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Supreme Court 23 December 2020

R v Singh (No 3)

[2020] NSWSC 1911

Homicide
CRIMINAL PROCEDURE APPLICATION TO EXCLUDE EVIDENCE STEAK KNIFE FOUND IN LAUNDRY APPLICATION FOR DNA PROCEDURE RELEVANCE RISK OF UNFAIR PREJUDICE

Citation: R v Singh (No 3) [2020] NSWSC 1911
Court: Supreme Court of New South Wales
Date: 23 December 2020
Judge(s): N Adams J

Background

The accused was charged with the murder of his wife, who died on 3 December 2013 after emerging from their Rouse Hill home with her clothing on fire. She had suffered 90% full-thickness burns to her body. The accused was the only other person present in the home at the time. A first trial ended with the jury unable to reach a verdict in October 2019, and a retrial was listed for February 2021.

The central dispute at trial was whether the deceased set herself alight (intentionally or accidentally) or whether the accused was responsible. Forensic evidence showed the fire started in the laundry, an accelerant matched petrol found in a tin in the laundry, and fingerprints and DNA from the deceased (but not the accused) were found on both the lighter and the petrol tin.

Police found a steak knife on a cardboard box in the laundry, near the deceased's mobile phone and one of her rings. A DNA swab from the knife produced a mixed profile; neither the deceased nor an unknown male could be excluded as contributors. At the first trial, by consent, evidence was led that the accused could not be excluded as that unknown male contributor. Ahead of the retrial, the accused filed a notice of motion seeking exclusion of that evidence. He also opposed a fresh application in the Local Court by police under the Crimes (Forensic Procedures) Act 2005 (NSW) to obtain a new DNA sample. Adams J's ruling on admissibility was required before that Local Court application was heard.

  • Whether evidence of the steak knife and the associated DNA profile was relevant within the meaning of ss 55 and 56 of the Evidence Act 1995 (NSW)
  • If relevant, whether the probative value of the evidence was substantially outweighed by the danger of unfair prejudice to the accused under s 137 of the Evidence Act 1995 (NSW), such that it should be excluded
  • Whether any risk of unfair prejudice could be adequately addressed by jury directions

Decision

Adams J ruled that the evidence of the steak knife was admissible. The primary objection was lack of relevance. Drawing on Smith v The Queen (2001) 206 CLR 650, her Honour confirmed that if evidence is not relevant, it cannot be admitted. The Crown contended the knife's presence near the deceased's phone was capable of supporting an inference that the accused had been downstairs in the laundry at or near the time the deceased called triple-0 and was set alight. Her Honour accepted that this satisfied the low threshold for relevance under s 55: the evidence could, if accepted, rationally affect the probability of a fact in issue, namely the accused's location at the relevant time.

Her Honour acknowledged, however, that the probative value of the evidence was low. The accused lived in the house, the knife was a common household object, and his DNA could have been transferred to it in any number of ways, in any room, at any time. The knife was also consistent with the defence case that the deceased used it to cut vegetables in her garden adjacent to the laundry.

Turning to s 137, her Honour applied the principle that "unfair prejudice" refers to the risk that evidence will be misused by a jury in a manner logically unconnected with the issues in the case, drawing on Papakosmas v The Queen (1999) 196 CLR 297, Festa v The Queen (2001) 208 CLR 593, and Colby v The Queen [1999] NSWCCA 261. Her Honour was not satisfied that such a risk existed here. The knife's presence could not prove the accused was in the laundry at any particular time, and any residual risk could be adequately addressed by jury directions explaining the evidence's limited relevance.

Orders Made

• The evidence of the knife finding is admitted
• The jury will be instructed that the presence of the knife cannot prove the accused was in the laundry at any particular time
• Directions will be given to explain the limited relevance of the evidence

Key Takeaways

  • Evidence of a steak knife found near a deceased's phone satisfied the low relevance threshold in s 55 of the Evidence Act 1995 (NSW), even though its probative value was assessed as low and alternative explanations existed for the DNA profile found on it.
  • Under s 137 of the Evidence Act 1995 (NSW), "unfair prejudice" requires a risk that evidence will be misused in a way logically unconnected with the issues at trial; it does not arise merely because the evidence is inculpatory if properly used.
  • Where residual risk of misuse exists, jury directions can be sufficient to address that risk and avoid exclusion under s 137.
  • Alternative explanations for the presence of DNA on a moveable household object go to the weight of the evidence and are matters for the jury, not automatic grounds for exclusion.
  • The Supreme Court's admissibility ruling directly informed a separate pending application in the Local Court under the Crimes (Forensic Procedures) Act 2005 (NSW), illustrating how pre-trial evidentiary rulings can have consequences across parallel proceedings.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), ss 55, 56, 137
- Crimes (Forensic Procedures) Act 2005 (NSW)

Cases
- Smith v The Queen (2001) 206 CLR 650; [2001] HCA 50
- Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37
- Festa v The Queen (2001) 208 CLR 593; [2001] HCA 72
- Colby v The Queen [1999] NSWCCA 261
- IMM v The Queen (2016) 330 ALR 382; [2016] HCA 14