Citation: R v Singh (No 5) [2021] NSWSC 76
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 after emerging from their Rouse Hill home with her clothing alight on 2 December 2013. The Crown case was that the accused ignited his wife's clothing in the laundry and then followed her down the driveway, pretending to assist. The defence position was that the accused was upstairs when he heard screaming, ran downstairs, and met his wife near the top of the driveway as she moved toward the street.
Central to the Crown case was the assertion that the accused's claim to have been upstairs was a lie, which the Crown sought to prove as consciousness of guilt. Two neighbours, Ms Hartmann and Ms Valle, were expected to give evidence about where they each were when they first saw the flames, the deceased, and the accused.
In October 2015, investigating police produced a re-enactment video recording timed walks and runs between specified points in and around the property. The Crown sought to use this video to demonstrate that the accused could not have reached the deceased on the driveway in the time available had he come from upstairs. The accused sought exclusion of the video on several grounds ahead of his retrial, listed to commence 15 February 2021.
Legal Issues
- Whether the re-enactment video was relevant within the meaning of s 55 of the Evidence Act 1995 (NSW)
- Whether the evidence constituted expert opinion evidence requiring specialised knowledge under s 79 of the Evidence Act
- Whether, under s 137 of the Evidence Act, the probative value of the video was outweighed by the danger of unfair prejudice to the accused
- Whether the re-enactment video could be excluded under ss 135 or 137 of the Evidence Act on the basis that the positions and markers used by police were disputed and potentially misleading
Decision
Adams J first considered relevance under s 55. The court noted that the test for relevance is a low threshold: the evidence need only be capable of rationally affecting the probability of a fact in issue. Given that the layout of the house and the timing of events would be in evidence at trial, the video cleared that threshold, even though some of the reference points it used were disputed.
The court then rejected the argument that the video constituted expert opinion evidence. Timed walks and runs between two points do not involve specialised knowledge derived from training, study, or experience within the meaning of s 79(1) of the Evidence Act, and none of the police officers involved expressed any opinion about the results they obtained.
The critical issue was s 137, which requires a court in criminal proceedings to exclude prosecution evidence if its probative value is outweighed by the danger of unfair prejudice to the defendant. Adams J found the video's probative value to be low. The markers and positions used in the video were chosen by police and remained genuinely disputed. The concern was that presenting these choices to the jury through a video would elevate police-selected positions to apparent facts, when those positions were themselves the subject of controversy.
Adams J was also persuaded by a practical alternative: the jury would attend a view of the premises shortly after the Crown opening, and both parties would have ample opportunity to agree on what needed to be demonstrated at the view. The jury would be permitted to walk the relevant distances themselves. Because any legitimate use the Crown sought to make of the distances and timings could be achieved through the view, the residual risk that the jury would place undue weight on the video, and substitute it for what actually occurred, outweighed its probative value. The video was accordingly excluded under s 137.
Orders Made
• Exclude the re-enactment video under s 137 of the Evidence Act
• Court prepared to hear parties further regarding what the jury will need pointed out to them at the view
Key Takeaways
- Under s 137 of the Evidence Act 1995 (NSW), the Supreme Court excluded a police re-enactment video where the reference points and distances it depicted were disputed, finding the risk that the jury would treat police-selected positions as established facts rendered the evidence unfairly prejudicial.
- Timed walks and runs conducted by police officers between identified locations do not constitute expert opinion evidence under s 79 of the Evidence Act; no specialised knowledge is required to walk or run from one point to another.
- The threshold for relevance under s 55 of the Evidence Act is low: the court found the video relevant despite the disputed markers, because it could rationally affect the probability of a fact in issue.
- Where a jury will attend a view of the relevant premises, and where the jury can itself walk the distances in dispute, that opportunity may satisfy the Crown's legitimate evidentiary purposes and reduce the probative value attributed to a re-enactment.
- A re-enactment video carries a particular risk of "elevating" the choices made by its creators, such that a jury may treat a producer's decisions about locations and speeds as accurate reconstructions of events rather than as one contested version of them.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 55, 79, 135, 137
Cases
- Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37
- R v Neilan [1992] 1 VR 57
- R v Singh (No 3) [2020] NSWSC 1911
- Smith v The Queen (2001) 206 CLR 650; [2001] HCA 50