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Supreme Court 10 February 2023

R v Singh (No 8)

[2023] NSWSC 51

Homicide
MURDER

Citation: R v Singh (No 8) [2023] NSWSC 51
Court: Supreme Court of New South Wales
Date: 10 February 2023
Judge: N Adams J

Background

In December 2013, a woman died from severe burns suffered at her home in Rouse Hill. Her husband was the only other person present at the time, and police charged him with murder in November 2017, nearly four years after a coronial inquest. The prosecution's case was entirely circumstantial.

The accused stood trial twice before the same judge. The first trial, lasting eight weeks with 68 witnesses and 195 exhibits, ended when the jury was unable to reach a verdict. At the second trial, in March 2021, the jury returned a verdict of not guilty.

Following his acquittal, the accused applied for a costs certificate under the Costs in Criminal Cases Act 1967 (NSW). Such a certificate is a prerequisite to recovering defence costs from the Consolidated Fund and is available only in limited circumstances.

  • Whether, had the prosecution possessed all relevant facts before instituting proceedings, it would not have been reasonable to charge the accused with murder (s 3(a) of the Act)
  • Whether any act or omission by the accused that contributed to the institution or continuation of the proceedings was reasonable in the circumstances (s 3(b) of the Act)
  • Whether the accused's failure to object to certain aspects of the Crown case at trial amounted to disentitling conduct under s 3(b)

Decision

Adams J applied the well-established hypothetical test under s 3(a): assuming the prosecution had possessed all evidence ultimately revealed at trial before proceedings were instituted, would it have been reasonable to prosecute? The physical evidence proved central to this analysis. The deceased's fingerprints and DNA were found on both the cigarette lighter and the petrol can used to start the fire, while no DNA, fingerprints, or accelerant residue were found on or near the accused anywhere in the laundry.

Expert evidence established a delay of approximately five to ten minutes between the accelerant being applied and the fire being lit, with no sounds heard by neighbours during that period. Evidence about the content of a film the deceased had been watching immediately prior to the incident corroborated other aspects of the physical evidence. Her Honour found that, taken together, this evidence overwhelmingly pointed to the deceased having poured the accelerant on herself and self-ignited, rather than having been set alight by her husband.

The Crown argued against granting the certificate by addressing the circumstantial case in detail. Adams J considered and rejected each of the Crown's arguments. On the s 3(b) question, the accused's conduct throughout, including his statements to police, was found to be reasonable in the circumstances. The fact that no objection had been taken at trial to certain alternate bases of the Crown case did not constitute disentitling conduct within the meaning of the Act.

The Court was satisfied that, had the prosecution known all relevant facts before the first trial commenced, it would not have been reasonable to institute murder proceedings. The certificate was granted to cover the costs of both trials.

Orders Made

  • A certificate was granted under s 2 of the Costs in Criminal Cases Act 1967 (NSW) in relation to the accused's acquittal for murder, certifying that:
  • If the prosecution had, before the proceedings were instituted, been in possession of evidence of all the relevant facts, it would not have been reasonable to institute the proceedings
  • Any act or omission of the accused that contributed, or might have contributed, to the institution or continuation of the proceedings was reasonable in the circumstances
  • The certificate covers the costs of both the 2019 trial and the 2021 trial

Key Takeaways

  • Under the Costs in Criminal Cases Act 1967 (NSW), the test in s 3(a) requires a hypothetical exercise: the court must ask whether prosecution would have been reasonable if the prosecutor had possessed all evidence ultimately revealed, including evidence that only emerged at or after trial.
  • Physical forensic evidence pointing away from the accused and towards self-infliction was sufficient, in this case, to satisfy the court that prosecution for murder would not have been reasonable had that evidence been known from the outset.
  • A defendant's failure to object at trial to aspects of the Crown case does not automatically constitute disentitling conduct under s 3(b) of the Act; the conduct must be assessed for reasonableness in the circumstances.
  • The certificate covered both trials, confirming that the costs of proceedings spanning multiple trials can be captured within a single costs certificate.
  • The decision illustrates that strong initial suspicion grounded in circumstance (the accused being the only other person present) does not, by itself, sustain a finding that prosecution was reasonable when the totality of the forensic evidence pointed in a different direction.

Legislation and Cases Referenced

Legislation
- Costs in Criminal Cases Act 1967 (NSW), ss 2, 3, 4
- Evidence Act 1995 (NSW), ss 65, 79, 137

Cases
- Chahal v Director of Public Prosecutions [2008] NSWCA 152
- Cornwell v The Queen (2007) 231 CLR 260; [2007] HCA 12
- Mordaunt v Director of Public Prosecutions & Anor [2007] NSWCA 121; (2007) 171 A Crim R 510
- R v Johnston [2000] NSWCCA 197
- R v Pavy (Court of Criminal Appeal, unreported, 9 December 1997)
- R v Moore [2015] NSWSC 1263
- R v Kulwinder Singh (No 1) through (No 7) [2019–2021] NSWSC (various citations)