R v Singh (No 5) - [2021] NSWSC 76

Supreme Court

New South Wales

Medium Neutral Citation: R v Singh (No 5) [2021] NSWSC 76
Hearing dates: 19, 20 and 21 October 2020
Decision date: 12 February 2021
Jurisdiction: Common Law
Before: N Adams J
Decision:
See [32]

Catchwords:
CRIMINAL PROCEDURE — application to exclude evidence – s 137 Evidence Act 1995 (NSW) – re-enactment video – where locations and distances used in video are disputed – where re-enactment video used distances and locations selected by police – where jury will see relevant locations at a view – held, probative value outweighed by risk of unfair prejudice to the defendant

Legislation Cited:
Evidence Act 1995 (NSW) ss 55, 79, 135, 137

Cases Cited:
Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37
R v Neilan [1992] 1 VR 57
R v Singh (No 3) [2020] NSWSC 1911
Smith v the Queen (2001) 206 CLR 650; [2001] HCA 50

Category: Procedural rulings
Parties: Regina (Crown)
Kulwinder Singh (Accused)
Representation:
Counsel:
Mr J Bowers
Ms M Cunneen SC (Accused)
Solicitors:
Solicitor for Public Prosecutions (Crown)
Michael Vassili Barristers and Solicitors (Accused)

File Number(s): 2017/00330134

Judgment

The accused, Kulwinder Singh, is charged with the murder of his wife. His trial is listed to commence on 15 February 2021.
By Notice of Motion filed on 28 August 2020, Mr Singh sought the exclusion of a number of pieces of evidence from his pending trial. I heard the motion on 19, 20 and 21 October 2020 and reserved my decision on all objections at that time.
This is my ruling on one of the objections: a video recording which I propose to refer to as the “re-enactment video”.

Factual background

I have recently set out the Crown case against the accused in R v Singh (No 3) [2020] NSWSC 1911. It is not necessary to set out the facts in detail for the purposes of this ruling. I shall instead confine the recitation of the facts to those relevant to the objection.
The deceased, Parwinder Kaur emerged from her home in Rouse Hill on the afternoon of 2 December 2013 with her clothes alight. As she walked down the driveway of her home towards the kerb, Michelle Hartmann, who lived one house and one street away, saw plumes of smoke rising. She immediately ran over to assist, leaving her two young children at home. Tracey Valle lived next door and was at home with her newborn baby and mother. She also saw the flames and ran to assist. These two women were the first on the scene.
It is anticipated that both women will give evidence of, inter alia: where each of them was when they first saw flames, where each of them was when they first saw the deceased and where each of them was when they first saw the accused.
The Crown case is that the accused ignited the deceased’s clothing in the laundry and then followed his wife down the driveway pretending to put out the…

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.

Continue reading R v Singh (No 5)

Details

AGLC: R v Singh (No 5) [2021] NSWSC 76
Case: [2021] NSWSC 76
Decision Date: 12 February 2021

CaseChat Overview and Summary

In the case of R v Singh (No 5), the defendant was charged with various offences including robbery and assault. The prosecution intended to use a re-enactment video as evidence, which the defence objected to, arguing that it was misleading and prejudicial. The matter was heard in the Supreme Court of New South Wales, where the primary issue was whether the video should be excluded under section 137 of the Evidence Act 1995 (NSW).

The court had to consider the probative value of the video against the risk of unfair prejudice to the defendant. The defence argued that the video was unreliable because it used distances and locations selected by the police, rather than those agreed upon by both parties. The prosecution contended that the probative value of the video outweighed any prejudicial effect, as it would assist the jury in understanding the events. The court noted that the jury would also have the opportunity to view the relevant locations, which would mitigate any potential prejudice.

The court ultimately ruled in favour of the defendant, excluding the video from evidence. It found that the risk of unfair prejudice substantially outweighed the probative value of the video. The court highlighted that the jury would not be presented with an accurate depiction of the events, as the video used disputed locations and distances. Consequently, the risk that the jury might convict the defendant based on an inaccurate portrayal was too high.

No specific final orders were detailed in the extract provided, but the exclusion of the re-enactment video from evidence would likely impact the prosecution's case. The decision underscores the importance of ensuring that evidence presented to the jury is both reliable and fair, particularly when the probative value is challenged by significant prejudicial risks.

Orders