Supreme Court New South Wales Medium Neutral Citation: R v Harpreet Singh [2012] NSWSC 869 Hearing dates: 19 July 2012 Decision date: 27 July 2012 Jurisdiction: Common Law - Criminal Before: Harrison J Decision: Application to discharge jury refused Catchwords: CRIMINAL LAW - procedure - juries - discharge and excusing from attendance - application to discharge jury - whether prejudice to accused - application refused Category: Interlocutory applications Parties: Crown Harpreet Singh (Accused) Representation: P McGrath (Crown) M King (Accused) Solicitor for Public Prosecutions (Crown) S Hausman (Accused) File Number(s): 2010/00025959 Judgment 1HIS HONOUR: The accused applies for an order discharging the jury. That application arises in the following way. 2At the commencement of the trial the accused opened the defence case to the jury. That opening was in part predicated upon an anticipation that evidence would be led in the Crown case from a series of witnesses that would include evidence about events at the apartment of Gurpreet Singh and Harpreet Kaur Bhullar on the evening of 28 December 2009 and the following early morning. Apart from those two people, only the accused, the deceased and two other people were present. The other two were Sukhjit Kaur and Baljinder Singh. Each of these two gave evidence at the committal hearing. 3Baljinder Singh gave evidence in this trial commencing on 18 July 2012. His evidence had not concluded at the end of the day and he was therefore due and expected to return to the witness box the following day. In the meantime, both he and Sukhjit Kaur approached the police in charge of the investigation after court hours indicating that they both wished to change their evidence in certain respects. Significant among these respects was their evidence concerning the timing of the deceased's departure from the apartment. Each witness originally indicated in statements given to police that the deceased had left the apartment before them. In anticipation of giving their revised evidence, each witness indicated that the deceased was still in the second bedroom of the apartment when they left. The Crown informed me of this on the ninth day of the trial on 19 July 2012 in the following passage: "CROWN PROSECUTOR: Your Honour, I was informed overnight that after the close of business yesterday, the present witness Baljinder Singh approached the officer-in-charge, Detective Clark, as a result of which Baljinder Singh and his wife Sukjit Kaur gave statements overnight to the police. Those statements change - are different from what is contained in their original witness statements in significant respects and as between the two of them, in some different respects. But the position we now have is that we have fresh statements and we have inconsistent statements from them about the events of the night, some of which impact on matters of significance in the trial. The principal one being that after Ranjodh Singh went to the second bedroom, on Baljinder Singh's new version, being pushed by Harpreet Singh, then on his version there was some involvement of Ranjodh Singh, but after he went to the bedroom, he never left the bedroom. He remained in the unit, in the bedroom, until he and his wife left. 4On the previous day of the trial, and before all this had occurred, Mr King of counsel for the accused had cross examined Harpreet Kaur Bhullar, and put to her a proposition based upon his understandable expectation that Baljinder Singh and Sukhjit Kaur would later give evidence in accordance with their evidence at the committal and without knowing that they would later seek to change their stories. In that setting, he asked Ms Bhullar the following series of questions at T 492: "Q. Harpreet Singh went to bed? A. INTERPRETER: He went into his room. I didn't see him going in the bed. Q. On your version, Ranjodh is still in the room? A. INTERPRETER: Yes. Q. The last time you saw him he was unconscious? A. INTERPRETER: Yes. Q. Slumped on the floor? Before dinner? A. INTERPRETER: Yes. Q. Before you went to bed didn't you go and brush your teeth or go to the toilet or something like that? A. INTERPRETER: I don't remember. Q. You didn't think to peek in the second room to see if Ranjodh was still lying there? A. INTERPRETER: No. Q. You weren't tempted to see if your friend was still alive? INTERPRETER: Say it again, please? KING Q. You weren't tempted to go and have a look to see if your friend was still alive? A. INTERPRETER: No. Q. No, and I suggest you weren't tempted to go and have a look in that bedroom because you well knew that he wasn't there? A. INTERPRETER: Why not? He was still there. Q. All right and I suggest the story you've told the jury about a fight in the bedroom is a lie? A. INTERPRETER: No. Q. To cover up what really happened later on? A. INTERPRETER: No." 5Baljinder Singh and Sukhjit Kaur subsequently each gave evidence, first in a Basha type inquiry before in the absence of the jury and later in the trial proper. They confirmed that the deceased was still in the bedroom by the time that they left the apartment. The effect of all of this is that, whatever one might wish to say about the differing, not to say contradictory, versions given by the four other witnesses of what occurred at the apartment, all of them in one form or another ultimately proffered a version that placed the deceased in the second bedroom of the apartment until at least the time when Baljinder Singh and Sukhjit Kaur left the premises. 6It was in these circumstances that Mr King sought to discharge the jury upon the basis that his earlier cross examination of Harpreet Kaur Bhullar in which he had suggested that the deceased was no longer at the apartment, may have caused irreparable prejudice to the accused and that there was a potential for the trial to miscarry as a result. He was concerned that the jury would be left with the impression that that cross examination was based upon the accused's instructions and that the accused was propounding a version that the deceased was no longer in the apartment, in contrast to the now emerging unanimous versions from the other four witnesses that the deceased was still there at the time in question. At the very least, Mr King was concerned that the accused might appear to be giving unreliable instructions to his counsel and that this had, or may have, become apparent to the jury, in the circumstances that I have outlined. 7I rejected the application and indicated that I would give reasons in due course. 8More or less throughout this trial, for better or worse, much time and effort has been concentrated upon what is alleged to have transpired at the apartment. It is the setting from which the fateful journey to the scene of the deceased's death commenced. It is the setting that on one view fomented the precipitating series of causes and influences that culminated in the death. What is clear is that there is simply no clear picture of what really happened. By the time that Baljinder Singh and Sujhjit Kaur had given their evidence, which included their markedly changed story concerning the location of the deceased in the bedroom when they all sat down to dinner and thereafter, the task of discerning who if anyone could be believed had only become more difficult for the jury. This in the overall scheme of things could in my view only have been significantly advantageous for the accused and not otherwise. I could discern no prejudice to the accused arising from this. 9More importantly, the approach otherwise consistently taken by the accused in cross examination of witnesses, and revealed in evidence that is not the subject of relevant doubt, was that the deceased had been driven from the apartment by the accused and Gurpreet Singh and Harpreet Kaur Bhullar after Baljinder Singh and Sukhjit Kaur had left. That evidence seems to me overwhelmingly to have swamped any flicker of doubt or concern that Mr King suggests the jury might have had following from his cross examination, in particular the italicised question, of Harpreet Kaur Bhullar. It would be very surprising to me if the jury had even noticed the slight tension between the two positions that Mr King refers to in the overall scheme of the detailed evidence touching and concerning the events at the apartment that evening. 10I did not consider that there were proper grounds for the discharge of the jury in these circumstances. ********** 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: 02 August 2012