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Kaur v R [2017] NZCA 465 (17 October 2017)

Last Updated: 26 October 2017

IN THE COURT OF APPEAL OF NEW ZEALAND
BETWEEN
 Appellant
AND
 Respondent
Hearing:
7 September 2017
Court:
French, Williams and Woolford JJ
Counsel:
R M Mansfield and S R Lack for Appellant S K Barr for Respondent
Judgment:


JUDGMENT OF THE COURT

  1. The application for leave to admit new evidence is declined.
  2. The appeal against conviction is dismissed.
  1. The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by French J)

Introduction

[1] Ms Kaur and a co-defendant, Mr Gurjinder Singh, were found guilty by a High Court jury of the murder of Ms Kaur’s husband, Mr Davender Singh. The trial Judge, Lang J, convicted them and sentenced each to life imprisonment with a minimum period of imprisonment of 17 years’ imprisonment.[1]
[2] Ms Kaur now appeals her conviction and sentence on the grounds of new evidence that throughout her marriage her husband subjected her to prolonged and serious physical, sexual and psychological abuse. She seeks leave to admit that evidence on appeal.
[3] In this judgment, we refer to Mr Davender Singh and Mr Gurjinder Singh by their first names to avoid confusion because they have the same surname.

Background

[4] Ms Kaur and Davender were married in India in 2002. Both were from Rajasthan, a state in the north of India near the Punjab region. It was an arranged marriage. The couple emigrated to New Zealand in 2007.
[5] In late March 2014, Ms Kaur began an affair with Gurjinder. They met at her workplace. He was a trainee and she was his supervisor. The affair was eventually discovered by their respective spouses on 11 July 2014. Work colleagues had also begun to suspect something and at one point Ms Kaur discussed with Gurjinder the possibility of getting one of the employees (her subordinate) dismissed in order to prevent that person talking to her husband.
[6] After the affair was discovered, Ms Kaur and Gurjinder promised their respective spouses that the affair would end. But it did not. After 11 July 2014, Ms Kaur and Gurjinder communicated with each other at work primarily by writing notes. They did this because, according to Ms Kaur’s evidence, Davender had insisted on her taking a voice recorder to work so he could listen to all her conversations and make sure she was not talking to Gurjinder. In the notes, Ms Kaur told Gujrinder that Davender was beating her because of the affair. She expressed her love for Gujrinder and her wish to be free of her husband and to live with Gurjinder.
[7] On or about 18 July 2014, Ms Kaur and Gurjinder began planning to kill Davender. The plan as recorded in the notes was that Ms Kaur would try to get her husband to drive down one of the roads near their house and to stop on the side of the road to talk as the two of them often did.[2] Gurjinder would follow in his car and kill Davender with a knife by slitting his throat.
[8] There were several attempts to carry out the plan over a two week period, but these failed because Davender did not stop where Ms Kaur thought he would. It was then agreed that Gurjinder would follow them from work.
[9] On 7 August 2014, at the end of the working day, Davender collected Ms Kaur in his car to drive her home. The car stopped at a place near their house. Shortly thereafter, Gurjinder pulled up behind them in his car. He went over to their car. There was then a struggle during the course of which Davender received multiple stab wounds. Gurjinder took Davender’s cell phone and drove away. Davender died at the scene.
[10] Ms Kaur told those who came to assist her, including passersby and emergency services, as well as friends and family, that she and Davender had been the victims of a robbery gone wrong. She said the assailant was a stranger. He had walked past the car while they were talking and demanded money from Davender. Davender had the window of the car down because it was hot. When Davender resisted, the robber stabbed Davender and ran off, taking Davender’s cell phone with him. She gave a description of the robber.
[11] Ms Kaur persisted with this story during a nearly three hour interview with police and made a formal witness statement. Police subsequently obtained CCTV footage of the incident. When showed this, Ms Kaur then admitted she knew the assailant and that it was Gurjinder. She said the two men had fallen out. Gurjinder had come to the car to apologise. The two men had argued and got into a physical fight during the course of which Gurjinder stabbed Davender.
[12] When asked if she had been having an affair with Gurjinder she denied it and said he was only a workmate whom she had not spoken to for three weeks to a month. Later she admitted the affair after being shown intimate text messages between the two of them, but told police it had finished about three weeks earlier and that Davender had forgiven her. She said she had not talked to Gurjinder since. Her explanation for her initial lie was that she and Davender had not discussed the affair with anyone. He had told her not to tell anyone about it and she wanted to protect his reputation as well as her own. She denied any involvement in the murder, saying she could not kill her husband.
[13] After interviewing Gurjinder, police spoke to Ms Kaur again. This time she said there had been a plan to kill Davender devised by Gurjinder. Gurjinder had told her not to worry, he would take care of it all. When asked whether she agreed with the plan, she gave conflicting answers. In those passages where she said she did agree with it, she also added that she wanted to keep living with her husband, that it was two weeks or more since she had spoken to Gurjinder and that she did not know he was going to follow them on 7 August.
[14] After the individual interviews had concluded, Ms Kaur and Gurjinder asked if they could speak to each other. Police agreed to this but on the basis that police officers would remain in the room and that the conversation would be recorded and could be used in evidence. The two then spoke at length to each in Punjabi. There were mutual recriminations, and a discussion about whether they should accept joint responsibility. At one point Gurjinder asked Ms Kaur whether she had told police how she had assisted him in the stabbing, to which she responded “I did not help in that”. Gurjinder expressed incredulity and accused her of holding Davender’s hand under her to which Ms Kaur replied “enough please”.
[15] Ms Kaur was charged with murder and remanded in custody. While awaiting trial she wrote letters to a brother in India asking him to kidnap relatives of Gurjinder including a four year old, and kill them unless Gurjinder took all the blame for Davender’s death.
[16] Police found several of the notes that had passed between Ms Kaur and Gurjinder. It was common ground that the notes found were not the complete set. All were undated. Most of the notes that were found were ones written by Ms Kaur.

Defence at trial

[17] Both Ms Kaur and Gurjinder gave evidence at trial, blaming the other for the killing. Gurjinder’s version of events was that he only wanted to speak to Davender, but when he went over to the car it was to a bloody scene. Ms Kaur had stabbed Davender and he was already dead.
[18] For her part, Ms Kaur said it was Gurjinder who first suggested killing Davender and that had occurred because Gurjinder was angry when she told him Davender had been beating her over the affair. She said she just thought Gurjinder was joking and did not take it literally. He persisted with the idea and although she agreed to it, she was taking it with “a pinch of salt”.
[19] Ms Kaur further testified that everything changed on 5 August 2014 because after a long discussion lasting 40–45 minutes she and Davender reconciled. She said she realised she wanted to spend the rest of her life with Davender. She apologised to him for the affair and he apologised for the way he had treated her when he learned of the affair. After that discussion, there was no further abuse.
[20] The following day, 6 August, the two of them went to a Sikh temple — not their usual one — made their respective apologies, confirmed their commitment to each other and asked the priest to say a prayer for them for a long and happy marriage.
[21] Ms Kaur further testified that on both 6 and 7 August she told Gurjinder the affair was over and that she wanted nothing more to do with the murder plan. She said she “cancelled the plan”.
[22] In support of her defence of withdrawal, Ms Kaur relied on two notes she had written to Gurjinder. She said she had given Gurjinder these notes on the morning of 6 August 2014. The first of the notes, which she testified she handed Gurjinder at 8.00 am on 6 August, read:

Tell me [p]lz can we finish [e]verything to[o] hard for me my love. Plz [t]ell me what u think if u love me can u m[a]ke ea[s]y my life plz I hope you understand me. Cm and see my driver [r]ack [a reference to a meeting place in the warehouse at work].

[23] In evidence, Ms Kaur said what she meant by that note was that she wanted to finish everything, which included her affair with him and also the plan about killing Davender. She further stated that after receiving the note Gurjinder was very angry and pleaded with her to change her mind. She said she told him she did not want to talk about it anymore, that the affair was finished, and that she did not want anything more to do with him or the plan to kill Davender.
[24] The second note, which Ms Kaur said she gave to Gurjinder around three hours later at 11.00 am, said:

If you think that I bother you or force you please let me know then please.

I do not want to give you trouble but happ[i]ness. You should not feel like I am force you.

Love you.

Love is to give happiness not pain. I do not want to give you botheration. Please tell me whatever you feel easy to do.

Whatever [is] meant to happen with me has happened but I really loved you a lot and today I am in such a situation that I cannot sow my love.

You are [the] first and last love in my life. Love you so much and love your smile.

[25] As well as giving Gurjinder the two notes on 6 August, she said she again told him verbally several times on 7 August (the day of the murder) that the affair had to end, that she wanted to carry on her marriage and that talking about killing Davender was stupid and she did not want anything to do with it.
[26] It was also part of Ms Kaur’s narrative about the reconciliation that before 5.00 pm on the day of the murder she and Davender spoke several times on the phone, expressing their love for each other and the fact they wanted the marriage to continue.
[27] Ms Kaur said further, that at around 5.30 pm on the day of the murder, she called Gurjinder’s wife to apologise and to tell her that she had finished the affair the day before. Phone data relating to Davender’s phone showed a call to Gurjinder’s wife on 7 August at 5.27.15 pm lasting approximately four minutes. Ms Kaur acknowledged that her husband and Gurjinder’s wife had made numerous phone calls to each other since discovering the affair, but said on this occasion it was her making the call using Davender’s phone. She had made the call while she and Davender were sitting in the car during a work break.
[28] In cross-examination it was put to Ms Kaur that she had been given the phone data as part of police disclosure and was using it to fabricate a story about a phone call so as to bolster her claims of a reconciliation. She denied lying about making a phone call to Gurjinder’s wife. She was then shown a document which she had not seen before detailing all phone calls on 7 August between phones belonging to her, Davender and Gurjinder’s wife. This information showed a call from her phone to Davender’s phone at 5.27.14 pm, which went unanswered. Ms Kaur rejected the suggestion that, on this evidence, she could not have been in the car with her husband. She said she rang her husband while she was in the car with him because as a joke he was hiding his phone and she was trying to locate it so she could make the call to Gurjinder’s wife. It only took a second to find the phone and ring Gurjinder’s wife at 5.27.15.
[29] The phone analysis also showed that 15 seconds after the call to Gurjinder’s wife ended, Davender’s phone rang Ms Kaur’s phone and that this call was unanswered.
[30] During her evidence-in-chief, Ms Kaur stated that until the affair, her relationship with Davender had been “very, very good, there was absolutely no problems of any kind.” The issue of whether Davender had ill-treated her before the affair was also raised in cross-examination. According to Gurjinder’s evidence, Ms Kaur had told him that Davender had beaten her throughout her marriage whenever he was drunk and that it was an unhappy marriage. When this was put to her by Gurjinder’s trial counsel, she strongly denied it, saying Davender had never touched her before the affair and that they had been very happy together. She also adamantly rejected any suggestion that he dominated her saying they had always made joint decisions. This was consistent with evidence about the state of the marriage from friends and lodgers.

The new evidence

[31] The new evidence that Ms Kaur seeks to adduce on appeal consists of affidavit evidence from Ms Kaur and two assessment reports from a forensic psychiatrist, Dr Mhairi Duff.
[32] Ms Kaur’s affidavit contains a detailed account of serious physical, sexual and psychological abuse and control which she says was inflicted on her by Davender throughout their married life and which she kept secret until undergoing counselling in prison. She says she is from a culture where women are very much subservient to men, particularly when a woman is married, and that it was due to her cultural upbringing that she did not want to tell others about the violence, fearing retribution and embarrassment.
[33] Ms Kaur also deposes that although Gurjinder was never violent towards her he too was very much the dominant party in the relationship. She states:

I would often find myself agreeing with him even when I didn’t just so that I could appease him and so that he wouldn’t get angry with me. I feared further violence ... .

[34] Dr Duff interviewed Ms Kaur on two occasions (combined total of four hours) and was also provided with information from Ms Kaur’s counsellor. In her reports, Dr Duff addresses issues of intimate partner violence including the phenomenon of learned helplessness and also addresses cultural norms of women in marriages in India. Dr Duff opines that Ms Kaur shows a number of psychological traits consistent with someone who has suffered longstanding abuse and that she would likely have been dominated by both Davender and Gurjinder. Dr Duff also states that Ms Kaur’s history of lack of control and lack of power within the marriage and the history of abuse would have been likely to have impacted on her state of mind, particularly in the three weeks prior to the offending, and may therefore have been of relevance to trial and to sentencing.
[35] When cross-examined before us, Dr Duff confirmed that her opinion was based on the account given by Ms Kaur and the information obtained from her counsellor. She told us Ms Kaur has been receiving counselling since August 2016 and that the sustaining of a narrative within a counselling relationship is a complicated thing to do if there is no basis of truth to do it. She acknowledged there would undoubtedly be elements of self-serving in Ms Kaur’s presentation and that ultimately for our purposes her report was only relevant if the account given by Ms Kaur was reliable.

Appeal against conviction

Submissions

[36] Counsel for Ms Kaur, Mr Mansfield, contended the new evidence provided missing crucial information that could have supported Ms Kaur’s defence of withdrawal.[3] It provided a context for the jury and an explanation for Ms Kaur’s otherwise strange actions of entering into the murder plan in the first place and, most importantly, her spontaneous withdrawal from the plan. With the assistance of this new evidence, the jury would have had a better understanding of the effects of intimate partner violence and would likely have found Ms Kaur’s evidence more credible and reliable.

Analysis

[37] We are unable to accept these submissions. First, we have very serious reservations about the credibility of Ms Kaur’s new evidence having regard to what can fairly be described as a pattern of manipulative behaviour and chronic lying to suit circumstances. We note too that Ms Kaur did not tell Dr Duff about the letters she had written in prison,[4] and that the one aspect of her new evidence that was able to be investigated in New Zealand has been exposed as demonstrably false.
[38] In her affidavit, Ms Kaur claimed she “was never taught how to drive a car, let alone allowed by Davender to obtain a licen[c]e”. This, she said, only exacerbated her isolation. She made similar statements to Dr Duff, telling Dr Duff she “was never allowed to learn how to drive”. However, documents obtained by the Crown show that Ms Kaur held a learner driver licence and in December 2012 applied for a restricted driver licence which required undergoing a driving test.[5] We acknowledge that the records also show Ms Kaur failed the driving test, but the reason she failed was because she briefly exceeded the speed limit by 5 kilometres per hour. She clearly must have known how to drive and must have driven before. When the records were put to Ms Kaur in examination before us, her story changed and instead of “never being allowed by Davender to obtain a licence”, she claimed the opposite, namely he forced her to get one.
[39] Secondly, and in any event, we are not persuaded that, whether the abuse was of three weeks duration — as told to the jury — or 13 years, bears in any significant way on the defence of withdrawal. The prosecution challenges to the credibility of that defence were compelling and in our view remain compelling even if the new evidence were to be admitted. Those challenges were:
[40] For completeness we should add that we also do not accept Mr Mansfield’s “fall-back” argument. It was to the effect that at trial there was credible evidence of quite serious abuse during the three weeks leading up to the murder and of itself that called for counterintuitive evidence about the impact of domestic violence on victims. He acknowledged there had been an agreed statement of facts recording that a high percentage of domestic violence is not disclosed, but submitted that did not go far enough. The jury, he argued, would not have been able to focus on the credibility of the withdrawal defence without the other widely held misconceptions regarding the behaviour and thought patterns of victims of violence also being addressed and corrected.
[41] In our view, however, this is to overlook the fundamental point that the reasons the jury is likely to have rejected the withdrawal defence are not dependent on misconceptions about how abuse victims are supposed to behave. Rather, it is likely to be because of the significant challenges to the credibility of that defence as set out at [39] of this judgment. In those circumstances, we consider there is no tenable risk that the absence of counterintuitive evidence has occasioned a miscarriage of justice.
[42] We conclude that the new evidence does not meet the test for admissibility on appeal, it being neither credible nor cogent.[7]

Appeal against sentence

[43] Mr Mansfield also sought to rely on the new evidence of Ms Kaur and Dr Duff to support arguments that a sentence of life imprisonment and a nonparole period of 17 years were manifestly unjust and should be replaced by a finite sentence of 12 years’ imprisonment. However, for the reasons already traversed, we do not consider the new evidence is sufficiently credible to be admitted on appeal.
[44] That does not however dispose of the appeal against sentence because other arguments raised by Mr Mansfield regarding the length of the non-parole period are not dependent on our admitting the new evidence. Mr Mansfield submitted that Lang J erred:
[45] Justice Lang found that although Gurjinder may have been responsible for most of the physical act, Ms Kaur was very much the instigator of the offending and there was no reason to distinguish between the two of them.[8] On appeal, Mr Mansfield contended this was unfair as were some comments made by the Judge suggesting Ms Kaur lied to Gurjinder about being beaten so as to incite him to kill Davender.
[46] In our view, that is reading too much into the relevant paragraph of the sentencing notes which was addressing motive. The main points made by Lang J were that only Ms Kaur and Gurjinder would know why they did it, but that as between Davender’s violence and the defendants’ desire to live together, he considered the latter was the more likely explanation.[9] Lang J was of course the trial judge and had heard and seen all the evidence. This included the fact that Ms Kaur was the one who knew of her husband’s practice of sitting in the car on the roadside and it was Ms Kaur who wrote notes suggesting revisions to the plans and imposing timeframes as well as telling Gurjinder “not to spare” Davender. Even taking account of the fact that more notes written by Ms Kaur were retrieved than those written by Gurjinder, we consider there was sufficient evidence to justify the Judge’s assessment of culpability.
[47] We turn then to whether s 104 of the Sentencing Act was engaged. Under s 104 certain categories of murder attract a presumptive non-parole period of 17 years’ imprisonment. Justice Lang held that the murder in this case fell within two of those categories, namely murders that involve calculated or lengthy planning,[10] and murders that are committed with a high level of brutality, cruelty and callousness.[11]
[48] Mr Mansfield submitted that neither category applied.
[49] As regards planning, he contended that the planning was not sophisticated and was of short duration. However, as this Court held in Desai v R,[12] the planning is not required to be competent or sophisticated to qualify as planning for the purposes of s 104 but must be present to a heightened degree, either because of the period of time or because of the degree of thought that has gone into it. As noted by Lang J, the important features of this case were that there was a deliberate plan to follow the intended victim to a car park, the planning took three forms, and there were several attempts to execute it. We consider that was sufficient to bring s 104 into play.
[50] As regards the brutality of the murder, we agree — as Lang J held — that the number of stab wounds (13 in this case) does not of itself engage s 104. However, what the Judge relied on was the manner in which the fatal wound was inflicted. It was a gaping wound to the neck created by several cuts or blows, the knife being plunged into Davender’s neck with sufficient force to leave tool marks on the cervical vertebrae and thyroid cartilage, and likely causing the tip of the knife to become bent. Collectively the series of forceful cuts amounted to a partial decapitation.
[51] Mr Mansfield acknowledged that the fatal blow might be capable of amounting to a high level of brutality. However, he submitted that responsibility for that must rest entirely with Gurjinder who the Judge accepted was the one who had done all the stabbing. The plan did not involve a high degree of brutality and therefore it was unjust that Ms Kaur should be penalised as a result of Gurjinder’s unilateral actions.
[52] In our view, there would be some force in that argument were it not for the evidence that Ms Kaur held her husband to assist the stabbing, evidence which Lang J accepted and which he was entitled to accept. In those circumstances we consider that Ms Kaur too must be held accountable for the level of brutality.
[53] It follows we agree with the Judge that on the evidence the murder was a joint enterprise and that it came within s 104. We also agree with the Judge’s assessment that it was not manifestly unjust to impose a 17 year non-parole period.
[54] Accordingly, we are satisfied the sentence was within range and appellate intervention is not warranted.

Outcome

[55] The application for leave to admit new evidence is declined.
[56] The appeal against conviction is dismissed.
[57] The appeal against sentence is dismissed.





Solicitors:
Crown Law Office, Wellington for Respondent

[1] R v Kaur [2016] NZHC 125.

[2] In order to avoid personal conversations being overheard by lodgers.

[3] An alternative argument that the evidence could have supported a defence of pre-emptive strike self-defence was abandoned.

[4] Referred to at [15] above.

[5] See New Zealand Transport Agency “Restricted licence test guide (class 1)” (September 2012) <www.nzta.govt.nz>.

[6] Ms Kaur was given an opportunity to respond to this evidence from trial counsel but declined, invoking the privilege against self-incrimination.

[7] Lundy v R [2013] UKPC 28 [2014] 2 NZLR 273 at [120].

[8] R v Kaur, above n 1, at [29].

[9] At [7].

[10] Sentencing Act 2002, s 104(1)(b).

[11] Section 104(1)(e).

[12] Desai v R [2012] NZCA 534 at [59].

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