R v Singh (No 4)

1. [1]

   On 3 December 2013, Parwinder Kaur died as a result of burns to her body. On 1 November 2017 her husband Kulwinder Singh was charged with her murder.

2. [2]

   On 12 August 2019, Mr Singh pleaded not guilty to murder and a trial proceeded before me and a jury of twelve. On 18 October 2019, I discharged the jury as I was satisfied that it was unable to reach a decision, even by majority.

3. [3]

   Mr Singh’s second trial was listed to commence on 13 April 2020 but had to be vacated due to the suspension of jury trials at the start of the COVID-19 pandemic. Mr Singh’s second trial is listed to commence on 15 February 2021.

4. [4]

   By Notice of Motion filed on 28 August 2020, Mr Singh seeks the exclusion of four categories of evidence adduced at the first trial from his re-trial. The motion was heard over three days on 19, 20, 21 October 2020. I reserved my decisions at that time.

5. [5]

   On 23 December 2020, I ruled on one of the four objections: R v Singh (No 3) [2020] NSWSC 1911.

6. [6]

   In a separate judgment I have ruled on another objection (the re-enactment video): R v Singh (No 5) [2021] NSWSC 76. Another objection in relation to the evidence of Detective Ryan Mitchell was deferred after the pre-trial hearing by consent and remains outstanding.

7. [7]

   These are my rulings in relation to the fourth and most significant category of objection: the accused objects to hearsay evidence being adduced regarding numerous representations said to have been made by the deceased to various family members and work colleagues during her marriage to the accused. The nub of the objection is that the hearsay representations do not satisfy the terms of s 65(2)(b) and/or (c) of the Evidence Act 1995 (NSW).

8. [8]

   I have recently set out the Crown case in R v Singh (No 3) [2020] NSWSC 1911 and do not repeat it in any detail here. Briefly, Parwinder Kaur died on 3 December 2013 having received 90% full thickness burns to her body. She emerged from her home with her clothing alight at a time when the only other person in her home was her husband Kulwinder Singh. The sole issue at trial is whether Ms Kaur set fire to herself (either intentionally or accidentally) or whether she was killed by her husband, the accused.

9. [9]

   It is anticipated that numerous expert witnesses will be called at the trial as to the cause of the fire. It is common ground that the fire was started in the laundry at the rear of the house. An accelerant had been poured on Ms Kaur’s clothing and a cigarette lighter was found near the laundry door from which she emerged. The only accelerant in the laundry was a tin of petrol in the laundry cupboard. The lid was back on it and the laundry door was closed. The petrol from the tin matched the accelerant on the deceased’s clothing. Eleven fingerprints of the deceased were found on the petrol tin. No fingerprints or DNA of the accused were found on the petrol tin. A biomechanics expert, Dr Andrew McIntosh, analysed the way the fuel tin was handled based on those fingerprints and identified three potential cluster groups of fingerprints. Taken at its highest the cluster is consistent with the deceased pouring the accelerant on herself.

10. [10]

    There was other expert evidence that there had been a 5 to 10 minute delay between the petrol being poured on the deceased’s clothing and it being ignited. The petrol was only poured on the front of the deceased’s clothing and not on her face or hair.

11. [11]

    The forensic evidence is consistent with the defence case that the deceased must have poured the petrol on herself, waited for about 5-10 minutes, called police and then somehow her clothing was ignited. The cigarette lighter found near where the point of ignition was found to have both fingerprints of the deceased and DNA with the same profile as the deceased on them but no fingerprints or DNA of the accused. The accused’s clothing did not contain traces of accelerant and nor did he have any “flame wash” damage to his clothing. The expert evidence was that this is consistent with him not being near the deceased at the time of ignition.

12. [12]

    There is no forensic evidence inculpating the accused in the death of his wife. Rather, the Crown case at the first trial relied heavily on relationship evidence and lies said to have been told by the accused to police.

13. [13]

    The circumstances of the marriage between the accused and the deceased were that The accused and the deceased were that they were married in India in 2005. Their marriage was arranged. At the time of their wedding the accused already resided in Australia and the deceased was a citizen of India.

14. [14]

    In July 2006, the deceased moved to Australia and resided with the accused and the accused’s parents in Kellyville. At some point after moving to Australia the deceased became a permanent resident and commenced employment at Moonlight Mushrooms in McGraths Hill where she picked mushrooms. Her husband worked for State Rail.

15. [15]

    The deceased and the accused saved their income to buy a house by living with the accused’s parents. In 2011, the accused and the deceased built a new house in Rouse Hill and moved in there to live together. The house was purchased in both of their names as joint tenants. Neighbours describe them as quiet. No arguments were ever heard. The deceased was seen to be gardening from time to time.

16. [16]

    Bank and pay records tendered at the trial show that on two occasions the deceased stopped her pay being deposited into her husband’s account (from which the mortgage was to be paid) and instead diverted it either into an account in her own name, managed by her sister-in-law, or in the name of her sister-in-law Amanpreet Kaur. The Crown case was that she had to do this as the accused would not let her have any money for herself. It was also the Crown case that it was needed to pay for her own fertility treatment. The defence case was that the deceased was under significant pressure to provide financial assistance to both her family in Australia on temporary visas, and her family in India whom she was helping to move to Australia, and that the money was needed for those purposes.

17. [17]

    It appears to be common ground that the couple had disagreements over money. The factual dispute at trial is as to whether the deceased was diverting her pay away from the couple’s account in her husband’s name because the accused did not give her any money, or in response to pressure from her family to support them.

18. [18]

    A significant portion of the first trial was taken up with detailed evidence from family members who gave “relationship evidence” that the accused was verbally and on occasion physically abusive to the deceased, he restricted her life, was frugal with money and would not let her go anywhere. Other evidence was called by the accused’s family members to rebut this.

19. [19]

    Evidence was given by the deceased’s family members that on one occasion, two and half years before she died, the accused hit her with a shoe (this was denied), and that about 15 months before she died, the accused had raised his hand in the air to the deceased in front of her family and her brother intervened. The first of these was the subject of hearsay evidence and forms part of the objections the subject of this judgment. The second incident was observed by family members. This evidence was also disputed.

20. [20]

    Very little of the “relationship” evidence from family members is of observations of any abusive conduct on the part of the accused; rather, most of it is in the form of conversations they had with the deceased throughout her marriage during which she said things to them about the accused. The admissibility of this hearsay evidence turns on the consideration of the relevant provisions of the Evidence Act.

21. [21]

    I will turn to consider the relevant statutory provisions and legal principles, before turning to consider the submissions of the parties as to the admissibility of the various hearsay representations.

Relevant law: hearsay exceptions

1. [22]

   Section 59 of the Evidence Act 1995 (NSW) provides as follows:

2. [23]

   The effect of s 59 is that hearsay evidence is inadmissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation. There was no issue taken that all of the representations were relied upon by the Crown for a hearsay purpose.

3. [24]

   The statutory exception to the hearsay rule where the maker is unavailable (as in this case because she is deceased) is s 65(2) of the Evidence Act which is in these terms:

4. [25]

   The Crown relies on either s 65(2)(b) and/or (c) in relation to the hearsay representations. The Crown must therefore show, in relation to each representation, either that the circumstances were such that it is unlikely that the representation was a fabrication (if the representation was made when or shortly after the asserted fact occurred – subs (b)), or that the representation was made in circumstances that make it highly probable that the representation is reliable (subs (c)).

5. [26]

   The High Court (French CJ, Bell, Gageler, Keane and Gordon JJ) considered the application of s 65(2) in Sio v The Queen (2016) 259 CLR 47; [2016] HCA 32 (“Sio”). That case concerned s 65(2)(d) of the Evidence Act but the principles are the same. The proper approach to apply s 65(2) is as follows:

6. [27]

   The High Court went on in Sio v The Queen to observe at [69]-[70]:

7. [28]

   Thus, the focus is not on whether the representations themselves are likely to be reliable but on the circumstances in which they were made. Objective circumstances that may preclude a finding of likely reliability include “a specific retraction of the assertion of the relevant fact” or “[s]statements made by the representor that are demonstrably or inherently incredible, fanciful or preposterous” (Sio at [71]). In assessing the circumstances in which the representation was made, the Court is not to undertake a general assessment of whether the representor is a reliable witness: Sio at [72].

8. [29]

   In Sio, the High Court was considering s 65(2)(d) of the Evidence Act and the admissibility of hearsay statements made by a co-offender. It is apparent why the High Court held that taking a compendious approach in those circumstances was not appropriate. The co-offender (Mr Filihia) made a statement implicating himself but when he spoke of Mr Sio’s involvement he had a motive to minimise his own criminality and maximise Mr Sio’s. That is why careful regard had to be made to each of his separate assertions to police.

9. [30]

   The application by the Crown in this case concerns s 65(2)(b) and/or (c). The threshold of reliability under subs (b) is lower for the Crown than it is under subs (c) but it only relates to representations made “when or shortly after the asserted fact occurred”.

10. [31]

    The authorities considering what is meant by the phrase “when or shortly after the asserted fact occurred” in s 65(2)(b) were discussed by Beech-Jones J in R v Tarantino [2019] NSWSC 939 at [25]-[27]. Given their significance to a number of the rulings I am required to make I propose to set those paragraphs out in full as follows:

11. [32]

    Given that both 65(2)(b) and (c) require a consideration of the relevant “circumstances" in which the representations were made, it is helpful to have regard to what the authorities have held are sufficient circumstances to warrant the admission of hearsay representations under this statutory provision.

12. [33]

    In Clarke (a pseudonym) v The Queen [2017] VSCA 115 the trial judge erred in admitting hearsay evidence under s 65(2)(c) after taking into account the fact that the hearsay representations were corroborated by the evidence of another witness. The Court held that this approach was erroneous as, in considering the circumstances in which a representation was made, “a court [is not permitted] to take into account other evidence which tends only to address the asserted fact”: (at [80] per Redlich JA and Beale AJA). That is consistent with the statement of Mason P (Hulme and Simpson JJ agreeing) in R v Ambrosoli (2002) 55 NSWLR 603 at 616; [2002] NSWCCA 386 at [34]-[35]: the Court should “exclud[e] [from its consideration of the circumstances] evidence tending only to prove the asserted fact”.

13. [34]

    In Prasad v R [2020] NSWCCA 349, the deceased complainant represented in a statement to police that she had not consented to certain sexual acts and had manifested her lack of consent by words or actions (at [91]). In relation to one of the counts, the deceased had separately represented to her carer that she had “had the best night of [her] life” (at [99]). To the extent that any of the representations in the police statement asserted that the complainant had not consented to this count, the representations were inadmissible under s 65(2)(c) to prove this fact as the circumstances could not be considered “highly probably reliable” (at [100] per Macfarlan JA, Wilson J and I in agreement).

14. [35]

    In Harris v R [2005] NSWCCA 432 (at [44]-[46]), the representation was made in a formal statement to police acknowledging potential criminal liability for false statements. The representations in Harris v R were admitted under s 65(2)(b) as they were made in a formal statement to police, were not inherently unlikely, and were capable of verification by other witnesses (at [44]-[46] per Studdert J, Grove and Whealy JJ agreeing).

15. [36]

    In Youkhana v R [2013] NSWCCA 85 (at [52]-[54]) the representor gave evidence to the Crime Commission “in the knowledge that the contents of such statement could, and would, be checked by the Commission” (at [52]). The representor’s awareness that the representations would be independently verified was a circumstance of reliability and it was held to be open to the trial judge to admit the representations under s 65(2)(b) (at [52]-[54] per Bellew J, Hoeben CJ at CL and Slattery J agreeing).

16. [37]

    In Williams v The Queen [2000] FCA 1868 at [56]-[58] the Federal Court (Whitlam, Madgwick and Weinberg JJ) considered the admissibility of statements made by a representor who was under caution for a serious offence, the police recently having discovered a firearm buried in his garden. Because the representor was a suspected accomplice with “a variety of reasons to tell the police what… they wanted to hear”, the representations were held not to be admissible under subs (b) or (c).

17. [38]

    Whether or not the representor had a motive for fabrication was also considered relevant in R v Kuzmanovic [2005] NSWSC 771 at [19].

18. [39]

    In Munro v The Queen [2014] ACTCA 11 at [16], the representor was a cleaner recounting his system of work. The court held that it was open to the trial judge to admit the representations under s 65(2)(c) as the system of work was likely to be well-remembered, the representor had no personal interest in the subject matter or outcome of the trial, and any motivation to exaggerate would be outweighed by the inclination to avoid prosecution (as the evidence could to some extent be verified with his former employer) (at [16] per Refshauge ACJ and Penfold J; at [79] per Burns J).

19. [40]

    In Chidiac v The Queen (No 2) [2016] NSWCCA 120 the representor recanted evidence that he had previously given under oath. At the time of recanting, the representor “had secured his release”, was overseas, and “may have considered that he was not at risk of any further action by authorities against him if he should falsely recant” (at [152] per Bathurst CJ, Button and Fagan JJ). As the representor was not at any risk of prosecution for making a false statement, the representations were found to be inadmissible under s 65(2)(d).

20. [41]

    In Azizi v The Queen [2012] VSCA 205. the representations were made to a social worker from whom the representor was seeking help. The representor repeatedly described the events of the night before, including having unsuccessfully sought assistance from the police. The circumstances were held to be such that the representations were unlikely to be a fabrication (at [78]-[79] per Bongiorno JA, Buchanan JA and Hollingworth AJA agreeing).

21. [42]

    More recently, representations made to a sibling were considered by Button J in R v Ryan [2020] NSWSC 1394 at [12]-[14]. In Ryan, statements made by the deceased to her sister regarding her relationship with the accused (the deceased’s husband) were not admissible under ss 65(2)(b) or (c). Statements made “in close relationships… about private matters” could be reliable or not reliable, fabricated or not fabricated, and therefore the overall circumstances were “neutral” such that the preconditions to admissibility were not positively satisfied. After referring to the decision in Sio his Honour stated the following:

22. [43]

    Summarising the above decisions, circumstances which have been held to have favoured reliability include:

    1. (1)

       If the representations are made in a statement to police acknowledging potential criminal liability for false statements;

    2. (2)

       Representations made to an investigating authority (e.g. NSWCC) in the knowledge they will be checked for truthfulness;

    3. (3)

       When an employee who has no personal interest in the subject matter or outcome gives evidence about a work practice;

    4. (4)

       When representations are made to a social worker in the course of seeking assistance, the representor having unsuccessfully earlier sought help from police.

23. [44]

    On the other hand, circumstances which have not favoured reliability include:

    1. (1)

       Representations made to siblings about a relationship;

    2. (2)

       When representations are a recanting of evidence given on oath and the representor is not at risk of prosecution for false statements;

    3. (3)

       Where the representor has a motive for fabrication, for example because they are being investigated for a serious offence; and

    4. (4)

       If the evidence is directly contradicted by other statements made by the representor.

24. [45]

    Further, corroborating evidence from another witness is not relevant to the circumstances in which the representation was made.

Section 66A of the Evidence Act

1. [46]

   In relation to some of the representations, the Crown also relied upon s 66A of the Evidence Act as a basis for admissibility. Sections 62 and 66A of the Evidence Act 1995 (NSW) provide as follows:

2. [47]

   This provision was discussed by Brereton J (as his Honour then was) in In the matter of HIH Insurance Limited (In Liquidation) [2015] NSWSC 790 at [67]-[77]:

3. [48]

   More recently Hamill J observed the following in R v Al Batat & Ors (No 31) [2020] NSWSC 1556 at [4]:

4. [49]

   In Boral Resources (Vic) Pty Ltd v CFMEU (Ruling No 2) [2015] VSC 459 at [7], the Court explained the operation of the provision as follows:

5. [50]

   For reasons set out below I am satisfied that some of the representations made by the deceased in the days before her death fall into this category.

6. [51]

   With these principles in mind, I turn first to consider the evidence as to the circumstances in which the various representations were made and the competing submissions as to their admissibility.

The hearsay representations

1. [52]

   The Crown provided a helpful table identifying each of the representations. The table divided the proposed evidence into nine different subject areas as follows:

   1. (1)

      Representations about general control of Parwinder Kaur;

   2. (2)

      Representations about financial control and arguments;

   3. (3)

      Representations about general treatment of Parwinder;

   4. (4)

      Representations about prior violence or abuse;

   5. (5)

      Representations about not reporting violence or down-playing abuse;

   6. (6)

      Representations about fertility treatment and children;

   7. (7)

      Representations about Parwinder’s desire for a divorce;

   8. (8)

      Representations made on Saturday 30 November 2013;

   9. (9)

      Representations made on Sunday, 1 December 2013.

2. [53]

   It seems to me that the representations generally fall under five topics:

   1. (1)

      Representations about fights over money (1-3);

   2. (2)

      Representations about physical abuse (4-5);

   3. (3)

      Representations about fertility treatment (6);

   4. (4)

      Representations about divorce (7);

   5. (5)

      Representations in the lead up to her death (8-9).

3. [54]

   In relation to each separate representation it is not always apparent whether it was made “when or shortly after the asserted fact occurred” (as required by s 65(2)(b)). This is significant. I have stated above, the statutory test is more stringent if it was not made when or shortly afterwards.

4. [55]

   If the Crown can establish this temporal link then the circumstances in which the representation was said to be made have to be such as to “make it unlikely that the representation is a fabrication”. If, on the other hand, no such temporal link is obvious then it must be established that the representation was made “in circumstances that make it highly probable that the representation is reliable”. If there is doubt about the timing of the representation, I propose to proceed on the basis that the relevant subsubsection is (c) rather than (b).

5. [56]

   Furthermore, there are significant difficulties with the form of some of the representations and, on closer analysis, some of the “representations” are in fact direct evidence and need no ruling. Some of the other alleged representations were in fact expressions of opinion from the deceased. If they are contemporaneous, they may be admissible under s 66A but if not they are inadmissible.

6. [57]

   Following the hearing on 19-21 October 2020, some of the representations were not pressed by the Crown and other objections not pressed by the accused.

The circumstances in which the representations were made

1. [58]

   Although some of the circumstances differed as between the various witnesses, nearly all the relevant “circumstances” relied upon by the Crown turned on the fact that the representations were made to family members and friends in positions of trust. It was accepted by both the Crown and the accused that many of the circumstances were the same and there could be some “grouping” of circumstances where appropriate.

2. [59]

   In Prasad v R the Court of Criminal Appeal (per Macfarlan JA with whom Wilson J and I agreed) dismissed a ground of appeal which complained that the trial judge had taken a compendious approach to the admission of hearsay evidence from the deceased (a sexual assault complainant) even though that approach was taken with the consent of the parties. In that case the relevant circumstances were substantially the same for all of the representations. The appeal was dismissed. I accept that the fact that although the relevant circumstances are substantially similar for each witness, this does not mean that I can take a compendious approach.

3. [60]

   The seven witnesses to whom the representations were said to have been made were:

   1. (1)

      Jagat Singh (the deceased’s father);

   2. (2)

      Gurvinder Kaur (the deceased’s younger sister);

   3. (3)

      Amanpreet Kaur (the deceased’s sister-in-law);

   4. (4)

      Sukhvinder Singh (the deceased’s younger brother);

   5. (5)

      Sukhvinder Singh (a Sikh elder);

   6. (6)

      Rohit (Ricky) Kalra (a work colleague and later brother-in-law); and

   7. (7)

      Seema Chaudhary (a work friend).

4. [61]

   Although hearsay evidence is also to be adduced from Russell Isemonger, Beverley Ettinghausen and Suchit Marak, no objection was ultimately taken to that evidence being adduced at trial.

5. [62]

   The persons to whom the representations were made fall largely into three groups, although the accused relied upon a fourth set of representations (or lack thereof) as relevant to the circumstances of the first three. The different categories are as follows.

6. [63]

   The deceased’s representations to her family were all negative: Gurvinder and Amanpreet Kaur and Sukhvinder and Jagat Singh. Matters relied upon by the accused as being relevant to the circumstances are as follows.

7. [64]

   It was submitted on behalf of the accused that the deceased’s relationship with her siblings was not one of “equals” due to her relatively advantageous position in life, as a permanent resident in Australia who owned her own home. It was submitted that the deceased had a motive to overplay any unhappiness in her life due to her position relative to her family; she had a motive not to be frank, otherwise she would be under pressure to financially assist her family even more. It was submitted that it is understandable that the deceased would try to keep her family at arm’s length in these circumstances. It is unclear whether the allegations by the deceased of financial abuse were brought up in response to requests for more money by family members.

8. [65]

   There was evidence that Amanpreet Kaur and Sukhvinder Singh were in Australia on temporary visas, hopeful of obtaining permanent residency, and needed the deceased’s financial support to do so. They were renting and could not work full-time. They needed financial assistance from her. In this way the deceased had a motive to “put a brake” on the demands for financial assistance and blame her husband for any diminution in support.

9. [66]

   As for her family still in India, again, the deceased might not have wanted them to know what her life in Australia was like compared to theirs, lest they request more support, thus providing a motive to either exaggerate or fabricate any unhappiness. The evidence is that Gurvinder Kaur never came to Australia during the deceased’s life. She tried to obtain a student visa to come to Australia in 2012 and 2013, with the assistance of the deceased and Amanpreet. In one of her applications, she claimed that she had qualifications and experience that she did not have (including that she had a diploma in information technology and was a college lecturer in India when she in fact worked on her parents’ farm). Her applications were unsuccessful so in October 2013, the deceased arranged for her to marry her work colleague Rohit Kalra. She arranged the marriage from Sydney. It took place in India in October 2013. This evidence was said to show the pressure the deceased was under from her family.

10. [67]

    It was submitted that in all of these circumstances, any representations made by the deceased to her family could not be considered to be made in circumstances which made it “highly probable” that they were reliable.

11. [68]

    The Crown submitted that the circumstances which made it “highly probable” that the representations made to these witnesses were reliable were that they were made to siblings whom she felt comfortable confiding in and that she had made the same representations to more than one person. In relation to some of the representations it was submitted that the fact that the representations were supported by documents was another relevant circumstance.

12. [69]

    In relation to the defence submission that the deceased’s relationship with her siblings was not one of “equals”, the Crown submitted that some level of financial or other support is not an unusual circumstance in a familial relationship and did not detract from the circumstance that it was a relationship of trust and support.

13. [70]

    The representations made to Sukhvinder Singh (a Sikh elder) on the one occasion she spoke to her about her marriage were also all negative.

14. [71]

    It was submitted on behalf of the accused that the deceased spoke to her in circumstances where she sought to advance her case, knowing that her husband and mother-in-law had already advanced theirs. On behalf of the accused it was submitted that the relevant “circumstances” in which the deceased made representations to Sukhvinder Singh included:

    1. (1)

       That the deceased had refused to speak to Mrs Sukhvinder Singh in the company of her husband;

    2. (2)

       That the deceased knew her husband and mother-in-law had spoken to Sukhvinder Singh but did not know what had been said about the marriage or about her; and

    3. (3)

       That she was speaking from the position of “pleading her case” to a mediator, seeking to contradict whatever account had been given by the accused and his mother-in-law.

15. [72]

    The Crown submitted that the deceased’s representations to Mrs Singh were made in circumstances of reliability because the deceased was seeking marital advice from a community elder, who was a person held in high regard in the community and at the temple.

16. [73]

    When the deceased spoke to her work colleagues, Seema Chaudhary and Rohit Kalra, she gave a mixed account of positive and negative aspects of the relationship. This is to be contrasted with the consistently negative things she said about the accused to her family.

17. [74]

    Although Seema Chaudhary gave evidence that the deceased was her best friend, it emerged at the first trial that the deceased had withheld information from her about Gurvinder marrying Rohit Kalra. This secret marriage took place at a time when the deceased was had taken some time off work and had stopped putting money into the mortgage account.

18. [75]

    The accused submitted that the fact that Rohit Kalra seems to have received financial support from the deceased that the accused did not know about provided a motive for the deceased to misrepresent her financial situation.

19. [76]

    The Crown submitted in relation to representations to work colleagues that they were made in circumstances that make it “highly probable” that the representations are reliable, namely, that the deceased was confiding in a person very close to her about an issue that was important to her. In the alternative, the Crown submitted in relation to certain representations that they were admissible under s 66A as being a contemporaneous expression of intention.

20. [77]

    In contrast to the above representations, there was evidence at trial that on at least three occasions the deceased had the opportunity to report any abuse to people in authority and did not do so.

21. [78]

    The first occasion is the evidence of the “000” call the deceased made to police in January 2013. The deceased complained about a fight about money but not of any physical abuse. She complained that she had had an argument with her husband about her opening a bank account for herself and that she heard him talking to someone on the phone to “kick” her out of the house. When the police went around to check on her, she said that there were no threats and that she did not have fears for her safety. The accused was not at home at that time.

22. [79]

    The second occasion is that Amanpreet Kaur gave evidence that she took the deceased to see a solicitor where the deceased complained about disagreements she had with the accused about finances. Amanpreet could not remember there being any mention of violence.

23. [80]

    The third occasion is that there was evidence that the deceased regularly saw her local general practitioner and was seeing several doctors at the time of the IVF treatment. These doctors have mandatory reporting obligations. Not only is there no evidence that any bruising was seen by them, nor is there is any evidence that the deceased ever made any complaint at that time.

24. [81]

    It was submitted on behalf of the accused that it was relevant to the consideration of the circumstances in which the representations were made that the deceased had these opportunities to speak to people in positions of power who could have assisted her. Despite this, on no occasion did the deceased make any complaint about any physical violence.

25. [82]

    It is to be accepted that many victims of domestic violence suffer shame and do not report the violence for that reason. Other domestic violence victims do not report it for fear of repercussions from the abusive partner. Another cultural reason could be to avoid shaming the family. In this case it is alleged that the deceased complained about abuse from her husband to work colleagues, friends and family on occasion but expressly disavowed it when she spoke to police in January 2013.

26. [83]

    I have had regard to the submissions that the inconsistent approach taken by the deceased is a relevant circumstance to consider. I am satisfied that the failure to mention any physical abuse to her lawyer or doctor casts doubt on the reliability of the representations to her family and friends but I am not satisfied that it is relevant to the consideration of the circumstances in which they were made. On the other hand, consistent with the authorities I have referred to above, the fact that the deceased positively represented to police that there had been no physical violence is relevant: Prasad v R.

Relevance of “relationship evidence”: ss 55/56 of the Evidence Act

1. [84]

   Before I turn to consider the admissibility of the evidence under s 65(2) of the Evidence Act, the question of relevance must first be assessed. If the evidence is not relevant, that is the end of the matter: Smith v The Queen (2001) 206 CLR 650 at 653; [2001] HCA 50 [6] per Gleeson CJ, Gaudron, Gummow and Hayne JJ.

2. [85]

   Sections 55 and 56 of the Evidence Act 1995 (NSW) provide as follows:

3. [86]

   Section 55 of the Evidence Act was considered by the High Court in IMM v The Queen (2016) 330 ALR 382; [2016] HCA 14 (“IMM”). The majority (French CJ, Kiefel, Bell and Keane JJ) held (at [38]-[39]) that the task of determining whether evidence is relevant requires an assessment of the capability of the evidence rationally to affect the assessment of the probability of the existence of a fact in issue. The exercise is to be undertaken on the assumption that the jury will accept the evidence, an assumption that is compelled by the words “if it were accepted” in s 55: IMM at [49]. It is not to role of the trial judge, at the point of assessing relevance, to enquire into the weight that a jury may give to evidence. A piece of circumstantial evidence that gives rise to an inference consistent with guilt is probative unless that inference is preposterous or incredible in the sense explained by the majority in IMM at [39].

4. [87]

   The Crown asserts that the hearsay evidence the subject of this application is relevant as “relationship evidence”. The relevant principles regarding the admissibility of relationship evidence are derived from the decision of the High Court in Wilson v R (1970) 123 CLR 334. These principles were conveniently discussed by McCallum J (as her Honour then was) in R v Gittany (No 2) [2013] NSWSC 1599 at [8] as follows:

5. [88]

   I now turn to consider each representation the subject of objection under the five topics I have set out above.

Representations about fights over money

1. [89]

   Six witnesses gave evidence of what the deceased said to them about fights she had with the deceased over money: Gurvinder Kaur, Amanpreet Kaur, Mr Sukhvinder Singh (brother), Mrs Sukhvinder Singh (a Sikh elder), Rohit (Ricky) Kalra and Seema Chaudhary (a work friend).

2. [90]

   The hearsay representations made to these six witnesses and relied upon by the Crown about fights over money are as follows;

3. [91]

   Mrs Singh is a Sikh elder from the Sikh Temple. All representations to her by the deceased occurred on the one occasion. I have set out the circumstances in which they were made above at [70]. None of them were made “when or shortly after” the asserted fact occurred. Rather, they concerned events about money going back throughout the marriage. The relevant test is thus under 65(2)(c).

4. [92]

   When it became apparent that the deceased and the accused were having marriage problems in November 2013, the accused’s mother arranged for them both to get marriage counselling from Mrs Singh. The deceased would not go with them, so the accused and his mother went alone. Mrs Singh’s evidence and the evidence of the deceased’s mother is that the accused explained to Mrs Singh that the deceased had stopped putting money into the mortgage and was giving large sums of money to her brother Sukhvinder and on one occasion to her father in India.

5. [93]

   When the deceased learned that the accused and his mother had seen the elder, she went on her own and spoke to her. Mrs Singh’s proposed evidence as to what she said is as follows:

   1. (1)

      “Parwinder said ‘they told me they were going’ and ‘he is taking the money and I don’t know where it is’.”

   2. (2)

      “When [I] asked if she gave her father money from the account, she said ‘yes I asked him [Kulwinder] and he knew’. She said that she gave him 100,000 Rupee but that he has paid her back and the money is back in the account.”

   3. (3)

      “She told me that she was not going to work and that she would like it cleared up before I went to India [on 21 November 2013]. She told me that she had her own account that she was putting money into. She told me that [Kulwinder] never gave her any money to buy clothes, and when she went to India he did not give her any money.”

   4. (4)

      “Parwinder told me when she got back to Australia she began taking one hundred dollars from her pay and putting it into a separate account to buy clothes and shopping because Kulwinder did not like to spend the money.”

   5. (5)

      “Parwinder told me that money from the mushroom farm went into his account which had his [Kulwinder’s] name on it. Parwinder said ‘I show you all the paperwork’.”

   6. (6)

      “Parwinder said she did not give money to her brother from Kulwinder’s account.”

   7. (7)

      “Parwinder called and asked to see me. She showed me banking documents. Parwinder told me that she stopped putting her money in his account after Kulwinder made withdrawals totalling $100,000.00 from his account.”

   8. (8)

      “Parwinder told me that he harassed her every day about money.”

   9. (9)

      “Parwinder told me that she was willing to give [Kulwinder] all the money in her account and sign the house over and leave [Kulwinder] if [his family] are happy with that.”

6. [94]

   The representations were made in relation to money problems that the couple had been having for some time. The question is: are the circumstances in which they were made such that it is highly probable that the representations are reliable?

7. [95]

   I am unable to accept that the circumstances are such as to make it highly probable that each representation is reliable. As was submitted on behalf of the accused, the circumstances were that the deceased was advocating her position and seeking to contradict her husband’s position. It was not a relationship of trust and confidence, or one of seeking support. The nature of the relationship and the dynamic of it is relevant to the circumstances and not the reliability.

8. [96]

   The circumstances in which each of the representations were made to Mrs Singh, the Sikh Elder, were the same so my ruling applies to all of the evidence of this witness as to what the deceased said to her.

9. [97]

   I note that there are banking documents in existence which confirm that the deceased was transferring money into a separate account managed by Amanpreet Kaur and at times would stop contributing to the mortgage. These will be tendered in court. The documents speak for themselves. To that extent there will be evidence of the money problems between the couple at trial.

10. [98]

    Rohit Kalra was a younger male employee at the mushroom farm. I have recounted the circumstances and submissions above at [73]. The evidence of Rohit Kalra contains both positive and negative representations by the deceased.

11. [99]

    In 2010/11: “Parwinder told me that she and her husband were building a house in Rouse Hill. Parwinder was very happy to be moving away from her husband’s family.”

12. [100]

    I do not understand there to be any objection to the first sentence. As for the second, it is not a representation as to a fact, rather to a state of mind but not an intention. It is not a contemporaneous statement tied to any event about her intention relevant to the offence with which the accused is charged thus I am not satisfied it is admissible under s 66A either.

13. [101]

    The Crown seeks to adduce evidence from Mr Kalra of the following general (undated) representations from or about Parwinder. As they are undated the test for all of them is under 65(2)(c):

    1. (1)

       “Parwinder told me that she didn’t get any of her pay from work.’

    2. (2)

       “Parwinder said ‘I am working seven days and I am not getting paid into my account…’.”

    3. (3)

       “Parwinder told me that she had started a separate account for herself. She told me that she was putting $100 per week into the account and her husband did not know about it.”

14. [102]

    The Crown submitted that all of these representations pointed towards reliability because they are consistent with the evidence of other witnesses. Reliance was placed on the fact that the bank statements support some of these assertions. The nub of the Crown submission was that what she said to Mr Kalra was consistent with what she told other people. As the decision in Sio makes clear that is a matter relevant to reliability and not the circumstances in which they were made.

15. [103]

    I am unable to accept that the circumstances in which the representations were made about their money troubles are such as to make it “highly probable” that the representation is reliable. I have set them out above. There is nothing about them to suggest this high test is met.

16. [104]

    Despite this, it seems that the third assertion is common ground: she had started a separate account for herself and her husband did not know about it. It is a matter for the accused as to whether he maintains this objection at trial.

17. [105]

    As with Mrs Singh, there are documents in court which will show the financial situation of the couple.

18. [106]

    Ms Chaudhary was a friend of the deceased who worked at the mushroom farm with her. I have set out circumstances and submission above at [73].

19. [107]

    Her evidence is that in 2012:

    1. (1)

       “Sometimes Parwinder would call when she was upset and she always saying to me about their fight, they always fight about money. Her husband always fight when she opened her (own) account. Same thing, always money involved.”

    2. (2)

       “Parwinder told me last year that she had opened up a bank account with Commonwealth Bank for herself and she was putting all of her wage into this account. This only lasted for a few weeks until she was forced to change the deposit of her wages.”

20. [108]

    In October 2013:

    1. (1)

       “In October Kulwinder went to India. Parwinder found out that Kulwinder had taken money out of the home loan account, about $90,000.00. Parwinder made arrangements for her wage to be transferred into her account and … she refused to change it back.”

21. [109]

    Undated general observations:

    1. (1)

       “On one pay day, Parwinder was crying. She asked her what was wrong. Parwinder told her that she only sees how many hours she works but she never sees the money because it goes in her mother-in-law’s bank account.”

    2. (2)

       “Parwinder said her money went into another account, first to her mother-in-law’s and then to Kulwinder’s account.”

    3. (3)

       “Parwinder told me that she was never allowed to have her own bank account and Kulwinder would only give her $50 a week.”

    4. (4)

       “Her husband was verbally abusing her all the time (was always fight about money).”

    5. (5)

       “Parwinder told me that she was fed up with her husband because he was all the time verbally abusing her.”

    6. (6)

       “Parwinder always said that she loved her husband and she was waiting maybe someday he will change.”

22. [110]

    I have set out the circumstances in which these representations were made and the competing arguments at [73].

23. [111]

    Being mindful not to deal with the representations compendiously I am satisfied that all of the representations made about money were made in the same circumstances. Ms Chaudhary was a friend of hers and the representations made to her were usually at work, although they socialised outside of work as well.

24. [112]

    I am not satisfied that any of these representations were made in circumstances “when or shortly after the asserted fact occurred”: the evidence was not specific on this fact. The test is under s 65(2)(c): were the representations made in circumstances that make it “highly probable” that the representation is reliable? Having regard to the principles from the decisions I have discussed above, I am not satisfied that this high bar has been met.

25. [113]

    Further, as I have already stated, there is documentary evidence (both bank and pay evidence) about some of this in any event.

26. [114]

    The representations that Sukhvinder Singh states the deceased made to him about money problems are as follows:

27. [115]

    On 18 October 2012:

    1. (1)

       “Parwinder direct deposited $100 of her pay into another account because Kulwinder would not give her any money.”

    2. (2)

       “I heard Parwinder say to Kulwinder ‘I do keep the money for my own expenses. That is my money and you wouldn’t let me have any of my money and who am I going to get come from when I need it. I work 7 days a week and if I keep $100 to myself what’s the big deal with that?’”

28. [116]

    In October 2012:

    1. (1)

       “Parwinder and Kulwinder came to an agreement where she would deposit all of her wage into his bank account and he would refund the ($140,000) equity back into their home loan. Kulwinder didn’t honour his part of the deal – ‘Kulwinder did not put the money in’”.

    2. (2)

       “When Kulwinder returned from India in October 2012 he withdrew more money from the home loan and my sister confronted him about this.”

    3. (3)

       “Parwinder told me that she refused to work for Kulwinder as a money-making machine and didn’t want to be in the relationship when it was only about money.”

29. [117]

    In 2013:

    1. (1)

       “I told Parwinder to make a complaint to the police. She said ‘don’t worry it will get better with time’. She told me that she called 000 on 5 January 2013. She told me that the argument was about money.”

30. [118]

    Being mindful not to deal with the representations compendiously I am satisfied that all the representations made about money were in the same circumstances. They were made to her brother who relied upon her for financial and other support.

31. [119]

    I am not satisfied that any of these representations was made in circumstances “when or shortly after the asserted fact occurred” thus the test is under s 65(2)(c): was the representation made in circumstances that make it “highly probable” that the representation is reliable. Having regard to the principles from the decisions I have discussed above, I am not satisfied that this high bar has been met. The nub of the Crown case is that the circumstances of confiding in a brother are such as to make it “highly probable” that the representation is reliable. That cannot be the case as a rule. As Button J observed in R v Ryan that fact makes the circumstances neutral at best. More would be needed. Nor is the fact that the deceased repeated the representations relevant to the circumstances in which they were made; they are only the reliability of them which is not the statutory task I have been asked to undertake.

32. [120]

    Again, I note that there are banking and pay records addressing this aspect of the case and some of the assertions might be admissible for a non hearsay purpose.

33. [121]

    Amanpreet Kaur’s proposed evidence on the topic of representations made to her about money disputes is as follows.

34. [122]

    In 2009:

    1. (1)

       “Parwinder told me that after a while she told Kulwinder that she was not happy with her pay going into his mother’s account so Kulwinder changed the account details so Parwinder’s pay went into his account instead of his mother’s.”

    2. (2)

       “Parwinder told me that Kulwinder was planning to buy a house and she was desperate to move out and live in her own house away from Kulwinder’s family so she was happy for her money to go towards this.”

    3. (3)

       “She said ‘it’s fine, one day when they get their own house she will move out and everything will be better’.”

    4. (4)

       “Parwinder told me that her pay would go straight into her mother-in-law’s account.”

35. [123]

    In November 2013, “Parwinder was incredibly frustrated with the money she was earning going straight into Kulwinder’s account. Parwinder and I organised for $100 to go into an account in my name and then later one in her own.”

36. [124]

    Other undated assertions are as follows:

    1. (1)

       “Parwinder would always talk to me about her relationship with her husband. I know she was having a tough time. Kulwinder would never give her money so she could buy the very basics.”

    2. (2)

       “Parwinder said that Kulwinder was money minded, that he didn’t love anyone or anything except money.”

    3. (3)

       “Parwinder told me that she and Kulwinder had arguments about Parwinder and my husband [Sukhvinder Singh, the deceased’s brother].”

    4. (4)

       “Parwinder told me Kulwinder was angry and that they had argued about money.”

    5. (5)

       “Parwinder told me that they gave Ranjit and Sukdev $50,000.”

37. [125]

    Being mindful not to deal with the representations compendiously I am satisfied that these representations made about money were made in the same circumstances. They were made to her sister-in-law who relied upon her for financial support.

38. [126]

    Some of these statements are not representations about an asserted fact, but, rather, how the deceased felt at various times throughout the marriage. I have considered the admissibility of those assertions under s 66A but am not satisfied that they are admissible: they are too remote from the facts in issue. It is difficult to identify the probative value of the fact that the deceased told her sister-in-law that she thought that the accused only liked money or that she wanted her own home.

39. [127]

    I am not satisfied that any of the hearsay representations were made in circumstances “when or shortly after the asserted fact occurred” thus the test is under s 65(2)(c): were the representations made in circumstances that make it “highly probable” that the representation is reliable. Having regard to the principles from the decisions I have discussed above, I am not satisfied that this high bar has been met. The nub of the Crown case is that the circumstances of confiding in a sister-in-law are such as to make it “highly probable” that the representation is reliable. As stated above, this is insufficient to meet the high bar required under the Evidence Act.

40. [128]

    As with the other evidence on this topic I note that there are banking records on this topic and some of this evidence might be relevant for a non hearsay purpose. This witness set up some of the accounts and I would permit some evidence to be given about the circumstances of that.

41. [129]

    Gurvinder Kaur was the deceased’s younger sister. Her proposed evidence as to what the deceased said to her about money problems is as follows.

42. [130]

    In October 2012:

    1. (1)

       “When my sister knew that he took money from the mortgage she stopped her payment from her salary. Then he fought with her and she said ‘the money that you have taken out from the housing mortgage, you again put it back to the mortgage’.”

    2. (2)

       “After the above, he again took money out of mortgage, and my sister said ‘this is our house, why you are taking out the money, it is our house and we don’t need to have something else to buy so why are you taking out the money from the mortgage’.”

43. [131]

    In November 2013:

    1. (1)

       “She told me all the money that I earn is going to my husband’s account.”

44. [132]

    In relation to general statements made by Parwinder about money:

    1. (1)

       “My sister told him ‘until you also start paying for house, I’m also not going to pay for this house’.”

    2. (2)

       “My sister said, ‘this man will never be happy, he is the son of the money’.”

45. [133]

    Being mindful not to deal with the representations compendiously, I am satisfied that these representations made about money were all made in the same circumstances: they were made over the telephone to a younger sister in India who was very keen to emigrate to Australia.

46. [134]

    I am not satisfied that any of these representations was made in circumstances “when or shortly after the asserted fact occurred”, thus the correct test is s 65(2)(c): was the representation made in circumstances that make it “highly probable” that the representation is reliable. Having regard to the principles from the decisions I have discussed above, I am not satisfied that this high bar has been met. The nub of the Crown case is that the circumstances of confiding in her younger sister are such as to make it “highly probable” that the representation is reliable. For reasons I have already stated these circumstances are insufficient in this case to meet the high test required. They are neutral at best.

47. [135]

    The circumstances in relation to Gurvinder differ to those of Amanpreet and Sukhvinder. They are even less likely to lead to the statements being reliable given that the relationship the deceased had with her brother and sister-in-law in Australia was a closer one than with Gurvinder. Gurvinder was at all times in India and the power imbalance between them was even greater.

Representations about physical abuse

1. [136]

   In June 2011 the deceased came to stay with Amanpreet and Sukhvinder for a few days. The evidence of Sukhvinder is that she said the following to him at that time:

   1. (1)

      “Parwinder attended my home and told me that Kulwinder had bashed her in front of his family and thrown her out of the house. She told me that Kulwinder had slapped her numerous times and bashed her with a shoe.”

   2. (2)

      “She later told me that she had been kicked in the stomach and had trouble passing bowels and urinating.”

2. [137]

   Assuming that these two representations refer to the same incident (as the Crown case was put at the first trial), I am satisfied that they were made when or shortly after the asserted fact occurred, as the evidence of both Sukhvinder and Amanpreet is that the deceased did come and stay with them for a few days. There was also a text message in evidence sent by the accused with an apology about a “misunderstanding” with the family at that time: on 19 June 2011; Exhibit AAAQ.

3. [138]

   It is to be noted that the fact asserted was denied by the family members of the accused who all gave evidence at trial but I am not considering the reliability of the representations. Rather, I am assessing the circumstances in which they were made.

4. [139]

   The timing of these representations was imprecise at the first trial but it was said to be at a time when the deceased came to stay with Sukhvinder and his wife for a few days. I have had regard to the temporal requirement in s 65(2)(b) and, although the matter is finely balanced, I am satisfied that the temporal link is established and the evidence is admissible under s 65(2)(b) as being unlikely to be a fabrication.

5. [140]

   The Crown also sought to adduce other more general representations made to this witness including the following:

   1. (1)

      “She would tell me about serious arguments or times where she had been bashed. She has attended (my) home at least 5 times after she had been bashed and thrown out of her home.”

   2. (2)

      “Parwinder told me that it (money) would make him angry and if he was swearing at her and she began swearing back he would hit her. When asked, she again confirmed that he hits her.”

   3. (3)

      Parwinder said that Kulwinder had hit her.

6. [141]

   These representations are undated and in general terms. I am not satisfied that s 65(2)(c) is satisfied in relation to any of them for the reasons I have already provided in relation to other representations made to this witness.

7. [142]

   Ms Kaur gives an account in the same terms as her husband that the deceased came to stay with them for a few days in June 2011. The relevant representations are:

   1. (1)

      “Parwinder told me that Kulwinder had hit her”

   2. (2)

      “Parwinder spoke about an incident when Kulwinder hit her and threw her out of the house and she came to her house. Parwinder told me that Kulwinder had beat her in front of her mother-in-law and he removed one of his thongs and hit her and he also hit her with his feet [kicked] to her tummy. She told me that she had trouble urinating after this incident. [She did] not recall her going to the doctor about it.”

   3. (3)

      “I told her to see a doctor when she is having trouble urinating, but she said she’s okay.”

8. [143]

   The evidence about this was somewhat confusing but on the basis that she is talking about the one incident in June 2011 when the deceased came to stay with them I am satisfied it falls within s 65(2)(b) of the Evidence Act for the reasons I have already stated in relation to Amanpreet’s husband, Sukhvinder.

9. [144]

   Amanpreet Kaur also described other more general undated statements such as “[w]henever she was talking to me or my husband, she would delete that number from the call history. She asked me how to do this. Parwinder would quickly end the call and say, ‘I’ll call you later, he’s here’. If Kulwinder see those numbers, it would start an argument again and she said, ‘I try to avoid the arguments as much as I can’.”

10. [145]

    The Crown submitted that this representation should be considered to be made in circumstances of reliability as it was said to Sukhvinder as well. As I have already indicated, the question is not about reliability but as to the circumstances in which the representation is made. Ms Kaur is able to give evidence of the deceased hanging up the phone as that is not a hearsay representation, however the hearsay representations do not satisfy s 65(2)(c) for the reasons I have already provided.

11. [146]

    Finally, Amanpreet states that in mid-2009 she observed a bruise on Parwinder’s right leg (below the knee) on one occasion. Parwinder said it was caused when she was having an argument with Kulwinder and he pushed her, and she “hit the bed or something”. Also, in late 2009 or early 2010, “Parwinder told me that Kulwinder was verbally abusive and also physically abusive. I knew that Parwinder was scared of Kulwinder and was very unhappy in the relationship.”

12. [147]

    These statements were said to have been made three years before her death when the deceased and the accused were living with his parents to save money to buy their own home. Although the direct evidence is that she saw a bruise on the deceased’s lower leg, it is not clear how long after any alleged striking that occurred given that bruising can last for weeks. The relevant test is thus under s 65(2)(c) and I am not satisfied the high test is met for the reasons I have already provided in relation to other representations made to this witness.

13. [148]

    On a date not specified Mr Kalra saw a scar/mark on Parwinder’s forehead and her neck when she was at work. When he asked her what happened, she said “nothing”.

14. [149]

    The answer is not probative of anything and does not rise to the level of relevance.

15. [150]

    Ms Chaudhary states that in 2010:

    1. (1)

       “Parwinder showed bruising to her arms. Parwinder told me that her husband had made the bruises on her arms. Parwinder told me that her husband had made the bruises when he was pushing her and grabbing her during an argument about money.”

    2. (2)

       “Parwinder told me that he physically abused her. She said he was pushing her, grabbing her.”

16. [151]

    As with the evidence of Amanpreet Kaur, it is not clear how long after any alleged grabbing by the accused this conversation took place given that bruising can last for weeks. The relevant test is thus under s 65(2)(c) and I am not satisfied the high test is met for the reasons I have already provided in relation to other similar representations made to this witness. This was the only occasion this witness saw any bruising, over three years before her death. The probative value is low in any event.

17. [152]

    In October or November 2009: (although the trial transcript says December 2008) Gurvinder states that she observed bruises on Parwinder when they were changing clothes in India on an occasion when she travelled home. When she asked about them Parwinder said “when Kulwinder hits me and he doesn’t look where he’s hitting and when he hits me in the stomach, I put my knee up and so to protect myself so he ends with his shoe on my thigh”. She also stated that at that time Gurvinder said:

    1. (1)

       “She told me that most of the time he would take his slippers off and hit her on the head with that and also with his legs in the stomach.”

    2. (2)

       “[Parwinder said] that husband had smacked her in the stomach with a shoe. The shoe wasn’t held in hand, it was on the foot. A thump, fully shoed foot heel thump with force, even the bruise will happen through the clothes.”

    3. (3)

       “Parwinder said, in Punjabi, ‘he got jutti (shoe) in his foot and he beats me with the jutti (meaning shoe) foot’.”

    4. (4)

       “My sister told me on the phone that Kulwinder came home when she was eating, and he hit her on the head with a sandal. We told her to tell the police.”

18. [153]

    Although the evidence of this witness as to timing was often unclear I shall proceed on the basis that she is referring to the one incident in India in 2009. It is difficult to ascertain the timing of it because, if as the witnesses alleges there was a bruise visible, it could be up to weeks afterwards. I am not satisfied this is a contemporaneous remark such as to satisfy s 65(2)(c). There is no evidence that an assault with a shoe occurred that day or in the days beforehand in India whilst they were staying with the deceased’s family.

19. [154]

    I am not satisfied that the high test in s 65(2(c) is made out for the reasons I have already provided in relation to representations made to this witness and the circumstances in which she and the deceased spoke.

20. [155]

    Gurvinder also provided the following evidence of representations as follows:

    1. (1)

       “If she could not complete a job or some mistake happen[ed], her husband would abuse her, fight her and beat her. And when she was eating and in case he happened to come and she is eating, he used to take her sandal and hit her on the head.”

    2. (2)

       “One night before, when her husband’s sister got married, one night before he beat her, and she had marks on her legs and on her hands and she showed it to one of her friends in the Sikh temple.”

21. [156]

    None of these statements are contemporaneous and they are all undated and at times non-specific. I am not satisfied that the high bar in s 65(2)(c) is satisfied for reasons already given.

22. [157]

    Gurvinder also seeks to give evidence of conversations with the deceased at the time of the first “000” call made by the deceased to police on 5 January 2013. She states that she had a conversation to her sister as follows:

    1. (1)

       “[Parwinder] said to Kulwinder ‘if you misbehave and beat me I will call the police’.”

    2. (2)

       “She called the police and because of her anxiety she discard[ed] the phone. When they called back they came out to see her and she told them that her husband had threatened her and she was feeling that he should not get worried (told) that she has called the police so she just said ‘no, no, no, everything ok you can go’.”

    3. (3)

       “She rang 000 and asked for the police. All this was told to me by Parwinder. When she requested for the police, she got worried and she cut the phone. When she was warred [sic], if Kulwinder find out about that call to the police, they will tang me more, even more.”

23. [158]

    This is an account that Gurvinder gives of a conversation she had with the deceased at some point after the deceased spoke to police on 5 January 2013. There were no telephone records produced to indicate when the conversation occurred and I am unable to be satisfied that it was when or shortly after the conversation with police as required by s 65(2)(b). Accordingly, I am not satisfied that it reaches the high bar of s 65(2)(c) for reasons already provided as to the circumstances in which this witness spoke to the deceased at the time.

24. [159]

    On the one occasion the deceased spoke to her at the temple she said:

    1. (1)

       “Parwinder told me ‘if Binder [the accused] is using abusive language on me and I use it back, then he hits me’.”

25. [160]

    This is an undated representation. The relevant test is under s 65(2)(c). For the reasons I have already stated in relation to the circumstances in which the two women spoke, I am not satisfied that this satisfies that high test.

Representations about fertility treatment

1. [161]

   It is common ground that the couple had fertility problems and that they commenced IVF treatment. What was in dispute on this topic is whether the accused was willing to pay for it and whether he was supportive of it. In that context the hearsay representations are as follows.

2. [162]

   Ms Chaudhary states that the deceased stated the following to her:

   1. (1)

      “Parwinder told me that she could not have children and she was seeing some doctors. She said that Kulwinder did not want to spend money on medical treatment. He said that they argued regularly about not getting money back from Medicare. She said that Kulwinder did not allow her to seek medical assistance to help with falling pregnant because of the costs involved.”

   2. (2)

      “She said that she was thinking that if she has a baby maybe the relationship will get better.”

3. [163]

   There is no dispute on the evidence that the deceased was seeing doctors about infertility and that she wanted to have a baby. The fact that she thought a baby might make the relationship better is not a factual assertion but, rather, an opinion. Nor is it a contemporaneous representation about her state of mind anchored to any event. The aspect relied upon by the Crown is that the accused did not want to pay for the treatment, and they fought about it.

4. [164]

   The relevant test is under s 65(2)(c). Are the circumstances in which the deceased said this to her work colleague such as to make it highly probable that the representation is reliable? Having regard to the principles I have extracted and the reasons I have already provided in relation to other representations made to this witness I am not satisfied that this high statutory test has been met.

5. [165]

   Gurvinder Kaur’s proposed evidence on this topic is as follows:

   1. (1)

      “She wanted to bear a child and was ready to take some medicine.”

   2. (2)

      “She organised $100 a week to go into her own account and she saved that money and then she told him [Kulwinder] that her brother had given her the money for the fertility treatment.”

   3. (3)

      In mid-2012 or 2013, “Parwinder told Kulwinder that I had given her the money to have the medical procedure done.”

6. [166]

   There is no dispute that the deceased wanted to bear a child and was prepared to take treatment for it. I do not understand there to be any objection to this. The dispute is as to who paid for the treatment.

7. [167]

   Given the timing, the relevant test is under s 65(2)(c). Are the circumstances such that it is highly probable that the representation is reliable? Having regard to the principles I have extracted and the reasons I have already provided in relation to other representations made to this witness I am not satisfied that this high statutory test has been met. In any event, there should be documentary evidence as to who paid for the treatment.

8. [168]

   Given that the accused is charged with killing his wife, the question of his willingness to pay for fertility treatment seems somewhat remote to the issues for the jury’s determination. I am however satisfied that it meets the threshold test of relevance but is inadmissible in that it does not meet the requirements of s 65(2)(c) of the Evidence Act.

9. [169]

   Amanpreet Kaur will give direct evidence of collecting the deceased from the hospital after a bout of IVF treatment. In addition to that direct admissible evidence she proposes to give the additional evidence:

   1. (1)

      “Parwinder told me that Kulwinder was angry at her for wanting to spend money on fertility treatment and did not want to give her the money to have the treatment done.”

   2. (2)

      “Parwinder said to me that there was nothing she could do (about having to walk to Westmead train station from the hospital after the treatment).”

   3. (3)

      “Parwinder asked ‘can I go with Amanpreet so I can have some rest’ after the treatment. Kulwinder said ‘no, just sit in the car and let’s go’.

   4. (4)

      “Parwinder told me that Kulwinder was angry and he did not want her to take any days off work (after the fertility treatment).”

   5. (5)

      “Parwinder told me that ‘only the day after the treatment she managed to stay home’.”

   6. (6)

      “Parwinder told me that Kulwinder made her go back to work (after the fertility treatment), where she worked the rest of the week. She said that she was too scared to stay at home.”

   7. (7)

      “Parwinder spoke to me about adopting a child. She spoke on numerous occasions about wanting children.”

   8. (8)

      “Parwinder told me that she desperately wanted children… She talked about her desire to have children and the pressure she felt to become pregnant. She thought it might make her life grow happier.”

10. [170]

    In relation to (2) and (3) these were stated in the presence of the accused at the time the asserted fact occurred. As to (1), this will be a matter for other evidence. As for (4), (5) and (6), they are the same representation that the accused did not want her to take too much work off after the treatment. As for (7) this is not a statement of asserted fact but the deceased’s opinion

11. [171]

    As I have stated above, the question of the accused’s willingness to undertake fertility treatment seems somewhat remote to the issues for the jury’s determination in this trial but I am satisfied it passes the low threshold test of relevance.

12. [172]

    Applying the test in s 65(2)(b) to representations (2) and (3) I am satisfied they are admissible as that test is lower and the statements were made in the presence of the accused.

13. [173]

    As for (1), (4), (5) and (6), the relevant test is s 65(2)(c) and I am not satisfied that the high statutory test is satisfied for the reasons I have already stated. There is nothing about the circumstances in which they were made that makes it highly likely to be reliable. In any event employment records and hospital records should be available to show how much time the deceased took off work after her fertility treatment.

14. [174]

    Finally, (7) and (8) is not a hearsay representation. It is a statement about the deceased’s feelings. I am not satisfied that it is relevant on that basis.

15. [175]

    In relation to the general treatment of Parwinder, Sukwinder Singh’s evidence is that: “Parwinder said that if she had kids, things would be better for her.”

16. [176]

    The accused objected to this on the basis of relevance. For the reasons I have already provided this is not a hearsay representation but a reflection of the deceased’s opinion. It is not admissible on that basis. It is undated and non specific.

Representations about divorce

1. [177]

   Mr Singh states that in October 2013, “Parwinder spoke to me about getting a divorce from Kulwinder when the incident in India happened.”

2. [178]

   He further states that in November 2013: “Parwinder was prepared to divorce Kulwinder. She had spoken to me about this a week before her death. She told me that she and Kulwinder were not compatible and it would be better for them to divorce. She told me that she was concerned about the effect a divorce between Kulwinder and her would have on our father.”

3. [179]

   In the form in which these statements were tendered on this application I am not able to identify the hearsay representation relied upon.

4. [180]

   I am satisfied that it is relevant that the deceased wanted a divorce in the weeks leading to her death. None of the representations say that this desire was because the accused was violent to her, rather, that he had threatened her family (there will be direct evidence of that at trial) and that there were ongoing fights over money.

5. [181]

   Although the question of contemporaneity is somewhat unclear, I am tentatively satisfied that the representations about divorce are admissible under s 66A of the Evidence Act.

6. [182]

   The representations were said to take place in October 2013. At that time the accused was in India and the deceased was in Australia. These statements were said to have been made over the telephone:

   1. (1)

      “After this last time he threatened her we told her that she has to report the matter. Even my father told her that. She said ‘okay I will report it, I will go for a divorce’. On earlier occasions she had always said ‘he will improve and we will be able to save our house’. After the threat in October 2013 I said to her he is going to kill you, what are you going to do and she said ‘I am going to divorce him’.”

   2. (2)

      “My sister told him “you have not rectified yourself, I want a divorce”. She told me this on the phone. She said ‘until he started paying this, until he pays back the … then only I will start paying’.”

   3. (3)

      “Parwinder asked me what mum or dad would think if she got a divorce. I told her that they think the same, that it’s better to divorce that person than to have to spend your life with that person.”

7. [183]

   Again, there is a difficulty in the form in which these statements are set out. There will be direct evidence called at trial that when the accused was in India he went to visit the deceased’s family and there was a fight in which the deceased’s family asserts the accused threatened to kill them.

8. [184]

   I note that there are a number of hearsay representations from family members at this time. The majority of this evidence is that the deceased wanted a divorce because of the fights about money (the accused had withdrawn a large sum of money from the account into which her pay was deposited) although the fact that the accused threatened her family was also mentioned.

9. [185]

   Gurvinder stated that in late November 2013:

   1. (1)

      “My sister told me that she wanted to get a divorce from him. She said that he will not be able to rectify himself now. She said that she was always thinking it may give some sort of bad impression or embarrassment to her parents.”

   2. (2)

      “Only four or five days before she died she called me and said ‘I have made my decision and I am going to get my divorce’. She asked me to talk about it with my mother and father.”

   3. (3)

      “The Monday that she called, I told her that ‘Mum and Dad are agreeing, you have already, you know. Wasted seven, eight years with him. There’s no need to waste any more time with him’. She told me ‘I have told him that I want to separate, I want to be separate from you’.”

   4. (4)

      “About one week before she died, I was with my father in India when he spoke with Parwinder on telephone and he said ‘leave this man, he is not going to be rectified’.”

   5. (5)

      Undated: “She told me that if he doesn’t rectify himself that she will take a divorce, she will live with her parents and she will adopt a child.”

10. [186]

    I have considered all of these representations. There are considerable problems with the form of them and the timing is also very unclear. They are largely not hearsay representations but I am satisfied that expressions of intention by the deceased in the weeks leading up to her death that she wanted a divorce are relevant and admissible under s 66A of the Evidence Act.

11. [187]

    Amanpreet states that she had a number of conversations with the deceased about wanting a divorce.

12. [188]

    She states that in late 2012, “Parwinder went to a lawyer to get advice about getting a divorce.” Amanpreet went with her on this occasion and can give directed evidence about this. I shall defer the ruling on this until the witnesses gives her evidence.

13. [189]

    She stated that in October 2013:

    1. (1)

       “Parwinder told me that she intended to leave Kulwinder. The first time was after the incident in India and she said ‘now I don’t want to live with him anymore because he’s just money minded, I thought he would change but he didn’t change at all’.”

    2. (2)

       “She always wanted her marriage to work but she changed her mind after Kulwinder went to India and went to the house and actually abused the parents.”

14. [190]

    After October 2013, “Parwinder told me ‘my mother and father going to live with me’. She wanted to show Kulwinder that she could live happily without him.”

15. [191]

    Amanpreet Kaur states that later, in November 2013:

    1. (1)

       “Parwinder told me how unhappy she was and that she wanted a divorce. Parwinder told us that she gave Kulwinder two choices, either agree to the divorce or open a joint bank account so she could have access to her money.”

16. [192]

    In late 2013:

    1. (1)

       “Parwinder said that after her husband returned from India ‘he’s more verbally abusing her, most of the time’.”

17. [193]

    In November 2013:

    1. (1)

       “When Parwinder had some time off work I went to see her as I was worried about her. She told me she was off because all her money goes into her husband’s account and she wants to change that. She had been crying all night. She told me they had argued. She told me that she wanted to make Kulwinder realise her part in their relationship, but he did not change and insisted that she go back to work.”

18. [194]

    I make the same ruling as I did in relation to his evidence that the deceased said these things to both of them at the same time. They are relevant and admissible under s 66A subject to the timing of them being established with more accuracy.

Representations in the lead up to her death

1. [195]

   Sukhvinder saw the deceased with his wife in the lead up to her death and spoke to her on the telephone as well.

2. [196]

   He states that on 30 November 2013 (two days before the fire that caused her death):

   1. (1)

      “On Thursday 28 November 2013 Parwinder’s pay didn’t go into Kulwinder’s bank account. They fought about this. Parwinder attended my home and talked to me about it.”

   2. (2)

      “Whilst at my home, Parwinder discussed with me the issues she was having with Kulwinder.”

   3. (3)

      “She had a discussion with me that the relationship was not going very well with her husband and that in the long term if everything is all about money, then it’s not all right for her.”

   4. (4)

      “She said that she was thinking that she was going to get a divorce. That she wanted a divorce.”

3. [197]

   He states that on 1 December 2013: “[w]hen I asked her how things were she said ‘it’s okay, you tell me something about yourself, don’t talk about him, it’s an everyday matter for us’.”

4. [198]

   He spoke to the deceased on the telephone shortly before her death on 2 December 2013:

   1. (1)

      “There was 2 missed calls from Parwinder and then I answered the 3rd one. She said ‘you don’t answer your phone’ and I told her I was busy. She said ‘he’s going on about the same, he’s asking me for money. What should I do?’ I told her that we would speak after I finish work.”

5. [199]

   I am satisfied that the representations made to her brother in the days before her death are relevant and admissible. To the extent that they show her state of mind I would admit them under s 66A and to the extent that they assert facts I would admit them under s 65(2)(b) given the timing of the relevant events.

6. [200]

   The deceased took some time in the weeks before her death. Mr Kalra states that in November 2013:

   1. (1)

      “Before she took time off, she told me that she was not sure if she was going to come back to work.”

   2. (2)

      “When she returned to work, I asked her why she had days off. She said ‘I didn’t know I was going have days off... I might not be coming back to work’.”

7. [201]

   These are all statements of her intention rather than of asserted facts. The relevance of them was not addressed at the pre-trial hearing and I would need further submissions before ruling on them.

8. [202]

   On 1 December 2013, when Parwinder left work she said “I’ll see you tomorrow” in Punjabi to Mr Kalra.

9. [203]

   There is evidence that the deceased did in fact go to work on 2 December 2013 so again the relevance of this is not apparent. I propose to rule on it following further submissions as to its relevance.

10. [204]

    The deceased went to work on 2 December 2013 (the day of the fire). The evidence of Ms Chaudhary is as follows:

    1. (1)

       “Parwinder told me that she did not want to go home. She said Kulwinder is there and I don’t want to go there because he will start arguing about money. She asked me to drop her off at the fruit shop near the Rouse Hill Aldi on Old Windsor Road. She wanted to go home, but she said she was going to take more time getting there because Kulwinder was there and they fight all the time.”

11. [205]

    I am satisfied that the representations made to Ms Chaudhary hours before her death are relevant and admissible. To the extent that they show her state of mind I would admit them under s 66A and the extent that they assert facts I would admit them under s 65(2)(b) given the timing of the relevant events.

12. [206]

    Ms Kaur states that she had a conversation with the deceased on 30 November 2013 as follows:

    1. (1)

       Amanpreet knew that “Parwinder was not happy in her marriage and last week she told Kulwinder that she wanted a divorce.”

    2. (2)

       “Parwinder told me how unhappy she was and that she wanted a divorce. Parwinder told us that she gave Kulwinder two choices, either agree to the divorce or open a joint bank account so she could have access to her money.”

13. [207]

    Her evidence is that on the following day, 1 December 2013:

    1. (1)

       “Parwinder was really upset about the relationship she had with Kulwinder. Parwinder told me that Kulwinder and her had not talked for a couple of days.”

    2. (2)

       “Parwinder told me that she did not want to talk about Kulwinder because she was tired of talking about him.”

    3. (3)

       “We invited her to stay but she said that she had to go home to cook for Kulwinder who was coming home at 2am. She said ‘maybe next time I will come I will saw the other part of the movie’.”

    4. (4)

       “She was looking forward to the future without Kulwinder. She was thinking that she can lead a happy life without him as well, so she want to divorce him and stay separate, so she was looking forward to the future.”

14. [208]

    I am satisfied that the representations made to her sister-in-law in the days before her death are relevant and admissible. To the extent that they show her state of mind I would admit them under s 66A and the extent that they assert facts I would admit them under s 65(2)(b) given the timing of the relevant events.

Conclusion

1. [209]

   In assessing the circumstances in which the hearsay representations were made in the present matter, I have had regard to the underlying policy behind the exception to the hearsay rule in s 65 of the Evidence Act. As set out by the High Court in Sio:

2. [210]

   For the reasons I have given, I have ruled that the evidence that falls within s 65(2)(b) is 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). I have approached that test strictly. The accused is on trial for murder and by its very nature he is unable to test the hearsay evidence of the family members of the deceased.

3. [211]

   I have not sought to provide these reasons by way of the table relied upon by the Crown. Consistent with the approach endorsed by the High Court in Sio the Crown separated out each representation even if they were on the same topic but repeated by the witness. I am satisfied that even if I have not replicated every single evidentiary extract contained in that table, the effect of my rulings should be clear.

4. [212]

   Having, by necessity, examined this evidence in some detail, it seems to me that some of it may be relied upon by the accused if certain other evidence is given by these witnesses at trial. These rulings can be re-visited at any time should either the Crown or the accused seek clarification.

5. [213]

   The specific rulings are set out in this judgment but in general terms they are as follows.

6. [214]

   Representations about fights over money ([89]-[135]): These all fall under s 65(2)(c) and I was not persuaded that that high bar had been met in relation to any of them. Despite this, it seems to me that some of them would be admissible for a non hearsay purpose.

7. [215]

   Representations about physical abuse ([136]-[160]): The evidence about the incident where the deceased went to stay with Amanpreet and Sukhvinder is admissible under s 65(2)(b) but the rest falls within s 65(2)(c) and does not meet that high bar.

8. [216]

   Representations about fertility treatment ([161]-[176]): The observations by Amanpreet and anything said by the deceased in the presence of the accused is admissible but the rest falls within s 65(2)(c) and does not meet that high bar. There will be documents in evidence about the payments of this in any event.

9. [217]

   Representations about divorce ([177]-[194]): The representations made in the days before her death are admissible but those made in October are not as they fall within s 65(2)(c) and do not meet that high bar. The timing of some these will need to be clarified with the witnesses as it was at times inconsistent which made ruling on them difficult.

10. [218]

    Representations in the lead up to her death ([195]-[208]): These are all admissible either under s 66A or s 65(2)(b).