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4
Supreme Court 12 February 2021

R v Singh (No 4)

[2021] NSWSC 75

Homicide
CRIMINAL PROCEDURE — TRIAL — VOIR DIRE PRE HAND HEARSAY EXCEPTIONS S 65(2) EVIDENCE ACT 1995 (NSW) S 66A EVIDENCE ACT MEANING OF “CIRCUMSTANCES”

Citation: R v Singh (No 4) [2021] NSWSC 75
Court: Supreme Court of New South Wales
Date: 12 February 2021
Judge(s): N Adams J

Background

The accused stood charged with the murder of his wife, who died on 3 December 2013 after sustaining burns to approximately 90% of her body. She emerged from the couple's home with her clothing alight while the accused was the only other person present. The central factual contest at trial was whether the deceased set herself alight (intentionally or accidentally) or whether her husband killed her. Forensic evidence, including fingerprints on a petrol tin, DNA on a cigarette lighter, and the absence of accelerant or flame-wash damage on the accused's clothing, was broadly consistent with the defence case.

The accused's first trial, held in 2019, ended in a hung jury. A second trial was listed to commence on 15 February 2021. Before the retrial, the accused brought a Notice of Motion seeking the exclusion of four categories of evidence that had been led at the first trial.

This judgment addressed the fourth and most significant category: hearsay representations allegedly made by the deceased to family members and work colleagues during the marriage. Those representations concerned financial disputes, physical abuse, fertility treatment, and divorce. The Crown sought to rely on them as relationship evidence. The accused argued they did not satisfy the statutory preconditions for admissibility.

  • Whether the deceased's out-of-court representations to family members and colleagues were admissible as first-hand hearsay under s 65(2)(b) or s 65(2)(c) of the Evidence Act 1995 (NSW)
  • Whether any of those representations were admissible under s 66A of the Evidence Act as contemporaneous statements of intention, knowledge, or state of mind
  • What the word "circumstances" means in ss 65(2)(b) and (c), and in particular whether it is confined to the circumstances of the making of the representation or extends to surrounding context
  • How strictly the "highly probable that the representation is reliable" threshold in s 65(2)(c) should be applied, particularly in a murder trial where the accused cannot cross-examine the maker of the representations

Decision

Adams J worked through the applicable hearsay exceptions in detail. Section 59 of the Evidence Act provides the general exclusionary rule for hearsay. The relevant exceptions were s 65(2)(b), which permits admission where circumstances make it "unlikely that the representation is a fabrication", and s 65(2)(c), which requires it to be "highly probable" that the representation is reliable. Her Honour also considered s 66A, which admits representations about a person's contemporaneous intention, knowledge, or state of mind.

Her Honour noted that "circumstances" in ss 65(2)(b) and (c) is not limited to the immediate circumstances of the making of the representation. Context surrounding the representation, including the relationship between the maker and the recipient, may be relevant. However, the test in s 65(2)(c) was treated as a high bar, applied strictly, particularly given the murder charge and the fact that the deceased was unavailable to be cross-examined. Representations that were not made at or shortly after the time of the asserted fact generally did not meet that elevated threshold.

The court ruled differently on each category of representation. Representations about fights over money were excluded under s 65(2)(c) as not meeting the high reliability threshold, although Adams J noted some might be admissible for a non-hearsay purpose. Evidence about a specific incident of physical abuse, where the deceased stayed with family members immediately afterwards, was admitted under s 65(2)(b). Most other physical abuse representations failed the s 65(2)(c) test. Representations about fertility treatment were partially admissible where they were made in the accused's presence or directly observed, but not otherwise. Representations about divorce made in the days immediately before the deceased's death were admitted; those made in October were not. Representations made in the lead-up to the deceased's death were admitted in full, either under s 66A or s 65(2)(b).

Her Honour noted that rulings could be revisited during trial, and that some excluded hearsay representations might become available to the accused depending on how the Crown witnesses gave their evidence at trial.

Orders Made

• Representations about fights over money: inadmissible under s 65(2)(c), though some may be admissible for non-hearsay purposes
• Representations about physical abuse: evidence about the incident where the deceased went to stay with Amanpreet and Sukhvinder is admissible under s 65(2)(b); remainder inadmissible under s 65(2)(c)
• Representations about fertility treatment: observations by Amanpreet and anything said by the deceased in the presence of the accused is admissible; remainder inadmissible under s 65(2)(c)
• Representations about divorce: representations made in the days before her death are admissible; those made in October are inadmissible under s 65(2)(c)
• Representations in the lead up to her death: all admissible either under s 66A or s 65(2)(b)

Key Takeaways

  • Under s 65(2)(c) of the Evidence Act 1995 (NSW), the requirement that it be "highly probable" a representation is reliable is a demanding standard, and Adams J applied it strictly in the context of a murder trial where the maker of the representations was unavailable for cross-examination.

  • Section 65(2)(b) sets a comparatively lower bar, requiring only that circumstances make it "unlikely" the representation was a fabrication; representations closely connected in time and circumstance to a described incident (such as the deceased going immediately to stay with family after an alleged assault) more readily satisfy this limb.

  • The word "circumstances" in ss 65(2)(b) and (c) is not confined to the moment of making the representation; surrounding context, including the relationship between the parties and the broader situation, is relevant to the assessment.

  • Section 66A provides an independent pathway to admissibility for representations about a person's contemporaneous state of mind, intention, or knowledge, and several of the deceased's representations in the period immediately before her death were admitted on this basis.

  • Hearsay rulings made on a pre-trial voir dire are not necessarily final; the Supreme Court confirmed they can be revisited during the trial if the evidentiary context changes, including where excluded evidence might later become relevant for a non-hearsay purpose or at the accused's request.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), ss 55, 56, 59, 62, 65, 66A

Cases:
- Azizi v The Queen [2012] VSCA 205
- Boral Resources (Vic) Pty Ltd v CFMEU (Ruling No 2) [2015] VSC 459
- Chidiac v The Queen (No 2) [2016] NSWCCA 120
- Clarke (a pseudonym) v The Queen [2017] VSCA 115
- Harris v R [2005] NSWCCA 432
- IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
- In the matter of HIH Insurance Limited (In Liquidation); Cuong Ly v HIH Insurance Limited [2015] NSWSC 790
- Munro v The Queen [2014] ACTCA 11
- Prasad v R [2020] NSWCCA 349
- R v Al Batat & Ors (No 31) [2020] NSWSC 1556
- R v Ambrosoli (2002) 55 NSWLR 603; [2002] NSWCCA 386
- R v Gittany (No 2) [2013] NSWSC 1599
- R v Kuzmanovic [2005] NSWSC 771
- R v Ryan [2020] NSWSC 1394
- R v Singh (No 3) [2020] NSWSC 1911
- R v Singh (No 5) [2021] NSWSC 76
- R v Tarantino [2019] NSWSC 939
- Sio v The Queen (2016) 259 CLR 47; [2016] HCA 32
- Smith v The Queen (2001) 206 CLR 650; [2001] HCA 50
- Williams v The Queen [2000] FCA 1868