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R v Kulwinder Singh (No 1)

R v Kulwinder Singh (No 1)

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Case Copied 12 August 2019 71 min read

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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

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.
In late 2015, the deceased was the subject of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] NSWSC 1000
Decision Date: 12 August 2019

CaseChat Overview and Summary

The case of R v Kulwinder Singh (No 1) involved the accused, Kulwinder Singh, who was on trial for the murder of his wife, Gursant Kaur. The dispute centred on the admissibility of an expert report on domestic violence within the Indian and Punjabi cultures and the Sikh faith, which was intended to be presented by the defence. The matter was heard in the Supreme Court of New South Wales. The primary legal issue was whether the expert opinion on cultural and religious factors was admissible as evidence under the relevant provisions of the Evidence Act 1995 (NSW). The court had to determine if the report qualified as an exception to the hearsay rule and whether it was unfairly prejudicial or had probative value.

The court held that the report was admissible as it was relevant to the case and had probative value. The expert witness, who was a psychologist with a special interest in cultural and religious factors in domestic violence cases, was deemed to have the necessary "specialised knowledge" to provide the opinion. The court found that the witness's expertise was based on her academic background, professional experience, and familiarity with the Sikh community. The court also considered that the report was not unfairly prejudicial as it did not unfairly influence the jury against the accused. The probative value of the evidence outweighed any potential prejudice, as it was relevant to the understanding of the context in which the alleged offence occurred. The court concluded that the expert opinion was admissible as it assisted the jury in understanding the cultural and religious factors that may have influenced the accused's state of mind and actions.

The Supreme Court of New South Wales allowed the admission of the expert report on domestic violence within the Indian and Punjabi cultures and the Sikh faith. The court found that the report was relevant, had probative value, and did not unfairly prejudice the accused. The expert opinion was deemed to be admissible under the relevant provisions of the Evidence Act 1995 (NSW). The court emphasised the importance of understanding the cultural and religious context in which domestic violence occurs, particularly in cases involving the Sikh community. The court's decision in this case highlights the need for expert evidence to be considered on a case-by-case basis, taking into account the specific circumstances and the potential impact on the fairness of the trial.

Orders