Singh, Brendon v The Queen
[2011] NSWCCA 100
•28 April 2011
Court of Criminal Appeal
New South Wales
Case Title: SINGH, Brendon v R Medium Neutral Citation: [2011] NSWCCA 100 Hearing Date(s): 20 September 2010 Decision Date: 28 April 2011 Jurisdiction: Before: Latham J at 1
Rothman J at 2
Price J at 141Decision: The appeal is dismissed.
Catchwords: CRIMINAL LAW - appeal - unreasonable verdict - alibi evidence - requirement to disprove alibi beyond reasonable doubt - requirement to prove guilt to requisite standard as well - inconsistency between evidence of stabbing and alibi evidence - advantage of jury seeing and hearing testimony - verdict not unreasonable
Legislation Cited: Cases Cited: M v R [1994] HCA 63; (1994) 181 CLR 487
R v Rasic [2009] NSWCCA 202
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) [1999] HCA 3; (1999) 160 ALR 588; (1999) 73 ALJR 306
The Queen v Nguyen [2010] HCA 38; (2010) 85 ALJR 8Texts Cited: Category: Principal judgment Parties: Brendon Singh (Appellant)
Regina (Respondent)Representation - Counsel: Counsel:
G Brady / M McMahon (Appellant)
J Pickering (Respondent)- Solicitors: Solicitors:
Nyman Gibson Stewart (Appellant)
Office of the Director of Public Prosecutions (Respondent)File number(s): 2008/13305 Decision Under Appeal - Court / Tribunal: - Before: Solomon DCJ - Date of Decision: 23 October 2009 - Citation: - Court File Number(s) 2008/13305 Publication Restriction:
Judgment
LATHAM J : I agree with Rothman J.
ROTHMAN J : The appellant, Brendon Singh, was found guilty by a jury of malicious wounding and was sentenced by a judge of the District Court to a total sentence of 2 years and 6 months including a non-parole period of 1 year and 3 months. At the time of the hearing of the appeal, the non-parole period had concluded and the appeal concerned conviction only. The sole ground of the appeal was that the verdict of the jury was unreasonable and/or cannot be supported having regard to the evidence.
Allegation
The trial proceeded over approximately 11 days and the initial indictment was a charge of wound with intent to murder; in the alternative, malicious wounding with intent to do grievous bodily harm; and, further in the alternative, malicious wounding. For the last-mentioned alternative, malicious wounding, as previously stated, the jury returned a guilty verdict and, necessarily, there were not guilty verdicts on counts one and two.
The essential allegation at trial was that Mr Singh stabbed the victim, Thomas Vignes, on 29 June 2007 at premises in Dee Why. There was no doubt (and certainly no issue) that a stabbing occurred at the premises on the date in question. The only real issue of controversy was whether Mr Singh was the perpetrator of the stabbing, or it was another. The evidence in the proceedings will be subject to detailed analysis later in these reasons, but, for present purposes, it is essential to understand that the allegation, supported by four witnesses, was that Mr Singh stabbed Mr Vignes. The four witnesses each saw the stabbing, according to their version. All four witnesses were well known to Mr Singh, and vice versa, and identity, in the ordinary sense, was not in issue.
Mr Singh, at trial, defended the proceedings on the basis that all four witnesses were lying, not mistaken. The basis for that proposition was a defence case that relied upon an alibi, based on both oral and physical evidence, a confession by another and inconsistent versions of the witnesses for the Crown.
The defence case depended upon establishing, approximately, the time at which the stabbing occurred and adducing evidence of Mr Singh's movements to show that it would have been impossible for Mr Singh to have committed the stabbing. Those movements included evidence from witnesses, other than the defendant, establishing that he was picked up in a car, driven to premises, other than the crime scene, for 15 minutes and then on to a birthday party for Mr Singh's mother. A number of witnesses gave evidence of Mr Singh's attendance at the party and there were photographs of Mr Singh and others at the party. These photographs, it is said coincidentally, show a clock at which the time is displayed. Otherwise, the evidence should be dealt with in more detail and will be discussed later in these reasons.
Fundamentally, Mr Singh submits that, on the evidence at trial, there is real doubt about his guilt, which doubt cannot be resolved by the benefit to the jury of seeing and hearing the witnesses.
Principles for unreasonable verdict
The terms of the ground of appeal derive, almost verbatim, from a passage in the High Court in M v R [1994] HCA 63; (1994) 181 CLR 487. In the joint judgment of the High Court in M , supra, (Mason CJ, Deane, Dawson and Toohey JJ) at 493, the Court said:
"Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations."
At 494-495, the joint judgment went on to say:
"In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt ...."
The focus must be on the unreasonableness of the verdict, and the term "unsafe and unsatisfactory", although sometimes still used, ought not be. Further, whether the verdict was "open to the jury" does not itself, answer the question. The focus of the examination is whether the jury ought to have experienced a reasonable doubt, which is answered by whether the appellate court has a reasonable doubt that cannot be answered by paying regard to the jury's advantage in seeing and hearing the evidence. See also The Queen v Nguyen [2010] HCA 38; (2010) 85 ALJR 8.
Concentration on the expression as to whether it was open to the jury to be satisfied beyond reasonable doubt may lead to some confusion. The focus of the enquiry is not whether there is evidence upon which a jury could have convicted (i.e. whether there was evidence of each element of the offence),but whether it was open to be satisfied beyond reasonable doubt (i.e. whether, on all of the evidence, it was open to be satisfied that there was no reasonable hypothesis consistent with innocence).
In examining the issues, it is the evidence as a whole that must be considered; not each part of the evidence in a piecemeal fashion: R v Rasic [2009] NSWCCA 202 at [29].
Evidence at the trial
The appellant accepts the accuracy of the summary of trial provided by the Crown. Having read the transcript of the proceedings, I, too, accept the Crown summary. The following is largely taken from that summary.
Mr Singh and Mr Vignes, the victim, had met each other in about April 2007. At that time Mr Singh's mother owned a home unit in Dee Why.
Evidence of Mr Vignes
Mr Vignes gave evidence that in April 2007 he was living in Beacon Hill, which he left and moved to a unit owned by Mr Singh's mother. He lived in that unit with a friend, Craig Simpson. Mr Vignes described the circumstances under which he moved into that unit with a friend, Mr Craig Simpson, as Mr Singh offering Mr Simpson and Mr Vignes a place to stay, if they pay him weekly. The unit was furnished.
On the Friday night after they moved in (they moved in on the Thursday) they had people over to mark the occasion. It was described by Mr Vignes as "nothing big". They shared a case of beer and went to sleep as usual. The next day, the Saturday morning, a real estate agent came to the unit with some people. Mr Vignes went to Mr Singh and told him about the visit of the real estate agent to which Mr Singh responded to the effect that he, Mr Vignes, should not worry about that and go back later.
When Mr Vignes returned to the unit the power fuses had been removed. Mr Vignes reported this to Mr Singh who told him to settle down and that they (Mr Vignes and Mr Simpson) would get them soon. Mr Vignes bought fuses himself and returned to the unit that night. The next morning Mr Singh came to the unit and told Mr Vignes and Mr Simpson that they were to leave the unit. Mr Singh told them words to the effect that he was going to get Mr Vignes and Mr Simpson blacklisted as they had squatted in his house. Other words were spoken. Mr Singh expressed the view that people would believe him over Mr Vignes and Mr Simpson because it was his (Mr Singh's) house.
According to Mr Vignes, Mr Singh also threatened to cut them up with an axe. Mr Vignes and Mr Simpson rang Mr Simpson's mother, because they did not have a car, and she helped the pair move. Mr Vignes and Mr Simpson moved out.
After that, Mr Vignes had a telephone conversation with Mr Singh, which, relevantly, included Mr Vignes asking for his rental money to be returned and Mr Singh refusing to return it. There was only one telephone call. During the telephone call Mr Vignes called Mr Singh "a junkie" and terminated the call.
Mr Vignes had no further contact with Mr Singh until the night of the stabbing. On that night he was at Mr Matt Thompson's house in Dee Why. They had been watching television and sitting around.
Mr Thompson answered the phone call and shortly thereafter Mr Singh arrived at the house. He was wearing a white hooded jumper with "Sean John" written in black on it. Mr Singh said to Mr Vignes:
"You're fucking filthy. How could you do that to my house."
Mr Vignes replied:
"There was nothing wrong with your house. It was already filthy."
Mr Singh informed Mr Vignes that he, Mr Vignes, owed him money "for it to be cleaned". To that remark, Mr Thompson remarked:
"Brendon had already had the place cleaned."
Mr Vignes told Mr Singh that he should take off what it had cost to be cleaned and give him back the difference in words that suggested that it could have cost no more than $50 to have the apartment cleaned and that he, Mr Singh, owed Mr Vignes $250, after deducting the $50.
At the time of this conversation Mr Singh was sitting on a chair near the computer that was in the room and across from Mr Vignes. At the mention of the amounts, Mr Singh made a phone call to a person or persons unknown in which he said, in pig latin: "I've got this cunt I need dead". Mr Vignes responded that if he, Mr Singh, was going to ring kids, then Mr Vignes was going to ring adults. At that point, Mr Singh said to Mr Vignes words to the effect that he was "pharmaceutically fucked and not to fuck with him".
Mr Singh got up and pulled the knife out of the front pocket of his hooded jumper. Mr Vignes did not believe he was going to stab him and did nothing in response to this, except say to him that he should "stop pulling his dick and put the knife away".
The knife was about 30cm long. There was a scuffle in which Mr Vignes was punched in the left eye and occasioned an injury that, when it happened, he thought was a punch in the back. He was swinging punches at the appellant and the next thing he remembered was lifting his shirt and seeing blood everywhere. The blood was where the pain on the left side of his back had occurred.
Mr Singh ran from the house and Mr Simpson took Mr Vignes to the hospital. On the way to the hospital Mr Vignes told Mr Simpson not to tell the police that it was Mr Singh who stabbed him. However, Mr Vignes said that he told the police at the hospital that it was Mr Singh. Photographs of the injury were tendered.
In cross-examination the victim, Mr Vignes agreed that his original evidence as to which side of the face on which he was punched was incorrect. He also agreed that there were some aspects of the evidence that he had not mentioned in the police statement. In the police statement he had indicated that he and Mr Simpson only were at the premises to celebrate and that they had consumed a half of case of beer. Mr Vignes denied that he had broken in to Mr Singh's mother's unit and denied that he stayed there against the will of Mr Singh and his mother.
In cross-examination Mr Vignes said that he had gone to Mr Simpson's house first, on the night that he had been stabbed. It was after that that he went to Mr Thompson's house. He also admitted that he had used cannabis in the lounge room of Mr Thompson's home.
Mr Vignes denied that he had "trashed" Mr Singh's unit. He also could not remember whether the conversation in relation to the unit occurred in April or May, and, in that regard, could not remember what he had told the police. Indeed, at least in relation to some of the answers, it seemed that Mr Vignes could not remember making the statement at all. Further, there were aspects of the occurrences on 29 June 2007 that he could not recall, including, the time that he finished work. He did recall that he was taken by his then boss to get changed and was dropped off at Mr Simpson's house. Some of these details were different, either greater details or lesser details, than that which was contained in the police statement or the evidence that was given at committal.
Mr Vignes also testified to the fact that Mr Singh and Mr Simpson had an argument about the unit in which Mr Singh said: "you're disgusting, you should be ashamed". Mr Singh produced the knife and was twirling it and twisting it on his finger. Mr Vignes gave evidence that while he was still seated, Mr Singh rose from the chair and walked in his direction. Mr Singh stood over him, punched him in the eye, and when Mr Vignes rose, Mr Singh came towards him and punched him in the ribs. But Mr Vignes realised afterwards, that the punch was in fact a stab wound.
At the time of the incident, Mr Thompson was standing behind Mr Singh. Mr Vignes realised something was not right, lifted his shirt and saw blood spurting out. He fell to the ground, but was trying to hold himself up. Mr Vignes saw Mr Singh leaving through the front door. He agreed that he did not tell the police that he had fallen to the ground but denied that he was making up the story. He had told Mr Simpson not to tell the police, because he, Mr Vignes, had wanted to do something about it himself.
Mr Vignes agreed that he knew who Mr Singh was and knew his name when he went to the hospital. When he was at the hospital he told Mr Simpson to tell the truth to the Police. He gave evidence that Mr Simpson was in the room when he was stabbed. He said Simpson said to him at the hospital "Who stabbed ya man". This was in front of Detective Barby. Mr Vignes replied: "Brendan". Mr Simpson said: "Brendan who" with a sarcastic grin on his face. Mr Vignes replied: "Brendan Singh, but don't ask me how to spell his last name".
Mr Vignes denied that he was stabbed by someone else outside the house. In re examination Mr Vignes said that on the Thursday they moved in, Mr Singh gave him a key for the screen door, a key for the normal door and a key for the mailbox. Mr Vignes gave Mr Singh the $300.
After this evidence, Mr Vignes was recalled the next day of the trial and said he located the keys which were given to him by Mr Singh. The longest of the four keys was used to open the front door. He said he used the mail key which had number 4 on it for the mailbox. The keys became Exhibit C. He said he decided to keep the keys after Mr Singh said he was going to blacklist him and accused him of squatting (T7.5.09 pg 131.7).
He was further cross-examined and said he provided the keys to Police for the first time on 7 May 2009, that day. He agreed that he was questioned about the occupancy of the unit at the committal proceedings and he said nothing about the keys. He was asked if he had the number 4 engraved on the key himself and he said it was highly unlikely (T7.5.09 pg 132.37).
Evidence of Mr Craig Simpson
Mr Simpson gave evidence that on 29 June 2007 he went to Manly Hospital with Mr Vignes, who he had known for about 5 years at that stage. He lived with Mr Vignes for a period of 2 weeks at the unit in Howard Avenue in Dee Why. He said he was told by Mr Singh that the unit was up for rent. He had known Mr Singh for about 3 years at that time. There were a couple of problems with the rent and Mr Singh's mother didn't know they were there. She came over and took out the fuses. He was present with Mr Vignes when Mr Singh told them they could move in. The rent was pretty cheap and the unit was in good condition. He bought a mattress with him (T6.5.09 pg 82).
He said that on 29 June 2007 he did not work and in the early evening he was at his house at 27 Tor Road with Tommy Vignes. At about 7.30pm they went to Mr Thompson's house at 24 Tor Road and Matt and Grace Kelly were there watching television. Matt answered a phone call and then Mr Singh came to the house. There was a conversation between Mr Vignes and Mr Singh about the state of the apartment. Mr Simpson said in evidence that they left the apartment in "good nick" but Mr Singh told Mr Vignes that it needed cleaning. This conversation took place in the lounge room. Mr Vignes was sitting on the single chair and Mr Singh was on the opposite side. Mr Singh said: "You don't want to fuck with me" and he got up and walked towards Mr Vignes. Mr Simpson could not recall what Mr Vignes said (T6.5.09 pg 86).
Mr Simpson saw a blade in the hand of Mr Singh. It was about 15 to 20 cm long and it looked like a steak knife. Mr Singh approached Mr Vignes and Mr Thomson jumped up in between them. There was a bit of a scuffle and Mr Vignes ended up on his back on the couch and then got back up again. Mr Singh pulled out the knife and reached around Mr Thompson and stabbed it in Mr Vignes ' back. Mr Singh left the room "within 5 seconds". Mr Simpson grabbed Mr Vignes, checked the wound in his back and then drove him to Manly Hospital. At the hospital in front of the Police he asked Mr Vignes who stabbed him. He did so because he did not want to say the name of the person as it was none of his business (T6.5.09 pg 89.10).
I n cross-examination he said that he had not spoken to Mr Vignes about the incident since that night. He had not read Mr Vignes's statement and had not shown Mr Vignes his statement. He said he never had any parties at the unit in Howard Street but probably had a couple of drinks. He recalled the real estate agent coming to the unit. He said he was asleep when he arrived. He agreed that there was an incident where the fuses were removed. He thought they moved out a day after that happened but wasn't sure. He disagreed that Mr Singh did not give them permission to use the unit.
He said Mr Vignes went to Mr Simpson's house on 29 June 2007 and then they went to 24 Tor Road. He cannot recall going to "Danny's" house that afternoon. He agreed that he smoked cannabis that afternoon. They went to 24 Tor Road at about 7.30pm and there was cannabis being prepared but it wasn't smoked. He agreed that in his statement to Police he said that he went to 24 Tor Road between 10.45 and 11pm that night. He said that what was in his statement was more reliable (T6.5.09 pg 100). Mr Singh arrived at the house within half an hour of them being there (T6.5.09 pg 102.47). He recalled that Mr Singh sat on the computer chair. He could not recall if Mr Thompson said: "Brendan's here". He could not remember what Mr Singh was wearing but could remember a knife coming out of a pocket. When Mr Singh pulled out the knife Mr Vignes was standing. He stood up after being punched in the face (T6.5.09 pg 110). Mr Simpson marked on photo number 14 the positions of Mr Singh, victim and Mr Thompson in the room. This became Exhibit 4.
Mr Singh reached around Mr Thompson and stabbed Mr Vignes in the back. Mr Simpson saw the blade but did not see the knife go in. Immediately after the stabbing Mr Singh had the knife in his hand and he walked out the door. Mr Vignes was on the ground "like a squat sort of thing". Mr Simpson looked at Mr Vignes' back and saw blood running down. He took Mr Vignes in the car to Manly Hospital. Mr Vignes did not tell him not to tell anyone who had stabbed him. Mr Simpson went inside the hospital and spoke to Mr Vignes in the presence of the police. He said to Mr Vignes "Tommy who stabbed ya?" He said this even though he knew who stabbed him as he did not want to say the name. Mr Vignes said: "Brendan. I don't know how to spell his last name". Mr Simpson said: "Brendan who"?
Mr Simpson agreed that when it was put to him by the police that it was Mr Singh he said: "He's a local from Dee Why". He said this to the police before they spoke to Mr Vignes. He also said to the police: "Actually, I don't know of him personally. I've never met him just heard about him". He agreed he lied to the police about this. He also said to them: "To be honest, I was just watching TV and never really took notice of the other guy". He said that this was also a lie. Mr Simpson said that it was Mr Singh who stabbed Mr Vignes (T6.5.09 pg 123.40).
Mr Simpson gave evidence that Mr Singh did not have a knife in his hand when he punched Mr Vignes and he made a mistake in his statement to police. He gave evidence about where Mr Singh and Mr Vignes were standing (T7.5.09 144-150). He said that the drive from 24 Tor Road to the Manly Hospital took about 10 minutes (T7.5.09 pg 177).
There was DNA evidence adduced, but the DNA evidence is consistent with the versions of both Mr Vignes and the other witnesses in the unit, and the version of Mr Singh. Mr Singh's version is that the DNA and other forensic evidence on the glass was associated with an earlier visit by Mr Singh to the scene of the crime. This is supported to some degree by the fact that the glass was brought into the lounge area (a version more consistent with Mr Singh's version). However, it must be said, that Mr Singh's version was first given after it was realised that there was forensic material available to place him in the unit in question.
Evidence of Grace Kelly
Grace Kelly gave evidence that on 29 June 2009 she was at home with her boyfriend Matt Thompson and her two children. Mr Simpson and Mr Vignes arrived later and Mr Singh arrived about 20 minutes after them. She had known Mr Singh for about 4 and-a-half years prior to this night. She said that he came in and sat in the computer chair and went into the kitchen and got a glass of water. She was shown Exhibit G and she said that it was the beer mug that he used. She said that Mr Singh was on the computer chair and Mr Vignes sat on the single armchair near the door. She said there was a discussion between Mr Singh and Mr Vignes about the unit. Mr Singh said that the place was trashed and Mr Vignes had to clean it up. Mr Singh wanted the keys back and Mr Vignes wanted his deposit back. Mr Singh was "argumentative" with Mr Vignes and they both raised their voices. Mr Singh was wearing a white jumper and blue pants (T7.5.09 pg 195).
Mr Singh said: "Don't make me fuck you up". Mr Thompson said to them "Take it outside" but they kept arguing. Mr Singh said: "I don't want your dirty blood on me". Mr Vignes replied: "What are you talking about. Your family washes their clothes in the river". Mr Singh then crossed the room and punched Mr Vignes who was still in his seat. Mr Thompson got up to break it up and Mr Singh sort of moved towards the door a little. Mr Vignes was about to get up and Mr Singh punched him on his left side. She said: "When he took his hand out I saw there was a blade there". She saw a flash of it and then Mr Singh put his hands in the pockets of his hoodie (T7.5.09 pg 197).
Mr Singh ran off to the front door and she went to find towels. Mr Vignes pulled his jumper up and there was blood coming from it. Mr Simpson took him to the hospital. When the police came to her house they asked if Mr Singh had touched anything. She remembered that he had touched the glass and Mr Thompson handed it to them (T7.5.09 pg 198).
In cross-examination she said she made a statement to police on 30 June 2007 after speaking to Mr Thompson. She said she sees Mr Simpson almost every day. She has not seen Mr Vignes for about one year. She said that Mr Thompson got home about 9.30pm that night and he arrived with Mr Vignes and Mr Simpson. She saw the three men smoke a bong. She said about 20 minutes later Mr Singh arrived and he walked into the living room and said: "hi". She said that in the past from time to time Mr Singh would visit the home and get a glass of water (T7.5.09 pg 204). Mr Singh was at the home for about 20 minutes before the stabbing occurred.
She said she did not put in her statement that Mr Singh drank water that night. She said when Mr Singh and Mr Vignes were talking their voices were raised. She said that she has discussed this incident with Mr Simpson over the last few years and she also heard Mr Thompson discussing it with Mr Simpson (T.5.09 pg 212)
She said that the stabbing occurred at about 10.10pm or 10.15pm and a couple of minutes later Mr Simpson and Mr Vignes left. She said Mr Singh only punched Mr Vignes once but at the committal she gave evidence that Mr Singh punched Mr Vignes not less than two times, it could have been three or four times (T8.5.09 pg 218). Mr Thompson said: "Take it outside". She said Mr Vignes was half standing when it happened. She said she saw the knife coming out of Mr Vignes's side. She said Mr Singh moved towards Mr Vignes and Mr Singh still had his hands in his pocket. Before the stabbing she did not see Mr Singh with a knife. She said that after the stabbing Mr Singh put his hand in his pocket opened the door and ran out (T8.5.09 pg 234). Mr Vignes was holding his side and he fell back into the playpen. She said the bong was hidden by Mr Thompson before the police arrived.
She said that Mr Thompson bought a car from Mr Singh for $1,000. She said that Mr Thompson worked between 4.30pm and 9.30pm six days per week. She said Mr Singh did not come to her home between 2.30pm or 3.00pm on the day of the stabbing (T8.5.09 pg 341.6). She said she was not sure if Mr Singh spoke to Mr Thompson who was in the backyard (T8.5.09 pg 242). She said the car was damaged when they picked it up. She said that Mr Singh definitely punched and stabbed Mr Vignes. She said that neither Luke De Blaere or Johnny Mannasz came to her house that night (T8.5.09 pg 244).
In re-examination she said she was friendly with Mr Singh for a couple of years. She said the incident took about five minutes. This was from the time Mr Singh moved forward to the time he left after the stabbing (T8.5.09 pg 248).
Evidence of Matthew (Matt) Thompson
Mr Thompson gave evidence that in June 2007 he lived at 24 Tor Road Dee Why. He recalled that on this night he got home from work at about 9.40pm and Mr Simpson and Mr Vignes came over after that. Mr Singh arrived after that. He had known Mr Singh for about 1 or 2 years prior to this night and had purchased a car from him for $1,000. He paid Mr Singh the full amount and then spent some money repairing the car (T8.5.09 pg 250).
On this particular night he let Mr Singh into the house and they all sat in the lounge room. Mr Singh sat on the computer chair. Mr Vignes and Mr Singh started having an argument about the unit at Dee Why. The argument went on for about 10 to 15 minutes and Mr Thompson asked them to leave. He said he then stood between them because he thought they were going to start punching each other. Mr Singh came towards Mr Vignes and Mr Thompson was still telling them to leave when he heard Mr Vignes say: "He got me, he got me". Mr Thompson saw the shine of the knife in the appellant's hand but said he couldn't describe it (T8.5.09 pg 252).
Mr Singh then left through the front door and Mr Thompson closed the door behind him and then went back to look at Mr Vignes. He told Mr Simpson to take Mr Vignes to the hospital. Mr Thompson identified the cup, Exhibit G, as his and said he recalled seeing the cup at the computer desk where Mr Singh was sitting. He said Mr Singh went and got a drink from the kitchen that night (T8.5.09 pg 253).
In cross-examination he identified where each person was in the room and marked some photos, which became Exhibit 6. He said Mr Simpson and Mr Vignes arrived at his home about 20 minutes after he arrived home and Mr Singh arrived some time after that. Mr Singh phoned before he arrived and said he was coming over. Mr Thompson said he may have just started smoking cannabis when Mr Singh arrived. He agreed there was a verbal argument between Mr Singh and Mr Vignes and he was telling them to take it outside. Mr Thompson stood up and moved in between them (T11.5.09 p 265).
He said there was a struggle and they were trying to hit each other and then "someone hit someone". After that he saw the knife go around him and Mr Vignes said: "He's got me". He saw the blade in Mr Singh's hand but he thought it was just a threat. He saw Mr Vignes throw a punch before the stabbing but he did not know if it hit anyone. He said he was not sure what position Mr Vignes was in when he was stabbed whereas, at the committal, he said Mr Vignes was seated when he was stabbed and also at the committal he said there was no punching at first (T11.5.09 pg 270). He said he could not recall what Mr Singh was wearing that night but at the committal he said Mr Singh wore a jacket. He did not see what Mr Singh did with the knife afterwards.
Mr Thompson disagreed that he got a call from Mr Singh in the morning that day about money outstanding for the car he purchased from him. He said it was possible he was home around 2.30pm or 3.00pm. He could not recall Mr Singh coming around to his house in the afternoon when he was feeding the dog. He denied he had a discussion about money with Mr Singh. He gave evidence that it was Mr Singh who stabbed Mr Vignes (T11.5.09 pg 280). In re-examination he said that as at that date he was quite good friends with Mr Singh (T11.5.09 pg 281).
Evidence of Jonathon Mannasz
Jonathon Mannasz gave evidence that he met Mr Singh at school in about 2003. They lost contact and then developed a friendship some time after that. On occasions Mr Mannasz had stayed at Mr Singh's home at Unit 6, 14 Pacific Pde, Dee Why. A person by the name of Luke De Blaere had also stayed there. On 29 June 2007, Mr Singh was living at that address. Mr Mannasz had driven Mr Singh's red corolla on occasion. Mr Mannasz said that he knew Mr Vignes, Mr Simpson and Mr Thompson. Mr Vignes had mentioned to him that he and Mr Simpson were moving into a place near Coles in Dee Why. Mr Singh did not mention it to him (T11.5.09 pg 285).
The Crown was granted an application to cross-examine Mr Mannasz on the basis of a prior inconsistent statement. He was taken to parts of the statement he made to police. He said his statement did not assist his memory about what happened that night. He could not recall anything that happened in the 24 hours after that (T11.5.09 pg 290). He knew a person by the name of Alex Sit. He said his statement did not assist his memory in relation to what happened on Saturday night, 30 June 2007, as most of what was set out in his statement had occurred the week prior to the time about which they were talking (T11.5.09 pg 304.13).
In cross-examination by the defence he said that he had stayed on and off at Pacific Parade, Dee Why. He said that he either disagreed or could not recall a lot that was contained in his statement. He said that in July 2007 he was using marijuana ecstasy and cocaine. He had been taking those drugs since he was 12 or 13 years old. He said drugs were a problem for him and he took them on a daily basis. He said that drugs affected his memory and his perception of things. He said he signed the statement without reading it. He said when he spoke to police his memory was "shady". He said he had no specific recollection of 29 June 2007. He said he and Mr Singh on many occasions just drove around (T11.5.09 pg 323). He said he worked on Friday 29 June 2007. He said that on that night he was at Waine Street Harbord with Daniel Gallagher and Monique Mendoka. He slept there the night. He denied that he met Mr Singh at about 7.30am or 8.00am on Saturday 30 June 2007 at Chatswood. He has no recollection of the events of 3, 4 or 5 July 2007.
In re-examination Mr Mannasz said he remembered making the statement to police on 6 July 2007 and agreed that his memory of events then would have been fresher in his memory than now (T11.5.09 pg 330).
Evidence of Eileen Pleffer
Eileen Pleffer gave evidence that she is the aunt of Mr Singh. Her sister is Rosalind Singh, the appellant's mother. She said she lived at an address in Georges Hall and Mr Singh lived with her for a couple of days in July 2007. She said that her sister's birthday was 29 June, and in 2007 there was a function at another sister's house on that day. Ms Pleffer was unable to attend that night but did attend a dinner for her sister at an Indian restaurant the following night, 30 June 2007. She did not see Mr Singh at the restaurant.
In cross-examination she said that she arrived at the restaurant a bit late and Mr Singh had already come and gone by the time she got there so she didn't see him. In re-examination she said her family told her that Mr Singh had been there. Specifically her sisters Rosalind (Mr Singh's mother) and Maureen Sharma told her this (T11.5.09 pg 338).
Police evidence
Senior Constable Catherine Ferguson gave evidence that she attended premises at flat 4, 28 Howard Ave, Dee Why on 4 June 2007. She later returned to Dee Why Police station and created an event number on the COPS system. At the flat she was met by Mrs Rosalind Singh. The Constable noticed that the front door and flyscreen was open and there wasn't any sign of forced entry. Inside there were food containers, cigarette butts, furniture all strewn around the unit and there was graffiti in black marker pen on the fridge and freezer door. Photographs of the unit became Exhibit H in the trial. (T11.5.09 pg 341).
In cross-examination she said she did not know if there was any result in relation to fingerprints obtained. She was shown photo 2 of 11 and she said she could not see a crack in the doorjamb but she could see that the door handle was broken. She agreed that it could be a sign of forced entry. She said that a Scenes of Crimes Officer, Melinda Belshaw did a report. She agreed that the report said that the front flyscreen had been cut and the handle was broken. The report said that "the front door did not appear damaged however the door jamb had a crack in it near the striker for the flyscreen". She said that the unit had been left in a dirty state with garbage strewn over the floor and tables (T11.5.09 pg 344).
Detective Sergeant Agius gave evidence that Grace Kelly brought a glass beer mug and placed it on the table. Detective Agius collected and packaged the beer mug.
The evidence qualifying the foregoing
As earlier stated, the foregoing is taken almost verbatim from the summary of trial by the Crown. The transcript is, as previously stated, accurately reflected in that summary. Further, a reading of the evidence does not indicate to me that the witnesses (other than Mr Mannasz) were lying or prevaricating. It is true there are some inconsistencies and it is also accurate that there are areas in which the memories of some of the witnesses, including Mr Vignes, the victim, are not perfect, not in accord with the statements made to the police and/or not in accord with the evidence given at committal.
I have not had the advantage of hearing and seeing the evidence being given, but the foregoing comment is the impression from the reading of the transcript. Of course, that impression is only half the story. That evidence must be taken in the context of the whole trial and the evidence otherwise adduced that supported Mr Singh's alibi, namely, that he was not in the unit or at the crime scene at the time that the stabbing occurred or at any time close to it. Some of that evidence was adduced by witnesses called by the Crown, to which I will now turn.
Some further material from the police
Constable Michael Featherstone gave evidence that he attended Manly Hospital emergency ward at 11.40pm on Friday 29 June 2007. He spoke with Mr Simpson and made an entry in his notebook about the conversation. In cross-examination he agreed that Mr Simpson said he didn't know the name of the "person of interest". He said Mr Simpson described the person of interest as being 19 years old, 5 foot 8, black complexion and shaved head, clean shaven and solid build. The notebook reads "when put to Simpson, was the person of interest a male named Brendan Singh", Mr Simpson replied: "I know of Brendan Singh, he's a dope. He's a local from Dee Why. Actually I don't know of him personally, I've never met him, just heard about him. I don't know if he is the guy who stabbed Tom because I've never met him. To be honest I was just watching TV and never really took notice of the other guy" (T12.5.09 pg 391).
He said that Mr Simpson told him that there was a dispute about residing at a house and that Mr Simpson did not see the stabbing. When he spoke to Mr Simpson he had not spoken to Mr Vignes but Constable Hillier had spoken to him (T12.5.09 pg 392).
Senior Constable Hillier gave evidence that at 11.40pm on 29 June 2007 he went to Manly Hospital and spoke to Mr Vignes. He said: "Tom who stabbed you?" and Mr Vignes replied: "Brendan Singh". He said: "Why did he stab you?" and Mr Vignes replied: "I don't know". Detective Hillier said: "Do you know Brendan Singh?" and he replied: "Yeah so does my mate. Craig who brought me up here" (T12.5.09 pg 405).
Constable Redgwell gave evidence that he was with Detective Whale when a car (red Toyota Corolla BBF 43C) was stopped by police on 1 July 2007. The occupant of the car was asked a number of times to get out of the car and then police opened the door and took him out. He was handcuffed and told he was under arrest for the stabbing at Dee Why. He said this because of information they received that the person behind the wheel was involved in the incident at Dee Why. The person arrested was Luke De Blaere. He gave him the usual warning.
Mr De Blaere was taken to the police vehicle and Detective Whale told him he was going to ask him some questions about the stabbing at Dee Why and gave him another warning. Detective Whale said: "We are looking for Brendan. Where is he?" He replied: "I did it, all right". Detective Whale said: "You did what?" He replied: "I stabbed the bloke, okay". Detective Whale said: "What's the bloke's name?" and he said: "I don't know" (T12.5.09 pg 400). Detective Whale said: "Where did you stab him?" and he replied: "Under his arm. I think". Detective Whale said: "How many times?" and he said: "Just once". Detective Anderson said: "What hand did you use?" and he said: "My right hand I think". Detective Anderson said: "Where did you get him?" and he said: "The right side I think". Detective Whale said: "Why did you stab him?" and he said "Because he was acting like a fuckwit. You know those three blokes have been trying to get Brendon for a while you know, set him up". Detective Whale said: "What three blokes?" and he said: "The others in the room". Detective Whale said: "Don't say any more now. The detectives from Dee Why will talk to you back at the station" (T12.5.09 pg 401). Mr De Blaere was taken into custody and Detective Whale took photographs of the car.
In re-examination Constable Redgwell said that he assumed that Mr De Blaere was at the fight.
Detective Senior Constable Barby gave evidence that she attended Manly Hospital just after midnight on 30 June 2007 and had a conversation with Mr Vignes. She was with Constables Featherstone and Hillier. She said to Mr Vignes "What happened?" and he replied: "This guy called Brendon came over to Matty's place and punched me in the head. I stood up and punched him in the head and he stabbed me". She said: "Who's Brendon?" Mr Vignes said: "Some guy. He lives in Pacific Parade". She said: "What was the argument about?" Mr Vignes said: "He rented us a place and he didn't tell his mum about it and we got kicked out". She said: "Does Brendon think you owe him money?" Mr Vignes said: "No he owes me money. Do you know Brendon?" She said: "No what's he look like?" Mr Vignes said: "He's just a fat Indian guy". She said: "How old is Brendon?" Mr Vignes said 'I don't know 19 maybe 20 years old. He's got a red Corolla and a white Gallant and he lives on the first unit bock [sic] (read as "block") on the ground floor" (T12.5.09 pg 413).
Detective Barby said that she was present when Craig Simpson spoke to the Tom Vignes. He said to him "Who stabbed you man?" Mr Vignes said: "Brendon". Simpson said: "Brendon who?" Mr Vignes said: "Brendan [sic] (read as "Brendon") Singh but don't ask me how to spell his name".
At about 1.20am the Detective, together with Sergeant Ell, went to 24 Tor Road, Dee Why and the door was answered by Grace Kelly. She let them in and said that Matthew Thompson was in the shower. The Detective went inside and noticed that there were towels on the floor. Sergeant Agius, the crime scene officer, arrived a couple of hours later and he spoke to Grace Kelly. She brought a glass mug into the lounge room from the kitchen. Sergeant Agius took photographs and took away the glass mug and some swabs (T12.5.090 pg 416).
On 1 July 2007, Detective Barby executed a search warrant at 14 Pacific Pde, Dee Why, but nothing of significance was located. On 10 July 2007, the Detective went to Surry Hills Police Station for an appointment with Mr Singh and his solicitor. Mr Singh was arrested for the stabbing of Mr Vignes and he declined to be interviewed on legal advice. He handed to the Detective a two- page typed document signed by him. This document stated:
"I am 18 years of age. On 29 June 2007 I went to my mother's 40th birthday party at Stanhope Gardens in the western suburbs of Sydney. There were a number of people present including my mother Rosalind, my Aunt Jocelyn and Uncle Chris, my mother's parents and my Uncle Simon. I was driven to Georges Hall after the party leaving Stanhope Gardens close to 11pm. I did not go to the northern beaches area at all on that night after attending my mother's birthday party. The next morning I left Georges Hall around 4.30am to go to work. I sometimes drive my mothers red Toyota Corolla. On 29 June 2007,1 lent that car to Alex Sit." (Exhibit M - T12.5.09 pg 419.)
The Detective attempted to contact the people mentioned in Mr Singh's statement but they did not provide statements to the police.
Evidence of Luke De Blaere
Luke De Blaere gave evidence that he was arrested by the police on 1 July 2007 whilst he was driving a red Toyota Corolla. He said he told the Police he stabbed Mr Vignes. The police said: "Who?' and he said: "Tom Vignes". He knew Matt Thompson and Grace Kelly. He had been to their home but he was not there on 29 June. He did not see Mr Vignes stabbed. He remembered getting a call on the Saturday and someone had told him that Mr Vigness was stabbed. He said: "Who" and they said: "We heard it was Brendon" (T13.5.09 pg 440). He said he could not believe he would do it. He said that he and Mr Singh were good mates before that.
On the day Mr De Blaere was pulled over by police he had not seen or spoken to Mr Singh. He did speak to him on the Saturday at Chatswood. He said he thinks he picked up the red Corolla car on 29 June 2007 but on the other hand it could be that he did not have the car at all. He said on 1 July he was going to pick up a girl and he thinks that he saw Mr Singh at Chatswood on Saturday 29 June and he thinks he did not speak to Mr Singh about the stabbing (T13.5.09 pg 448).
Mr De Blaere was cross-examined and said on 1 July he took two ecstasy pills in the morning. He said he took drugs on Friday, Saturday and Sunday and his memory was foggy. He said he had not been asked by Mr Singh to take the fall for him. He said he stayed at Mr Singh's place from time to time. He said that he knows Michael Titlow, Johnny Mannasz and Alex Sit had come around to Mr Singh's house on 29 June. He said he may have driven the red Corolla to Greg Davis' home on 29 June. He said he remembers seeing Mr Singh at Chatswood and he used marijuana that morning before seeing Mr Singh. He said that Johnny Mannasz and Mr Singh were at Chatswood. He said that after he saw them he drove the red Corolla. He was not in Johnny Mannasz's utility.
In re examination he said he did not think he said to Mr Singh that he stabbed Tom Vignes when he spoke to Mr Singh at Chatswood. He did not recall having said that at the meeting with Mr Singh and the meeting only took 20 minutes (T 13.5.09 pg 455).
The accused, Mr Brendon Singh
Mr Singh gave evidence that he is a university student and lives with his grandparents. In 2007, his mother owned a unit at 4/28 Howard Ave, Dee Why. He knew Craig Simpson, Tom Vignes, Matt Thompson and Grace Kelly. He said he never gave Mr Vignes or Mr Simpson permission to stay at Howard Ave, Dee Why; nor did he ever give them keys to the unit. At some stage he was made aware that there was damage at the unit and he discussed this with them but there was never any argument between them in relation to it.
On 29 June 2007, Mr Singh was living at Pacific Pde, Dee Why. He lived by himself but sometimes people would stay over including Johnny Mannasz and Luke De Blaere. He said at that time he worked with his cousin in the Georges Hall area. He did not go to work that day. He woke at about 10.00am and went to the gym in Dee Why. He had sold a black Toyota starlet to Mr Thompson and Mr Thompson had paid him $750 and was going to pay him another $250 at a later time (T13.5.09 pg 474-475).
He said he called Mr Thompson on 29 June 2007 and made arrangements to meet him around lunchtime that day at his house at 24 Tor Road, Dee Why. He had gone to those premises two or three times per week in the past. He said Mr Thompson rang him about 1.30pm and told him to come over any time after that. The purpose of the meeting was to discuss the payments he still had outstanding. He said he met Luke De Blaere at the gym. They walked home to his house in Pacific Pde and then walked down to get some lunch. At that time Mr Singh had access to a red Toyota Corolla owned by his mother, registered BBF34C. On that day it was parked outside his house and he drove it to Mr Thompson's house. He previously discussed lending it to Alex Sit that night so that he could pick up his brother from the airport.
Mr Singh said he went to Mr Thompson's house at about 2.30pm. The door was opened by Grace Kelly and she said that Mr Thompson was in the backyard. He said he was thirsty and got a glass of water. He identified the glass as Exhibit G. He said he drank the glass of water in the kitchen and put the glass in the kitchen sink (T13.5.09 pg 481). Eventually Mr Thompson came in from outside and they discussed payment. Mr Singh said he did not get paid. He and Mr Thompson then went out to the garage and looked at the car. He said there was considerable damage to the front end of the car. He said he was there for about 20 minutes.
Mr Singh said he went home and Luke De Blaere was there. He waited for a telephone call from his mother because it was his mother's 40 th birthday and a party had been organised at his aunty and uncle's house at Stanhope Gardens. He said he and Jocelyn had organised the party for his mother. His mother rang him about 3.30pm and he arranged to meet her out the front of his unit between 5pm and 5.30pm. When he left the unit Alex Sit, Michael Titlow and Johnny Mannasz were there. He left the keys to the red Corolla for Alex to take the car. He said he did not drive the car that night (T13.5.09 pg 485).
Mr Singh's mother arrived about 5.30pm and she was driving a dark blue BMW. She was with his auntie Maureen Sharma and her pet dog. They drove to Harris Park to pick up some Indian sweets and then went to Woodcraft to pick up the cake. He said Auntie Maureen had church commitments and could not attend the party. He then drove with his mother to his Aunty Jocelyn's house at Stanhope Gardens. They arrived there between 7.00pm and 7.30pm (T13.5.09 pg 488). At the house were Jocelyn and Chris Mynemi and Mr Singh's grandparent's Sharon and Daniel Pal. Later his Uncle Simon arrived. They ate a meal, cut the cake and sang "Happy birthday". During the night photographs were taken by Jocelyn Mynemi and he identified Exhibits 1.1, 1.2 and 1.3. He said he stayed at that house until 11.00pm. The clock shown in photographs 1.1 and 1.2 became Exhibit 8. He said that he did not touch the clock nor did he see anybody else touch the clock. After the cake was cut they had hot chocolate. He said photograph 1.3 was taken between 10.15pm and 11.00pm. He said Simon Pal was not in the photos as he doesn't like photos at all. He was wearing his work attire.
Mr Singh said he left and got a lift with his aunty and uncle to 35 Beale Street, Georges Hall and met his cousin Francis who is also known as Ravin Sharma. It took about 40 minutes to 1 hour to get there. He had a can of Jack Daniels and went to work at 4.30am. He did not go to bed. Mr Singh said that during the night he received a call from Michael Titlow at 1.00am and a call from Jonathon Mannasz about half-an-hour later. Mr Singh said in evidence that he had not been to 24 Tor Road, Dee Why at any time in the evening between 8.00pm and midnight, nor at any time from midnight to the next morning. Mr Mannasz said, during the telephone conversation, that something bad had happened and he wanted to meet up with him urgently. Mr Singh also received a text message from his mother (T13.5.09 pg 495). He went to work at Moorebank and stayed at work for about 1 hour.
Mr Singh said he called his mum and she arrived at the depot at about 6.00am and drove him towards Chatswood. He said that at no stage did he stab Mr Vignes. He arrived at Chatswood at about 7.00am to 7.30am and his mother left. He made plans to meet Jonathon Mannasz. He said Mr Mannasz arrived about 15 minutes after him and arrived in a white utility. Mr Mannasz said something like: "The shit's hit the ceiling. Luke's done something wrong". He said Luke had committed a stabbing. He said he contacted Luke and Luke arrived in the red corolla. He said Luke was very panicky. Luke said that he went to 24 Tor Road Dee Why and they came at him with knives and he stabbed Mr Vignes. Luke was irrational and speaking in a "garbled" manner (T13.5.09 pg 499).
Mr Singh then returned to the Corolla and then drove back to the Northern Beaches. He said he had no injuries to his face, lips or teeth and he had not been punched by Mr Vignes the previous night (T13.5.09 pg 509). When he got back to the unit he saw that it had been "totally trashed" so he went to stay at his mum's house at Collaroy. On that night he went to Double Bay because he had organised a dinner for his mother at an Indian restaurant. He got there at about 7.30pm and left about half-an-hour later. He said he did not see Irene Pleffer at the restaurant. He said he then went to Alex's house at French's Forest. He said he did not stab Mr Vignes. On 10 July 2007, he attended the Sydney Police Centre with his solicitor (T13.5.09 pg 511).
In cross-examination, Mr Singh said he received a text message from his mother at about 2.00am or 3.00am. He said he telephoned his mother at 5.00am and said he needed to talk to her regarding the police. He said this because the text message his mother had sent him indicated that the police visited her premises. He knew that the police wanted to speak to him. He did not ring the police because he had done nothing wrong and did not think much of the situation. He denied that he knew they wanted to speak to him about a stabbing. He said he was scared of his mother's reaction because he had loaned the car to someone (T13.5.09 pg 515).
Mr Singh was shown Exhibit C, the keys, and said he had not seen them before and he didn't give any keys to Mr Vignes. He was taken to Exhibit 1 and shown photograph 1.3. He said that was his uncle, Chris Mynemi on the lounge and he was wearing a watch. He could not read the time on the watch. Others in the house at the time were his grandmother, grandfather, his uncle Simon and his mother. No photos were taken during the meal. He said there were candles on the cake that were in the shape of a four and a zero. He was casually dressed at the function. He said he could not recall who served the meal or who washed up. He said there were hot beverages served but no wine (T13.5.09 pg 519).
Mr Singh was shown the photo Exhibit 1.3. He agreed it looked like the watch on his uncle's arm was reading 6.00pm, noon, midnight or 6.00am (T14.5.09 pg 523-524). He denied that it was 6.00pm that this photo was taken. He said he was wearing a cotton jumper over a t-shirt on 29 June 2007. He denied he was wearing a white hooded sweatshirt with "Sean John" on the front. He said he first called his mother on Friday 29 June in the early afternoon. He said he had plans to meet Mr Thompson around lunchtime on 29 June. Mr Thompson told him about 12-ish, however Mr Thompson rang him at about 1.00pm or 1.30pm and said that he was available. Mr Singh said he met Luke De Blaere at the gym (T14.5.09 pg 529).
Mr Singh said he did not know he was a suspect in the stabbing until three days before he handed himself in. He said his mother sought legal advice after police had spoken to her. He was shown Exhibit M, the document he gave to the police, and said that it was his signature on it. He could not recall who typed the document or where he was when he signed it. He said he stayed at Francis' house at 35 Beale Street on the night of 29 June 2007. He said the address wasn't written on the document because he didn't think it was important at the time (T14.5.09 pg 534-535).
He agreed that he met Mr Vignes in about April 2007 through mutual friends, Craig Simpson and Matt Thompson. He denied that he offered to rent the unit in Howard Street to Mr Vignes and Mr Simpson. He denied that Mr Vignes paid him $300. He knew that the property was having regular inspections and that was the reason he would not give it to someone to rent. He denied that Mr Vignes contacted him and spoke to him about it and denied that he went to the unit in Howard Street and told Mr Vignes and Mr Simpson that they were squatting. There was no argument with Mr Vignes. When he learned that the unit had been damaged, his mother was upset but it did not make him angry (T14.5.09 pg 536). He said he made an assumption that it was Mr Simpson who had made the place messy as his mother said there was an orange motorbike outside and he knew Mr Simpson owned an orange motorbike. He did not telephone Mr Vignes on 27 June 2007 and there was no argument about money.
Mr Singh denied that he went to the house of Mr Thompson the night of 29 June. He denied that he punched and stabbed Mr Vignes (T14.5.09 pg 538). Mr Singh said he could not recall what was inside the red Corolla and he was shown photographs of the Corolla Exhibit L.
In re-examination Mr Singh said there was no reason for him to remember who served the food or washed up at the dinner. He was shown additional photographs which he said were taken at his mother's 40 th birthday function. These photos became Exhibits 9A, 9B and 9C in the trial. He observed candles in photo 9A. He said he did not look at Chris's watch to see if that was recording time accurately (T14.5.09 pg 543).
In further cross-examination he said that in photograph 9C he was drinking apple juice in a wine glass. He said the photographer was Jocelyn Myneni. He said the camera was outside the courtroom and he had brought it to court with him. He had acquired it from his grandfather but could not recall when. He did not know if the date stamp on the camera was accurate (T14.5.09 pg 546).
Evidence of Jocelyn Myneni
Jocelyn Myneni gave evidence that Mr Singh is her nephew and her sister Rosalind is his mother. She said that her sister's 40 th birthday was on 29 June 2007. There was a celebration at her house at 67 Kentwell Crescent, Stanhope Gardens on that day. The party was attended by Rosalind, Mr Singh, her husband Chris, her mother and father (Sharon and Daniel Pal) and her brother Simon. She said she did not get home from work until 7.00pm and Rosalind and Mr Singh arrived about 7.30pm. They ate Indian food and drank soft drink. After dinner they had cake and hot chocolate. There was no alcohol. Photographs were taken that evening.
Ms Myneni took the photos and used her father's camera. She said she had not seen any photos of the birthday party since the birthday party. She was shown Exhibits 1 and 9. She said Exhibit 1 showed her house. She said the cake was cut at around 10.15pm. At that time everyone was still there. The party ended before 11.00pm. She then drove Mr Singh to his cousin's house at Georges Hall leaving just after 11.00pm. Rosalind had left the party before 11.00pm (T14.5.09 pg 551). She said that the clock in the photographs was working and it kept good time. It was the main clock in their house. She said there was no re-enactment of Rosalind's party at her house. She identified Exhibit 8 as the clock. She did not see anyone alter the time or handles on that clock. She said that photograph 1.3 showed the rumpus room in her house.
In cross-examination she said she had not seen any of those photos of the party before. She was then shown an affidavit sworn by her in which she referred to seeing a photograph of everyone standing in the kitchen with the cake on the bench. She said that when she made the affidavit she may have seen one photograph but she hadn't seen those particular ones. She agreed that the affidavit was made on 10 July 2007 (T14.5.09 pg 554.23). She could not recall being shown a photograph that depicted a clock showing 10.20pm. She denied that she worked out the times based on the photograph of a clock showing the time as 10.20pm. She said in evidence that the photos she looked at could have been 1.1 or 1.2 or another photograph taken by her father. She said Mr Singh and his mother drove to her place in a BMW. She said she purchased the clock a couple of weeks after she got married which was on 9 June 2007. She had not changed the battery since then.
Ms Myneni said she could not accept the possibility that she was mistaken about the time that Mr Singh left her house in Stanhope Gardens or that she was mistaken about the time that she dropped him off at Georges Hall (T14.5.09 pg 558). She said she spoke to Mr Stewart, after she heard that Mr Singh had been accused of something and she needed to confirm where he was on the day (T14.5.09 pg 559).
Evidence of Maureen Sharma
Maureen Sharma gave evidence that she was a finance analyst with Sydney Water and also an ordained minister at the Lighthouse Christian Centre. She was also a justice of the peace. She said that Mr Singh is her nephew and his mother is Rosalind, her sister. Rosalind was born on 29 June 1967. In June 2007 Rosalind had a cyst in her brain and was not well. They organised a party to celebrate her 40 th birthday and it was held on the day of her birthday at her sister Jocelyn's house. Ms Sharma could not go as she had church commitments (T14.5.09 pg 563).
Ms Sharma said that on Rosalind's birthday she met her at Martin Place in the city at around 4.00pm or 4.15pm and they then drove in her sister's BMW to Rosalind's house at Collaroy. They got there at about 5.00pm or 5.15pm and Rosalind went inside to get changed and they had coffee. They then drove to Mr Singh's house at Dee Why. He was standing next to a red car outside a block of units. Mr Singh drove from there to Harris Park as Ms Sharma wanted to buy some Indian sweets. He drove the car to Ms Sharma's house at Woodcraft arriving there around 7.00pm or 7.15pm. She had a church meeting at her house at 7.30pm (T14.5.09 pg 566).
Ms Sharma said she attended the party for her sister the following night at a restaurant called Bollywood in Double Bay. She arrived at about 6.00pm and saw Mr Singh who stayed for about 20 to 40 minutes and then left. She said her other sister, Irene Pleffer, later arrived at the party.
In cross-examination she said that when she saw Mr Singh standing outside near a red car he was wearing a light coloured jumper or sloppy joe and dark coloured pants. She did not notice any pockets. She said she last saw Mr Singh on the Friday night when they left her house at 7.15pm after picking up the cake. She said they got to Harris Park at about 6.00pm. She agreed that the times she gave were just estimates (T14.5.09 pg 571).
In re-examination she said she was first asked to remember what had happened on this day about 6 months before giving evidence. She did not make notes at the time when things occurred. She had no particular reason to remember Mr Singh's movements at the time she met with him on that day. On 28 January 2009 she was telephoned by Detective Kelly Barby and asked whether she would give a statement. Ms Sharma said she did not wish to as she had given statements to the lawyer and she told Detective Barby to speak to the lawyer (T14.5.09 pg 572).
Evidence of Daniel Pal
Daniel Pal, the father of Rosalind (and grandfather of Mr Singh) gave evidence that he was a senior soldier for the Salvation Army and worked two days as courtyard food chaplain and two days of street ministry. Mr Singh is his eldest grandson. Rosalind's birthday is 29 June and in 2007 it was her 40 th birthday (T14.5.09 pg 574). They cut a cake for her at Jocelyn's place at Stanhope Gardens on 29 June 2007. Mr Pal went there with his wife Sharon Pal. They got there at about 7.00pm and Jocelyn and her husband Chris were there. Between 7.15pm and 7.30pm Rosalind and Mr Singh arrived and his son, Simon, arrived a bit later. Mr Pal said his wife made food for everyone and there was no alcohol. He said there was birthday cake and candles with a four and zero. He stayed until about 11.00pm and Jocelyn and Mr Singh left to go to his cousin's house at Georges Hall. They left before Mr Pal did (T14.5.09 pg 577). Jocelyn took photographs that night.
In cross-examination he was shown photographs Exhibits 1 and 9 and said that in photo 1.3 Mr Singh was wearing a top and came to the function in the same top. The photo was taken with his camera. He said he did not set the date stamp on the camera and did not know if it was accurate. He said he gave the camera to his daughter Rosalind about one week after the birthday. She asked if he had pictures and he told her they had not been developed. He said it was a camera that required film (T14.5.09 pg 580). He did have the photographs developed and he gave the photos and the camera to Rosalind. He had the photos developed at a place in Plumpton about a week after the birthday. He gave the negatives to Constable Barby when she came to his house with a male police officer in 2007.
Mr Pal did not give a statement to Constable Barby as he had already given an interview to the lawyer, Mr Stewart (T14.5.09 pg 582). He identified Exhibit 8 as the clock from Jocelyn's house. He said he checked his watch to see what time it was when he arrived at her house and it was 7.00pm.
Evidence of Sharon Pal
Sharon Pal gave evidence that she is a cook for the Salvation Army and has been a member of the Salvation Army for 40 years. Mr Singh is her grandson. Her daughter, Rosalind's, birthday is 29 June and in 2007 it was her 40 th birthday. There was a party at Jocelyn's house in Stanhope Gardens. She went to the party with her husband Daniel and they arrived at about 7.00pm.
Ms Pal cooked the food, Indian food, at her place for the party. There was no alcohol. Mr Singh got to the party at 7.30pm and he left at 11.00pm and did not leave the party during those times. She said that Rosalind cut the cake between 10.00pm and 10.30pm and left the party at 10.45pm. Ms Pal left with Daniel Pal at 11.00pm. They were the last to leave. Ms Pal was shown Exhibits 1 and 9. She recognized Jocelyn's home and that the photos depicted the 40 th birthday party. She agreed the party was on Rosalind's actual birthday (T14.5.09 pg 593).
In cross-examination she said she knew it was 7.00pm when she arrived because she looked at the clock in the house. It was shown in photograph 1.2. When she arrived she put the food on the kitchen table and she could see the clock. She said Exhibit 8 was the clock. She identified herself in photograph 1.2 with her back to the camera. She said that when she saw the clock she was in the kitchen. She said she could not have been mistaken about it being 7.00pm. She could not remember when she spoke to the solicitor Mr Stewart. She said that Rosalind and Mr Singh arrived at 7.30pm. She knew this because she looked at her watch. She knew he left at 11.00pm, because she looked at her watch. She likes wearing her watch and looking at it. She said she spoke to Mr Singh the next day, the Saturday, when she saw him at the Indian restaurant. She got to the restaurant at 7.30pm and Mr Singh got there at 7.40pm. She knew this because she looked at her watch (T14.5.09 pg 603). She said that her husband told her that he gave some photos or film to the police.
Further evidence
Mr Pal was recalled and was cross-examined and shown a piece of paper that had the name Brendon Singh and a mobile number on it. He said he gave that document with the negatives in an envelope to Constable Barby. He denied that he only handed over the document with the name and telephone number on it. The document became Exhibit N.
Detective Barby was recalled in the case in reply. She said that she went to Daniel Pal's home in October 2007 with Detective Eric Pollard. She said that Mr Pal gave her a small piece of paper with "Brendon Singh" and a phone number on it. She identified Exhibit N as that piece of paper. He did not give her anything else. She has never received any photographs from, or on behalf of, Brendon Singh. Mr Pal did not give her any negatives (T 14.5.09 pg 612).
In further cross-examination she said that she did not prepare a statement indicating that she attended his address. She did not enter the piece of paper as an exhibit she just kept it with the brief. A photocopy of the notebook of Constable Featherstone pages 43-46 became Exhibit 10 (T14.5.09 pg 613-614).
Summing-up
No complaint is made as to the terms of the summing up by the trial judge. Nor could any be made. The trial judge emphasised the burden of proof, including the burden on alibi. He said (page 6 of the summing up):
"The accused does not have to prove his alibi. Once it is raised, the Crown has to disprove the alibi, and it must disprove the alibi beyond a reasonable doubt. So the accused does not have to prove a thing, and the standard of proof which is imposed on the Crown is proof beyond reasonable doubt."
Words to that effect were repeated on a number of occasions. At page 7 of the remarks on sentence, the trial judge said:
"The accused has presented evidence to you to show that at the time Thomas Vignes was stabbed he was somewhere else and he could not have wounded Thomas Vignes. This is what lawyers call an alibi. You have heard all of us refer to the evidence as alibi evidence. You will recall that the evidence of the accused and [the other witnesses] to the effect that the accused was at his mother, Roslyn's, fortieth birthday party at Jocelyn Myneni's home at Stanhope Gardens between about 7:30 and about 11 o'clock on 29 June. Further, you have observed photographs, exhibits 11, 12 and 13 and exhibits 9A, 9B and 9C, in respect of which evidence has been given, and that those photographs were taken during the course of the party that evening.
When an accused person, in law, puts forward an alibi, the burden of proving the accused's guilt continues to rest with the Crown. The burden of proof does not shift to the accused. The accused at no time has to prove his innocence. At all times it is for the Crown to prove his guilt. If the Crown fails to satisfy you beyond a reasonable doubt that the alibi evidence should be rejected, then you must find the accused not guilty; you must acquit the accused. The Crown must disprove the alibi."
His Honour referred to the evidence in detail and referred to the inconsistencies in the evidence of the Crown witnesses, including, amongst other things, the statements by Mr Simpson when speaking with the police at the hospital, which are inconsistent with Mr Simpson having a knowledge of the stabbing or the perpetrator of the stabbing. The trial judge told the jury that the investigation by the police was inadequate. He also referred to the original confession by Luke De Blaere. Lastly, in referring to the addresses by counsel, his Honour referred to 11 variations in evidence to which counsel for the accused had referred. They were:
(1) The order of the seating at the time of the stabbing;
(2) The order of arrival of persons at Mr Thompson's house;
(3) The words used by the accused at Mr Thompson's house;
(4) The position of the accused prior to the stabbing;
(5) The position of the knife prior and after the stabbing;
(6) The position of Mr Vignes at the point of the stabbing;
(7) The clothing worn by the accused on the night of the stabbing;
(8) The position of the blood on the floor of the room;
(9) The position of Mr Vignes after the stabbing;
(10) The position of towels on the floor after the stabbing;
(11) The whereabouts of blood after the stabbing.
His Honour then all but concluded with the following words:
"That is my summary of counsel's arguments. There were other arguments used and if other arguments attract you it is a matter for you because I put something in there it does not really make it any more important.
This is an interesting case. On the one hand the victim and the three persons who were allegedly present have said that they saw the accused stab Thomas Vignes but there are inconsistencies in what they say. On the other hand there is alibi evidence which is available to you. Secondly, there is the confession of Luke De Blaere and thirdly, and I say it quite pointedly, there was a very poor police investigation of the matter.
So the issue in the case which has been identified is, are you satisfied beyond a reasonable doubt that it was the accused who stabbed the [victim]. I remind you as to the alibi evidence it must be considered by you, and the Crown must establish beyond a reasonable doubt that the accused was at the scene of the stabbing. The Crown cannot do this if there is a reasonable possibility that the accused was at Jocelyn Myneni's home at the time of the stabbing, and the Crown must therefore remove or eliminate any reasonable possibility that the accused was at Jocelyn Myneni's home at the relevant time and also persuade you, on the evidence that the Crown relies [on], that beyond reasonable doubt the accused was at the scene of the stabbing at the time the offence was committed.
Now I have given you a procedure to be followed and I hope you all have that, but the first question you ask: are you satisfied beyond a reasonable doubt in light of the directions I have given you regarding alibi, are you satisfied beyond reasonable doubt the accused was the person who stabbed Thomas Vignes. If you are not satisfied you do not go any further, you bring in a verdict of not guilty. If you are satisfied beyond a reasonable doubt it is only then that you approach your task which I have set out in the instructions, do you understand that?"
I have more completely than I would ordinarily summarised the trial. I have done so because of the nature of the appeal. I have utilised, predominantly, the summary of the trial lodged by the Crown, because each counsel on the appeal accepted the accuracy of that summary and, therefore, it was appropriate to use the words of that summary. I have not included the entire summary and I have added some small amounts from the transcript that were not clearly expressed in the summary. Further I have made some comments on the evidence as I have read it.
Is there a reasonable doubt?
The issue, ultimately, is a simple one. Given the totality of evidence, was it open to the jury to reject the alibi beyond reasonable doubt and find beyond reasonable doubt that the appellant committed the offence. In determining that issue, the photographic evidence assumes some significance. As earlier stated, the DNA evidence is relatively neutral. The failure of the accused, Mr Singh, to detail to police that he had been at the premises earlier on the same day, is not, in my view, able to be used to draw some inference consistent with a guilty mind.
The evidence of the confession of Mr De Blaere is, on the other hand, when read and put in context, not necessarily helpful to Mr Singh. Obviously, that another person has confessed would always be of some help to a person accused of an offence. But the context of the confession and the known circumstances of the offence do not give rise to any reasonable view that the confession of Mr De Blaere was genuine or provided an alternative perpetrator to the offence. Indeed, on one view, the false confession by Mr De Blaere is, because of its probable motive, unhelpful to Mr Singh. Nevertheless, it does not take the matter any further in either direction, other than it seems to confirm the dispute and animosity between Mr Singh and Mr Vignes and others.
Likewise, while there are inconsistencies in the version of events by the witnesses to the stabbing, and inconsistencies between their versions in evidence and their versions to the police or at committal, a reading of the transcript is not persuasive that those inconsistencies affected their credibility or reliability. One is left with the position that there are witnesses that are consistent with guilt and witnesses that are inconsistent with guilt and the existence of the photographs.
Mr Singh, raises State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) [1999] HCA 3; (1999) 160 ALR 588; (1999) 73 ALJR 306, in which the High Court of Australia dealt with the role of appellate courts in relation to findings of fact based on credibility of witnesses. Of course, Earthline , supra, did not concern a jury verdict, in relation to which there is still some slightly greater deference and Earthline was a civil proceeding. In Earthline , supra, Justice Kirby said:
"There is a growing understanding, both by trial judges and appellate courts, of the fallibility of judicial evaluation of credibility from the appearance and demeanour of witnesses in the somewhat artificial and sometimes stressful circumstances of the courtroom. Scepticism about the supposed judicial capacity in deciding credibility from the appearance and demeanour of a witness is not new. In Societe D'Avances Commerciales (Societe Anonyme Egyptienne) v Merchants' Marine Insurance Co (The 'Palitana') , Atkin LJ remarked that 'an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour.' To some extent, the faith in the judicial power to discern credibility from appearances was probably, at first, a consideration which the judiciary assumed that it inherited from juries. It was natural enough that trial judges, accustomed to presiding over jury trials, would claim, and appellate judges would accord, the same 'infallible' capacity to tell truth from falsehood as had historically been attributed to the jury. Nowadays, most judges are aware of the scientific studies which cast doubt on the correctness of this assumption. Lord Devlin in The Judge quoted with approval a remark of MacKenna J: 'I question whether the respect given to our findings of fact based on the demeanour of the witnesses is always deserved. I doubt my own ability ... to discern from a witness's demeanour, or the tone of his voice, whether he is telling the truth.' It was a becoming but entirely accurate modesty.
Apart from all else, demeanour is, in part, driven by culture. Studies suggest that evaluation of the evidence of women may sometimes be affected by stereotypes held by the decision-maker. This is doubtless also true in the case of evidence given by members of minority groups, whether racial, sexual or otherwise. Distaste or prejudice can cloud evaluation. Further, in a society such as Australia's, the capacity of the judiciary to respond to every cultural variety of communication is limited. Fifty years ago, the Supreme Court of Canada wisely declined to offer guidelines about the kinds of demeanour that would afford reliable indicators of the trustworthiness of witnesses. The studies of experimental psychologists since that time have confirmed the danger of placing undue reliance upon appearances in evaluating credibility. Such studies were not available to the appellate courts when the rules of deference to the assessments of trial judges on questions of credibility were first written. They are available to us today. Although they have not yet resulted in a re-expression of the appellate approach (and by no means expel impressions about witnesses from the process of decision-making) the studies have two consequences. Trial judges should strive, so far as they can, to decide cases without undue reliance on such fallible considerations as their assessment of witness credibility. And appellate courts should refrain from needlessly expanding the categories of trial conclusions about the facts which are effectively unreviewable because of presumed or inferred credibility considerations."
His Honour Justice Kirby was a little more strident in his approach to issues of credibility than was the plurality judgment (Gaudron, Gummow and Hayne JJ) which, in part, says:
"[63] It is true that the trial judge, in determining whether to accept the evidence of Mrs Page, was heavily swayed by his impression of her whilst giving oral evidence. However, this circumstance does not preclude a court of appeal from concluding that, in light of other evidence, a primary judge had too fragile a base to support a finding that a witness was unreliable. The documentary evidence in this case, comprising unchallenged affidavit material of Mrs Meek and Ms Packham, the wage records and related documents of Earthline and Nuline, the list of plant (at least in relation to machine No 59) and the analysis of Coopers & Lybrand (in respect of the duplicity claims), provides significant support to the allegations made by Mrs Page.
[64] As Kirby J and Callinan J point out in their reasons for judgment, these were matters to which weight was not given either by the trial judge or the Court of Appeal. The substance of the matter is that there has not yet been a determination of the SRA's case upon a consideration of the real strength of the body of evidence it presented. There must be a new trial at which this consideration will be undertaken."
Earthline , supra, concerned findings of credibility that did not take account of independent, uncontroversial and uncontroverted material inconsistent with those findings. This is a wholly different situation. The physical evidence relating to Mr Singh's alibi was itself the subject of significant controversy.
While each alibi witness testified to the date of the birthday party, no witness could attest to the accuracy of the date imprinted by the camera on the photographs. The photographs evidence different times displayed by the clock on the wall that featured in some of the photographs compared, with the time on the uncle's wristwatch. All of the photographs were taken during the party, which lasted from approximately 7.30pm to 11.00pm. There was some controversy as to whether the negatives of the photographs were ever supplied to the police.
The burden of proof remained with the Crown at all times. It was the Crown's burden to prove, beyond reasonable doubt, that Mr Singh stabbed Mr Vignes, and, included in that process, the Crown was required to disprove, beyond a reasonable doubt, Mr Singh's alibi. Ultimately, this issue depended essentially on the credibility of the witnesses.
A great many criminal cases depend upon which of two versions is accepted, often in circumstances where it is the word of the alleged victim against the word of the alleged perpetrator. That one witness's evidence is accepted and another witness's evidence rejected, of itself, and without independent evidence or some other factor affecting that assessment, cannot be a basis upon which a jury verdict is necessarily rendered unreasonable. The same is true of a body of evidence, from more than one witness.
A fact finder might disbelieve evidence supporting an alibi and still hold that the alibi was not disproved, to the requisite standard. Secondly, a fact finder could find the alibi disproved, beyond reasonable doubt, and yet find that the Crown has not proved, to the requisite standard that the accused was at the crime scene, or, further, committed the offence. But the same evidence can serve both purposes.
There was a basis on which the jury could reject, to the requisite standard, the alibi provided. Similarly, there was a basis for accepting, to the requisite standard, that Mr Singh was at the crime scene and committed the offence.
The Crown proved a dispute between Mr Singh and Mr Vignes. Even Mr De Blaere attests to that. Mr Vignes had, with another, "trashed" Mr Singh's mother's unit and Mr Singh could not explain to his mother how it was they were living there. This dispute exploded with the obvious racial slur by Mr Vignes of Mr Singh. On being accused by Mr Singh of being filthy (or having "dirty blood"), Mr Vignes replies: "what are you talking about. Your family washes their clothes in the river". It was this comment that excited the initial assault and the stabbing.
The jury had a stark choice. There was no possibility that the witnesses to the stabbing were mistaken. Mr Singh did not suggest they were mistaken; he alleged they were lying. On the other hand, the alibi witnesses were certain of the occurrence of the party, but their evidence of the time may, at least to some degree, have been reconstructed from the photos, or otherwise mistaken. Further, the proposition, as described by a witness, that they could recall precisely when some 18 months before they looked at their watch, and the time that it disclosed, is one that the jury was entitled to reject.
The reading of a transcript is not usually as effective as hearing and seeing witnesses. The reading of the transcript of the cross-examination of the accused, who gave evidence, shows it to have cast serious doubts on the accused's evidence and/or credibility. Most importantly, the cross-examination of the accused, and to a lesser extent other witnesses, on the time displayed on the wrist watch of the accused's uncle, as shown in Exhibit 1.3A, significantly undermined the account of the accused's alibi.
On the other hand, the evidence of Grace Kelly was impressive. She was an independent witness whom the jury could believe. The other witnesses to the stabbing, while not necessarily as independent, were also credible. Acceptance of their evidence, to the requisite standard, is necessarily consistent with rejection of the alibi beyond reasonable doubt.
For my own part, having read the evidence, I do not have a doubt of a kind that would warrant the setting aside of the verdict. Theoretically, it is always reasonably possible that a person is lying, or, alternatively, telling the truth, but, in this case, the determination of truthfulness and reliability derives from just the kind of advantage that a jury has in seeing and hearing the evidence and to which the High Court referred in M v R , supra, at 494, recited above.
Conclusion
For the foregoing reasons, in my view the jury's advantage in seeing and hearing the evidence is capable of resolving any doubt that might otherwise be experienced and there has been no miscarriage of justice. I propose that the Court dismiss the appeal.
PRICE J : I agree with Rothman J.
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