R v Singh (No 7) - [2021] NSWSC 267

Supreme Court

New South Wales

Medium Neutral Citation: R v Singh (No 7) [2021] NSWSC 267
Hearing dates: 19, 20, 21 October 2020 and 3 March 2021
Date of orders: 3 March 2021
Decision date: 03 March 2021
Jurisdiction: Common Law
Before: N Adams J
Decision:
See [24]

Catchwords:
CRIMINAL PROCEDURE — application to exclude evidence – s 137 Evidence Act 1995 (NSW) – where defence sought the exclusion of evidence based on unreliability – evidence of EFIMS records and statement of detective as to where certain items were found – held, reliability is a matter for the jury – evidence admissible

Legislation Cited:
Evidence Act 1995 (NSW) ss 55, 76, 97, 135, 137

Cases Cited:
Colby v The Queen [1999] NSWCCA 261
IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37
R v Shamouil (2006) 66 NSWLR 228; [2006] NSWCCA 112
R v Singh (No 3) [2020] NSWSC 1911
R v Singh (No 4) [2021] NSWSC 75
R v Singh (No 5) [2021] NSWSC 76
R v XY (2013) 84 NSWLR 363; [2013] NSWCCA 121
The Queen v Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40

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

The accused, Kulwinder Singh, is charged with the murder of his wife.
By Notice of Motion filed on 28 August 2020, Mr Singh sought the exclusion of four categories of evidence. The motion was heard over three days on 19, 20 and 21 October 2020. I reserved my decisions at that time. I subsequently ruled on three of the four objections: R v Singh(No 3) [2020] NSWSC 1911; R v Singh (No 4) [2021] NSWSC 75 and R v Singh (No 5) [2021] NSWSC 76. The remaining objection was to the entirety of the evidence of Detective Ryan Mitchell. Final submissions in relation to that objection were deferred until the trial in order to afford senior counsel for the accused access to certain police documents relevant to the ruling.
The accused’s trial commenced on 18 February 2021 before me and a jury of twelve. On 3 March 2021, further argument was heard in relation to the objection to the evidence of Detective Senior Constable Ryan Mitchell and the EFIMS (Exhibits Forensic Information & Miscellaneous Property System) records of his search of the house. On that date, I ruled that the evidence was admissible and reserved my reasons. These are my reasons for that decision.

Factual background

On 3 December 2013, Parwinder Kaur died as a result of complications from extensive thermal injuries, having received 90% full thickness burns to her body. At the time of the ignition of the fire which caused her death, the accused was the only other person in the premises.…

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 7)

Details

AGLC: R v Singh (No 7) [2021] NSWSC 267
Case: [2021] NSWSC 267
Decision Date: 03 March 2021

CaseChat Overview and Summary

In this matter, the defendant, Singh, applied to exclude evidence obtained from the Electronic Forensic Investigation Management System (EFIMS) and a statement made by a detective regarding the location of certain items. The application was brought before the court in a criminal proceeding. The dispute centred on the admissibility of this evidence, with the defence arguing that it was unreliable and should therefore be excluded under section 137 of the Evidence Act 1995 (NSW).

The legal issues before the court were whether the evidence was indeed unreliable to the extent that it ought to be excluded, and if so, whether the unreliability went to the very foundation of the evidence or simply its weight. The court needed to determine whether the reliability of the evidence was a matter for the jury or whether it was so unreliable that it should be excluded outright.

The court found that the reliability of the evidence was a matter for the jury, not the court. The judge held that the jury was well equipped to assess the reliability of the evidence, and it was not the role of the court to make a determination on reliability unless it went to the very foundation of the evidence. Given that the evidence in question was of a type that the jury could properly consider, the application to exclude it was dismissed. Consequently, the evidence was deemed admissible for the jury to consider.

No further orders were made by the court. The case will proceed with the evidence in question being considered by the jury in determining the guilt or innocence of the defendant.

Orders