

“Parwinder Kaur, 32, died in December 2013 after suffering burns to more than 85% of her body. Parwinder Kaur was fatally burnt outside her home in Rouse Hill. She had called police saying 'my husband nearly killed me.' Neighbours heard her screaming, seeing her run out of the house as a ball of fire. Her husband, Mr Kulwinder Singh was seen running after her patting. She died the following morning after suffering burns to 85% of her body. An inquest into her death on 27 November 2015, seven years later, was suspended with Deputy State Coroner Sharon Freund saying she is satisfied a known person had committed an indictable offence.”

58. Ms Kaur acknowledged that the reference to the “seven years later” was a typographical error and that the presentation had been given before she was contacted by Detective Senior Constable Brame. She confirmed that when giving the presentation she considered the deceased’s case to be one of domestic homicide.

59. During various stages of her evidence Ms Kaur described herself as an “advocate”. She described herself as an “advocate and a researcher in this space… trying to highlight the issues faced by Indian women”. She stated that she “advocated significantly around those issues and how domestic and family violence has been, I guess, the second flow‑on to that knowledge”. She further stated that “[b]eing an advocate I highlight, try to share or put in the public domain cases where domestic violence has occurred with Indian women. She was asked at one stage the following questions on this issue in cross-examination:

“Q. And as you say, you are an advocate, you are an advocate for domestic violence victims; aren't you?

A. That's correct.

Q. And you want to further their interests in every possible way?

A. I think where, if we think about social justice and if there are systemic issues.

…

A. I mean, it is my opinion that as an advocate it is important to learn from domestic homicide cases or coronial inquests so that, you know, we can prevent a future death.”

The Crown’s submissions

60. The Crown emphasised from the outset that it did not propose to adduce opinions from Ms Kaur relating specifically to the accused or deceased. Rather, only that expert opinion in her report concerning “behaviours typically present” in people of “Indian Punjabi” background who practise the Sikh religion was relied on. It was submitted that it was proposed that the evidence as to the culture contained in the report would be relied upon and isolated and any suggestion of any causal connection with domestic violence would be removed and not relied upon by the Crown.

61. The Crown submitted that this evidence was relevant to the relationship evidence and should be admitted under s 79 of the Evidence Act.

62. As to the threshold question of relevance under s 56 Evidence Act, the Crown submitted that the report is highly relevant because it could rationally affect the jury’s understanding of the deceased’s actions as well as to the intended cross-examination of members of the accused’s family.

63. It was submitted that Ms Kaur’s evidence supported the following specific aspects of the relationship evidence in the Crown case:

1. That both the accused and deceased were part of the “Sikh Punjabi” community; 

2. That they had married in an arranged marriage;

3. That there was an expectation that the deceased would obey the accused;

4. That the accused expected and assumed that he would have the power and he had the right to control his wife; 

5. That all of the deceased’s earnings were provided to her husband; 

6. That the deceased was treated like a slave by the accused and his family;

7. That the deceased was physically abused by the accused;  

8. That the deceased provided an ultimatum to her husband two days before her death that either he open a joint account and she had access to it, or she would divorce him.

64. It was submitted that Ms Kaur’s evidence is relevant to this relationship evidence as it “significantly supports the reliability of the representations that are made by the deceased.” It is not relied upon as tendency evidence but simply to demonstrate and provide independent support for the nature of the relationship that existed at the time. This is because the relationship between the deceased and the accused included a number of features that are common to (at least part of) the “Sikh Punjabi” community. One of those features was the importance of money and the extent to which the husband and the male controls the money and has an expectation of control of that money. The Crown case was that it was a “big step” for the deceased to seek a divorce.

65. The Crown submitted that Ms Kaur has specialised knowledge (as required by s 79 Evidence Act) about the cultural, religious, social and behaviours aspects of “Indian Punjabi culture and the Sikh religion”. This knowledge is based on her study, training and experience, discussed above at [40]-[42].

66. In response to questioning, it was submitted that Ms Kaur’s area of specialised knowledge is “the extent to which the older cultural values and mores that exist amongst the Sikh Punjabi community continue to exist in various cohorts of that community in Australia” (emphasis added). This knowledge was based on interviews with women from the “Sikh” community and other communities who have been victims of domestic violence. It was submitted that her expertise is in trying to identify what features of their cultures social workers need to look at in order to understand domestic violence in their cultures, what the triggers are and how they can be given proper assistance.

67. It was submitted that Ms Kaur’s evidence goes beyond simply being an expert in domestic violence because she has, through her work, come to understand the values and mores that “these women” adhere to. This is a basis for her understanding of the situation that exists for “Sikh Punjabi” women “in that situation”. It was submitted that Ms Kaur has obtained her specialised knowledge of the “Sikh culture” in Australia in the “most preferable way that there is”, which is through being engaged in counselling women who are part of that “Sikh Punjabi culture”.

68. It was submitted that Ms Kaur’s expertise is of the kind that you would expect to be gained through involvement in the community, especially where, as she admitted, there is a paucity of statistical data in this area. Further, it was argued that the Crown is not required to represent the whole situation in the “Sikh Punjabi” community. Ms Kaur’s evidence that men in the “Punjabi Sikh” culture tend to dominate and control the money is not relied upon by the Crown as tendency evidence. Rather, it is presented as part of the relationship that existed between them.

69. The Crown supported its application to adduce Ms Kaur’s report by reference to a series of cases about the admissibility of expert evidence in child sexual abuse cases (including Ingles v R (Tasmanian Court of Criminal Appeal, 4 May 1993); R v C (1993) 60 SASR 467; HG v The Queen (1999) 197 CLR 414; [1999] HCA 2; R v S (2001) 125 A Crim R 526; [2001] QCA 501 and Bellmore v Tasmania (2006) 16 Tas R 364; [2006] TASSC 111). In these cases, expert evidence was admitted to enable to the jury to understand why children who have been sexually abused may act in “counter-intuitive” ways. The Crown sought to draw a comparison with the facts of this case. It is submitted that if a “Punjabi Indian” woman of the Sikh faith is exposed to domestic violence she may adopt counter-intuitive behaviours, such as not reporting violence to police.

70. Alternatively, the Crown submitted that Ms Kaur’s report is admissible under s 108C Evidence Act as it could substantially affect the credibility of a witness not called, that is, it is expert evidence that could affect the credibility of representations made by the deceased.

71. The Crown additionally relied upon the decisions in Chen v R [2018] NSWCCA 106 and Li v The Queen (2003) 139 A Crim R;[2003] NSWCCA 290 to support the proposition that reliability is a matter of weight rather than admissibility. The Crown further relied on Sydney South West Area Health Service v Stamoulis [2009] NSWCA 153 and Haoui v Regina [2008] NSWCCA 209 to argue that bias is also a matter of weight for the jury. The Crown also referred to ASIC v Rich [2005] NSWCA 152 when arguing that the fact that some other facts have influenced an opinion does not mean that the opinion has lower probative value.

The accused’s submissions

72. Although it was submitted that most of the report was irrelevant, the focus of Ms Cunneen’s submissions was directed to Ms Kaur’s expertise in cultural, religious and behavioural matters.

73. It was submitted that Ms Kaur does not have the relevant expertise; that is, the Crown cannot establish that based on her “training, study or experience” she possesses “specialised knowledge” and that each opinion is “wholly or substantially” based on that specialised knowledge.

74. With respect to her “specialist knowledge", it was submitted that where the basis for specialist knowledge is experience, the connection must to be clearly demonstrated in that a particular opinion must “wholly or substantially” be based on specialised knowledge, in that specialised knowledge is used to reach that opinion.

75. It was submitted that Ms Kaur’s education does not indicate that she has obtained any education or training in relation to “Indian/Punjabi culture” or any other culture and that her only two work experiences that have a remote connection to cultural aspects, as a senior policy officer and a refuge caseworker, do not clearly demonstrate that she gained any such “specialist knowledge”. It was further submitted that Ms Kaur’s “Indian/Punjabi” family background would not qualify her as an expert witness in regard to that culture.  In relation to parts of Ms Kaur’s report where she refers to patriarchy in which men control women and male dominance prevails, Ms Cunneen submitted that Ms Kaur is not properly qualified to give an opinion on how patriarchy operates in “Indian/Punjabi” culture and that her views are narrow and one-sided.

76. As to the expert evidence of the dowry system, there is a factual dispute as to whether a dowry was provided in this case. With respect to the expert evidence as to “Sikh” migrant women not being able to get help, there is evidence that the deceased made complaints about her marital problems to the police on two occasions, to her family as well as a Sikh community elder.

77. It was submitted that Ms Kaur does not possess relevant expertise in “Punjabi” culture to give an expert opinion on arranged marriages. She gives opinion only about women being controlled and oppressed as a result of such marriages and not how such a marriage would operate in a collective culture.

78. It was also submitted that Mr Kaur does not possess specialised knowledge to give opinions in relation to the “Indian practice” of “bride burning” or “honour killing” nor is she a qualified cultural expert or behavioural expert to give opinion as to the deceased’s state of mind in relation to her saying “please cover my body”. It was submitted that she could not be said to be an expert in “Sikh culture” if she had to go to Wikipedia to enquire about the abolition of sati.

79. Regarding the religious expertise of Ms Kaur, Ms Cunneen submitted that, apart from the evidence that Ms Kaur is of Sikh faith, there is no evidence that she possesses expertise in relation to that faith that was gained through education, training and experience.

80. With respect to the discretionary considerations under s 137 of the Evidence Act it was submitted that:

1. The evidence of Ms Kaur does not qualify as expert evidence;

2. Ms Kaur’s interpretation of culture and religion is biased given her work experience as a domestic violence counsellor and involvement with emergency crisis accommodation management for Indian women affected by domestic and family violence, homelessness or financial hardship through JK Consultants;

3. The admission of unqualified and biased evidence would lead to unfair prejudice to the accused that could not be dealt with by appropriate jury directions; and

4. The probative value of Ms Kaur’s evidence in relation to cultural, religious and behavioural aspects is outweighed by the danger of unfair prejudice to the accused and should not be admitted into evidence.

81. As for the relevant authorities concerning bias, this case can be distinguished from those where a police officer becomes an “ad hoc” expert witness such as Li v The Queen. Although it is to be accepted that the question of unconscious bias goes to weight rather than admissibility, this case is in a different category. Those cases are far removed from a witness who declares right through her voir dire evidence that she made a decision about the guilt of this accused from a media article before she was approached to become an expert witness in this case.

82. As for the proposal that the Crown would not rely upon her evidence of domestic violence, it was submitted that it is impossible to “sanitise” her report because of the underlying thread throughout it that she considers every death in a domestic setting to be a homicide caused by a man killing a woman, whether it is his wife or his daughter or someone in the family. Ms Kaur obtains government funding and her business runs on her ability to advocate and establish that such events occur.

83. Finally, it was submitted that the Crown is leading Ms Kaur’s evidence to establish a cultural tendency to treat women as second class citizens. The dangers of the jury misusing that type of evidence are manifest. They will, no doubt, ask why an expert in domestic violence is giving evidence about some aspects of the “Sikh” culture. Even without any word of domestic violence being used, they will consider this evidence from the Crown as a hint that this is a particularly oppressive culture for women and, in those circumstances, a man charged with killing his wife is much more likely to have done it than in another culture where women are regarded as equal, where women have equal access to the purse strings and where women have their own bank accounts. It does not follow that women without their own bank accounts are more likely to be killed or even physically abused by their husbands.

Consideration

84. In order to determine the admissibility of Ms Kaur’s evidence three separate questions need to be determined:

1. Is the evidence relevant: ss 55/56 of the Evidence Act?

2. Is the opinion evidence admissible as expert evidence: ss 76/79 of the Evidence Act?

3. Should the evidence be excluded under s 137 of the Evidence Act?

85. Before turning to consider these questions, it is necessary to note that Ms Kaur used a number of terms, at times interchangeably, to describe the relevant “culture” of which she was said to be an expert. At some stages in her report she refers to “Indian” culture, at other times she refers to “Punjabi” culture, at other times she refers to “Sikh Punjabi” culture and at other times she refers to the Sikh religion. As the extracts from her report set out above at [32], [34] and [36] reveal, large parts of it refer to “Indian” culture generally and in the list she has compiled of the women who have been killed by their husbands (or fathers etc) she consistently describes them as “Indian” women.

86. In circumstances where India is a country of well over one billion people the majority of whom follow the Hindu religion, it was never made clear what Ms Kaur was referring to when she gave evidence of “Indian” culture. I propose to proceed on the basis that, where possible, I will use the same terms that Ms Kaur did. That is, where her evidence is about “Indian” women I will describe it in those terms and when her evidence specifically refers to Indian women from the Punjab who practice the Sikh religion I will use the term “Punjabi Sikh” culture. Where it is not possible to ascertain whether her evidence is confined to the Punjabi Sikh culture or the Indian culture more broadly I will use the term Indian/Punjabi Sikh.

87. Turning first to the question of relevance, ss 55 and 56 of the Evidence Act provide that:

55   Relevant evidence

(1)  The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.

(2)  In particular, evidence is not taken to be irrelevant only because it relates only to:

(a)  the credibility of a witness, or

(b)  the admissibility of other evidence, or

(c)  a failure to adduce evidence.

56   Relevant evidence to be admissible

(1)  Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding.

(2)  Evidence that is not relevant in the proceeding is not admissible.

88. If the evidence is not relevant, that is the end of the matter. As Gleeson CJ, Gaudron, Gummow and Hayne JJ stated in Smith v The Queen (2001) 206 CLR 650; [2001] HCA 50 at [6]:

“Evidence is relevant or it is not. If the evidence is not relevant, no further question arises about its admissibility. Irrelevant evidence may not be received. Only if the evidence is relevant do questions about its admissibility arise.”

89. Section 55 of the Evidence Act was considered by the High Court in IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 (“IMM”). The majority (French CJ, Kiefel, Bell and Keane JJ) observed the following at [38]-[39]:

“By s 55, evidence is relevant if it 'could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.' There can be no doubt that the reference to the effect that the 'could' have on proof of a fact is a reference of the capability of the evidence to do so. The reference to its 'rational' effect does not invite consideration of its veracity or the weight which might be accorded to it when findings come to be made by the ultimate finder of fact.

The question as to the capability of the evidence to rationally affect the assessment of the probability of the existence of a fact in issue is to be determined by a trial judge on the assumption that the jury will accept the evidence. This follows from the words 'if it were accepted', which are expressed to qualify the assessment of the relevance of the evidence. This assumption necessarily denies to the trial judge any consideration as to whether the evidence is credible. Nor will it be necessary for a trial judge to determine whether the evidence is reliable, because the only question is whether it has the capability, rationally, to affect findings of fact. There may of course be a limiting case in which the evidence is so inherently incredible, fanciful or preposterous that it could not be accepted by a rational jury. In such a case its effect on the probability of the existence of a fact in issue would be nil and it would not meet the criterion of relevance.”

90. In determining whether Ms Kaur’s evidence is relevant, I am required to assess the capability of her evidence rationally to affect the assessment of the probability of the existence of a fact in issue. That exercise is to be undertaken on the assumption that the jury will accept her evidence. When determining whether evidence is relevant, other questions of potential inadmissibility are ignored, such as whether the evidence is opinion evidence or tendency evidence. The sole consideration at this stage is relevance.

91. Ms Kaur’s report is headed “Cultural Expert Report about Domestic and Family Violence within Indian migrant communities in Australia Commissioned for NSW Police Force” and her report concerns domestic violence in the Indian migrant community in Australia. The Crown seeks to isolate those parts of the Indian/Punjabi Sikh culture identified by Ms Kaur in her report as tending to give rise to domestic violence, without disclosing that she believes those factors to be specific cultural risk factors for domestic violence. The question is whether evidence of these particular aspects of the Indian/Punjabi Sikh culture are capable of rationally affecting the assessment of the probability of the existence of a fact in issue, namely, the relationship evidence.

92. I have set out the eight separate aspects of the relationship evidence that the Crown submits renders the evidence of Ms Kaur relevant above at [63]. For ease of reference I will repeat them here: (1) That both the accused and deceased were part of the Punjabi Sikh community; (2) That they had married in an arranged marriage; (3) That there was an expectation that the deceased would obey the accused; (4) That the accused expected and assumed that he would have the power and he had the right to control his wife; (5) That all of the deceased’s earnings were provided to her husband; (6) That the deceased was treated like a slave by the accused and his family; (7) That the deceased was physically abused by the accused and (8) That the deceased provided an ultimatum to her husband two days before her death that either he open a joint account and she had access to it, or she would divorce him.

93. I put (1) to one side as it is difficult to see why any expert evidence would be required to establish that both the accused and deceased were part of the Indian/Punjabi Sikh community; other family members to be called as witnesses could give this evidence.  As for the remaining seven categories of evidence I assess the relevance as follows.

94. As for (2), (3), (4) and (8), the opinion evidence at pages 6-7 of the report concerning arranged marriages (summarised above at [34]) was said to be relevant to these matters. It is to be noted that Ms Kaur did not go in to any detailed explanation of how marriages are arranged per se. Rather, under the heading “Arranged Marriages” she describes the negative aspects of arranged marriages. She states that “women in India who are raised to obey their fathers, brothers, husbands and sons do not have the confidence and the courage to speak up”. She also states that “young girls are groomed in Indian culture to believe that they are a burden to their family as parents had to pay a lot of money to get married.” She also asserts that a single parent or a divorcee is “looked down upon” and rumours usually circulate that she was of bad character. There is “victim blaming” and “[r]esearch has highlighted that usually Indian women don’t leave abusive relationships”.

95. This evidence under the heading “Arranged Marriages” is said to be relevant to support the credibility of the representations made by the deceased as to her poor treatment at the hands of the accused and his family. Ms Kaur’s evidence is to the effect that marriages in the Indian/Punjabi Sikh culture are characterised by certain unfavourable features. Thus, it is submitted, this evidence lends support to a conclusion that the same unfavourable features would have been present in the marriage between the accused and the deceased. The obvious problem with this evidence is that it is difficult to generalise as to why certain marriages are happy and others are not. As Leo Tolstoy observed in the opening lines of Anna Karenina (2006, Penguin Classics):

“All happy families are alike; each unhappy family is unhappy in its own way.”

96. I accept that the deceased made certain representations about her unhappy and abusive marriage and some of Ms Kaur’s opinion evidence explains some of those representations in the context of some of the more negative aspects of the Punjabi Sikh culture. The question is whether if Ms Kaur’s evidence was accepted, it is capable of rationally affecting (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding, namely, that the deceased was being truthful when she made those representations about abuse at the hands of the accused.

97. As for Ms Kaur’s evidence under the heading “Help seeking behaviours of Indian women”, she states that the majority of Indian women arrive in Australia on temporary spouse visas and are a dependent on their husbands. This makes them financially insecure as they cannot obtain gainful employment. This in turn makes it difficult for them to report violence; Ms Kaur attributes this under-reporting to cultural factors. As against this opinion evidence of Ms Kaur, no evidence was identified by the Crown that the accused had in fact used the deceased’s immigration status as some form of threat to obtain additional dowry. Furthermore, she was a permanent resident who was in paid employment at the time of her death. Although there is evidence that she was required to place her earnings into her husband’s account, other aspects of her life are not consistent with the thrust of Ms Kaur’s opinion evidence.

98. As for (5) and (6), Ms Kaur’s evidence about the practice of the dowry system summarised above at [37] and the importance of money to the husband was said to be relevant to these matters. It was common ground during legal argument that the evidence in the present case is that the accused and the deceased had been married for seven years at the time of her death. Although some household appliances and gold were given as a wedding present, there is a factual dispute as to whether it was in fact the dowry.

99. As for (7), in circumstances where the Crown maintained at all times that the evidence was not to be adduced as some form of cultural tendency evidence, it was never explained why the evidence of Ms Kaur could be relevant to that part of the relationship evidence that alleges that the deceased had been physically abused by the accused.

100. Although the Crown specified these eight areas as being those to which Ms Kaur’s evidence was said to be relevant, there were other aspects of Ms Kaur’s report which were pressed by the Crown that were not identified as going specifically to one or more of these eight matters and hence being relevant to the relationship evidence. One of those matters was under the heading “Sikh religious beliefs”. It was here that reference is made to the dowry system and sati in the Sikh tradition. Ms Kaur described the first Sikh Guru giving women equal status in the fifteenth century and also speaking out against social practices such as sati and the dowry system.

101. It is difficult to understand how the fact that neither sati nor the dowry system are now part of Sikh religious belief is relevant to the issues for the jury to resolve. Even more problematic is the fact that after an explanation of these terms and an assertion that they are no longer part of the culture, the report goes on to assert that the Indian culture leads to men abusing their wives (extracted above at [32]). It was never articulated by the Crown how this was not in fact evidence of “cultural tendency” on the part of Indian men for violence and abuse.

102. As for the Indian practice of bride burning or “honour killings”, Ms Kaur asserts that there are “numerous cases in India where husbands have used extreme levels of violence in the form of ‘burning’ or ‘honour killing’ and using burning as a preferred method.” Again, this part of the report was pressed by the Crown even though it disavowed reliance on any evidence of cultural tendency evidence or evidence of domestic violence per se.

103. Finally, there was the evidence about the deceased’s last words. The correspondence summarised above at [22] discloses that the narrow scope of the expert evidence initially sought by the Crown was to assist a jury in relation to the last words uttered by the deceased. The Crown case statement describes that a neighbour heard the deceased say, “please cover me up, please cover me up”. The letter of instruction from Detective Senior Constable Brame to Ms Kaur stated that the deceased asked to be “covered up by a blanket”. Despite this, Ms Kaur has described in her report that the deceased said the words “please cover my body”. It is unclear on the evidence before me whether those words are actually words spoken by the deceased or whether Ms Kaur has elaborated on them.

104. In any event, Ms Kaur’s evidence is that Indian women would never show their bodies to another male who was not their husband as this would be shameful behaviour. Thus, she opined, when the deceased asked “please cover my body” this would have been an attempt to preserve her honour (izzat) and keep her clothed appropriately.

105. It is to be anticipated that the accused will rely upon the fact that, when the flames subsided and the deceased was asked who had done this to her, she did not implicate the accused. Rather, she provided the non-responsive request to be covered. It appears that in anticipating this, the Crown sought evidence to the effect that a woman from a culture where modesty for women is vital may be more likely to say this rather than say anything about how she came to be burned.

106. I am not persuaded that the fact that the deceased was Indian and thus from a culture which regards modesty to be of high value, makes it any more or less likely that her dying words would have been a request to be covered. I am not satisfied that the evidence from Ms Kaur on this issue is capable of rationally affecting (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding, namely, why the deceased spoke those words. It seems to me that women from many cultures who found themselves naked in public would ask to be covered. It is also relevant that the deceased spoke these words whilst traumatised and in shock.

107. Having regard to all of this evidence, I am not satisfied that Ms Kaur’s evidence is relevant to understand the meaning of the deceased’s last words. It seems to me that a submission could be put to the jury that the deceased’s cultural modesty may have been a reason for these words without the need for expert evidence on it. Nor am I satisfied that evidence of aspects of the Sikh religion that are now said to be abolished (widow burning and the dowry system) is relevant. Nor do I consider the evidence of dowry abuse in India or violence to women in India generally to be relevant to the issues in this trial.

108. As for the remaining aspects of the relationship evidence, in assessing admissibility I am required to put other potential bases for inadmissibility to one side, such as reliability, expertise or unfair prejudice. Even doing so and focussing on the capacity of the evidence, if accepted, to “rationally” affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding, I am not satisfied that the evidence is relevant.

109. The high point of Ms Kaur’s evidence is that there are aspects of Indian culture that make it both more likely that Indian women will be victims of domestic abuse and which also makes it more difficult for victims to seek help or report the abuse. I do not consider that this evidence could “rationally” affect the probability that the deceased was telling the truth when she complained of abuse at the hands of the accused in the years prior to her death.

110. Even I am wrong about whether this evidence is relevant, I am satisfied that the evidence is inadmissible on other additional bases.

111. I turn first to consider whether it is in fact “expert” evidence. Section 76 of the Evidence Act provides:

76   The opinion rule

(1)  Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed.

(2)  Subsection (1) does not apply to evidence of an opinion contained in a certificate or other document given or made under regulations made under an Act other than this Act to the extent to which the regulations provide that the certificate or other document has evidentiary effect.

112. Section 79 of the Evidence Act provides an exception to 76 as follows:

79   Exception: opinions based on specialised knowledge

(1)  If a person has specialised knowledge based on the person’s training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.

(2)  To avoid doubt, and without limiting subsection (1):

(a)  a reference in that subsection to specialised knowledge includes a reference to specialised knowledge of child development and child behaviour (including specialised knowledge of the impact of sexual abuse on children and their development and behaviour during and following the abuse), and

(b)  a reference in that subsection to an opinion of a person includes, if the person has specialised knowledge of the kind referred to in paragraph (a), a reference to an opinion relating to either or both of the following:

(i)  the development and behaviour of children generally,

(ii)  the development and behaviour of children who have been victims of sexual offences, or offences similar to sexual offences.

113. Consistent with the approach I have taken (tuning to consider relevance first), the decisions of the High Court which have considered s 79 of the Evidence Act explain that this is the way s 79 is to be approached.

114. In Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21. French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ said at [31]:

“In considering the operation of s 79(1) it is thus necessary to identify why the evidence is relevant: why it is 'evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding'. That requires identification of the fact in issue that the party tendering the evidence asserts the opinion proves or assists in proving.”

115. Later, in Honeysett v The Queen (2014) 253 CLR 122; [2014] HCA 29, French CJ, Kiefel, Bell, Gageler and Keane JJ stated (at [25]):

“As explained in the joint reasons in Dasreef Pty Ltd v Hawchar, the starting point in determining the admissibility of evidence of opinion is relevance: what is the fact in issue that the party tendering the evidence asserts the opinion proves or assists in proving.”

116. As to the proper application of s 79, the Court in Dasreef Pty Ltd v Hawchar observed (at [37]) (quoting Heydon JA in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 at [85]) to note that:

“….it remains useful to record that it is ordinarily the case, as Heydon JA said in Makita, that 'the expert's evidence must explain how the field of 'specialised knowledge' in which the witness is expert by reason of 'training, study or experience', and on which the opinion is 'wholly or substantially based', applies to the facts assumed or observed so as to produce the opinion propounded."

117. And later at [42]:

“A failure to demonstrate that an opinion expressed by a witness is based on the witness's specialised knowledge based on training, study or experience is a matter that goes to the admissibility of the evidence, not its weight.”

118. As for what is meant by specialised knowledge, in Honeysett v The Queen, French CJ, Kiefel, Bell, Gageler and Keane JJ stated at [23] (footnotes omitted):

"Specialised knowledge" is to be distinguished from matters of 'common knowledge'. Specialised knowledge is knowledge which is outside that of persons who have not by training, study or experience acquired an understanding of the subject matter. It may be of matters that are not of a scientific or technical kind and a person without any formal qualifications may acquire specialised knowledge by experience. However, the person's training, study or experience must result in the acquisition of knowledge. The Macquarie Dictionary defines 'knowledge' as 'acquaintance with facts, truths, or principles, as from study or investigation' (emphasis added) and it is in this sense that it is used in s 79(1). The concept is captured in Blackmun J's formulation in Daubert v Merrell Dow Pharmaceuticals Inc: 'the word 'knowledge' connotes more than subjective belief or unsupported speculation. ... [It] applies to any body of known facts or to any body of ideas inferred from such facts or accepted as truths on good grounds.”

119. The specialised knowledge in the present case was identified by the Crown during this preliminary hearing as “being the extent to which the older cultural values and mores that exist amongst the Sikh Punjabi community continue to exist in various cohorts of that community in Australia”. This knowledge was said to be based on interviews with women from the “Sikh” community and other communities who have been victims of domestic violence.

120. As I indicated to counsel during submissions in this matter, I am satisfied that Ms Kaur is an expert with respect to domestic violence and the cultural and religious factors which may contribute to it. She has specialised knowledge of domestic violence in migrant and other communities based on her study and practical experience. But that is not the relevant question. The Crown does not seek to rely upon her expertise in this area. Rather, she is relied upon as an expert in the Punjabi Sikh culture generally based on her own ethnicity and culture as well as stories told by domestic violence victims who are female migrants from the Punjab to Australia.

121. The Crown must establish not only that Ms Kaur has specialised knowledge in the area of Punjabi Sikh culture generally and that she had certain training, study or experience in the Punjabi Sikh culture generally; it must also establish that this particular specialised knowledge is based on her training study or experience in that specified area.

122. By way of illustration, although on facts removed from the present case, in HG v The Queen the relevant expert was a psychologist with specialised knowledge in that area but his opinion was not based on that specialised knowledge. Gleeson CJ noted in that case at [39]-[44] that the opinion expressed by the psychologist was not shown to have been based either wholly or substantially on that specialised knowledge. Rather, it was based on a combination of “speculation, inference, personal and second hand views as to the credibility of the complainant and a process of reasoning which went well beyond the field of expertise of a psychologist” (at [41]). It was further noted at [44] that:

“….it is important that the opinions of expert witnesses be confined, in accordance with s 79, to opinions which are wholly or substantially based on their specialised knowledge. Experts who venture 'opinions', (sometimes merely their own inference of fact), outside their field of specialised knowledge may invest those opinions with a spurious appearance of authority, and legitimate processes of fact-finding may be subverted.”

123. I have had regard to the terms of s 79 of the Evidence Act and the principles derived from the decisions I have referred to and applied them to the evidence before me. I am not satisfied that Ms Kaur’s evidence is admissible as expert evidence for the principal reason that she does not have “specialised knowledge” of the Punjabi Sikh culture generally as opposed to those aspects of the Punjabi Sikh culture, or the Indian culture more generally, which are common to domestic violence victims from that culture.

123. Ms Kaur’s knowledge is largely gained from interactions with Indian domestic violence victims that are presumably not representative of that culture in Australia generally. She has stated that after working as a social worker for 19 years in this area she has interviewed 30 female Indian victims (she described it is 30 in her report but in her evidence in court said it was up to 50). There was no evidence that she has undertaken interviews or obtained knowledge from women in this community (whether it be the Indian community or, more specifically, the Punjabi Sikh community) that are not the victims of domestic violence. Her body of knowledge comes from the subset of women who have experienced some kind of abuse at the hands of their husbands.

124. The consequence of Ms Kaur’s “specialised knowledge” being gained largely from domestic violence victims is that there is a risk that her evidence regarding the Indian/Punjabi Sikh culture in Australia is skewed in that it is only the aspects of the culture that enable domestic family violence to flourish that have been identified by her, rather than the culture in its entirety. Her evidence about satkar, sharam, izzat and the attitudes about divorce do not stand alone. By way of analogy it was submitted on behalf of the accused that had Ms Kaur worked in the emergency department of a hospital, she might think that accidents around the home are very, very prevalent because her opinion is only based on accidents she has seen.

125. That is not to say that one cannot obtain specialised knowledge in an area simply by interviews with relevant persons. In this regard the Crown relied upon the decision of the court in A2 v R; Magennis v R; Vaziri v R [2018] NSWCCA 174. The relevant ground of appeal in that matter concerned whether a Crown witness, Dr X, was an expert of a particular form of female genital mutilation known as khatna performed in the Dawoodi Bohra community in India in a period up to but no later than 1991. There was evidence that she had gained specialised knowledge as a result of her own experience in 1950 - 51 and also from interviews conducted in 1990-1991.

126. On appeal, the court was satisfied that the fact that the specialised knowledge was in a relatively narrow area based largely on anecdotal accounts did not mean that it is not an area of specialised knowledge. The Court went further to note that (at [713]):

“..indeed it is difficult to see how one would obtain specialised knowledge of such a cultural practice other than by research of the kind Dr X conducted or research conducted upon those in the hierarchical leadership of the Dawoodi Bohra community (which, having regard to the telephone intercepts, is unlikely to have been forthcoming).”

128. Although the Court of Criminal Appeal in A2 v R; Magennis v R; Vaziri v R ruled that much of the evidence of Dr X ought to have been excluded under s 79 and/or s 137 of the Evidence Act (see at [714] and [725]), the Court accepted that there is no reason in principal why a particular area of specialised knowledge cannot be obtained in the way described by Ms Kaur, namely, by interviews. Consistent with this, I have already found that I am satisfied that Ms Kaur has specialised knowledge in female family and domestic violence victims in migrant and other communities. But that is not the “specialised knowledge” that the Crown relies upon.

129. The position of the Crown was that just because Ms Kaur was an expert in domestic violence on Indian/Punjabi Sikh women does not preclude her from also having expertise in the values and cultural mores that exist in that culture. That is no doubt correct as a general proposition, but it does not follow that the Crown has established that Ms Kaur in fact possesses such specialised knowledge on the evidence before me.

130. In circumstances where I am not satisfied that Ms Kaur has the requisite specialised knowledge, it is not necessary for me to proceed to consider the other requirements in s 79. Despite this, I wish to make some further observations about the nature of her opinion evidence generally.

131. It seems to me that it will always be difficult to provide an opinion about the extent to which certain aspects of any given culture are retained by a particular person or persons following emigration to another country. Ms Kaur exposed this difficulty when she was cross-examined about her opinion evidence that men tended to exercise financial control over women in the Punjabi Sikh community in Australia. The evidence is that the accused and the deceased jointly owned their Rouse Hill property. Ms Kaur was asked whether it would be expected that any marital property would be jointly owned by a husband and wife in the Punjabi Sikh community in Australia. Ms Kaur appeared initially reluctant to answer this question and ultimately replied:

"It's a very difficult question because the Indian Sikh diaspora is so large."

132. It seems to me that this is the fundamental problem. If the “Indian Sikh” diaspora is so large, how is Ms Kaur able to generalise about it the way she has in her report and why do her interviews with 30 (or up to 50) women make her an expert about the entire “Indian Sikh diaspora”? It was never explained why her answer extracted above did not apply to other aspects of her evidence as well.

133. Further, Ms Kaur gave evidence that there are many features common to all domestic violence victims. Her evidence was, “[d]omestic and family violence occurs in all cultures, all faith communities, all socioeconomic backgrounds. It doesn't discriminate”. If her evidence on this issue is to be accepted, the question arises as to why the deceased’s ethnic and cultural background makes her any different from other (alleged) domestic violence victims. The evidence that there is a predisposition for victims of domestic violence to feel powerless, partly or largely because of shame and control, would not appear to make the deceased any different from other victims of domestic and family violence.

134. For all of these reasons, I am not satisfied that Ms Kaur is qualified to give the relevant opinion. It is thus inadmissible under the Evidence Act by virtue of s 76.

135. Even if I was wrong in relation to my conclusion regarding both the relevance of this evidence and Ms Kaur’s expertise, I would have excluded her evidence under s 137 of the Evidence Act in any event on two separate bases.

Section 137

136. Section 137 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.

137. 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. “Probative value” is defined in the Dictionary to the Evidence Act as “[t]he extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.” As the High Court confirmed in IMM, assessment of probative value for the purposes of s 137 does not require evaluation of the credibility, reliability or weight of evidence, those being matters properly left to the jury if the evidence be admitted. The plurality in IMM noted with respect to s 137 at [50] that:

“It must also be understood that the basis upon which a trial judge proceeds, that the jury will accept the evidence taken at its highest, does not distort a finding as to the real probative value of the evidence. The circumstances surrounding the evidence may indicate that its highest level is not very high at all. The example given by JD Heydon QC was of an identification made very briefly in foggy conditions and in bad light by a witness who did not know the person identified. As he points out, on one approach it is possible to say that taken at its highest it is a high as any other identification, and then look for particular weaknesses in the evidence (which would include reliability). On another approach, it is an identification, but a weak one because it is simply unconvincing. The former is the approach undertaken by the Victorian Court of Appeal; the latter by the New South Wales Court of Criminal Appeal. The point presently to be made is that it is the latter approach with the statute requires. This is the assessment undertaken by the trial judge of the probative value of the evidence.”

138. Although “probative value” is defined in the Evidence Act, the term “unfair prejudice” is not. It been held that the danger of “unfair prejudice” within the meaning of s 137 of the Evidence Act means a risk that the evidence would be misused by the jury in some unfair way that is logically unconnected with the purpose of its tender: see McHugh J in Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 at [91]. As Mason P observed in Colby v The Queen [1999] NSWCCA 261 at [97]: “The 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 ...”.

139. The probative value of the evidence, if it had been otherwise admissible, was said to be that it lends support to the representations made by the deceased and others as to the relationship between the accused and the deceased . Under s 137, the court is required to refuse to admit evidence if its probative value is outweighed by the danger of unfair prejudice. On this basis, there are two separate matters which lead me to be satisfied that Ms Kaur’s evidence must be excluded under s 137 of the Evidence Act.

140. First, despite the submissions of the Crown to the contrary, there is a real danger that the evidence would be used by the jury as some form of “cultural tendency” evidence. If a jury is composed of people who do not have any knowledge of the Sikh culture, there is a real risk that they would misuse evidence given by a domestic violence expert that Indian women are treated as “second class citizens”. That is, there is a real risk that, even if appropriate directions were given to the jury, the jury would rely on the evidence as a form of cultural tendency evidence.

141. Portions of Ms Kaur’s report pressed by the Crown include evidence that “[t]he patriarchal beliefs related to domestic and family violence are based around a notion 'to maintain their power, husband will resort to abusing their wives.” Similarly, Ms Kaur’s opinion that “Patriarchal beliefs may make women in these families feel as if the abuse is justifiable which prevents them from acknowledging and speaking up about the abuse” [emphasis added], is not only generalised and qualified, it is also highly prejudicial. I am satisfied that there is a real risk that the admission of such evidence could lead the jury on an impermissible path of reasoning that because aspects of Indian/Punjabi Sikh culture might lead men to abuse their wives, then the accused was more likely to have abused his wife.

142. The second basis for exclusion under s 137 of the Evidence Act is the question of Ms Kaur’s independence. Consistent with the proposition that matters such as reliability are properly to be left to the jury, it has been held that questions of bias of expert witnesses go to matters of weight rather than admissibility. That is, if there is evidence that an expert has significant ties to one of the parties and is thus not “truly independent” that matter goes to weight rather than its admissibility. These cases are referred to above at [71] and also referred to with approval at [728] in Wood v R [2012] NSWCCA 21.

143. In Wood v R, McClellan CJ at CL, Latham and Rothman JJ agreeing, discussed the issue of the perceived bias of an expert witness and in doing so raised a possible exception to the principle that reliability of an expert witness is relevant to weight rather than admissibility. The court noted at [728]-[729]:

“It may be, as some previous decisions suggest, that an expert's evidence is not inadmissible merely because the expert has breached or overlooked the Expert Witness Code of Conduct: United Rural Enterprises Pty Ltd v Lopmand Pty Ltd [2003] NSWSC 870 at [12] (Campbell J); Rich at [333] (Austin J); Stamoulis at [208] (Ipp JA, Beazley and Giles JJA agreeing); see Commonwealth Development Bank of Australia Pty Ltd v Cassegrain [2002] NSWSC 980 at [9] (Einstein J). This position accords with the view that bias is 'no reason not to admit evidence of [the] expert': Li v The Queen (2003) 139 A Crim R 281; [2003] NSWCCA 290 at [71] (Ipp JA, Whealy and Howie JJ agreeing); see also Haoui v R [2008] NSWCCA 209 at [127]. It also aligns with the reality that '[h]owever desirable these new rules and protocols [contained in expert witness codes of conduct] may be, they cannot establish changes to the principles underlying the law of evidence': FGT Custodians Pty Ltd v Fagenblat [2003] VSCA 33 at [15] (Ormiston JA, Chernov and Eames JJA agreeing).

This is not to say that the Expert Witness Code of Conduct is merely aspirational. Where an expert commits a sufficiently grave breach of the Code, a court may be justified in exercising its discretion to exclude the evidence under ss 135 or 137 of the Evidence Act. Campbell J adverted to this possibility in Lopmand when his Honour stated at [15]: 'The policy which underlies the existence of Part 36 rule 13C is one which I should take into account in deciding whether [the expert evidence] should be rejected under section 135.' I respectfully agree with that approach. While there is no rule that precludes the admissibility of expert evidence that fails to comply with the Code, the Code is relevant when considering the exclusionary rules in ss 135-137 of the Evidence Act. The expert's 'failure to understand his [or her] responsibilities as an expert' (Lopmand at [19]) may result in the probative value of the evidence being substantially outweighed by the danger that it might mislead or confuse or be unfairly prejudicial to a party.”

144. Although Ms Kaur did not state that she had complied with the Expert Witness Code of Conduct, I do not need to consider the question raised by the court in Wood v R in the present matter as there is a more practical reason for exclusion arising from Ms Kaur’s perceived lack of independence.

145. When asked to explain her qualifications before a jury, Ms Kaur would no doubt describe herself as an expert in domestic violence. In order to raise doubts as to her impartiality, it is to be anticipated that Ms Cunneen will put the same matters to Ms Kaur as she did on the voir dire. The result would be that a self-confessed expert and advocate for domestic violence would disclose her lack of objectivity by providing her opinion that she believes that the accused is guilty. I am satisfied that there is a real risk that the evidence would be used by the jury as expert evidence that he is in fact guilty. The alternate course, to not adduce this prejudicial evidence before the jury, would deny the accused the opportunity to properly test her evidence.

146. For these reasons, even if I was satisfied that the evidence was relevant expert evidence, I would have been required to reject it under s 137 of the Evidence Act as I am satisfied that the probative value of the evidence is outweighed by the risk that the jury would misuse the evidence as some form of “cultural tendency” evidence or expert evidence that the accused is guilty.

147. I wish to make three final observations about Ms Kaur’s evidence.

148. First, I have no doubt that Ms Kaur is an expert in the field of domestic violence in migrant and other communities in Australia. She freely admitted in cross-examination that she sees herself as an advocate for domestic violence victims and that she believes the deceased is one such victim. From my observations of her she was no doubt trying to do her best to remain impartial but she struggled during her evidence to do so.

149. It is clear that Ms Kaur is passionate about her work and no doubt many women have advantaged from it. But her committed advocacy in this area and her firm belief that the accused is guilty, arrived at long before she was retained as an expert in this matter, render her an inappropriate choice as a potential expert witness in this matter.

150. Secondly, it was accepted during the hearing of this application that there are many witnesses in the Crown case who can give evidence of the Punjabi Sikh culture in more neutral terms. In particular, reference was made to the fact that it is proposed that two elders from the Sikh temple will be called as witnesses. It was accepted that these witnesses may well be in a position to give some evidence of their culture generally to the extent that it is considered relevant. I wish to make clear that my ruling in relation to the evidence of Ms Kaur does not preclude the admission of evidence from one or more other witnesses about the Punjabi Sikh culture generally if its relevance can be established.

151. Thirdly, in making reference to Ms Kaur’s evidence that there are aspects of the Indian/Punjabi Sikh culture which render women more susceptible to domestic and family violence I intend no respect to members of that community. It was necessary to set out the evidence and submissions in relation to Mr Kaur’s evidence in some detail in order to properly consider it.

Order

152. I make the following order:

1. The evidence of Ms Jatinda Kaur is inadmissible.

Amendments

10 May 2021 - Publication restriction lifted

Decision last updated: 10 May 2021