R v Singh

Case [2003] SASC 344

R v SINGH

[2003] SASC 344

Court of Criminal Appeal:  Mullighan, Debelle and Gray JJ

  1. MULLIGHAN J                The appellant was found guilty by verdict of the jury of the murder of his wife, Linda Maree Bartley. He shot and killed her on 22nd June 2001 at Berri. He appeals against the conviction for murder.

    Background

  2. The appellant was aged 37 years at the time of the shooting. He was born in India and arrived in Australia on 6th October 1996 with a visitor’s visa. He met Ms Bartley in Sydney in October 1997 and went to stay with her at Renmark for a short time in December that year. He commenced to live with her in January 1998. They lived apart for about one and a half months and then married on 29th November 1998. They separated during the next year. A child of the marriage, Savvannah, was born after the separation on 5th September 1999.

  3. In view of issues raised on this appeal it is necessary to mention in some detail the history of the relationship between the appellant and Ms Bartley after the separation.

  4. The evidence at the trial discloses a long history of acrimony between the appellant and his wife. There was evidence of him being physically violent towards her and there were legal proceedings in the Magistrates Court of South Australia, pursuant to the Domestic Violence Act 1994 and between them in the Family Court of Australia and the Federal Magistrates Court of Australia. An interim domestic violence restraining order was made against the appellant in his absence by the Magistrates Court of South Australia sitting at Berri on 5th January 2000 restraining him from entering the premises at which Ms Bartley lived at 8 Katekar Court, Renmark or any other premises at which she lived, from assaulting, harassing, threatening or intimidating her, from contacting, communicating with, or approaching her directly or indirectly or from causing or threatening to cause any injury to her or threatening to damage her property. It was also ordered that any firearm in his possession be confiscated and held by the Registrar of Firearms and that any licence or permit to be in possession of a firearm held by the appellant be suspended. The appellant appeared in that Court on 13th January 2000 and that order was confirmed with a variation that it was subject to any order made in the Family Court and another variation which is of no consequence for present purposes. The appellant also made an application for a restraining order against Ms Bartley but no order was made as the issues between them were to be heard by the Family Court. Each of them disputed the allegations made by the other.

  5. The appellant was seeking access to Savvannah. On 17th January 2000 the Family Court of Australia made an order that the child reside with Ms Bartley and that she and the appellant attend a conference with a counsellor or…

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R v Singh [2003] SASC 344
Case
[2003] SASC 344
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CaseChat Overview and Summary

In the case of R v Singh, the appellant contested the decision of the trial judge, arguing that the judge had failed to properly direct the jury on certain issues of fact and evidence. The appellant claimed that the trial judge should have explicitly identified the factual issues to be decided by the jury and explained how the jury should approach the assessment of those issues based on the evidence presented. The court was required to determine whether the trial judge's omissions constituted a misdirection that affected the fairness of the trial and led to a miscarriage of justice.

The court examined the evidence and concluded that the prosecution had a strong case against the appellant, who was accused of shooting Ms Bartley at The Big Orange. The appellant had a history of conflict with Ms Bartley over contact with their child and had expressed strong feelings of antagonism towards her. The trial judge had admitted certain evidence to demonstrate the ongoing tension between the appellant and Ms Bartley, but not as proof that the appellant intended to kill her. The court considered whether the misdirections by the trial judge resulted in the appellant not having a fair trial and whether a miscarriage of justice had occurred.

The court found that the evidence presented a difficult case. While Ms Bartley's actions at The Big Orange did not, on their own, suggest provocative conduct, they needed to be evaluated in the context of the appellant's history of frustrated contact with the child and his relationship with Ms Bartley. The trial judge had left the question of provocation to the jury, determining that there was material in the evidence that could constitute provocation. The court held that it was not its role to decide whether the evidence should lead to a verdict of manslaughter by reason of provocation, but rather to determine if the evidence disclosed material upon which a reasonable jury, properly directed as to the law, might reach such a verdict.

In light of the analysis, the court found that the misdirections by the trial judge did not result in a miscarriage of justice and that the appellant had not been denied a fair trial. The appeal was therefore dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

MULLIGHAN J DEBELLE J GRAY J
The appellant also contends that the learned Trial Judge was obliged to expressly mention in the course of the summing up the issues of fact to be decided by the jury and the evidence which bore upon the assessment of those issues. A number of authorities were cited by the appellant in support of this contention but I do not think they establish any more than the obvious proposition that when putting the Defence case the learned Trial Judge must not only identify that case but any factual basis for it in the evidence and give appropriate directions as to how the jury might approach the matter in accordance with the circumstances of the case.Conclusion I have mentioned the aspects of the grounds of appeal which must succeed. It is necessary to consider whether the misdirections resulted in the appellant not having a fair trial and there being a miscarriage of justice. Having considered the evidence, I regard the Prosecution as having a strong case. It is acknowledged that the appellant considered breaching the contact order by taking the child away if Mr Singh would permit him to do so. To use a mild expression, he was annoyed at the history of attempts to see the child. He had very strong feelings of antagonism towards Ms Bartley as is seen from the evidence of Mr Lawes and the tapes of what the appellant said on the telephone and the evidence of Mr Rodda. The learned Trial Judge admitted that evidence for the limited purpose as demonstrating the ongoing tension that existed between the appellant and Ms Bartley. It was not admitted as evidence that the appellant had in mind killing Ms Bartley and it should not now be used for that purpose in order to evaluate whether there has been a miscarriage of justice because of the erroneous directions by the learned Trial Judge which I have mentioned. As against those considerations, the appellant’s case was that he did not expect to see Ms Bartley when he went to The Big Orange. He did not take the loaded gun because she might be present. On his evidence and the evidence of Ms Warland and Mr Singh, the appellant was calm until the problems with the child commenced. He then became “furious” and “angry”. On all accounts there was an extreme change in his demeanour. He then shot Ms Bartley. The learned Trial Judge decided to leave provocation to the jury. He obviously concluded that, taking the appellant’s case at its most favourable to him, there was material in the evidence capable of constituting provocation and a jury acting reasonably might fail to be satisfied beyond reasonable doubt that the killing was unprovoked in the relevant sense: Stingel at 334 and Masciantonio at 67-68. I think this is a difficult case. The conduct of Ms Bartley at The Big Orange, standing alone, does not suggest provocative conduct. What she did was to remove, or cause to be removed, the child from the appellant’s motor vehicle when the child was screaming and after she had vomited, or at least gave the appearance of having done so. However, that conduct has to be evaluated in the context of the history of frustrated contact with the child by the appellant and his claim that Ms Bartley caused the child to cry in order to prevent his contact with the child. Also it had to be considered in the context of the personal features and characteristics of the appellant and his past relationship with Ms Bartley. As King CJ observed in The Queen v R at 322, it is not the function of this Court on appeal “to consider whether the evidence should lead to a verdict of manslaughter by” reason of provocation. The function is to consider “whether the evidence discloses material upon which a reasonable jury, properly directed as to the law, might reach that verdict”. If there is such material, it is for the jury to evaluate it.

Ratio Decidendi

Legal Principle Established

Established by: MULLIGHAN J, DEBELLE J, GRAY J

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