R v Singh (No 6)

[2021] NSWSC 213

Supreme Court

New South Wales

Medium Neutral Citation:

R v Singh (No 6) [2021] NSWSC 213

Hearing dates:

4 and 10 March 2021

Decision date:

11 March 2021

Jurisdiction:

Common Law

Before:

N Adams J

Decision:

See [42]

Catchwords:

CRIMINAL PROCEDURE — application to exclude evidence – expert opinion under s 79 Evidence Act 1995 (NSW) – facts on which opinion is based – whether opinion within area of specialised knowledge – held, evidence inadmissible

Legislation Cited:

Evidence Act 1995 (NSW), ss 38, 55, 56, 76, 79, 102, 137

Cases Cited:

Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21

Honeysett v The Queen (2014) 253 CLR 122; [2014] HCA 29

Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305

Category:

Procedural rulings

Parties:

Regina (Crown)
Kulwinder Singh (Accused)

Representation:

Counsel:
Mr P Hogan (Crown)
Ms M Cunneen SC (Accused)

Solicitors:
Solicitor for Public Prosecutions (Crown)
Michael Vassili Barristers and Solicitors (Accused)

File Number(s):

2017/00330134

Judgment

1. The accused, Kulwinder Singh, is charged with the murder of his wife. His trial commenced before me and a jury of twelve on 18 February 2021.

2. On 4 March 2021, the Crown sought to adduce expert evidence from Professor Maitz regarding burns suffered by the deceased and the accused. Professor Maitz is an expert in the treatment of severe burns. Objection was made on behalf of the accused to one aspect of Professor Maitz’ evidence concerning the severity of the burns suffered by the accused. These are my reasons for excluding one discrete part of the evidence of Professor Maitz.

Crown case

3. The Crown case is that Mr Singh murdered his wife, Parwinder Kaur, on 2 December 2013 by setting her on fire in the laundry of their home. It is alleged that he put some petrol on her clothing, waited about 5-10 minutes (or possibly more) and then ignited her with a cigarette lighter. It is then alleged that he followed her outside the laundry door, down the side of the house and onto the driveway at which time he was observed by neighbours to be attempting to pat out the flames with his hands. Ms Kaur died on 3 December 2013 from injuries sustained in the fire.

4. The defence case is that the couple had been having an ongoing dispute about the deceased’s reluctance to contribute to their joint mortgage. There is evidence that on at least two occasions the deceased diverted her pay into another account to give to her family, leaving the accused to pay off their joint mortgage by himself. The accused says he repeatedly asked her to contribute. On 2 December 2013, he again asked her to contribute and when she refused, he told her he was going to move in with his mother for a few days, hoping that this might resolve the issue.

5. The accused told police that he then packed up his suitcases and made a few trips to his car from the main bedroom on the first floor of the home. At a time when he was upstairs in the main bedroom, he heard his wife scream. He ran downstairs and out the front door where he met up with her somewhere near the top of the driveway as she moved down the driveway in flames.

6. Two eyewitnesses, Tracey Valle and Michelle Hartmann, gave evidence that they saw the accused walking behind the deceased, trying to pat out the fire with his hands. Both witnesses described a motion involving patting with open hands on the deceased’s back and shoulders. Both descriptions were similar to the motion demonstrated by the accused in his walk-through video on 11 December 2013.

7. Neighbours, police and ambulance officers at the scene observed the accused’s hands to be burned. He initially refused treatment, requesting instead that they treat his wife. He was finally persuaded to accept treatment and was provided with morphine.

8. The accused participated in an ERISP on 2 December 2013 (Exhibit N) and a “walk-through” video on 11 December 2013 (Exhibit U) in which he described catching up with the deceased on the driveway and trying to pat out the fire with his hands, before going to find a blanket on the instructions of a neighbour. In Exhibit U the accused can be seen still wearing burns gloves on both his hands and needing assistance when using his hands. The evidence is that the accused sustained “second degree” or “partial thickness” burns to his hands.

9. Expert witnesses have been called at the trial concerning how the fire started and the combustible nature of the clothing the deceased was wearing. There is no evidence of the accused’s fingerprints of DNA anywhere in the laundry. The fingerprints on the petrol tin from which the accelerant came and the lighter which ignited the fire all match the deceased. There is no evidence of petrol on any of the accused’s clothing, his only burns were on his hands and ambulance officers who examined the accused at the scene found no evidence of smoke inhalation.

Evidence of Professor Maitz

10. Forensic photographs taken on 3 December 2013 (Exhibit P) depict the burns to the accused’s hands. The injuries appear to be mainly on the fingers and parts of the palms.

11. The evidence of Professor Maitz is that the accused’s burns are not consistent with him “patting out” the fire.

12. A previous trial in this matter resulted in a hung jury. At that earlier trial Professor Maitz set out the different types of burns and how they might be sustained:

“[The three types of burn are] [f]lash burns, flame burns and contact burns. A flash burn is referred to a burns injury caused by a very short, but intensely hot flash of flame (explosion, electrical flash, lightening) and usually does not cause full thickness burns, due to its short duration. A flame burn is referred to when the patient's skin comes in contact with an open flame (most common in Australia are barbecue flame burns and log fire flame burns). The depth and extent depends very much on the size and duration of the contact with the flame and if the patient was able to extract him or herself. A contact burn is referred to when a patient's skin comes in direct contact with a hot object, most commonly kitchen accidents with hot stove, hot pan handle or similar. The depth of these burns is usually deep and the size, depth on the area of contact and is usually circumscript.” [1]

1. T 146

13. There is no challenge to this evidence, and I am satisfied that it is admissible.

14. Professor Maitz described Mr Singh’s injuries as “flame burns”. There is no challenge to this evidence, and I am satisfied that it is admissible.

15. When Professor Maitz first prepared his report, he was asked to base his opinion as to the accused’s efforts to pat out the flames solely on photographs of the accused’s hands. When he gave evidence at the first trial the evidence of Ms Valle and Ms Hartmann was put to him by the Crown for the first time. This evidence was that the accused had his hands “towards the edge of the flames” (Ms Valle) and was “patting her on the left shoulder… actually touching her body” (Ms Hartmann).

16. Professor Maitz gave the following opinion about Mr Singh’s efforts to pat out the fire based on the photographs provided to him:

“A. … The sparing on the palm of both of Mr Singh's hands suggest that he did not pat Ms Parwinder whilst she was on fire, otherwise the palms of both hands would show some extent of burn. The burns to his hands are limited mainly to his fingers (thumb, second, third finger and only in a lesser extent to the fourth and fifth fingers) suggesting he may have handled something with his palms which provided an extent of protection to his palms. [2]

2. T 171-2

…

Q. So just as to your opinion that it is not suggestive that he patted the deceased, by that do you mean touching the body of the deceased? By that, in that sense, of the word "pat" as well?

A. I would define my opinion saying that the palms were not open and were not exposed to a heat source, in what function or action I cannot determine from photos.

Q. If he had touched the body of his burning wife, touched it, would you expect more or a greater burning to the palm than if he had just touched the edge of the flames?

A. Yes. [3]

…

[IN CROSS-EXAMINATION]

Q. And now that you know that there were witnesses to see this man looking like he's patting the burning lady, do you say that that's consistent with what witnesses saw?

A. Well, you just intimated that what I think he was looking like but he wasn't patting. He may have looked like, but he wasn't, because if he would have been patting something or somebody on fire, he would have had more extensive burns to his palms.” [4]

[emphasis added]

3. T 173

4. T 180

17. This evidence was relied upon by the Crown at the first trial as evidence that the accused was only pretending to pat out the flames. There was no objection to this evidence at the first trial. The Crown Prosecutor in this trial relies upon this evidence to enable him to put to the jury that the accused was not making a “genuine” attempt to pat out the fire.

18. When the Crown sought to call Professor Maitz on Thursday 4 March 2021 Ms Cunneen SC objected for the first time to the evidence that the accused was not making a genuine effort to pat out the flames.

Ms Cunneen SC submissions

19. Counsel for the accused submitted that the evidence that the accused was not genuinely attempting to put the fire out should be excluded under ss 79 or 137 of the Evidence Act1995 (NSW).

20. It was submitted that Professor Maitz’ evidence that the accused would have sustained more serious burns from touching the deceased’s body (for example, a more diffuse contact burn to the palm area) was inconsistent with the witness’ evidence that “[human bodies] do not burn, we need something else to burn us.” It was further submitted that Professor Maitz did not have a proper factual basis for contradicting the eyewitness evidence, and the evidence of the accused, that he was patting the deceased’s body.

Crown submissions

21. The Crown submitted that Professor Maitz was qualified to provide an opinion as to how the burns were likely sustained, including whether the accused’s hands actually came into contact with the deceased’s body, and to state that the accused would have sustained more serious burns if he had actually touched the deceased’s body.

22. When questioned about the relevance of evidence that the accused did not actually come in contact with the deceased’s body, it was submitted that it permitted the Crown to put to the jury that the accused did not “do as much as he could have” to assist his wife. When it was suggested to the Crown that it was never put to Ms Valle and Ms Hartmann that the accused was not trying to pat out the flames in the manner described by them, the Crown Prosecutor responded that those eyewitnesses could only give evidence of what they saw, not the accused’s intention at the time.

Issues for determination

23. Given that the Crown was taken by surprise by the objection, which had not been foreshadowed to him by Ms Cunneen, I indicated that I would afford the Crown time to consider the objection and requested that he be in a position to address on two matters.

24. The first question I sought submissions on on arose from the fact that Professor Maitz’ expertise is in the treatment of burns. It is not apparent how his expertise extends to assessing whether the accused was “patting” out the flames as described by the eyewitnesses.

25. The second question I sought submissions on was how, even if it is accepted that the opinion is based on specialised knowledge, Professor Maitz could form an opinion as to the requisite severity of burns, without knowing how long the accused had his hands in the flames. To put this another way, if it is accepted that it would have been impossible for the accused to put out the flames with his hands, how severe would his burns have to be to demonstrate a “genuine” attempt in his opinion?

Additional submissions

26. The timing of submissions on the discrete issue was discussed several times during the trial but was ultimately deferred until after 4pm on 10 March when the Crown indicated that he proposed to call Professor Maitz the next day. The Crown submitted that he maintained his position that Professor Maitz’ evidence that the burns suffered by the accused were not consistent with touching the deceased’s body was relevant and admissible. This was so that he (the Crown Prosecutor) could put to the jury in his closing address that the accused was not making a genuine effort to put out the flames.

27. He submitted that beyond that he did not wish to make any further submissions on this issue.

Consideration

28. The first question is whether the evidence of Professor Maitz on this discrete issue is relevant in the sense that, if accepted, it could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding: s 55 of the Evidence Act.

29. The next pertinent provision is s 79(1) of the Evidence Act which provides an exception to the opinion rule in s 76 of the Evidence Act:

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.

30. In any challenge to the admissibility of expert evidence it is necessary to first identify the relevance of the opinion. 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.”

31. Later, in Honeysett v The Queen (2014) 253 CLR 122; [2014] HCA 29, French CJ, Kiefel, Bell, Gageler and Keane JJ similarly 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”.

32. As to the proper application of s 79, the High 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]), 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.’"

33. 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.”

34. In Makita (Australia) Pty Ltd v Sprowles Heydon JA (as his Honour then was), summarised the relevant principles as follows (at [85]):

“so far as the opinion is based on facts ‘observed’ by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on ‘assumed’ or ‘accepted’ facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, 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. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert’s specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight.”

35. There is no challenge at this trial that Professor Maitz is an expert in the treatment of burns. In fact, he is eminently qualified in this area. I am satisfied that it is within his expertise to give evidence that the accused suffered flame burns consistent with his hands being immersed in the wall of flames rising from the rear of the deceased. Such evidence has already been given in the trial by other witnesses.

36. The issues of admissibility arise when Professor Maitz goes on to opine that, contrary to the observations of eyewitnesses, the accused was not patting out the flames. There are at least three difficulties with this opinion evidence.

37. First, it has not been put to either of the eyewitnesses that the accused was only pretending to pat out the flames (which is the effect of Professor Maitz’ evidence). That is, it was never suggested to either Ms Valle or Ms Hartmann that although it might have looked to them like the accused was trying to pat out the flames, his hands were not near enough to do so. In those circumstances, it is somewhat curious that this evidence is being led to rebut the evidence of eyewitnesses on this issue. The evidence is being called to cast doubt on their evidence when no application was made under s 38(1) of the Evidence Act to declare them unfavourable on this issue. I do not accept the Crown submission that Professor Maitz’ evidence is relevant because these eyewitnesses could not give evidence of the intention of the accused at the time of the patting. Their evidence was that they saw the accused trying to pat out the flames and Professor Maitz’ proposed evidence (extracted above at [16]) is that although it might have looked as though the accused was patting out flames, he in fact was not.

38. Secondly, although Professor Maitz is a qualified expert in burns and their treatment, that does not qualify him to give an opinion about the genuineness of any attempts to pat out a fire, especially when he was not present at the scene and other eyewitnesses were.

39. Thirdly, the factual basis for Professor Maitz’ opinion that the accused was not actually trying to pat out the flames appears to be solely based on comparing the photographs of the accused’s injuries with the eyewitness accounts that he was touching her body. Even if the photographs are not consistent with the evidence of the eyewitnesses that he was touching her body, that does not mean that he was not making a “genuine” attempt.

40. Another witness, Dr Margaret Stark, has given evidence that it is not possible to assess how long the accused’s hands would have been in contact with the flames in order to receive the injuries he did. Her evidence is that it depends on variables such as the heat of the fire.

41. In conclusion, the evidence of Professor Maitz that the accused received flame burns is admissible as expert opinion evidence, however the evidence to the effect that the accused’s efforts were not genuine is inadmissible on two bases:

1. Under ss 55 and 56 of the Evidence Act on the basis that no challenge has been made to the evidence of the eyewitnesses to warrant evidence to rebut it.

2. Under s 79(1) of the Evidence Act on the basis that the only “facts” upon which the opinion is based appears to be an absence of more serious burns in the photographs. This begs the question of how “serious” the burns must be before the efforts warrant being described as “genuine”. There is no doubt that trying to pat out flames as intense as those in which the deceased was engulfed is an ineffective method to extinguish a fire but that is what the witnesses observed and it is a matter for the jury what they make of that evidence. That is not a matter for expert evidence. It is an issue for a jury.

42. The expert opinion evidence that the accused was not attempting to pat out the fire is inadmissible.

Endnotes

Decision last updated: 31 March 2021