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Supreme Court 12 August 2019

R v Kulwinder Singh (No 1)

[2019] NSWSC 1000

Homicide
EVIDENCE OPINION EVIDENCE EXCEPTIONS EXPERT OPINION MURDER TRIAL RELEVANCE OF REPORT

Citation: R v Kulwinder Singh (No 1) [2019] NSWSC 1000
Court: Supreme Court of New South Wales
Date: 12 August 2019
Judge(s): N Adams J

Background

The accused stood trial for the murder of his wife, who died on 3 December 2013 after sustaining burns to nearly 90% of her body at the couple's home in Rouse Hill. The Crown's case was that the accused set fire to her; the defence contended the burns were self-inflicted. Both the accused and the deceased had emigrated from India and adhered to the Sikh faith.

The Crown sought to tender an expert report from a witness experienced in domestic violence within migrant communities, specifically addressing cultural and religious elements of Indian-Punjabi and Sikh life. The Crown's purpose was to help the jury understand why the deceased behaved as she did during the marriage, including why she did not report alleged violence to police and why divorce carried particular significance in her cultural context. The Crown also argued the report was admissible under s 108C of the Evidence Act 1995 (NSW) to assist the jury in assessing the deceased's credibility.

The accused objected before trial. A two-day voir dire was conducted in which the proposed expert gave evidence and was extensively cross-examined. Adams J reserved her decision at the conclusion of submissions on 6 August 2019 and ruled on 8 August 2019 that the evidence was inadmissible. These are her published reasons for that ruling.

  • Whether the proposed expert possessed "specialised knowledge" within the meaning of s 79 of the Evidence Act 1995 (NSW) sufficient to qualify her as an expert in Indian-Punjabi culture and the Sikh faith.
  • Whether the opinions expressed in the report were based on that specialised knowledge, as required by the framework established in Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 and HG v The Queen (1999) 197 CLR 414.
  • Whether the evidence was relevant under ss 55 and 56 of the Evidence Act, in particular whether it had the capacity to affect the assessment of facts in issue.
  • Whether the evidence was admissible under s 108C as expert evidence going to the credibility of the deceased.
  • Whether, even if otherwise admissible, the evidence should be excluded under s 137 of the Evidence Act because its probative value was outweighed by the risk of unfair prejudice.

Decision

Adams J ruled the proposed expert's evidence inadmissible on multiple grounds. On expertise, the court found that while the witness was genuinely expert in domestic violence as it affects migrant communities in Australia, she had not established the specialised knowledge required under s 79 to give expert opinion on the specific cultural and religious norms of Indian-Punjabi or Sikh communities. Her training and professional background was in domestic violence advocacy and support work, not in cultural or religious scholarship of the relevant communities.

Even setting the expertise question aside, the court found that the opinions expressed in the report were not sufficiently connected to a recognised body of specialised knowledge. The reasoning underlying the opinions was not adequately articulated, which is a requirement made clear by the High Court in HG v The Queen and confirmed in subsequent authority. The report risked functioning as advocacy rather than as proper expert analysis.

The court also identified a significant prejudice problem under s 137. Adams J found that the probative value of the evidence was outweighed by the real risk that the jury would misuse it as a form of "cultural tendency" evidence, treating the cultural and religious context described as inferential proof of the accused's guilt. This risk was not adequately offset by the probative weight the evidence could properly carry.

Adams J made three further observations. First, the witness had formed a firm belief in the accused's guilt well before she was retained, and her evident advocacy for the deceased undermined her ability to function as an impartial expert, rendering her an inappropriate choice for the role. Second, the ruling did not foreclose the Crown from calling other witnesses, such as Sikh temple elders, to give evidence about Punjabi Sikh culture generally, provided relevance could be established. Third, the court's references to aspects of the culture that may render women more susceptible to domestic violence were intended in no disrespect to members of that community.

Orders Made

  • The evidence of Ms Jatinder Kaur is inadmissible.

Key Takeaways

  • Under s 79 of the Evidence Act 1995 (NSW), an expert's specialised knowledge must correspond to the specific subject matter of the opinion offered: expertise in a broadly related field does not automatically satisfy the requirement where the opinion concerns a distinct cultural or religious community.
  • A proposed expert's firmly held pre-existing view about a party's guilt, formed before retention, is a factor that can render that person an inappropriate choice as an expert witness, independent of formal qualification questions.
  • Where cultural context evidence carries a real risk that a jury will treat it as "tendency" or guilt-inferential evidence, s 137 of the Evidence Act may require its exclusion even if relevance and expertise requirements are otherwise met.
  • Excluding one proposed expert's evidence on cultural context does not automatically bar all evidence on that topic: Adams J expressly left open the possibility of other witnesses giving relevant and properly circumscribed cultural evidence.
  • The requirement that expert opinions be transparently reasoned and connected to an identified body of specialised knowledge, confirmed in Dasreef and HG v The Queen, applied with particular force where the proposed evidence straddled cultural commentary and advocacy.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), ss 55, 56, 76, 79, 108C, 137
- Coroner's Act 2009 (NSW), s 78(1)(b)

Key Cases
- Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21
- HG v The Queen (1999) 197 CLR 414; [1999] HCA 2
- Honeysett v The Queen (2014) 253 CLR 122; [2014] HCA 29
- Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305
- IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
- Smith v The Queen (2001) 206 CLR 650; [2001] HCA 50
- A2 v R; Magennis v R; Vaziri v R [2018] NSWCCA 174
- KJS v R (2014) 86 NSWLR 603; [2014] NSWCCA 27
- Wood v R [2012] NSWCCA 21
- ASIC v Rich [2005] NSWCCA 152
- Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37