Citation: R v Singh (No 6) [2021] NSWSC 213
Court: Supreme Court of New South Wales
Date: 11 March 2021
Judge(s): N Adams J
Background
The accused stood trial for the murder of his wife, who died on 3 December 2013 from burns sustained the previous day at the couple's home. The Crown alleged the accused poured petrol on her clothing and ignited it with a cigarette lighter. The accused denied this, stating he heard his wife scream from upstairs and ran outside to find her on fire, at which point he attempted to pat out the flames with his hands.
Two eyewitnesses observed the accused walking behind the deceased and patting at the flames with open hands. The accused sustained second-degree (partial thickness) burns to his fingers and parts of his palms. This was also the accused's second trial, the first having ended in a hung jury.
The Crown sought to call Professor Maitz, a burns treatment expert, to give opinion evidence that the accused's hand injuries were inconsistent with genuinely patting out the flames. The accused's counsel objected to one discrete aspect of that proposed evidence for the first time in the second trial.
Legal Issues
- Whether Professor Maitz's opinion that the accused was not making a genuine attempt to pat out the flames was admissible expert opinion evidence under s 79(1) of the Evidence Act 1995 (NSW)
- Whether that opinion evidence had a proper factual basis and fell within the professor's area of specialised knowledge
- Whether the evidence was relevant under ss 55 and 56 of the Evidence Act given that the eyewitness accounts it purported to rebut were unchallenged
Decision
Adams J admitted Professor Maitz's evidence that the accused sustained flame burns and that such burns arise from contact with an open flame. That part of the evidence was uncontroversial and fell squarely within the professor's expertise in burns treatment. No objection was taken to it.
The court excluded the further opinion that the accused's patting efforts were not genuine. Adams J identified three reasons. First, no challenge had been made to the eyewitness evidence that the accused was trying to pat out the flames. Absent such a challenge, the opinion evidence lacked relevance under ss 55 and 56 of the Evidence Act, as there was nothing in contest for it to rebut.
Second, expertise in the treatment of burns does not extend to forming opinions about whether a person's fire-extinguishing efforts were genuine, particularly when the expert was not present and eyewitnesses were. The proposed opinion stepped outside the bounds of the professor's specialised knowledge as required by s 79(1).
Third, the factual foundation for the opinion was inadequate. It rested solely on an absence of more extensive burns to the palms as shown in photographs, without accounting for variables such as the heat of the fire or the duration of contact. Adams J observed that determining whether an attempt to pat out flames was "genuine" from photographs alone begged the very question the evidence purported to answer. Whether the accused's conduct amounted to a genuine attempt was a matter for the jury, not expert opinion.
Orders Made
• The expert opinion evidence of Professor Maitz that the accused was not attempting to pat out the fire is inadmissible.
Key Takeaways
- Expert opinion under s 79(1) of the Evidence Act 1995 (NSW) must be wholly based on the expert's specialised knowledge: expertise in one field (here, burns treatment) does not automatically qualify a witness to opine on related but distinct questions (here, the genuineness of a person's conduct).
- Where proposed expert evidence purports to rebut eyewitness accounts that have not been challenged, it may lack relevance under ss 55 and 56 of the Evidence Act and be excluded on that ground alone.
- An expert opinion is only as strong as its factual basis: an opinion derived solely from photographs, without accounting for other known variables, may be insufficient to satisfy the requirements of s 79(1) as articulated in Dasreef and Honeysett.
- Whether conduct observed by multiple eyewitnesses was "genuine" is ordinarily a question of fact for the jury; it does not automatically become a matter for expert evidence simply because the witness holds relevant professional qualifications.
- The decision illustrates that the admissibility of different aspects of the same expert's evidence can be assessed separately, with some parts admitted and others excluded depending on whether each falls within the expert's area of specialised knowledge and has an adequate factual foundation.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 38, 55, 56, 76, 79, 102, 137
Cases
- Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21
- Honeysett v The Queen (2014) 253 CLR 122; [2014] HCA 29
- Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305