R v Singh [2011] NSWSC 1371

Supreme Court New South Wales

Medium Neutral Citation: R v Singh [2011] NSWSC 1371 Hearing dates: 2 November 2011 Decision date: 10 November 2011 Jurisdiction: Common Law Before: Fullerton J Decision: Application granted – accused to be tried separately from two co-accused Catchwords: CRIMINAL LAW – application for separate trial – application of relevant principles Cases Cited: Madubuko v R [2011] NSWCCA 135 R v Middis (Supreme Court of New South Wales, Hunt J, 27 March 1991) R v Pham [2004] NSWCCA 190 Webb & Hay v R [1994] HCA 30; 181 CLR 41 Category: Procedural and other rulings Parties: The Crown Harpreet Singh (Applicant) Representation: Counsel: M King (Applicant) E Wilson SC (Crown)

Solicitors: Legal Aid Commission of NSW (Applicant) Director of Public Prosecutions (Crown) File Number(s): 2010/25959

Judgment 1. HER HONOUR: On the morning of 29 December 2009 the badly burnt body of the deceased, Ranjodh Singh, was found beside a road at Willbriggie, near Griffith NSW. He was clad in only a t-shirt and was not wearing shoes. His feet and hands were bound. He had major stab wounds to his neck which were identified as the cause of death. 2. The last persons reported to have seen the deceased alive were Harpreet Singh, the applicant, Gurpreet Singh ("Gurpreet") and Harpreet Kaur Bhullar ("Bhullar"). They are jointly charged with his murder. The applicant seeks a separate trial from Gurpreet and/or Bhullar. 3. The trial is currently listed to commence at Albury on 20 February 2012 with a four week estimate. Many of the witnesses will require the assistance of an interpreter. Each of the accused speaks English but an interpreter was provided for them in the committal proceedings. 4. In early January 2010 all three accused made statements to police to the effect that on 28 December 2009 they were at a party to celebrate the applicant's birthday at Gurpreet and Bhullar's flat at 6/69 Kookora Street, Griffith. Another couple were also guests at the party, as was the deceased. According to what the accused told police, at around midnight the deceased left the flat very drunk and in an agitated state claiming that he was going to drive to Albury and he had not returned by the time they went to bed. They had not seen or spoken to him since. 5. Although the Crown is unable to appoint specific conduct on the part of any one of the accused in the acts that caused the death of the deceased, it is the Crown case that they agreed that he would be killed and that they were in Bhullar's car when he was driven to the place where his charred body was ultimately found. There was no blood or DNA of the deceased found in Bhullar's car. There was no blood in the flat. No weapon has been recovered. No accelerant has been found. The evidence from autopsy supports the proposition that the deceased was set alight whilst still alive. 6. The case against the applicant is circumstantial. It is based entirely on the evidence of: the sighting of three people in a car matching the car registered to Bhullar within 8km of the vicinity of where the deceased's body was found at 9.10am on 29 December 2009; the same or a similar vehicle being cleaned at a carwash at 3.18am that morning and again later that day; and the tyres on Bhullar's car being replaced the following day. The Crown also relies upon the improbability of the deceased having been killed in such violent circumstances by a stranger and the opportunity the accused had to commit the offence being in his company when he was last seen by the other guests at the party. 7. The same evidence is to be led against Bhullar and Gurpreet. However in their cases the Crown relies upon their admission to Bhullar's sister of their complicity in the murder of the deceased in terms that directly implicate the applicant as the person who insisted that he be killed and his body be disposed of and that he was the killer. She goes further and alleges that the applicant said that she would be killed if she refused and that she was fearful that he would carry out the threat. Despite the fact that Bhullar's sister claimed no memory of the conversation when she gave evidence at the committal hearing, under cross-examination by the prosecutor pursuant to s 38 of the Evidence Act 1995, she confirmed that the conversation with Bhullar, set out in detail in her police statement, was what her sister had told her in Gurpreet's presence. That evidence is of significant probative weight in the Crown case against Bhullar and Gurpreet. It is not admissible against the applicant but it is, self evidently, highly prejudicial not simply by the nomination of him as the killer but because of Bhullar's claim that she and Gurpreet participated in the murder under the threat of themselves being killed if they did not assist.. 8. I was informed by the applicant's counsel that senior counsel for the accused Bhullar intends to advance the defence of duress at trial supported by other evidence in the Crown case that the applicant has a reputation for violence, that he has used stand-over methods in the past in securing advantage over others of various kinds, and that he has a criminal record consistent with his reputation. The Crown does not rely upon this evidence as tendency evidence in the applicant's trial. 9. The application for separate trials proceeded on the Crown case statement being an accurate summary of the evidence available to the Crown against the applicant. The material parts of that statement follow. 10. The applicant was living in Wagga with the deceased at the time of his murder. He contracted labourers to local farms in the region many of whom were in Australia on work visas from India. The deceased, Gurpreet and Bhullar were engaged by the applicant as contract workers and became friends in that connection. 11. On 27 December 2009 all three accused and the deceased were seen together at Wagga. Later that day they travelled back to Griffith in a 1995 red Ford Falcon sedan bearing registration plates BB04YX. This vehicle was registered to Bhullar. It had a rear spoiler installed on the back of the vehicle. She received a traffic infringement notice for speeding on the Stuart Highway that afternoon. 12. On 28 December the three accused and the deceased were seen again together at a local bottle shop and purchasing cake making ingredients for the applicant's birthday the following day. 13. On returning to Gurpreet and Bhullar's flat, the applicant, the deceased and Gurpreet started drinking alcohol. Bhullar did not drink. At about 10.30pm two other guests joined the birthday celebrations. .They left at about midnight, shortly after the deceased left. His departure from the flat at that time was confirmed by the two guests. It would appear to be common ground that he was at that time very drunk. 14. At 2.45am on 29 December a motor vehicle described as "a red Ford Falcon sedan EF model with a rear spoiler on the back" was seen driving slowly in a l00km zone along a road near a nominated intersection near Griffith. There were three people in the vehicle with one person seated in the rear passenger seat on the left-hand side. 15. Another witness gave evidence that he heard the sounds of a very loud car halfway between where the deceased's body was later located and that same intersection. When tested by police, Bhullar's red Ford Falcon was recorded as emitting noise over the decibel limit. 16. At 3.18am Bhullar's red Ford Falcon entered a commercial carwash at Griffith. Although the available CCTV footage does not positively identify any of the accused, the driver of the vehicle did not leave the vehicle whilst a male said to be the applicant got out of the car on the left-hand side rear passenger door while another male said to be Gurpreet was seen to get out of the front passenger seat. The, person said to be the applicant washed the vehicle with the use of the high-pressure washer for a period of five minutes before getting back into the car. 17. At 3.50am, at a point approximately 8km from the intersection referred to above, a witness saw three small spot fires no more than 30cm high and 15 cm wide. At 9.10am the body of the deceased was located at or near where the spot fires were seen. 18. Between 4am and 5am Gurpreet contacted Bhullar's employer and advised that she was unable to attend work because they had been up at a party all night and she was too tired. 19. A resident of the same block of flats where Bhullar and Gurpreet lived and where the party was held on 28 December gave evidence that at approximately 3am on 29 December she heard a thumping noise followed by a large thud from their flat and that half an hour later she heard a car return to that flat. She gave evidence of hearing no other noises. The Crown case is that this witness is mistaken as to time but that otherwise her evidence is supportive of something happening in the flat after which the three accused left with the deceased in Bhullar's car with the intention of killing him away from the premises and disposing of his body. 20. On the afternoon of 29 December Gurpreet and Bhullar returned to the car wash where they were seen to park in the vacuuming bay. They spent a considerable amount of time inspecting the boot compartment after which they cleaned the boot including wiping around the rubber seals. Gurpreet was seen to remove the mats from the vehicle and vacuum them. 21. That same afternoon Gurpreet sought to purchase four new tyres of the same brand and model as those already installed on the red Ford Falcon. When he inspected the tyres he advised Gurpreet that they did not need replacing, however Gurpreet insisted that they be replaced. The proprietor was unable to supply the same brand and offered another brand. 22. In the late evening of 29 December Gurpreet and Bhullar visited the deceased's aunt and told her that the deceased had left their flat around midnight the previous night and they had not seen him since. It would appear that by this time there was extensive media coverage in the local and national media of the location of the burnt body of the deceased although, at that time his identity was unknown. The media released details of the distinctive "GVL" lettering on the front of the t-shirt worn by the deceased appealing to any person who may be able to identify the deceased by his shirt. The applicant notified police that the distinctive t-shirt was his, as a result of which police organised him to provide a statement. He gave a lengthy statement on 1 January 2010. 23. Efforts by the deceased's family to have Gurpreet and Bhullar contact the police and tell them what they knew of his movements were resisted. They maintained what the Crown maintains was a false belief that the deceased would eventually turn up. The deceased's aunt eventually went to the police on 31 December and reported the deceased missing. He was identified soon thereafter. 24. When Gurpreet and Bhullar learnt that the applicant was making a statement to police, they travelled to Wagga and waited outside the police station for him to complete his statement before the three returned to Griffith. Gurpreet and Bhullar also gave statements to police over the next couple of days. Inconsistencies between the three accounts and the information concerning the movements of the red Ford Falcon in the early hours of the morning of 29 December motivated police to impound the car on 3 January 2010. 25. After delivering the car to the police station at the request of police Gurpreet and Bhullar unsuccessfully attempted to purchase bus tickets to travel to Sydney that evening. 26. In the early morning of 4 January. Bhullar contacted her family by telephone in India and told them she had been involved in a motorcar accident and someone had been killed. She was advised by them to leave the country and travel home. It was at this time that Bhullar contacted her sister and made arrangements to meet with her in Sydney. 27. Later that morning Gurpreet and Bhullar purchased one-way plane tickets to Sydney and upon arrival in Sydney purchased one-way tickets to Nepal. An airport alert resulted in their removal from the aircraft and their arrest. They were offered the opportunity to be interviewed which they declined. They were then released from custody. 28. On 5 January 2010 Gurpreet and Bhullar met with Bhullar's sister. On 28 January 2010 she made a statement to police in which she gave the following account of the conversation she had with the accused Bhullar. Gurpreet was present throughout the conversation: [Bhullar] said to me, "Our phones and passports are with police. On that day we had a party at home. There were other guys drinking. They were [the applicant], the deceased, another man and his wife, two other males and Gurpreet. Gurpreet and the deceased were really drunk. They had no idea what was happening. [The applicant] and the deceased had a fight. They were abusing each other and [the applicant] bashed the deceased. The couple and other males stopped [the applicant] and settled the situation. [The applicant] got up and left. Some time later everyone else left. About half an hour later [the applicant] came back. The deceased, Gurpreet and I were at home. The deceased opened the door. [The applicant] made Gurpreet and the deceased drink more. After that Gurpreet and the deceased were so drunk that they were nearly unconscious. [The applicant] said, "I'm going to kill him. I'm not gonna let him go". I said to [the applicant], "don't do this in our house. If you want to do it then do it somewhere else". [The applicant] then took [our] mobile phones. [The applicant] said to me, "If you don't help me, I'll kill you as well". [The applicant], Gurpreet and the deceased sat in the car. I drove the car. Gurpreet and the deceased were really drunk. They had no idea what was happening. I don't know how [the applicant] killed him and how he burnt him. When [the applicant] came back home, he had a knife on him which he burnt when he came back home. The next day [the applicant] got up and left. (emphasis added) 1. Between 29 December 2009 and 4 January 2010 there was a large amount of telephone contact between each of the three accused with some lengthy timed calls between 2 January 2010 and the arrest of Gurpreet and Bhullar. 2. The principles to be applied in considering an application for separate trial are well settled. As the applicant's counsel succinctly put it - there is a rule, and an exception to the rule. The onus is on the applicant for a separate trial to establish the grounds for granting the order. 3. Where the Crown case is that the accused were parties to a joint enterprise (as is the case here) the starting point is that they should be tried jointly (Webb & Hay v R [1994] HCA 30; 181 CLR 41). This has particular application in cases when two or more co-accused attempt to place the blame on each other. 4. The present case does not however easily fit the characterisation of a "cut-throat defence" since Bhullar intends to raise the defence of duress, with the applicant identified as the source of the threat to kill her if she did not assist, whereas the applicant's case, as I understand it, is that he knows nothing of the fate of the applicant after he left the party drunk (and wearing his t-shirt) and failed to return. Whether Bhullar raises the defence of duress wholly reliant on what she said to her sister coupled with what she otherwise knew of the applicant's reputation for violence (and what she can undoubtedly prove to be his reputation for violence from witnesses to be called in the Crown case and by the tender of the criminal record in her case), or whether she gives evidence and is cross-examined, it would appear, on the material before me, that she has a reasonable prospect of discharging the evidentiary onus of establishing duress. The onus is then on the prosecution to eliminate any reasonable possibility that she joined the criminal enterprise to kill the deceased because of the threat that the applicant would kill her, such threats being continuing and effective up until the time of the killing. 5. Public policy considerations also favour a joint trial of co-accused to avoid a situation where inconsistent verdicts might be returned because separate trials are convened. The economic and efficient use of court time and community resources in the administration of justice, coupled with the avoidance of inconvenience to lay witnesses, is also to be considered. In this case, the applicant concedes that is a factor militating in favour of a joint trial given the expense involved in convening two trials where, save for some exceptions, the same body of evidence will need to be called in each trial with the additional time and expense involved in the use of interpreters and where many of the witnesses may prefer either not to be called, or to find a way of avoiding being called, coming from within the community of largely itinerant workers on working visas from India in the Griffith/Wagga region. 6. While the cost and convenience correlatives carry significant weight on an application for separate trials, in determining whether a separate trial should be ordered, appropriate weight must also be given to ensuring, as far as is possible, that the applicant has a fair trial. An accused will be denied the right of a fair trial (and the administration of justice will be undermined carrying with it the potential of a successful appeal and a retrial) if it can be fairly said that there is a real risk that a positive injustice will result from a joint trial. 7. In R v Middis (Supreme Court of New South Wales, Hunt J, 27 March 1991) Hunt J drew together the various principles to be applied in determining when trials should be separated. Those principles have been cited with approval and applied in a succession of cases, most recently in the Madubuko v R [2011] NSWCCA 135. They are: * The evidence against the applicant is significantly weaker than, and different to, that which is admissible against another co-accused with whom he is to be tried; * The evidence against the other accused contains material which is highly prejudicial to the applicant, although not admissible against him; and * There is a real risk that the weaker Crown case against the applicant will be made immeasurably stronger by reason of the prejudicial material. 1. On the hearing of the application, and after taking into account the submissions of the applicant's counsel and, in particular, his reliance upon the content of the applicant's criminal record and its likely tender at trial in Bhullar's case, the Crown Prosecutor properly conceded that the first and second prerequisites in Middis have been made out. Argument was then focused on the degree of risk that the admittedly weaker Crown case against the applicant will be made immeasurably stronger by reason of the prejudicial material and whether emphatic judicial directions are sufficient to guard against a jury misusing the material. 2. In R v Pham [2004] NSWCCA 190 at [38-40] Adams J considered that two phrases in the statement of the Middis principle needed some further explanation. He said as follows: [39] Two phrases in this summary need some explanation. In ordinary speech, "immeasurably" usually connotes something of such an enormous degree that it is beyond measurement. It is obvious that it was here not used in this sense. I think that his Honour meant "significant, though incommensurable". The starting point is that the inadmissible, prejudicial material is completely irrelevant. If, when placed on the scales, it would be likely to turn a potential acquittal to a conviction then this would, I think, amount to "positive injustice". Of course, the likelihood cannot be measured: if it is real, as distinct from inconsequential, having regard both to its inherent character and the context of the Crown case, then the trial must necessarily embarrass the affected accused. The question then arises whether the risk that the material might be placed by the jury on the scales is such that the trial miscarried. It should also be noted that Hunt J necessarily assumed that clear and emphatic directions would be given to the jury that the inadmissible material must be ignored and the point made by the summary is that, in the posited circumstances, such directions may well be insufficient to avoid a miscarriage and separate trials should be ordered to prevent such an occurrence. [40] I interpolate that, with unfeigned respect, I am doubtful that the weakness of the applicant's case as compared with that of the co-accused against whom it is proposed to tender the prejudicial evidence can be a relevant consideration. Assume that the case against the co-accused was much weaker than the applicant, even with the prejudicial evidence. If there was a significant risk that the prejudicial evidence could be used by the jury adversely to the applicant and that evidence was itself significantly prejudicial, I am unable to see why the mere fact that it was adduced in a weaker co-offender's case is material. Indeed, the opposite would seem to be the case since, if the co-accused's case was weak, or weaker than the applicant's, the prejudicial evidence might well assume even more importance than otherwise. As it seems to me, with respect, the crucial issue is the potential effect of the inadmissible evidence on the jury's consideration of the applicant's case. 1. In Madubuko, Hodgson JA (Hoeben and Hall JJ agreeing) agreed with the analysis of the principles undertaken by his Honour in the passage extracted above. Hodgson JA said at [32]: In my opinion the primary question is whether there was a significant risk that prejudicial material in the ROI, which was not admissible against the appellant, could have turned a potential acquittal to a conviction. If that was the case, this could amount to a positive injustice requiring the ordering of separate trials. 1. In both Pham and Madubuko, of course, the Court was engaged in considering whether a positive injustice resulted from the joint trial of the appellants. Where an application for separate trials is made before trial^ the test of whether a potential acquittal is converted to a conviction by the admission of prejudicial and inadmissible material must necessarily be predictive. In some cases it might only be in the trial itself that the positive injustice to which Adams J referred materialises. 2. The question highlighted on the present application is whether I can predict with reasonable confidence the way in which a joint trial of these three accused is likely to be conducted and that a positive injustice will likely result unless the trials are separated. 3. Senior counsel for the Crown on the hearing of the application (although currently not the Crown Prosecutor at trial) confirmed the intention of the Crown to call Bhullar's sister and the expectation that she would be cross-examined with leave given her partisan presentation in the committal proceedings. The Crown also submitted that the jury would be invited by the Crown to accept the sister's evidence as reliable despite the need for her to be cross-examined, it being unlikely to be fabricated or in any way contaminated by suggestion of any kind and because it was made within a week of the murder. The fact that it was made in circumstances where Gurpreet and Bhullar had unsuccessfully sought to leave the jurisdiction (and where their flight would be led against them as consciousness of guilt) was also said to add to its probative weight in proof of their guilt. 4. In so far as the issue of duress is concerned, it was anticipated that the Crown submission at trial will be that the defence is not made as a matter of law (even if the evidential burden is discharged) given the extent of contact between each of the three accused in the hours and days following the murder and what appears to be their collective effort in producing a false account to police. Importantly, however, the Crown will not submit that Bhullar was misstating the circumstances surrounding the killing when she spoke to her sister, or that she falsely accused the applicant of applying pressure to her to assist in the killing or falsely nominated him as the killer. Rather, the submission will be that even if all that Bhullar told her sister were true, it did not amount to duress as a matter of law. 5. The applicant's counsel confirmed his current intentions not to cross-examine Bhullar's sister at trial. Despite the hugely prejudicial import of the evidence, since it is not lead against his client to ask any questions of her would likely be counterproductive to the trial judge's directions to the jury that the evidence was inadmissible against him and that they are obliged to ignore it as evidence of his guilt. Counsel intends to take the same approach to the evidence Bhullar's counsel intends to lead from various Crown witnesses, including police officers, of the applicant's tendency to violence (including threats to kill others if they did not abide by his wishes). He did not suggest that the tender of the applicant's criminal record can be challenged as inaccurate. 6. Despite the considered approach of the applicant's counsel, there is no doubt that considerable focus will be directed in both the Crown case and the defence case of the co-accused to proving the truth and reliability of inadmissible and highly prejudicial evidence both implicating the applicant in the murder of the deceased in circumstances and proving his bad character where in a separate trial that evidence will not be led. 7. In these circumstances, I am unable to see how even the most emphatic and repeated directions from the trial judge can guard against the risk that a jury may misuse the inadmissible material, or at least be unable to effectively separate the issues they are asked to resolve in the case of the co-accused on the evidence admissible in their cases and the issues that arise on the very different evidence tendered by the Crown to prove the applicant's guilt. 8. I am satisfied the applicant has demonstrated a proper basis for the trial of the applicant to be heard separately from Gurpreet and Bhullar and so order.