Supreme Court New South Wales Medium Neutral Citation: R v Singh (No 5) [2021] NSWSC 76 Hearing dates: 19, 20 and 21 October 2020 Decision date: 12 February 2021 Jurisdiction: Common Law Before: N Adams J Decision: See [32] Catchwords: CRIMINAL PROCEDURE — application to exclude evidence – s 137 Evidence Act 1995 (NSW) – re-enactment video – where locations and distances used in video are disputed – where re-enactment video used distances and locations selected by police – where jury will see relevant locations at a view – held, probative value outweighed by risk of unfair prejudice to the defendant Legislation Cited: Evidence Act 1995 (NSW) ss 55, 79, 135, 137 Cases Cited: Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 R v Neilan [1992] 1 VR 57 R v Singh (No 3) [2020] NSWSC 1911 Smith v the Queen (2001) 206 CLR 650; [2001] HCA 50 Category: Procedural rulings Parties: Regina (Crown) Kulwinder Singh (Accused) Representation: Counsel: Mr J Bowers Ms M Cunneen SC (Accused) Solicitors: Solicitor for Public Prosecutions (Crown) Michael Vassili Barristers and Solicitors (Accused) File Number(s): 2017/00330134 Judgment 1. The accused, Kulwinder Singh, is charged with the murder of his wife. His trial is listed to commence on 15 February 2021. 2. By Notice of Motion filed on 28 August 2020, Mr Singh sought the exclusion of a number of pieces of evidence from his pending trial. I heard the motion on 19, 20 and 21 October 2020 and reserved my decision on all objections at that time. 3. This is my ruling on one of the objections: a video recording which I propose to refer to as the "re-enactment video". Factual background 1. I have recently set out the Crown case against the accused in R v Singh (No 3) [2020] NSWSC 1911. It is not necessary to set out the facts in detail for the purposes of this ruling. I shall instead confine the recitation of the facts to those relevant to the objection. 2. The deceased, Parwinder Kaur emerged from her home in Rouse Hill on the afternoon of 2 December 2013 with her clothes alight. As she walked down the driveway of her home towards the kerb, Michelle Hartmann, who lived one house and one street away, saw plumes of smoke rising. She immediately ran over to assist, leaving her two young children at home. Tracey Valle lived next door and was at home with her newborn baby and mother. She also saw the flames and ran to assist. These two women were the first on the scene. 3. It is anticipated that both women will give evidence of, inter alia: where each of them was when they first saw flames, where each of them was when they first saw the deceased and where each of them was when they first saw the accused. 4. The Crown case is that the accused ignited the deceased's clothing in the laundry and then followed his wife down the driveway pretending to put out the fire. 5. The defence case is that the accused was upstairs when he heard his wife screaming and 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. The expert evidence establishes that the fire was ignited in the laundry at the rear of the premises and that the deceased walked out the laundry door and down the side passage to reach the driveway at the front of the house. The deceased's fingerprints were found on the accelerant tin and both her fingerprints and a DNA profile matching hers were found on the lighter used to start the fire. None of the deceased's fingerprints and/or DNA were found on either of these items. There was no flame wash or accelerant found on the accused's clothing. The lack of flame wash is consistent with the accused not being near the deceased when it was ignited. 7. The Crown case does not rely upon the forensic evidence to prove its case; it relies upon relationship evidence and lies told to the police as consciousness of guilt. One of the lies relied upon is the accused's assertion that he was upstairs when the fire commenced. The accused denies that he is lying about that fact. The Crown seeks to establish that this was a lie by comparing the statements made by the accused in his ERISP and subsequent "walkthrough" video with the observations of Ms Hartmann and Ms Valle to prove that he could not have made it to the point on the driveway where he was first seen had he come from the direction of upstairs rather than the laundry. 8. In his closing address at the first trial the Crown invited the jury to reject parts of the evidence of Ms Hartmann over Ms Valle as being unreliable. Re-enactment video 1. In October 2015, investigating police made a re-enactment video demonstrating, inter alia: how long it would take for a person to walk from upstairs to the top of the driveway in front of the house. The purpose of the evidence is to provide an estimate of the walking distance that the accused may have covered, so that the jury can compare that with the evidence of Ms Tracey Valle and Ms Michelle Hartmann as to when and where they both say the deceased was on the driveway. 2. At the first trial there was significant cross examination about how the reference points used in the re-enactment video were arrived at. Senior counsel for the accused at trial submitted that the re-enactments were unreliable based on the inaccuracy of the positions used. Ms Cunneen SC submissions 1. Ms Cunneen SC sought the exclusion of all the evidence of the re-enactment video, including evidence to be given by Detective Joshua Davies, either on the basis of relevance under s 55 of the Evidence Act 1995 (NSW) or, in the alternative, under ss 79, 135 or 137 of the Evidence Act. 2. It was submitted that the evidence is a crime scene re-enactment that does not have forensic relevance and that the police officers involved in the re-enactment are not experts in that area. The decision in R v Neilan [1992] 1 VR 57 was relied upon in support of the submission that the police officers who conducted the re-enactment were not skilled or able to conduct the testing that they did. 3. It was submitted that the re-enactment would reinforce, without any basis in fact, the jury's perception of where the deceased was. It was further submitted that it would mislead the jury with respect to the accused's speed or gait, the time it took him to run to the driveway, and the location of both the deceased and the accused when first seen by Ms Valle, who saw the deceased earlier than Ms Hartmann. 4. Ms Cunneen also raised the difficulty for police to determine the particular point on the driveway where Ms Valle first saw the deceased and the accused. This is because Ms Valle says she saw the deceased twice before she went to assist her: once from inside the house and once from the patio. Her evidence at trial was that she did not see the accused until she was on the patio but she spoke to police, made a statement and participated in a video statement and it was the defence submission at trial that the witness appears to have changed versions. It was submitted that the position chosen by police as being the point on the driveway at which Ms Valle saw the deceased is infected with error because these two sightings were conflated in Ms Valle's evidence, which suggests she saw both views at the same time from her lounge room. It was submitted that this difference caused injustice to the accused. Crown submissions 1. The Crown submitted that the recording of the timed walks and runs organised by Detective Davies is relevant to the assessment of where the accused was when the deceased was set alight and whether there was sufficient time for him to run from the upstairs bedroom and reach the deceased while she was still walking down the driveway. 2. The submissions detailed the tests that were performed by the police officers in October 2015 that yielded several different times based on different scenarios. 3. It was submitted that it was not expert evidence of an opinion but evidence capable of rationally affecting the assessment of the central issue in the case, namely where the accused was when the deceased was set on fire. It was further submitted that it would be a matter for the jury to decide whether they accept the evidence of the timed tests as reliable. 4. With respect to the timed tests the Crown relied on the following submissions: 1. That the tests did not involve the use of specialised knowledge or techniques; 2. That none of the police officers involved expressed any opinion about the results, nor is any such opinion relied upon by the Crown; 3. That both Ms Valle and Ms Hartmann will be called to give evidence; 4. That the police tests relied on the accused's account as to where he was when he heard the deceased scream; and 5. That the tests were conducted in conditions and circumstances almost identical to those on the day of the incident, with no major changes to the relevant areas inside and outside the house that would affect their reliability. Consideration 1. The first question is whether the re-enactment video 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. If the evidence is not relevant, that is the end of the matter: Smith v the Queen (2001) 206 CLR 650 at 653; [2001] HCA 50 at [6]. 2. The video shows how long it takes for police officers to either walk or run from specified points. Although some of those are disputed, the test for relevance is a low one. Given that the layout of the house and timings will be in evidence at the trial I am satisfied that the re-enactment video passes the threshold test of relevance. 3. I am not persuaded that the evidence is expert evidence as contended on behalf of the accused. Running or walking a distance from A to B is not "specialised knowledge based on the person's training, study or experience" within s 79(1) of the Evidence Act. 4. The nub of the objection is that made under s 137 of the Evidence Act. Section 137 of the Evidence Act provides that the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant. 5. The phrase "probative value" is defined in the Dictionary to the Evidence Act as "the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue." 6. The phrase "unfair prejudice" is not defined in the Evidence Act. It has been held that the danger of unfair prejudice means the risk that the evidence would be misused by the jury in some unfair way that is logically unconnected with the issues in the case: see McHugh J in Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 at [91]-[92]. 7. Although I am satisfied that the re-enactment video is relevant, its probative value is low. It does not have regard to the physical qualities of the accused and the witnesses, their state of panic, how long it took the deceased to exit the premises, whether the deceased started to move slowly as she left the laundry and sped up as the flames engulfed her or the opposite, exactly where each witness was when they saw the deceased and the accused, how accurate they were and matters of that nature. These will all be matters for the jury. The video's use of particular markers or positions, based on police decisions as to what the evidence is, carries with it the real risk of elevating the positions selected by police to be the exact locations at which certain matters were observed. 8. Further difficulties were raised on behalf of the accused: the accused stated that he was running and not walking; the prosecution did not provide evidence to support Ms Hartmann's assertion as to where she saw a plume of smoke; that as a result of Ms Valle's property redevelopment prior to the re-enactment video the line of sight was blocked; that the placement of the first marker by Detective Davies had no relevance to the point of view of Ms Valle and was "a mere guess"; that the placement of the final marker on the driveway had no value in relation to the prosecution or the defence line of sight of Ms Valle; and that there is no probity as to the speed or gait of the walker in the re-enactment, especially in circumstances where the evidence of the accused is that he ran. 9. This is not a trial in which the jury will not able to see the premises and surrounding area for themselves. There was a view at the first trial and there will be a view at the second trial, shortly after the Crown opening. Given that this is a re-trial, both the Crown and the defence are acutely aware of all the issues that will arise during the trial regarding the relevant distances. This means that there is ample opportunity for counsel to agree on what the jury needs to have shown to them at the time of the view. The jurors will be permitted to walk the distances in the surrounding area. The question of what police will be permitted to do at the view can be the subject of further submissions. 10. I am satisfied that any reliance the Crown seeks to place on the relevant distances and timing can be satisfied by holding a view. I am prepared to hear the parties further as to what the jury will need pointed out to them at the view such that neither the Crown nor the defence will be precluded from inviting the jury to draw the inferences invited of them in their deliberations. 11. For these reasons, I would exclude the re-enactment video under s 137 of the Evidence Act. The probative value of the video is low and there is a real risk that the jury would place undue weight on the video such as to substitute the re-enactment for what actually happened on the day. ***** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 March 2021