Citation: R v Singh (No 7) [2021] NSWSC 267
Court: Supreme Court of New South Wales
Date: 3 March 2021
Judge: N Adams J
Background
The accused stood trial for the murder of his wife, who died in December 2013 from burns covering 90% of her body. The central issue at trial was whether the deceased set fire to herself or was killed by her husband, who was the only other person on the premises at the time.
The Crown's case relied heavily on alleged lies told by the accused. In particular, the accused said in a police interview that he had been upstairs packing a suitcase when he heard his wife scream. To challenge this account, the Crown sought to prove that no suitcase was found in the bedroom when police searched the house that night, with luggage instead located in the accused's car.
To establish that fact, the Crown sought to tender the evidence of Detective Senior Constable Ryan Mitchell and accompanying EFIMS (Exhibits Forensic Information and Miscellaneous Property System) records documenting what he found and seized during his search. The defence applied to exclude that evidence entirely.
Legal Issues
- Whether the evidence of Detective Senior Constable Mitchell and the EFIMS records was admissible under s 55 of the Evidence Act 1995 (NSW) (relevance).
- Whether the evidence ought to be excluded under s 135 or s 137 of the Evidence Act 1995 (NSW) on the basis that its probative value was outweighed by the danger of unfair prejudice.
- Whether alleged unreliability in the manner the exhibits were collected and recorded reduced the probative value of the evidence to the point that exclusion was warranted.
Decision
Adams J admitted the evidence, ruling that the reliability concerns raised by the defence were matters squarely for the jury rather than grounds for exclusion.
On the question of probative value under s 137, her Honour applied the principle from IMM v The Queen (2016) 257 CLR 300 that evidence must be taken at its highest when assessing probative value, without discounting for credibility or reliability. The circumstances surrounding the detective's collection of the exhibits, including that he acted alone, without photography or filming, and later moved the items to his own vehicle, could lead a jury to find his evidence unreliable. However, that assessment belonged to the jury as part of the ordinary fact-finding process.
On unfair prejudice, the Court was not satisfied that the jury would use the evidence in a way logically unconnected with the issues in the case. The evidence went directly to whether the accused had been truthful about packing a suitcase in the bedroom. If accepted, it tended to show either a lie or a mistake; if rejected, it carried no weight at all. That was conventional use of evidence, not misuse.
The argument that the detective's evidence constituted inadmissible opinion under s 76 was raised in written submissions but was not pressed at the hearing and was therefore not determined.
Orders Made
• The evidence of Detective Senior Constable Ryan Mitchell as to what he seized and what he recorded about that seizure on 2 December 2013 is not excluded.
Key Takeaways
- Under s 137 of the Evidence Act 1995 (NSW), a court assessing probative value must take the evidence at its highest and cannot discount that value on the basis of credibility or reliability concerns: IMM v The Queen (2016) 257 CLR 300 applied.
- Reliability of a witness and the circumstances in which exhibits were collected are matters for the jury's assessment, not a basis for pre-trial exclusion, provided the evidence is rationally capable of acceptance.
- "Unfair prejudice" within s 137 requires a risk that the jury will use the evidence in a way logically unconnected with the issues in the case. Evidence that goes directly to a factual issue at trial does not meet that standard simply because it may carry significant weight.
- Procedural irregularities in the collection and handling of exhibits, even substantial ones, do not automatically reduce evidence to the point of inadmissibility; the significance of those irregularities is for the jury to weigh.
- In dismissing the exclusion application, the Court confirmed that the question of whether a particular item of evidence supports a finding that the accused lied is a conventional jury function, not a form of prejudice that s 137 is designed to prevent.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), ss 55, 76, 97, 135, 137
Cases:
- Colby v The Queen [1999] NSWCCA 261
- IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
- Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37
- R v Shamouil (2006) 66 NSWLR 228; [2006] NSWCCA 112
- R v Singh (No 3) [2020] NSWSC 1911
- R v Singh (No 4) [2021] NSWSC 75
- R v Singh (No 5) [2021] NSWSC 76
- R v XY (2013) 84 NSWLR 363; [2013] NSWCCA 121
- The Queen v Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40