R v Singh (No 8)

1. [1]

   Monday 2 December 2013 was a hot sunny day in Rouse Hill. On that day, Parwinder Kaur and her husband Kulwinder Singh had both worked shifts at their respective jobs. Ms Singh came home first and her husband some time afterwards. Some time later, Ms Kaur emerged down the driveway of her home with her clothing on fire. Mr Singh was behind her trying to pat out the flames with his hands. This was observed by neighbours who ran to assist. Ambulance officers soon arrived but Ms Kaur died the following day as a result of complications from extensive thermal injuries. She had received 90% full thickness burns to her body but her scalp, long hair and most of her face were not burned. At the time she emerged from her home, the only other person in her home was her husband, Mr Singh.

2. [2]

   A thorough forensic examination of the premises was undertaken. It revealed that the fire started in the laundry at the rear of the premises from which Ms Kaur had emerged. A cigarette lighter and a can of petrol, some of which had been poured on Ms Kaur’s clothing, were located in the laundry. Ms Kaur’s fingerprints and DNA were found on both of those items. No DNA or fingerprint evidence of Mr Singh was found on those items or in fact anywhere in the laundry. Nor was any accelerant found on his clothing. The expert evidence was that there would have been about 5 to 10 minute delay between the accelerant being poured on Ms Kaur’s clothing and it being lit. No sounds from the house were heard by any neighbours during that time.

3. [3]

   Mr Singh was interviewed by police on a number of occasions. He told police that the couple had argued about money, and he decided to go and stay with his mother. He packed some clothing and was walking up and down the stairs near the front of the house carrying the bags to his car. At one stage, he heard a scream and ran out the front door where he saw his wife in flames. He denied setting her on fire.

4. [4]

   A coronial inquest was conducted in 2015. Nearly four years later, on 1 November 2017, Mr Singh was charged with the murder of his wife.

5. [5]

   Mr Singh’s first murder trial commenced before me and a jury of twelve on 12 August 2019. On 18 October 2019, I discharged the jury on the basis that it was unable to reach a verdict. Mr Singh’s second trial commenced on 18 February 2021 before me and a jury of twelve. On 30 March 2021, the second jury returned a verdict of not guilty.

6. [6]

   On 8 June 2021, Mr Singh’s solicitor emailed my associate indicating that he proposed to make an application for costs under the Costs in Criminal Cases Act 1967 (NSW) (“the Act”). That same day, the parties were invited by email to work out a timetable for the filing of the application and written submissions, after which time they could approach my chambers for the allocation of a hearing date.

7. [7]

   On 29 March 2022, Mr Singh’s solicitor emailed my chambers to advise that no agreement was reached as to a timetable. He sought a mention date. He attached a notice of motion dated 19 March 2022 seeking the costs of both the first and the second trial. The matter was subsequently listed for directions on 28 April 2022.

8. [8]

   On 28 April 2022, orders were made for the filing of written submissions and affidavit evidence and the matter was listed for hearing on 15 July 2022. Extensive written submissions were subsequently filed.

9. [9]

   On 11 July 2022, the hearing date on 15 July 2022 was vacated (through no fault of either party), and the matter re-listed for hearing on 2 September 2022. Submissions were made on that day, and I reserved my decision.

10. [10]

    The Crown case at both trials was circumstantial. The first trial went for eight weeks before the evidence ended, during which time 195 exhibits were tendered and 68 witnesses called, including a large number of expert witnesses. The second trial was shorter but still factually dense.

11. [11]

    In seeking to persuade the court that a certificate should not be granted under the Act in this matter, the Crown addressed the circumstantial case in some detail in lengthy written and oral submissions. Given that I am satisfied that a certificate should be granted in this case, I consider it necessary to address each of the arguments raised by the Crown in my consideration below. Before doing so, I propose to first set out the relevant legislation and principles before summarising the procedural history and evidence in this matter.

12. [12]

    The Act provides an exception to the general rule that costs orders are not made in criminal proceedings. Under the Act, costs can be awarded to a defendant who is acquitted of criminal charges on a limited basis. Section 2 of the Act provides the power for the court to make such an order, s 3 sets out the statutory test to be established before a costs certificate can be granted and s 4 sets out the effect of a certificate being granted. Sections 2, 3 and 4 of the Act are in these terms:

13. [13]

    The legislative scheme has been considered in numerous decisions of this court and the relevant principles are well settled. In R v Pavy (Court of Criminal Appeal, unreported, 9 December 1997), the court observed that the question is to be determined in this way:

14. [14]

    The court’s enquiry was described by Simpson J (as her Honour then was) in Regina v Bernard Lawrence Johnston [2000] NSWCCA 197 at [16] in this way:

15. [15]

    As to what is meant by “relevant facts”, in Chahal v Director of Public Prosecutions [2008] NSWCA 152 Ipp JA (Giles JA agreeing) observed at [29]:

16. [16]

    In Mordaunt v Director of Public Prosecutions & Anor [2007] NSWCA 121; (2007) 171 A Crim R 510 (“Mordaunt”), McColl JA (Beazley and Hodgson JJA agreeing) noted the following on the question of “relevant facts” at [36(f)]:

17. [17]

    In R v Moore [2015] NSWSC 1263, Hamill J summarised the principles derived from the decisions concerning the operation of the Act at [6], including the following at [6](4)-(6):

18. [18]

    As for the relevance of evidence being excluded by a trial judge such that the prosecution is left with little or no case, Hamill J observed the following in R v Moore at [28]-[29]:

19. [19]

    The Crown relied upon the decision of Hamill J in Moore to the extent that his Honour held (at [23]) that the hypothetical prosecutor is not assumed to know the outcome of the objections and rulings on the admissibility of evidence, but the hypothetical prosecutor should be aware of the potential for such evidence to be excluded.

20. [20]

    This application is made for a certificate in relation to both trials. In that regard, the Crown noted the decision of the majority (Gleeson CJ, Gummow, Hayden and Crennan JJ) in Cornwell v The Queen (2007) 231 CLR 260; [2007] HCA 12 at 88, albeit in a different context, to the effect that where there is a retrial after a hung jury, “the first and second trials were each part of the one “proceeding” and that, “to conduct a retrial is to conduct the trial which ought to have taken place in the first place. A retrial returns the parties to the position they were in at the start of the first trial”. As I understand the effect of the Crown submission, it was that there may be an argument that the costs of the first trial would not come within the operation of the Act.

21. [21]

    The Crown did not ultimately submit that the Act does not apply to a trial which results in a hung jury and the Crown elects to proceed with a second trial. I am satisfied that it would be contrary to the statutory purpose of the Act to preclude its operation from a first trial in such circumstances.

22. [22]

    Rather, the Crown submitted that the prosecution case at the first trial was significantly stronger than at the second trial. Accordingly, it was submitted, if the court declined to grant a certificate in relation to the second trial it would logically follow that no certificate would be granted in relation to the first trial. But if a certificate was granted in relation to the second trial that certificate should not include the first trial. This was because there was an absence of objection to material adduced at the first trial. It was submitted that a reasonable prosecutor is not required to foresee that evidence not objected to in a trial would subsequently be objected to and excluded other than in the circumstances referred to in the decision of R v Moore.

23. [23]

    For reasons that I provide below, although I am satisfied that the Crown case was much weaker at the second trial than at the first trial, the statutory test is well met in relation to both trials and I see no reason why a certificate should not be granted in relation to both of them.

The reasonable facts

1. [24]

   Prior to the commencement of the first trial, objection was taken on behalf of Mr Singh to a report of Ms Jatinder Kaur. The Crown proposed to rely upon her evidence pursuant to s 79 of the Evidence Act 1995 (NSW). It was anticipated that Ms Kaur would give evidence about cultural, religious and behavioural elements of Indian-Punjabi culture and the Sikh religion. Her expert report included opinion on subjects such as the prevalence of Indian men burning their wives and how women in that culture and religion are subservient to their husbands. I excluded this evidence for the reasons explained in R v Kulwinder Singh (No 1) [2019] NSWSC 1000. No submissions were made about that ruling for the purposes of the present application.

2. [25]

   When the senior Crown prosecutor opened to the jury in the first trial, he put the Crown case on four alternate bases as follows:

3. [26]

   I queried with senior counsel for Mr Singh at that time whether there was any difficulty for the defence in the Crown putting its case on these alternate bases at that time and she confirmed that there was not.

4. [27]

   At the conclusion of the evidence, I enquired of the Crown prosecutor what the evidentiary basis was to suggest that Mr Singh had by some act or words placed the deceased in fear and forced her to douse herself in petrol and light it. It was accepted that there was no such evidence, but it was submitted that the Crown ought still to be permitted to put its case in that way. Given the state of the evidence at the close of the case, I did not permit the Crown to close on three of those four bases. I published my reasons for doing so in R v Singh (No 2) [2019] NSWSC 1410.

5. [28]

   I summarised the evidence at the first trial in R v Singh (No 2) at [6]-[10]. I noted at [6] that by the time of closing addresses the following evidence was not in dispute:

6. [29]

   I summarised the forensic evidence at the first trial (most of which was not in dispute) in R v Singh (No 2) at [7] as follows:

7. [30]

   The main area of dispute at the first trial concerned the “relationship evidence” adduced by the Crown from relatives of the deceased. Much of this evidence was hearsay evidence which was not objected to. The deceased’s sister-in-law, sister, brother and father all gave evidence to the effect that Mr Singh was abusive to the deceased in that he restricted her life, was frugal with money and would not let her go anywhere. Other evidence was called from Mr Singh’s family members to rebut this.

8. [31]

   The evidence of any physical violence came from the deceased’s family members. Only two incidents were described. There was evidence that the deceased was said to have told family members about two and half years before she died, that Mr Singh had hit her with a shoe on one occasion. That was strongly denied by Mr Singh. The only other evidence of any physical violence was from family members of the deceased to the effect that about 15 months before she died some of them had seen Mr Singh raise his hand in the air to the deceased in front of her family and her brother intervened. This evidence was also disputed.

9. [32]

   There were significant credit issues at the first trial pertaining to the evidence of the deceased’s sister-in-law, Amanpreet Kaur, and the deceased’s sister Gurvinder Kaur. For example, the assertions that Mr Singh exerted any financial control over the deceased were inconsistent with the banking records subpoenaed on behalf of the defence which suggested that the deceased was providing large sums of money to her family members to fund their migration to Australia.

10. [33]

    I summarised the defence case at the first trial at [9] of R v Singh (no 2). Although Mr Singh did not give evidence, he provided three interviews with police. My summary of his case as to what happened on the day of the death was as follows:

11. [34]

    The Crown case at the first trial was that the accused was lying and that he killed the deceased because she would not contribute to the mortgage.

12. [35]

    In addition to the above summary of the evidence at the first trial, I would add the following “relevant facts”.

13. [36]

    The Crown case that the accused Mr Singh killed his wife was based on the fact that he had motive (because she had stopped contributing to the mortgage) and opportunity (because he was the only other person in the house at the time that the deceased caught fire). Not only was there no physical evidence implicating him in her death, all of the physical evidence suggested that the deceased had set fire to herself. In addition to the forensic evidence I have already summarised, there was evidence that despite extensive burning to all of her body from the neck down, none of the deceased’s long hair was burnt at all. A bath towel was found near where she fell to the ground at the bottom of the driveway which was not brought to the scene by any of the neighbours. The next door neighbour, Ms Valle, described how she initially thought the deceased had a head dress on when she emerged from her home. It is an available inference that what she saw was a towel wrapped like a turban around her head. This evidence is consistent with the deceased having wet her long hair and put it up in a towel to protect it.

14. [37]

    A significant difficulty for the Crown was the expert evidence (which was not in dispute) that there was a 5 to 10 minute delay between the accelerant being put on Ms Kaur’s clothing and ignition with a cigarette lighter. The next door neighbour, Ms Valle, was home and feeding her young baby at the time and was geographically very close to the deceased’s house. She was the first person to hear the deceased scream when she exited the premises in flames. She did not hear any raised voices or anything unusual before the deceased screamed while emerging from the premises.

15. [38]

    Further, when the deceased telephoned her brother that afternoon to complain that she and Mr Singh had had another fight that day about money, he did not describe her as being particularly distressed in any way. She telephoned police nine seconds after she spoke to her brother to state that her husband had tried to kill her. She did not mention anything like that to her brother. Given the recorded time that the neighbours called for police and ambulance, the Crown accepted as part of its case that Ms Kaur must have already had the accelerant on her clothing by the time she called police. She did not sound particularly distressed in her call to police and no other voices can be heard in the background in that recording. This is consistent with the accused not being close by at that time. His evidence is that he was going up and down the stairs at the front of the house packing his car at that time. When police arrived, his car was packed with suitcases.

16. [39]

    In the context of the lack of any forensic evidence implicating Mr Singh, it is notable that when he was asked by police whether he had been into the laundry that day he said that he had not. If, as the Crown contended, the accused had somehow managed to be in the laundry and set fire to his wife without leaving any trace of that but also to somehow leave Ms Kaur’s fingerprints and DNA on both the lighter and accelerant, it would be somewhat brave to boldly assert to police (as Mr Singh did) that he had not been in the laundry.

17. [40]

    Prior to the commencement of the second trial, a number of objections were foreshadowed on behalf of Mr Singh.

18. [41]

    First, objection was made to the tender of the steak knife found in the laundry which the deceased used to cut her vegetables growing in the garden near the laundry door. I excluded that evidence under s 137 of the Evidence Act for the reasons provided in R v Singh (No 3) [2020] NSWSC 1911.

19. [42]

    Secondly, objection was made to the Crown adducing the hearsay evidence from relatives of the deceased over which no objection had been taken at the first trial. Those objections concerned the evidence given by family members as to what the deceased had allegedly said to them. The Crown elected not to lead all of the hearsay evidence but submitted that some of the representations were admissible under s 65(2)(b) and (c) of the Evidence Act. I ruled that the evidence that fell within s 65(2)(b) was largely admissible but that all of the representations that were not made at the time or shortly after the fact asserted did not meet the high test in s 65(2)(c) for the reasons provided in R v Singh (No 4) [2021] NSWSC 75.

20. [43]

    Thirdly, objection was taken to a re-enactment video. I ruled that it was admissible for the reasons provided in R v Singh (No 5) [2021] NSWSC 76.

21. [44]

    Fourthly, objection was taken to some of the evidence of Professor Maitz. He is a leading burns expert who gave evidence at the first trial that, inter alia, he did not believe that the accused Mr Singh was really trying hard enough to put out the flames engulfing his wife, as he would have expected more significant injuries if he had. I ruled that that aspect of his evidence was inadmissible for the reasons provided in R v Singh (No 6) [2021] NSWSC 213.

22. [45]

    Finally, objection was taken to various EFIMS (Exhibits Forensic Information & Miscellaneous Property System) records as to where certain items were found at the scene. I ruled that that evidence was admissible for the reasons provided in R v Singh (No 7) [2021] NSWSC 267.

23. [46]

    At the second trial, the Crown case was that Mr Singh had physically set fire to his wife and killed her. The absence of any forensic evidence supporting that case was explained by the fact that it could be possible for him to have done so and not have left any DNA and/or fingerprints in the laundry nor any accelerant or “flamewash” on his clothing.

24. [47]

    One piece of evidence adduced by the defence at the second trial (which was not adduced at the first trial) concerned the DVD that the deceased was watching just prior to Mr Singh coming home on the day of her death. It was found in the DVD player by police. At the first trial, the evidence was simply that she had been watching a DVD that day with no further detail provided.

25. [48]

    By the time of the second trial, Mr Singh’s defence had obtained a copy of the relevant DVD and adduced evidence through the officer in charge as to its plot. It was a Bollywood movie called Gadar in which the heroine was torn between her sense of duty to her blood relatives and her sense of duty to her in-laws. The heroine is injured in the film and the last scene depicts her lying in her hospital bed with her blood relatives and her husband and in-laws reconciled over their mutual concern for her.

26. [49]

    The fact that this film was the last thing that the deceased watched before the argument with her husband and her tragic death is informative and consistent with the defence case. There was no evidence that Ms Kaur was suicidal, and it was not the defence case that she had committed suicide. But there was considerable evidence in the Crown case that the marriage was under strain, mainly because Ms Kaur had stopped paying the mortgage on their home (that they owned jointly) and was giving her money instead to her brother and his wife. I pause to note that the jury was taken on a view of the Rouse Hill home during both trials. It was a new, large five bedroom home opposite a reserve. There was evidence that Ms Kaur was very proud of it. There was also evidence that she and her husband had worked very hard to earn the deposit needed to buy it.

27. [50]

    The Crown case at the first trial was that Mr Singh took all Ms Kaur’s money leaving her nothing for herself. By the conclusion of the second trial, it was evident that in fact Ms Kaur was under pressure to fund her brother (and his wife) and her sister to come to Australia and was taking money needed for the mortgage to assist them. There was also evidence from which the inference could be drawn that the deceased was torn between, on the one hand, her loyalty to her family who needed her to provide them with money to facilitate their migration to Australia, and, on the other hand, the need to continue to pay the mortgage on a large new home of which she was very proud.

28. [51]

    The defence case at the conclusion of the second trial was that the deceased was under pressure because of these competing loyalties and out of desperation decided to harm herself just enough to require her to go to hospital. Although she took steps to minimise any injury to herself, tragically, things did not go to plan. The clothing that she was wearing, including a cardigan on a very hot day, not only failed to protect her but actually accelerated the fire because of its synthetic nature. The delay between putting the accelerant on her clothing and ignition caused a larger fire because of the fumes. The fire spread more quickly than one could have anticipated. When Ms Kaur moved out the door to get help the wind and motion of moving down the driveway only fed the fire further.

29. [52]

    To say that Ms Kaur’s death was a tragic one is an understatement.

Consideration

1. [53]

   The Crown opposed an order being made under the Act. It was submitted that it was reasonable to institute these murder proceedings against Mr Singh. In support of that submission the Crown prosecutor addressed each piece of evidence in its case individually under three headings: circumstantial evidence, evidence of the deceased’s family members and the physical evidence. He then turned to address the significance of rulings I made over the course of the trials. I propose to address each Crown submission in turn under those headings.

2. [54]

   Overall, it was submitted on behalf of the Crown that although there was an absence of physical and forensic evidence, there were several pieces of circumstantial evidence implicating the accused in the murder of his wife and when regard is had to that evidence the test in s 3 of the Act was not satisfied.

3. [55]

   The Crown relied upon the triple-0 call made by Ms Kaur on 2 December 2013, about 11 minutes before the triple-0 call made by the neighbour, Ms Valle. It was accepted that this call was made nine seconds after the deceased had called her brother (see above at [28]) and that it was reasonably open to conclude that the petrol had already been poured on her before those calls. It was submitted that it was open to conclude that Mr Singh had threatened the deceased by pouring petrol on her in the laundry prior to those calls being made.

4. [56]

   The timing of these calls did not assist the Crown case. On the Crown case, the deceased had had a relatively ordinary conversation with her brother only seconds before she called police, by which time the accused had already doused her with petrol and left the room. Not only had she not complained to her brother (at a time when the accused must not have been in earshot) about the fact that, on the Crown case, she was doused in petrol, neither her next door neighbour (who was physically very close) nor any other neighbour had heard any noises emanating from the deceased’s home. It is significant that Mr Singh cannot be heard in the background of the triple-0 call. The timing of these calls is consistent with the defence case that the deceased had poured some accelerant on herself and then called police to allow time for them to arrive and save her.

5. [57]

   The Crown next submitted that the banking records assisted the Crown case because they could demonstrate the source of the financial disagreement between Mr Singh and the deceased. Detailed submissions were made about these banking records. It was noted that there were periods of time when the deceased deposited her pay into her sister-in-law’s account instead of the account from which the mortgage payments were withdrawn such that there was not enough money to pay the mortgage. Significantly, by 2 December 2013 the mortgage repayments were in default because the deceased had not deposited her pay into the bank account since 3 October 2013.

6. [58]

   At the first trial, evidence was adduced from Amanpreet Kaur that Mr Singh deprived the deceased of money, so she had to try and put some in a separate account just for herself. The defence issued numerous subpoenas in relation to various banking records during the first trial and challenged Amanpreet Kaur about this claim. The records showed that, contrary to her evidence, the deceased was in fact giving large amounts of money to her brother and Amanpreet Kaur.

7. [59]

   Contrary to the Crown’s submission, the banking records do not assist the Crown case that Mr Singh murdered his wife. They are consistent with her feeling pressured by her family members to subsidise their migration to Australia. But she and her husband had a significant mortgage to pay on a beautiful new home that both of them were working hard to pay off. The banking records explain why Mr Singh was exasperated and angry and told the deceased that he would stay with his mother for a few days. They also confirm the defence case that the deceased was under considerable stress at the time of her death. To the extent that these banking records were relied upon by the Crown as providing a motive for Mr Singh to kill the deceased, they equally supported the defence case.

8. [60]

   The Crown also relied upon the triple-0 call made by the deceased on 5 January 2013. I have summarised the circumstances of that call above at [28]. In it, the operator told the deceased that in Australia calls about domestic violence are taken seriously. The defence relied upon that aspect of the call as supporting its case that the deceased knew after that call that if she called the police before she set fire to herself and alleged he was trying to kill her, police would attend and save her before she was badly burned. The Crown, on the other hand, relied upon the fact that police initially thought that the deceased used the word “kill” rather than the word “kick” in that earlier call. Having listened to that call it is difficult to be sure either way. But when the triple-0 call and the evidence of the police officers is considered as a whole, I am satisfied (as were the police who saw and heard her) that the deceased was complaining about the financial disputes between her and her husband rather than any physical assault.

9. [61]

   In so finding, I do not wish to be taken as stating any general proposition that if a person who complains of domestic violence later tells police that they have no fears then that means that there is no evidence of fears; there are many reasons why such victims may be too fearful to proceed. But in this case the call falls to be considered in the context of all of the other evidence. When it is considered in that light, it did not assist the Crown case that Mr Singh murdered his wife.

10. [62]

    The Crown also relied upon two telephone calls between the deceased and Mr Singh when he was in India in October 2013 about six weeks before she died. It was never explained why Ms Kaur had these two recorded telephone calls in her phone, but they were located and tendered at trial. The deceased sounds sad in these calls and Mr Singh sounds somewhat distant. Their tone is consistent with the marriage being tense by that stage, no doubt at least in part because Ms Kaur had again stopped contributing to their joint mortgage by that time. In one of these calls, she is recorded as saying to Mr Singh, “I know in your mind you think we won’t see each other again otherwise you could have at least made a phone call since it has been a week”. Although the Crown relied upon this as circumstantial evidence to support a case that Mr Singh murdered his wife, I am not satisfied that it assists the Crown case; it is equally consistent with the defence case that the deceased was torn between competing loyalties at that time.

11. [63]

    The Crown also placed reliance upon the evidence given by a Sikh elder at both trials. She gave evidence (as did Mr Singh’s mother) that Mr Singh and his mother met with her in November 2013. She gave evidence that Mr Singh told her at this meeting that the deceased’s brother had a flat and a car and questioned where all that money came from. He also complained to her that the deceased gave money from their joint account to her father in India. When the deceased went to see the same elder a few days later she told the elder that she was angry with Mr Singh, and she would give Mr Singh the house and all her money if that would make him happy. The defence submitted that, given the evidence as to how much she loved that house, it is likely that she spoke these words in anger and did not mean them.

12. [64]

    The Crown relied upon this evidence from the Sikh elder as motive, but it seems to me that, once again, it is equally consistent with the defence case that the deceased was being pressured to provide money to her family and in doing so was not contributing to her mortgage such that there was a risk they might lose their house. The fact that Mr Singh expressed annoyance that so much of their money had been siphoned off to the deceased’s brother is consistent with the defence case and completely inconsistent with the false version given by the deceased’s family members at the first trial about this.

13. [65]

    The Crown also pointed to the evidence that about two weeks before she died, the deceased took time off from work because she needed to deal with personal issues with her husband. Her employer gave evidence that she was upset and took four to five days off work at this time. It was submitted that this evidence showed that the marriage was not in a good state at that time consistent with other evidence that the deceased wanted a divorce. That may well be the case, but it emerged during cross-examination at the first trial (apparently to the surprise of the Crown) that the time that the deceased took off work coincided with the secret marriage of her sister Gurvinder to one of the deceased’s work colleagues. The deceased had arranged this marriage so that her sister could migrate to Australia. She had kept this marriage a secret from her husband and also from her best friend Seema Chaudhary who gave evidence at trial about this. Keeping such a secret would likely have been another cause of significant stress at that time.

14. [66]

    The Crown also relied upon evidence given by a neighbour that on the weekend before the deceased died Mr Singh had told him that he was not happy with his wife because she had given $40,000 to her brother who was not going to pay it back. Again, this evidence is consistent with the defence case that the deceased was secretly siphoning off money that was needed to pay the mortgage to assist her family. It is also completely inconsistent with the evidence of family members at the first trial that the money had not gone to them but instead was money the deceased was trying to keep for herself. Again, to the extent that it is relied upon as motive for Mr Singh to murder his wife it was weak evidence of this.

15. [67]

    Another circumstance that the Crown relied upon was the evidence that by the time police arrived at the scene and entered the house, there was a strong smell of accelerant throughout the house getting stronger the closer you came to the laundry at the back of the house. It was submitted that if Mr Singh had not killed his wife, it was suspicious that he did not investigate that smell.

16. [68]

    It is to be accepted that Mr Singh’s version to police in his interviews was that he was walking up and down the stairs at the front of the house packing bags and carrying his luggage to his car at the time of the ignition. He told police that from the moment he heard a scream his attention was immediately directed to his wife. But just because there was a strong smell of accelerant when police attended after the fire does not speak to how strong the smell would have been prior to the fire when the deceased was packing his clothes and going up and down the stairs. Even if, contrary to his version, there was a strong smell of accelerant in the house prior to the fire the fact that Mr Singh did not go and investigate it could be explained in a variety of ways and does not mean that he must have killed his wife.

17. [69]

    The Crown also relied upon the evidence at post-mortem that the deceased had a small bruise on her forehead and eyelid. The expert evidence was that this was possibly explained by the evidence that whilst she was on fire she moved out of the laundry and down a narrow passageway to the front of the house. The bruising is consistent with her having bumped into a wall or door whilst she was on fire and attempting to move to get help down the narrow passageway to the front of the house or from when she fell to the grass at the bottom of the driveway. To the extent that the Crown relied upon it as evidence that Mr Singh may have hit the deceased prior to setting her alight, the difficulty is the lack of any forensic or physical evidence to suggest that he was anywhere near her in the laundry at the relevant time.

18. [70]

    The Crown also relied upon the expert evidence of Professor Maitz that when persons commit suicide by self immolation they normally pour petrol over their head. The Crown relied upon the absence of burning to the deceased’s head as evidence making it more likely that it was Mr Singh who put the petrol on her. There are at least two difficulties with this submission. First, it ignores the evidence suggesting that the deceased had wet her hair and put a towel on her head as protection from the flames. Also, it was no part of the defence case that the deceased had committed suicide; the defence case was that the deceased had taken precautions to ensure that she did not get badly burned such as wearing a cardigan, wetting her hair and putting a towel around it, and calling police to attend beforehand. In those circumstances, any expert evidence as to what suicide victims usually do is irrelevant.

19. [71]

    The Crown also relied upon what was said to be admissions made by Mr Singh in his police interviews. He told police: that the deceased had not slept in their bedroom the night before she died; that she had given too much money to her brother; that she had been giving her brother money for years - about $34,000; that she had not been contributing to the mortgage for the last seven or eight weeks; and that she told him that she was not going to contribute. He told police that he was upset when he came home and asked her to contribute to the mortgage, but she refused aggressively, and it was at that stage that he became upset and said that he would go and stay at his mother’s house.

20. [72]

    It was submitted on behalf of the Crown that it was reasonable to characterise Mr Singh’s account to police as confirming that immediately before her death there was an aggressive and angry environment in the house including him taking the extreme step of threatening to leave the marriage.

21. [73]

    Again, this evidence is consistent with the defence case that the deceased was feeling under pressure and did not know how to both keep her house (by paying the mortgage) and provide money to her family. I do not consider any of these statements to be admissions; they simply provide context to what subsequently occurred.

22. [74]

    The Crown also relied upon what was said to be lies told by Mr Singh. In particular, it was submitted at the trial that he lied when he told police that he had gone upstairs to get his bag when he first heard the deceased yelling and went downstairs. The basis for asserting that this was a lie is that police did not find any bag in his bedroom when they searched his room later that day. It was also submitted that the distance from the bedroom upstairs was inconsistent with where Tracy Valle and another neighbour, Ms Hartmann, first saw Mr Singh running after his wife down the driveway.

23. [75]

    The difficulty with the Crown case on lies is that it assumes that the two neighbours’ evidence as to exactly where Mr Singh was at various times was accurate. Those two women were very capable and credible. They took charge of the situation when they saw the deceased emerge down the driveway in flames and did what they could to save her. They would have been under considerable stress at the time. Any suggestion that Mr Singh was lying about exactly where he was at any given time relies upon pinpoint accuracy on the part of these women. Although I accept them to be credible witnesses, it is simply not possible for them to pinpoint with any accuracy exactly where on the driveway either Ms Kaur or Mr Singh were at any given time.

24. [76]

    A further difficulty with relying upon this evidence as a lie comes from the evidence of Detective Ryan Mitchell. His evidence was the subject of my ruling in relation to the EFIMS entries. It was open for the jury to find that the records were inaccurate as to whether there was in fact still one of Mr Singh’s bags upstairs for the reasons stated in that judgment. In short, the Crown case that Mr Singh had lied was not a strong one.

25. [77]

    The final piece of circumstantial evidence relied upon by the Crown was the evidence that the deceased was a strong person who had never talked about wanting to harm herself and had decided to end her marriage. Again, this evidence supports the defence case as much as it supports the Crown case. On the defence case, it would take a very strong and brave woman to decide to cause herself some harm as a way out of the pressure she was feeling and to take the drastic steps she apparently did hoping that she would be saved in time.

26. [78]

    I am not persuaded that the circumstantial evidence I have just addressed was such as to render it reasonable for the Crown to bring a murder charge based on it. I do not accept the Crown’s submission to that effect.

27. [79]

    The Crown submitted that even without the evidence of the deceased’s family members it was reasonable to institute the proceedings. It was submitted that their evidence provided additional circumstantial evidence to strengthen the prosecution case.

28. [80]

    Reliance was placed on the evidence of the family members that Mr Singh had once hit the deceased with a shoe and that, when he was in India, he was alleged to have said to the deceased’s sister Gurvinder that the deceased was his wife and that he could do anything to her. Gurvinder (who only weeks later came to Australia to marry one of the deceased’s colleagues and did not tell Mr Singh this) alleges that he said to her “I can kill her, I can beat her” and also, “if she thinks that she will leave me, I will not let that happen. I will kill her. We kill people, and no one knows. No one gets to know”.

29. [81]

    The family members gave evidence at both trials. Some of the evidence they gave at the first trial was discredited and not led at the second trial. They are clearly all grief stricken and in the circumstances I do not consider it necessary for the purposes of this determination to make any findings as to their credit. I have had regard to the principles derived from decisions of the Court of Appeal such as Mordaunt that when a case comes down to an issue of credit it will usually not be appropriate to give a certificate under the Act. But this case did not simply come down to credit. The Crown submitted on this application that there was sufficient evidence to prosecute without the evidence of the family members in any event.

30. [82]

    The Crown submissions concerning the forensic evidence were largely in response to submissions made on behalf of Mr Singh. I will briefly address these submissions in turn.

31. [83]

    It was submitted that, contrary to the submission made on behalf of Mr Singh, the state of the crime scene evidence could not exclude the reasonable possibility that Mr Singh was present when the fire started. There is significant difficulty with this submission. This was a prosecution of Mr Singh for murder. Even if the state of the physical evidence could not exclude the reasonable possibility that Mr Singh was in the laundry at the relevant time, that is not a proper basis to charge someone with murder in the absence of other evidence implicating him.

32. [84]

    A more significant problem is the fact that not only was there no DNA or fingerprint evidence linking Mr Singh with being in the laundry, there was positive DNA and fingerprint evidence of the deceased. It was never properly explained how Mr Singh could have wiped off his fingerprints and DNA but not wiped off the fingerprints and DNA left by the deceased. As stated above, it is of some significance that Mr Singh confidently told police that he had not been in the laundry that day. If he had in fact been in there it would be very brave to suggest otherwise. The Crown placed significant reliance on expert evidence that some people are not “shedders” in that they do not leave fingerprints and DNA but does not explain other aspects of the evidence including what was happening during the 5 to 10 minute delay.

33. [85]

    An argument was specifically put by the Crown on this application in relation to the petrol can; it was submitted that the deceased could have left her fingerprints on it at some other earlier time and that Mr Singh could have poured out the relatively small quantity of petrol using the handle on the tin without leaving any of his DNA or fingerprints. The difficulty with that argument is that it does not explain the pattern of the deceased’s fingerprints on the tin which were consistent with it being poured back in the direction of her own body. Nor does it explain how he could have used the lighter and left Ms Kaur’s DNA and fingerprints on it and not his.

34. [86]

    It was further submitted that the fact that the applicant was seen trying to pat out the flames was not inconsistent with him having lit the fire. It was suggested that Mr Singh may have only intended to injure her in a moment of anger and then regretted doing so. Again, the difficulty with this argument is that it is speculative and ignores the lack of any physical evidence that Mr Singh was in the laundry in the first place. In that regard, the evidence of the defence expert Mr Munday is of significance. His evidence was that if Mr Singh had been standing anywhere near the deceased at the time of ignition there would there have been “flamewash” on his clothing given the 5 to 10 minute delay between the accelerant being placed on the fabric and ignition.

35. [87]

    The evidence as to whether there was “flamewash” was one of the areas on which Mr Forbes and Mr Munday did not agree but it was ultimately a matter for the jury. What was not in dispute was that there was no evidence of any accelerant on Mr Singh. It is difficult to see how he could have poured accelerant on the deceased without getting any on himself. It would be expected that the deceased would have run away or struggled if he had tried to do so.

36. [88]

    Overall, in relation to the physical evidence, the nub of the Crown submission was that it was possible for Mr Singh to have killed his wife without leaving any physical trace and despite the fact that the physical evidence was all consistent with the deceased having put the petrol on herself and ignited it 5 to 10 minutes later.

37. [89]

    The Crown relied upon the fact that after the first trial Mr Singh belatedly objected to some of the inadmissible evidence adduced at the first trial being adduced at the second trial. The bulk of that evidence came from family members and concerned things the deceased was said to have told them about Mr Singh. The Crown agreed not to adduce evidence that fell into three broad categories: second-hand hearsay; material that was too remote in time to fall within s 65 of the Evidence Act; and material where the witnesses were unable to particularise the representation to a recent point in time. Although the Crown accepted that much of this evidence was inadmissible, it pressed for the admission of some of the representations made by the deceased under s 65(2) of the Evidence Act. As stated above, I ruled that some of these representations were admissible whereas others were not for the reasons explained in R v Singh (No 4). The Crown submitted on this application that the detail of that judgment supports a conclusion that it was not unreasonable for the Crown to have attempted to adduce that evidence; that it was adduced at the first trial without objection; and that it would appear that a forensic decision was made by the applicant to impeach the credit of the witnesses generally instead. It was submitted that the evidence did not fall within the scope of Hamill J’s observation in R v Moore at [29].

38. [90]

    Section 3(b) of the Act provides that a certificate granted under the Act must specify that any act or omission of the defendant that contributed, or might have contributed, to the institution or continuation of the proceedings was reasonable in the circumstances. To the extent that it was contended on behalf of the Crown that it was unreasonable for Mr Singh’s senior counsel to take a different approach in relation to the evidence of the deceased’s family members at the second trial than the first, I am not satisfied that this or any other conduct of the defence at either trial was disentitling conduct within the meaning of s 3(b). The Crown adduced inadmissible evidence at the first trial which was not objected to, presumably for tactical reasons. I see no basis for suggesting that such conduct precludes a certificate being granted in this matter.

39. [91]

    In any event, the position of the Crown on this application was that the evidence of family members was not central to the case. Overall, I am not persuaded that the exclusion of this inadmissible evidence had any significant impact on the trial given the credit issues pertaining to the relevant witnesses.

40. [92]

    As stated above, I did not permit the Crown to put alternate cases to the jury which suggested that Mr Singh had somehow forced Ms Kaur to pour petrol on herself, wait 5 to 10 minutes during which time he was out of earshot, and then somehow come back and force her to light it without getting any accelerant or “flamewash” on himself. The Crown case at the first trial was left to the jury as an allegation that Mr Singh had poured the petrol and lit the deceased himself. As I observed in R v Singh (No 2), there was no evidentiary basis to put the alternate cases to a jury; in fact, the evidence pointed in the opposite direction. It was common ground as between the experts that there was a 5 to 10 minute delay between the accelerant being put on her clothing and it being lit. The neighbours did not hear any noise emanating from the house during that 5 to 10 minute time. Mr Singh cannot be heard in the background during the telephone call made by the deceased to her brother Sukhvinder in which her voice was described as “all right” and “speaking softly”. Nor can Mr Singh’s voice be heard in the background during the triple-0 call. This evidence all supported Mr Singh’s case that he was not near the deceased during this time.

41. [93]

    It was submitted on behalf of Mr Singh on this application that the change in the Crown case following my ruling resulted in significant costs “thrown away”. I do not accept that submission. It is unfortunate in hindsight that no objection was made at the start of the trial to the various alternate bases upon which the Crown brought its case but, again, I do not consider the failure to do so to be disentitling conduct on the part of the applicant within the meaning of s 3(b) of the Act.

42. [94]

    Having addressed the arguments relied upon by the Crown in opposition to a certificate being granted in this matter, I am satisfied that Mr Singh has established that, with the benefit of hindsight, had the Crown known before the first trial all of the relevant facts I have summarised above it would not have been reasonable to prosecute Mr Singh for murder.

43. [95]

    It is hardly surprising that police would initially suspect Mr Singh of killing his wife. He was the only other person in the house at the time and the prospect that Ms Kaur deliberately burned herself must have seemed incomprehensible. But the physical evidence overwhelmingly pointed to Ms Kaur being the one who poured the accelerant on herself and ignited it some time later. The evidence as to the plot of the film she was watching immediately prior to doing so confirms other aspects of the physical evidence that, tragically, that is what most likely occurred. Having regard to all of the relevant facts, I am satisfied that it was not reasonable for the prosecution to commence proceedings for murder against Mr Singh for the reasons I have just provided. Accordingly, I propose to grant a certificate under the Act.

ORDERS

1. [96]

   Accordingly, I make the following order:

   1. (1)

      In relation to his acquittal for murder, I grant Kulwinder Singh a certificate under s 2 of the Costs in Criminal Cases Act 1967 (NSW) certifying:

   2. (2)

      The certificate covers the costs of both the 2019 trial and the 2021 trial.