R v Kamleh (No 2) No. Sccrm-01-77

R v KAMLEH (No 2)
[2002] SASC 35
Voir Dire Ruling

Gray J Jamil Yousef Kamleh was charged with two counts of murder.[1]
[1] “First Count
Introduction
The Crown proposed to lead evidence of Mr Kamleh’s police interview. Counsel for Mr Kamleh contended that the evidence should be rejected as a matter of discretion. It was said that Mr Kamleh had not been cautioned.
A voir dire hearing was conducted. The officer in charge of the investigation, Detective Senior Sergeant Gerald Feltus and the interviewing officers, Detectives Gregory Charles Hutchins and Kym Wayne Weeding were called by the Crown. No oral evidence was presented by the defence. A considerable body of documentary material, primarily police declarations, was tendered by both parties.
At the conclusion of the voir dire hearing I ruled that the record of interview was admissable. I declined to exercise my discretion to exclude the evidence. The record of interview was admitted during the course of the trial. I indicated that I would provide reasons later. Those reasons now follow.
Background
The Crown alleged that in the early hours of 3 April 2000, Mr Kamleh went with Natale Attilio Zappia to Unit 22 of the Grand Apartments, Melbourne Street, North Adelaide and murdered Isac Colberg (also known as Faraz Rasti) and Rhiannon Ellul. Both died as a result of gun shot wounds. Mr Rasti was shot in the left eye and in the throat. Ms Ellul died from a single shot to the forehead. An exact time of death could not be determined. A forensic pathologist was of the view that death occurred at some time between 8.00 pm on 2 April 2000 and 4.00 am on 3 April 2000.
Both bodies were discovered by cleaners at about 2.00 pm on 3 April 2000. Police attended, the scene was sealed off and an investigation commenced. Minimal information was available to the police. A number of people had been seen in the vicinity of the premises. The unit was booked in the name of Ashwin Prasad, an associate of Mr Rasti and Ms Ellul. A doorknock was conducted and declarations obtained. Mr Prasad was interviewed. Mr Prasad provided the police with the telephone number of “Jamie”, Mr Rasti and Ms Ellul’s driver. A list of possible enemies of Mr Rasti was obtained. “Crimestopper” information was collected. Mr Kamleh was interviewed by police on 6 April 2000.
On 8 April 2000 the police received information that “nominated Mr Zappia”[2]. Police surveillance was undertaken. Mr Zappia was interviewed on 14 April 2000. On 15 July 2000 Mr Kamleh and Mr Zappia were arrested and charged with the murders[3].
[2] See [14]
[3] Separate trials were later ordered.
Mr Kamleh’s interview with Detectives Hutchins and Weeding on 6 April 2000 commenced at 11.36 am and concluded at 1.50 pm. Earlier that morning the detectives attended at Mr Kamleh’s home and asked that he speak with them as part of their investigation. The detectives asked Mr Kamleh to accompany them to the police station to be interviewed. Mr Kamleh agreed. He travelled with the officers to Angas Street police station where the interview was conducted. Mr Kamleh was not cautioned. The interview was audio and video recorded. A written transcript of the interview was prepared. There was no challenge to the accuracy of the transcript.
Legal Principles
The need for a caution to be given prior to the interrogation of a suspect is well established. It arises from basic principles of fairness. In R v Dolan King CJ observed:[4]
“The cautioning of a suspect that he is not obliged to answer questions, is the offspring of the rule rendering inadmissible in evidence confessions which have not been made voluntarily. It is also related to the discretion which a trial judge has to exclude evidence, including confessional evidence, if the admission of that evidence would be unfair to the accused. The caution tends to negative any suggestion of involuntariness or unfairness. The omission of the caution in circumstances in which it ought to be given, is not decisive as to the voluntariness of the confession nor of the fairness of admitting evidence of it. The judge must decide those issues by taking all relevant circumstances into account including the omission to administer the caution.
…
It has always been accepted that while the investigation is at the stage at which the police officer is simply gathering information or giving possible suspects the opportunity of clearing themselves, there is no need for the caution. At that point there can be no question of involuntariness or unfairness arising out of omission of the caution. It seems to me, however, that where a police officer has reached a stage in his investigations at which he has reasonable grounds for suspecting a particular person, he ought not to interrogate that person without advising him of his right not to answer questions. This is particularly so, where the police officer is about to embark upon a systematic interview issuing in a typed record of interview or audio or audiovisual tape. Omission to administer the caution at the commencement of such an interview, must put the answers at risk of being rendered inadmissible or excluded in the exercise of the judge’s discretion.”
Olsson J agreed that a caution should have been administered. He cited with approval a passage from an earlier judgment of King CJ in R v Szach:[5]
“If the investigation proceeds successfully, it will reach a stage at which the police are satisfied about the nature of the crime which has been committed and believe that it was committed by a particular person. It then becomes necessary to interrogate that person, with a view to laying the foundation for charging him with the crime unless in the course of the interrogation his is able to exonerate himself. I think that at the stage of commencing such an interrogation, the dictates of fairness differ from those applying to the earlier stage of the investigation. The focus of the investigation has changed. The investigation has passed beyond the stage of merely putting questions with a view to eliciting useful information. It has hardened into an interrogation of a particular person who is likely to be charged with the crime unless he can exonerate himself. The requirements of fairness change in accordance with the changed situation. While the police are merely seeking information, fairness involves no more than that the questions asked be fair questions, that the person questioned be given a fair opportunity to make the reply which he desires, and that his answers be faithfully reported. When the prime suspect is being interrogated with a view to charging him, the emphasis changes. The decision which he must make as to whether to exercise his rights to silence becomes a crucial consideration. It is important that he should take the care in considering and formulating his answers which is appropriate to the seriousness of his position.”
[4] (1992) 58 SASR 501 at 504-5
[5] (1980) 23 SASR 504 at 583
A caution may be required even though there is no belief by those conducting the interview that the person being interviewed was involved in the offence. Whether or not a caution should be given will depend upon the weighing of the information possessed by the police and their belief about the status of the person being interviewed. The relevant test was set out by Doyle CJ in R v Bueti:[6]
“In the present case the trial judge found, on the voir dire, that in light of the acceptance by the detectives of what Mr Bueti said, there were not reasonable grounds to suspect him of the commission of an offence. Although the test of whether there are reasonable grounds to suspect a particular person is expressed in objective terms, the existence of such grounds must depend, to some extent, on the view taken by the relevant police officers of the information provided to them. To my mind it would, for example, be impractical for the court to say that in a given situation if the relevant police officers had disbelieved most of what was told to them they would have had reasonable grounds to suspect the commission of an offence, and on that basis to hold that a caution should have been administered, even though the very reason for the police not administering the caution was that they genuinely believed the information given to them.”
[6] (1997-98) 70 SASR 370 at 378
Evidence on the Voir Dire
Detective Feltus explained the way in which he directed and controlled the police investigation. He outlined the procedures that were followed to ensure that he was kept informed of developments. He spoke of having frequent meetings with the investigative officers and of the manner in which information was conveyed to him and others throughout the investigation. Detectives Weeding and Hutchins reported directly to Detective Feltus.
Detective Feltus’ evidence included:
“Q.    As of the morning of 6 April 2000, was any person, or persons, suspected by you of being involved in the murders of Faraz Rasti and Rhiannon Ellul.
A.At that particular stage, there was no direct suspects, but I directed my mind to certain things for sure, but I had no identities.
Q.I wonder if you could expand and clarify on that answer. Were there any suspects as of 6 April 2000.
A.    No, there were not.
Q.    Would you like to clarify the answer you just gave to his Honour.
A.Because on the information available to me at that stage, I thought that we were looking at what we term a 'contract killing', and because of the information that was coming in, it was very similar to another operation that I had just completed, the Lonsdale shooting, and it had all the elements, and I thought we would have to be looking at some group or individual in some category of crime whereby this particular group, meaning the deceased and his partner, Rasti and Ellul, had either stepped on their toes, or they were going into territories controlled by someone else.”
When cross examined he said:
“Q.    You say that you had no direct suspects as of 6 April 2000. Did you have any non-direct suspects.
A.    I would have to say we had no direct suspects.
Q.    Did you have any suspects at all.
A.    No suspects whatsoever.
Q.    Did you have persons of interest.
A. We certainly had a lot of persons of interest. In fact, at that stage, we were attempting to gain as much information from any of his associates, anyone we could identify or give us any information about his activities, or the girl's activities.”
Counsel for Mr Kamleh did not challenge Detective Feltus’ credibility or reliability.
Detective Hutchins described the early stages of the investigation:
“A.    …On the murder being discovered, the crime scene was sealed off, the appropriate people, including pathologist and technical services personnel, attended. Our first line of inquiry was to establish the identity of the victims, to establish how long they had been at the unit, what name they'd booked in under at the unit also, to commence a doorknock of The Grand Apartments.
…
AWe had a double murder. That's all we knew about it, the possible identity of the victims. We needed to start scouring Adelaide, if I can say that, to get as much information as possible as to the circumstances of what may or may not have happened.
…
AThat night, [3 April 2000] we returned to headquarters, I think around 3 or 3.30 we started back at work the following day, receiving results from the post-mortem, looking at inquiries that needed to be done, further doorknocks and the like. As Mr Kamleh had been nominated as a person who may be closely associated with the deceased, a decision was made to try and locate him to see what information he might be able to bring. I can recall Detective Weeding attempting to telephone him, but we had no success. We attended an address at Mawson Crescent, Lockleys, on the Tuesday after lunch.
…
Q. What priorities, if you like, did you have in terms of the contacts you made, and why did you establish those priorities.
A. Obviously trying to develop a picture. We were concentrating our inquiries on the people who were closest to the victims. As Mr Kamleh had been nominated as a driver, he was obviously a person we wished to speak to sooner than later.
…
Q.    Was Mr Kamleh cautioned, either at the house or prior to that interview.
A.    No.
Q.    Why not.
A. We had no reason to believe he had any involvement in the crime, that crime, or any crime whatsoever, and he was no more than a person who we needed to help us put our jigsaw puzzle together.
Q. You've told his Honour that you and Detective Weeding went to his home on the morning of 6 April. Had you suspected Mr Kamleh of committing a criminal offence, would you have behaved any differently.
A. If we had any suspicion that Mr Kamleh was involved in the shooting murder of two persons involving a firearm, we certainly wouldn't have attended alone, we would have had at least four, perhaps six, officers attend with us. We would have searched the premises. We certainly wouldn't have sat in a lounge room waiting for the person to come out if we suspected Mr Kamleh's involvement in any way whatsoever. Once speaking with Mr Kamleh's mother, we asked her 'Where is he? Take us to him', we wouldn't just sit there.
…
Q. Did your state of mind in regard to his status change at all before and after that interview with Mr Kamleh. I'm talking about Thursday, 6 April still.
A.    No.
Q.    Did it, at some stage, change.
A.    It did, yes.
Q.    When and why.
A. We arrived for work on day shift on Saturday, 8 April, and an anonymous call had been received via 000, Police Communications, providing information. That information nominated a person by the name of Natale Zappia. When we did the interview with Mr Kamleh, he mentioned the name Chris Zappia.”
Detective Hutchins was closely cross examined. He was thoroughly tested about his state of mind before and during the interview.
Detective Weeding provided an account of the investigation consistent with that provided by Detective Hutchins. He too was thoroughly tested in cross examination. His evidence included:
“Q.    Can you tell his Honour - and you don't need to go into chapter and verse of that - as of Thursday, 6 April, what information did you have as a result of the lines of inquiry you had pursued and what the source of that information was.
A.    In relation to Mr Kamleh?
Q. No, in relation to the progress of your investigation into the murders of Rasti and Ellul.
A. Up until that stage, we were still trying to ascertain any associates or possible witnesses which would assist in the investigation.
…
Q.At the conclusion of the interview with Mr Kamleh on 6 April, was he a suspect in relation to the murders of Rasti and Ellul.
A.    No, he was not.
Q.At what stage, in your assessment of the investigation, did Mr Kamleh become a suspect.
A.    The following Saturday, which would have been the 8th, I believe.
Q.    What caused to you suspect Mr Kamleh.
A.There was information received from someone who had rung the Police Department nominating another person involved in the two murders.
Q.    What was the name of that person.
A.    Natale Zappia
…
Q.Did you consider him, at the end of that record of interview, as a person of high interest.
A.I don't necessarily agree with putting terms or titles on what Mr Kamleh was. At that stage, he was a person who I understood was a close associate of Rasti, was a driver for him in the prostitution area, so, therefore, he is obviously a next step in trying to ascertain the movements or associates or the background to Rasti and Ellul.
…
A.The others were nominated as people who had a grievance with Rasti, whereas Jamie was put up as an associate and the driver. If anything, they were friends. You are comparing people who are nominated as potential enemies on one hand, and then Jamie is put up as a friend of Rasti's.
…
Q.What do you say was the purpose of the record of interview with Mr Kamleh of the 6th of the 4th.
A.To get as much information as we could to assist with the investigation.
Q.What sort of information.
A.Well, it was anticipated that, if he was the driver for Rasti, that we would get background information relating to the prostitution side of things, and if he was with him as the driver on a regular basis, we should know or should be able to ascertain his movements, and of any enemies, or any problems that he had had with other people.
…
Q.You maintained that, as of the morning of 6 April 2000, in your mind, Jamil Kamleh wasn't a suspect.
A.There is no way at all he was a suspect. If he had been, there is no way I would have conducted the inquiries in the manner that I did.
…
Q.Were you obtaining that information so that you could check that portion of Mr Kamleh's alibi.
A.I was obtaining as much information as I could in relation to Mr Kamleh and anyone he is associated with, or Rasti or anything. We had no idea at that stage who had committed the offences. We were trying to find out as much information as we possibly could. At the time you receive information that might be irrelevant or might appear irrelevant. Later on in the investigation it might become important, I don't know these things at the time of speaking to him.
Q.Were you obtaining that information that we have just spoken about in relation to checking Mr Kamleh's alibi for that time.
A.At that time, no.
…
Q.If I suggest to you, ultimately, between you and Hutchins, you lulled him into continuing discussions, you'd disagree with that.
A.Absolutely.
…
Q.It's the case that you considered Mr Kamleh a suspect.
A.No.
Q.If not a suspect, you certainly considered him a person of consideration for the inquiry of the murder.
A.As I stated, he is a person who I believed would be able to give us a lot of information.
Q.A person who was under consideration with respect to the circumstances of the murder; do you agree with that or disagree with that.
A.I disagree with that.
…
Q.Do you agree with my suggestion that, in a sense, a lot of information had been funnelled down, you had a lot of information from various witnesses, and you were putting that information throughout the record of interview to Mr Kamleh.
A.I had a lot of information available to me at that stage, but none of that information that I had indicated Mr Kamleh was the offender.
Q.A lot of that information certainly made him a person of consideration, in your mind, with respect to your inquiry of the murders, at the very least.
A.I believe he would have been able to assist us with our inquiries. If he was a close associate of Rasti, and the driver for him, I was of the belief that he should be able to supply us with a lot of information.”
Following Mr Prasad’s interview on 3 April 2000, Detective Hutchins provided a written memorandum to Detective Feltus:
“Jerry
Kym and I interviewed Prasad at length, at this stage we do not suspect he was involved in the shooting, he has an alibi which has been supported by his family. Prasad has [nominated] many people who did not like Isaac including:
Finks
Boban Jokic - Finks
Sasha Perna
Bouncer in Hindley Street
Stripper from ‘The Firm’ nightclub
Numerous clients who he has assaulted, ripped off and extorted.
Kym and I knocked off at 2.00 am so we will commence at 10.30 am, if you need us earlier ring us at home.”
As earlier observed, documentary material was tendered on the voir dire. Much of this material was tendered by counsel for Mr Kamleh to lay a foundation for the submission that Mr Kamleh was either a suspect or that the police had reasonable grounds to suspect that he was involved in the murders and that he should have been cautioned.
Counsels’ Submissions
Counsel for Mr Kamleh

The evidence of Detectives Hutchins and Weeding was challenged. It was submitted that both were untruthful; had put their heads together and had lured Mr Kamleh into a false sense of security. Counsel suggested that Detectives Hutchins and Weeding had misled the court as to their state of mind at the time of the interview.
Counsel submitted that the record of interview should be excluded as a matter of discretion on the basis that Mr Kamleh was not cautioned. It was said that Detectives Hutchins and Weeding had reasonable grounds to suspect Mr Kamleh of committing the murders and should have cautioned him before the interview. Alternatively it was said that even if Detectives Hutchins and Weeding did not believe that Mr Kamleh was involved he should have been cautioned given the thoroughness of the interview and the fact that it canvassed matters relating to his possible involvement. The third basis of challenge was that on an objective view of the evidence, as it stood at the time of the interview, the detectives had reasonable grounds to suspect that Mr Kamleh was involved and should have administered a caution.
Counsel submitted that the circumstances surrounding Mr Kamleh’s interview supported the conclusion that he was a suspect. He was one of only two persons whose interview was video recorded. It was said the interview was too focussed and lengthy to have been only for the purpose of gathering information. It was apparent that the interviewing detectives had considered the statements that had been obtained, identified relevant evidence and structured a lengthy interview around that information. Attention was drawn to features of the interview including enquiries about Mr Kamleh’s movements; questions about his clothing and Mr Rasti’s wallet and money and the fact that the detectives would not comply with Mr Kamleh’s request to turn off the recording to enable him to talk off the record. It was said that when viewed cumulatively the circumstances led to the clear inference that at the time of the interview, the investigating detectives, considered Mr Kamleh to be a suspect.
Attention was also drawn to the fact that Mr Kamleh was a close associate of the victims. They were pimp and prostitute. Mr Kamleh acted as their driver. He had recently been in their company. The detectives knew Mr Kamleh had a blue mobile telephone and that a witness had provided information that Mr Rasti had ‘rolled’ Mr Kamleh for the telephone. Mr Kamleh’s mobile telephone was not located at Unit 22. There had been an argument between Mr Rasti and Mr Kamleh in the recent past. Mr Kamleh had been ‘kicked out’ of Mr Rasti’s apartment. Mr Kamleh had not come forward to police. These matters were said to demonstrate that the police interest in Mr Kamleh’s involvement in the murders was such as to indicate that he was a suspect. Counsel submitted that it would have been a straight forward matter for the interviewing officers to have cautioned Mr Kamleh. Fairness dictated that a caution be given.
As earlier observed Counsel submitted that it was clear that the detectives suspected that Mr Kamleh was involved in the murders or alternatively at least the detectives should have had reasonable grounds to suspect that Mr Kamleh was involved. Counsel invited the court to infer from the circumstances that the detectives considered Mr Kamleh to be a suspect. These elements were said to satisfy both the subjective and objective tests necessary for a caution and to demonstrate that a caution should have been given.
Counsel for the Crown
The Crown’s primary submission was that a caution was not required. In the alternative it was said that even if a caution was required then there were compelling reasons to admit Mr Kamleh’s record of interview.
The Crown submitted that the investigating detectives were credible and reliable witnesses. It was said that they should be accepted when they said that Mr Kamleh was not a suspect. It was said that the circumstances which would have led to a caution being given had not arisen at the time the interview was conducted on 6 April 2000. The significance of the information possessed by the police had not yet emerged. They were still gathering as much information as they could. When Mr Kamleh was interviewed the investigation was in its early stages. The officers had minimal information, few leads and no suspects.
Counsel for the Crown submitted that the interviewing officers’ state of mind had to be assessed by the evidence available at the time the interview was conducted. The use of hindsight had to be avoided. As at 6 April 2000 the police had insufficient information to draw an inference which linked Mr Kamleh to the murders. There was no basis at that time upon which to consider Mr Kamleh to be a suspect.
In the alternative, the crown submitted that I should exercise my discretion to admit the record of interview. In this regard counsel submitted that there was no apparent challenge to the accuracy of the recording or the transcript, the fact that Mr Kamleh provided an account that he was not involved and the importance of the record of interview to the Crown case. It was concluded that there was no deliberate unfairness in the questioning of Mr Kamleh. There was no intention to take advantage of Mr Kamleh or lull him into a false sense of security.
Consideration of the Issues
The circumstances of the investigation leading to the interview of Mr Kamleh are important to record. The police were confronted with a double murder. Mr Rasti and Ms Ellul were shot at close range. The police were told that they were in a relationship of pimp and prostitute and had been using the Grand Apartments in Melbourne Street for that purpose. There was a need for the police to cast a wide net of inquiry in an attempt to obtain information. Through Mr Prasad Mr Kamleh was identified as a person who acted as a driver for Mr Rasti and Ms Ellul. Mr Kamleh was interviewed on the basis that he should be able to provide information.
In assessing the evidence on the voir dire it was important to leave hindsight out of consideration. Matters that may appear suspicious or even very suspicious in the light of later information and later developments may have appeared entirely innocent to the police at an earlier point of time. The detectives’ state of mind and the reasonableness of their conduct had to be assessed against the information then available. The information available was limited. I accepted that as of 6 April 2000 Detectives Hutchins and Weeding did not have any specific leads and there were no suspects. The police were casting the net as wide as they could in an attempt to obtain information.
I accepted the evidence of Detectives Feltus, Hutchins and Weeding that they were gathering whatever information they could find. I accepted that as at 6 April 2000 there were no suspects and no definite leads. The police had been given Mr Kamleh’s name as a close associate of Mr Rasti and Ms Ellul. If that information was correct Mr Kamleh was an obvious person to potentially provide useful information. I was satisfied that viewed objectively, at this early stage of the investigation it was not reasonable to view Mr Kamleh as a suspect.
I rejected the submission of counsel for Mr Kamleh that the officers viewed Mr Kamleh as a suspect because he was one of only two persons whose interview was video recorded. Mr Kamleh was a likely source of information and possibly extensive information, given that the detectives understood that he had been Mr Rasti and Ms Ellul’s driver. I accepted the detectives’ explanation that they wished to video record the interview to ensure the accuracy of the information provided. I rejected the submission that I should infer from the structure of the interview, the manner of questioning and the length of the interview that the detectives suspected Mr Kamleh of being involved in the murders. Detective Weeding explained that the interview followed his standard procedure. He worked generally to those procedures. I accepted his explanation. I was not prepared to draw the adverse inferences invited from the length of interview, its structure, the enquiry about Mr Kamleh’s movements or the other matters raised by counsel for Mr Kamleh.
I rejected the submission of counsel for Mr Kamleh that the information in the possession of Detectives Hutchins and Weeding prior to the commencement of the interview provided them with reasonable grounds to suspect that Mr Kamleh was involved in the murders. The information available was limited and equivocal.
I accepted the evidence of Detectives Feltus, Hutchins and Weeding as credible and reliable. I rejected the submission that they were untruthful. I was not satisfied that they did not consider Mr Kamleh to be a suspect. I accepted and acted on their testimony.
I found that no caution was required. If a caution had been required strong reasons existed for the admission of the evidence in any event. The record of interview was admissible. There was no basis for its exclusion.
LIST OF CITATIONS AS THEY APPEAR IN THE JUDGMENT
[1] “First Count
  Statement of Offence
Murder. (Section 11 of the Criminal Law Consolidation Act 1935).
  Particulars of Offence
... Jamil Yousef Kamleh on the 3rd day of April, 2000 at North Adelaide,
murdered Isac Colberg also known as Faraz Rasti[1].
Second Count
Statement of Offence
Murder. (Section 11 of the Criminal Law Consolidation Act 1935). Particulars of Offence
... Jamil Yousef Kamleh on the 3rd day of April, 2000 at North Adelaide,
murdered Rhiannon Ellul.”
2      See [14]
3      Separate trials were later ordered.
4 (1992) 58 SASR 501 at 504-5
5 (1980) 23 SASR 504 at 583
6 (1997-98) 70 SASR 370 at 378

Statement of Offence
Murder. (Section 11 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
... Jamil Yousef Kamleh on the 3rd day of April, 2000 at North Adelaide,

murdered Isac Colberg also known as Faraz Rasti[1].

Second Count

Statement of Offence

Murder. (Section 11 of the Criminal Law Consolidation Act 1935). Particulars of Offence
... Jamil Yousef Kamleh on the 3rd day of April, 2000 at North Adelaide,

murdered Rhiannon Ellul.”

[2003] SASC 35

27 February 2003