R v Singh (No 2) [2019] NSWSC 1410

Supreme Court New South Wales

Medium Neutral Citation: R v Singh (No 2) [2019] NSWSC 1410 Hearing dates: 9 October 2019 Date of orders: 17 October 2019 Decision date: 09 October 2019 Jurisdiction: Common Law - Criminal Before: N Adams J Decision: The Crown's alternate bases for a finding of guilt are not permitted to be put to the jury. Catchwords: CRIMINAL PROCEDURE — Trial — Closing address to jury by Crown Prosecutor - Directions to jury - Alternate basis for finding of guilt not available - Alternate basis based on Royall v The Queen - Whether deceased setting herself on fire an act of "self-preservation" - Whether alternate basis expressly addressed during closing address Cases Cited: Royall v The Queen (1991) 172 CLR 378; [1991] HCA 27 Category: Procedural rulings Parties: Regina (Crown) Kulwinder Singh (Accused) Representation: Counsel: Mr C Maxwell QC (Crown) Ms M Cunneen SC (Accused)

Solicitors: Solicitor for Public Prosecutions (Crown) Michael Vassili Barristers and Solicitors (Accused) File Number(s): 2017/00330134

Judgment 1. On 9 October 2019, I ruled that the Crown could not leave its case for murder to the jury on the alternate bases upon which he had opened to the jury. The Senior Crown Prosecutor asked me to provide reasons for doing so. These are my reasons.

Background 1. On 2 December 2013, Parwinder Kaur emerged from her home in Rouse Hill with her clothing on fire. Accelerant had been poured on her clothing and a cigarette lighter was found near the laundry door from which she emerged. Ms Kaur died the following day as a result of complications from extensive thermal injuries. She had received 90% full thickness burns to her body with sparing of the scalp and most of the face. At the time she emerged from her home the only other person in her home was her husband Kulwinder Singh. Nearly four years later, on 1 November 2017, he was charged with her murder. 2. On 12 August 2019, Mr Singh pleaded not guilty to the murder of Ms Kaur in Rouse Hill on 2 December 2013. A jury was empanelled and a trial commenced. On that day, the Senior Crown Prosecutor, Mr C Maxwell QC, opened the Crown case to the jury. Before doing so, he indicated that he proposed to open on alternate bases based on the principles derived from Royall v The Queen (1991) 172 CLR 378; [1991] HCA 27. Senior counsel for the accused, Ms M Cunneen SC, indicated that although Royall v The Queen was a very different case, the Crown opening on that basis would not pose any difficulty. The Crown then opened its case on four alternate bases as follows: "In the circumstances where Ms Kaur is obviously not here, it is open to the Crown to present its case on alternate bases. Either: 1, that Mr Singh doused his wife with petrol and he lit it or, 2; by some act or words he placed her in fear and forced her to douse herself and then he lit it, or, 3; that Mr Singh doused her and, by some act or words, he placed her in fear and forced her to light it, or, 4; that Mr Singh, by some act or words, placed her in fear and forced her to douse herself and her to light it. The act which caused her death is in fact one act, that is, the lighting of her petrol soaked body. The Crown case is that Mr Singh is responsible for the death of Ms Kaur either because he did the lighting or because he did the act or words which forced her to light herself regardless of who did the dousing. So the act causing the death is the lighting of her petrol soaked body." 1. On 26 August 2019, the jury wrote the following note which was marked MFI 11: "Your Honour, may the jury have the five points of the opening address by the Crown relating to the charges." 1. After hearing from counsel it was agreed that Mr Crown should re-read the portion of his opening address extracted above at [3], which he subsequently did. 2. By the time of closing addresses eight weeks later, 195 exhibits had been tendered and 68 witnesses had given evidence, including a large number of expert witnesses. The accused gave three interviews to police: two on 2 December 2013 and a lengthy walk-through on 11 December 2013. The walkthrough videos of two neighbours who were first on the scene, Ms Tracey Valle and Ms Michelle Hartmann, were also before the jury. Putting to one side for the moment the areas of contention, by the time of closing addresses the following evidence was not in dispute. 1. As at 2 December 2013, the deceased and the accused had been married for nearly eight years. They had no children and had been seeking fertility treatment. 2. There was an ongoing problem in the marriage about money. The accused worked as a security officer at Rail Corp and the deceased worked as a mushroom picker. All of their money went into a joint account in the accused's name and that was used to pay the mortgage, which was in both of their names. They owned their home in Rouse Hill as joint tenants. From time to time throughout the marriage the deceased would divert either some or all of her pay into other accounts and the accused would ask her to keep contributing to the mortgage. 3. About a month before her death the deceased had again stopped contributing to the mortgage. 4. On 12 November 2013, there was a default on the mortgage, according to the Commonwealth Bank home loan summary documents in the name of Kulwinder Singh and Parwinder Kaur. 5. Earlier that year, on 5 January 2013, the deceased had telephoned triple-0 then hung up. The operator called her back. Senior Constable Atkinson and Constable Kurukchi subsequently attended Ms Kaur's Rouse Hill home. The deceased told police that her husband had become unhappy at the fact that she opened up a new account, as he preferred to control the family income. She said that she heard her husband say words to the effect of "come kick her out of the house". As the deceased's accent was quite strong, the officers could not determine whether she said "kick" or "kill", but they then clarified that what was said by her husband was words to the effect of "kick me from the house". The deceased then signed a statement in Constable Kurukchi's notebook which read "I, Parwinder Kaur, do not hold any fears for by safety. There were no threats or assault and do not wish for any further police action". 6. The deceased had two siblings and parents residing in India. She wanted to bring them all to Australia to live. The deceased was a citizen of India at the time of her marriage, after which time she moved to Australia and became a permanent resident. The accused is and was an Australian citizen. The deceased's family were all very keen to migrate to Australia. 7. In 2009 the deceased's brother Mr Sukhvinder Singh and sister-in law Ms Amanpreet Kaur came to Australia on a study visa and stayed with the deceased's in-laws when they first arrived. 8. In 2012 and 2013, efforts were being made to bring the deceased's remaining sibling Ms Gurvinder Kaur to Australia. After a number of attempts failed, in October 2013 the deceased arranged for her sister to marry one of the deceased's co-workers, Mr Rohit Kalra. This marriage was kept a secret from the accused and his family and the deceased's best friend, Ms Seema Chaudhary. 9. The deceased had the accused's name in her mobile telephone as "Jaan Jaanu" or "love of my life". 10. On or about 1 December 2013, the deceased had asked to adopt the child of her brother Sukhvinder Singh and Amanpreet Kaur (as the deceased was infertile) and been refused. 11. In the afternoon of 2 December 2013, the accused came home and found the deceased watching a movie. He asked her to resume contributing to the mortgage but she refused. The accused told police that he then told her that he would be staying with his mother for two nights. He told police that he hoped that she would either say "please stay" or offer to contribute but she did not (although many parts of the accused's interviews with police were challenged by the Crown; this part was not). 12. At 2:05pm, the deceased telephoned her brother, Sukhvinder Singh. The call lasted 27 seconds. Mr Singh's evidence about this call was as follows: "Q. What did she say? A. INTERPRETER: She said that 'He's telling me again to put money into his account'. I told her and I said, like, 'This is an everyday thing of today and I am at work at the moment'. I told her that, 'I will knock off at 5 o'clock. If you could call me or otherwise I'll call you'. And that's it. Q. Can you describe her voice during that call? A. INTERPRETER: The voice was all right, like, but she was speaking softly and I knew she was at home and she said that she was at home." 1. The Vodafone records reveal that nine seconds after this conversation with her brother, the deceased called triple-0 and gave details of her name and address and then stated that "my husband nearly kill me". When the operator asked her what he had done she hung up. 2. Some minutes later, the deceased emerged from her home through the back laundry door, down the side of the house and down the steep driveway with her clothing on fire, according to the evidence of Ms Valle. 3. The deceased was still able to speak for a period of time before she was taken to hospital and lapsed into unconsciousness. According to Ms Valle's evidence, the deceased first called out "help, help", she later said "cover my bottom" as her clothes burned off her. When asked where it hurt by an ambulance officer she responded "everywhere" and when asked by police two or three times "did your husband do this?" she did not respond and simply turned her head. The police witnesses gave evidence that they asked "who did this?" as an open question, whereas a neighbour, Paul Ciantar, gave evidence that police asked her "did your husband do this?" The deceased did not implicate the accused. 1. The forensic evidence, which was not in dispute, reveals the following: 1. The fire was started in the laundry at the rear of the house. 2. A lighter was found in the laundry. It had both fingerprints and DNA of the deceased on it but no fingerprints or DNA of the accused. 3. A tin of petrol was found in the laundry cupboard. The lid was back on and the laundry door was closed. The petrol from the tin matched the accelerant on the deceased's clothing. This tin was usually kept in the garage as it was used for a whipper snipper. Ten fingerprints of the deceased were found on the petrol tin. No fingerprints or DNA of the accused were found on the petrol tin. 4. A biomechanics expert, Dr Andrew McIntosh, analysed the manner in which the fuel tin was handled based on the deceased's fingerprints and he identified three potential cluster groups of fingerprints. The first cluster was consistent with holding it with the left hand and supporting the can from underneath and was also consistent with using the little handle with the right hand to pour elevating the bottom of the can. The second cluster was consistent with holding the tin in an upright position with the arms extended and then potentially bringing the arms up while inverting the can. The third cluster involved the hands being placed on the side of the can with the fingers pointing downwards. This was consistent with tipping the contents back on to the person holding the fuel can. However, it was also consistent with lifting and moving the fuel can and it was noted that the fingerprints may not necessarily have been placed at the same time. 5. The deceased's mobile telephone and one of her rings was found in the laundry as well as a kitchen/steak knife. A large number of witnesses gave evidence that the deceased used a knife to cut vegetables in her vegetable garden which was adjacent to the laundry. 6. The cardigan worn by the deceased was identified by Dr Katarina Burda as consisting of an acrylonitrile based copolymer that was readily ignited and continued to burn after ignition. 7. Both of the fire experts, Mr Michael Forbes and Mr James Munday, agreed that there was a five to ten minute delay between the application of petrol and ignition. This was based on the absence of any significant burns to the deceased's head. 8. At post mortem, the deceased had a 3.5 x 2 centimetre bruise near her scalp hairline and two transverse lines of pink/purple contusion on her right upper eyelid. Expert evidence differed about this but can be summarised as follows. Dr Rebecca Irvine, a forensic pathologist, opined that the bruising was from two different impacts because of the sparing of the skin between the two areas. Dr Johan Dulfou, on the other hand, preferred the opinion that they were sustained at the same time and the bruise could have migrated from a higher part of the forehead. Both experts agreed they were blunt object injuries and could have been caused by a number of things including hitting a wall or doorway, or falling to the ground. 9. The accused received burns to his hands from allegedly trying to pat out the fire as he was following the deceased down the driveway. Expert evidence differed on this issue. Professor Peter Maitz indicated that he would expect that an attempt to pat flames would result in a burn injury that was more diffuse and would accompany the whole palm as compared with the photographs he was provided of Mr Singh's hands where the burn injury was confined primarily to the fingers. Dr Duflou, on the other hand, stated that the burns to the accused's hands were flame burns and could have been caused by the accused patting the deceased whilst she was on fire. His evidence was that he did not think there was a standard approach that people would take to patting out a fire in an emergency situation. Dr Margaret Stark, a forensic physician, also gave evidence that the injuries were consistent with the accused patting out the fire. 10. The deceased had about 300-500ml of accelerant on her clothing including her shoes. 11. There was very little spillage of the accelerant in the laundry. 12. The accused's clothing did not contain traces of accelerant. 13. The expert evidence as to how the fire started differed. Mr Forbes identified an external and internal area of origin in the laundry. He did not see any evidence of sustained burning in the laundry and his evidence was that a flash fire did not occur. He also explained that, in his opinion, there had not been a deflagration, which is a subtype of combustion explosion. Mr Munday agreed that there was no high-energy deflagration, but stated that there could have been a low-energy one, which is called a "flamewash". 14. The accused did not have any "flamewash" damage to his clothing. As indicated above, "flamewash" was explained by Mr Munday as being a type of low-energy deflagration. Mr Munday tested the accused's clothing for evidence that it had been exposed to "flamewash" and he did not find any evidence that it had been. His opinion was that the accused was not in close proximity to the deceased at the time of ignition because of the lack of flame wash damage. 1. A significant portion of the Crown case was taken up with evidence from family members. The blood relatives of the deceased gave "relationship evidence" that the accused was abusive to the deceased in that he restricted her life, was frugal with money and would not let her go anywhere. Other evidence was called to rebut this. Evidence was also given that on one occasion, two and half years before she died, he hit her with a shoe (this was denied) and that about 15 months before she died he had raised his hand in the air in front of her family and her brother intervened. This evidence was also disputed. There were credit issues pertaining to some of these witnesses which arose during cross-examination but it is not necessary for the purpose of these reasons to consider that evidence. 2. The accused's case, as explained in his three interviews with police, was that after the deceased refused to contribute to the mortgage he started going up and down the stairs of their five-bedroom home packing his clothes to stay with his mother. His car was found by police to have bags of clothing, shoes and other clothes on hangers in it. On one occasion during this packing he was upstairs when he heard a scream. He ran out the front door of his home and caught up with his wife down the driveway (it was common ground she had travelled out the back laundry door and down the side of the house whilst she was on fire). He was seen to try and pat out the flames. It was put to the jury by senior counsel for the accused that when the accused threatened to leave her, if only for two days, the deceased self-harmed, without meaning to harm herself in any significant way, as a cry for help and things got out of hand. 3. The Crown case was that the accused was lying when he said he was upstairs. He sought to establish this by reference to alleged inconsistencies as to what he told witnesses at the scene and as to how close he was to the deceased when first seen by witnesses. The Crown case was that the accused killed the deceased because she would not contribute to the mortgage.