R v Lem
[2005] SASC 405
•28 October 2005
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v LEM
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Bleby and The Honourable Justice Gray)
28 October 2005
CRIMINAL LAW - EVIDENCE - CONFESSIONS AND ADMISSIONS - STATEMENTS
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT - WHERE APPEAL DISMISSED
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
Appellant convicted following trial by Judge alone of murdering his wife – appellant sentenced to non-parole period of 20 years – single Judge granted leave to appeal against conviction on three grounds of appeal and refused leave on all other grounds – appellant applied to Full Court for leave to appeal against conviction on grounds on which single Judge had refused leave – appellant also applied to Full Court for leave to appeal against sentence.
Discussion of the application of the unfairness discretion to exclude evidence – consideration of compliance with section 79A of Summary Offences Act 1953 (SA) – analysis of police compliance with section 74D of Summary Offences Act – consideration of whether appellant had acted voluntarily in making admissions to the police - discussion of relevant case law – consideration of the defence of provocation – analysis of trial Judge’s use of evidence given at voir dire in reaching final decision – consideration of trial Judge’s conclusions of fact – consideration of whether sentence was manifestly excessive.
Held: leave to appeal on grounds 7(i) and 7(ii) of the original notice of appeal and ground 4 of the further grounds of appeal granted – leave on all other grounds refused – appeal against conviction dismissed – leave to appeal against sentence granted – appeal against sentence dismissed.
R v Lee (1950) 82 CLR 133; R v Swaffield (1998) 192 CLR 159; The Queen v Evans [1962] SASR 303; The Queen v Bennett and Clark (1986) 44 SASR 164; Pfitzner v The Queen (1996) 66 SASR 161; R v Flam (1990) 155 LSJS 368 at 376; Pollard v The Queen (1992) 176 CLR 177 ; R v Rankine (1993) (CCA(SA), 18 June 1993, Judgment No. S3390); R v Lobban (2000) 77 SASR 24; R v Warner (1988) 49 SASR 125 ; R v Karger (2002) 83 SASR 135; R v Mekic [2004] SASC 134; R v Bodsworth [1968] 2 NSWLR 132; McDermott v R (1948) 76 CLR 501; R v Scofield (1988) 37 A Crim R 197; R v Dixon (1992) 28 NSWLR 215; R v Jonkers (1996) 67 SASR 401; R v Burt (2000) 1 Qd R 28; R v Radford (1985) 42 SASR 266; R v Cooke (1985) 39 SASR 225; R v R (1981) 28 SASR 321; R v Romano (1984) 36 SASR 283; Stingel v The Queen (1990) 171 CLR 312; R v Fry (1992) 58 SASR 424 (1992) 58 SASR 424; Masciantonio v The Queen (1995) 183 CLR 58; R v Varaghith (1991) 54 A Crim R 240; R v Fry (1992) 58 SASR 424; R v Singh (2003) 86 SASR 473; Murray v The Queen (2002) 211 CLR 193; R v Bradshaw (1978) 18 SASR 83; R v Murphy (1996) 66 SASR 406; Casley-Smith v Evans (No 2) (1988) 49 SASR 332; Australian Securities and Investment Commission v Rich [2004] NSWSC 1062; Devries v Australian National Railway Commission (1992-1993) 177 CLR 472 at 479; R v ADW (2002) 84 SASR 178; Fleming v The Queen (1998) 194 CLR 250; Whitehorn v The Queen (1983) 152 CLR 657; Chamberlain v The Queen (No 2) (1984) 15 CLR 521; R v Lane (1990) 53 SASR 480; R v Garve (1996) 65 SASR 483; R v Masolatti (1976) 14 SASR 124; Hansen v R (1995) (CCA(SA) 22 February 1995, Judgment No. S4984); Hansen v R (1995) (CCA(SA) 22 February 1995, Judgment No. S4984); Yengi v Police [2002] SASC 220; R v Whittingham (1988) 49 SASR 67; R v Reci (1998) 198 LSJS 373; R v Von Einem (1985) 38 SASR 207, considered.
R v LEM
[2005] SASC 405Court of Criminal Appeal: Doyle CJ, Bleby and Gray JJ
DOYLE CJ: Mr Lem appeals against his conviction for murder, the conviction having been recorded after a trial before a judge without a jury.
A single Judge granted leave to appeal on three of the grounds of appeal advanced by Mr Lem. He refused leave to appeal on all other grounds.
Mr Lem requested that the application for leave to appeal on the grounds on which the single Judge refused leave be considered by the Full Court. On the hearing of the appeal Mr Vadasz, counsel for Mr Lem, put submissions in support only of some of those grounds.
Mr Lem also seeks leave to appeal against his sentence. The single judge refused leave to appeal on this ground, and again Mr Lem has requested the Full Court to consider the application for leave to appeal against sentence.
The appeal against conviction raises the following issues. First, the admissibility of evidence of an interview between the police and Mr Lem. Second, the decision by the trial Judge not to exclude evidence of that interview on the ground that its admission was unfair to Mr Lem. Third, a suggested misapplication by the Judge of the principles relating to proof to certain evidence given by Mr Lem. Fourth, a claim the Judge rejected Mr Lem’s explanation for certain answers given to the police, in the interview referred to, in a manner that is unfair to Mr Lem.
Facts
The facts of the case, and the course of the trial, are to be found in the reasons of Gray J. Having regard to the material in his reasons, a short statement of the facts suffices to provide a context for my reasons.
Mr Lem was born in Cambodia in 1967. He came to Australia as a refugee in 1982, aged about 15 years. During the war in Cambodia he undoubtedly suffered much. His mother and two siblings were killed. He established himself in Adelaide and got employment.
He had two uncles in Adelaide. Someth Lem is one of them, and was described as a “father figure” to Mr Lem. The other uncle was Mouen Lem.
The Judge heard a good deal of evidence about Cambodian culture. That evidence was to the effect that the uncles, and particularly Someth Lem, were influential persons as far as Mr Lem was concerned. There was also evidence that in the Cambodian culture a wife is expected to be a good deal more submissive towards her husband than would be the case in Australia.
In 1995 Someth Lem arranged for Mr Lem to marry Sokchenda Lam, the victim of the crime. In 1996 Mr Lem went to Cambodia, and met Sokchenda Lam there. He then returned to Australia. In 1997 he returned to Cambodia, married her, and she then came to Australia to live with Mr Lem.
The son was born in November 2000. The marriage was not happy, and deteriorated noticeably from about 2001. The Judge found at [274] that the relationship became acrimonious, and that Mr Lem resented “his wife’s increasing independence which he considered rude and disrespectful to him”.
There was evidence, in particular from Mr Lem, of violence on either side. Mr Lem claimed that he was the victim in these episodes, but the Judge rejected that claim.
On 17 May 2003 Mr Lem killed his wife at their home. He beat her savagely with a hammer. He wrapped the body in garbage bags and dumped the body in the Port River.
For several days Mr Lem pretended to friends that his wife had walked out on him. On 21 May 2003 Sokchenda Lam’s body was found in the Port River. That afternoon the police went to Mr Lem’s home. He arrived about 5 pm while they were there. The police spoke to him at the house. Mr Lem denied any involvement in his wife’s death.
Mr Lem agreed to accompany the police to the Salisbury Police Station. He was not under arrest. The Judge found that he went voluntarily. The police had interviewed or questioned him at the house. Detective Sheridan conducted a further interview at the police station from about 6.10 pm until about 7.20 pm. Further information came to hand during the course of the interview. Mr Lem continued to deny any involvement in his wife’s death. About 7.20 pm Detective Sheridan told Mr Lem that he would be arrested and charged with his wife’s murder. Mr Lem still denied any involvement. He was informed of his rights.
Someth Lem and Mouen Lem came to the police station at about 8.30 pm. Neither of them could understand why Mr Lem had been arrested, and apparently they said they could not believe that he could have murdered his wife. Detective Sheridan told them about some of the incriminating evidence that had been collected.
The two uncles were allowed to speak to Mr Lem. The Judge found that the police did not ask them to speak to Mr Lem, nor did the police give the uncles any instructions about what they should do or say.
The uncles gave evidence in a pre-trial application for the exclusion of evidence of an interview with the police that followed the visit by the uncles. They told the Judge that at first Mr Lem maintained that his wife had walked out on him after they had had a fight. The uncles asked him to explain some of the incriminating evidence. At some point Mouen Lem told Mr Lem that he should tell the truth, and Mr Lem then admitted having killed his wife with a hammer and having dumped her body in the river. The Judge accepted the evidence of the uncles. She accepted their evidence that they did not threaten or pressure Mr Lem to tell the truth.
About 9.45 pm the two uncles told the police that Mr Lem had admitted killing his wife. The police obtained a statement from each of the uncles. They also carried out certain forensic procedures.
About 12.15 am Detective Sheridan again interviewed Mr Lem. This is the interview that was the subject of submissions on appeal. In the course of the interview Mr Lem made detailed admissions about killing his wife, and about the circumstances in which he did so. He referred to the unhappy marital relationship, and claimed that his wife had treated him badly. He said they had an argument after which he lost control of himself, got a hammer and then beat his wife with it.
At trial he pleaded guilty to manslaughter. That plea was not accepted by the prosecutor. The issue at trial was whether he was guilty of murder or guilty of manslaughter only by reason of provocation.
Was the interview voluntary?
At the beginning of the trial Mr Vadasz applied for an order excluding evidence of each of the interviews with Mr Lem. The Judge embarked on a long hearing, after which she held that each interview was admissible, the statements made by Mr Lem being made voluntarily. She declined to exclude any of the evidence in the exercise of her discretion. She published detailed reasons for her decision.
On appeal Mr Vadasz challenges only the admission of the evidence of the third interview.
Mr Vadasz’s submissions tended to blend the issue of whether the admissions in question were made voluntarily with the issue of whether the Judge should have excluded the evidence in the exercise of her discretion. I will deal with the issues separately.
Mr Vadasz made the following points, in support of his submission that the Judge erred in concluding that Mr Lem made admissions voluntarily. When the interview began Mr Lem had been with the police since about 5 pm, and had been in custody since about 7.20 pm. It was after midnight when the interview began. Mr Lem was a man of limited intelligence, and English was his second language. Each of those points is correct, although it needs to be borne in mind that the Judge was also told that Mr Lem was not completely fluent in Khmer. He had lived in Australia for a little more than 20 years, and had been employed from time to time.
Mr Vadasz made the point that early in the interview Mr Lem indicated a wish to have someone present. When Detective Sheridan told him that his uncles were not the appropriate persons to be present, because each of them had given a statement to the police, Mr Lem agreed to proceed without anyone present. However, this was after Detective Sheridan said that he could have someone else present or could talk to the police “on your own”. Mr Vadasz submitted that Mr Lem was not informed on his rights with sufficient clarity, and in particular was not told clearly enough of his right to have a solicitor present. He submitted that Mr Lem might not have appreciated that he had this right. As to that, it is pertinent to note that Mr Lem did not give evidence on the pre-trial application.
Mr Vadasz further submitted that there was no particular need for the police to proceed with the interview late at night. He emphasised the fact that the interview occurred only after Mr Lem’s uncles had urged him to tell the truth, arguing that Mr Lem’s relationship with the uncles meant that he had not acted voluntarily, but had succumbed to their urging. Mr Vadasz submitted that the uncles’ intervention, and the circumstances that I have outlined, led to the conclusion that he did not act voluntarily, and that the Judge had erred. Mr Vadasz submits that the Judge failed to consider the interventions of the uncles in context, and failed adequately to consider the context of the interview as a whole.
In her reasons the Judge refers to nearly all of these matters.
The Judge correctly identified the relevant legal principles. She referred to decisions that emphasised that the requirement that admissions be made voluntarily is to be interpreted broadly, not in a narrow or technical sense. It is not necessary to cite each of the cases to which the Judge referred. But no suggestion was made that the Judge did not identify the correct principles of law.
The Judge referred to the need to have regard to the evidence of Mr Lem’s “cultural background”, to his intellectual capacity, to his ability to understand conversations and events without the assistance of an interpreter.
The Judge found, after considering quite detailed evidence led before her about Mr Lem’s intellectual capacity, and about Cambodian culture, that Mr Lem was able to understand the questions without the aid of an interpreter. She heard expert evidence about his education and intellectual capacity and linguistic problems, but concluded that none of these factors led to the conclusion that Mr Lem did not understand the questions put to him. By implication she was satisfied that he was able to give a fair account of himself.
The Judge found that Detective Sheridan reminded Mr Lem, with sufficient clarity, of his rights at the beginning of the interview. He had been informed of those rights earlier in the night.
The Judge considered in some detail the evidence from Someth Lem and Mouen Lem about their meeting with Mr Lem on the night. She found, and this was not really challenged, that they had acted of their own initiative. She said:
There is no evidence from the accused that his will was overborne by the exhortation from his uncle as to the need to tell the truth on religious or moral grounds. Notwithstanding the close relationship between the accused and his uncle, I do not think that the direction from them to the accused to tell the truth can be regarded as bringing pressure to bear upon the accused so that his will was overborne. In my opinion, the offers to look after the accused’s child and properties and to visit him in gaol were not part of any bargain struck with the accused to induce him to tell the truth but were merely words of reassurance after he had decided to confess.
The Judge concluded that the admissions were made voluntarily. She did not refer explicitly to the lateness of the hour, or to the possibility that Mr Lem was tired. There is no reason to think that she overlooked these matters. She referred to them when considering whether it was unfair to admit the evidence. The Judge had the benefit of seeing the video recording of the interview. There was no evidence from Mr Lem on the preliminary application.
In my opinion it is also relevant that this interview took place because the two uncles told Detective Sheridan that Mr Lem wanted to speak to them. Mr Lem confirmed that early in the interview. It is also relevant that until he was charged at the end of the second interview, Mr Lem denied any involvement in his wife’s death, and continued to lay a false trail. It is understandable that, on reflection, and having been charged, he might want to take the opportunity to tell the truth and to put his side of the story.
Mr Vadasz’s submission faces the problem that the Judge has considered the matters on which he relies. She considered the interview in its context and having regard to Mr Lem’s characteristics. The Judge has made findings that amount to a rejection of his submissions. There is no error apparent in those findings. The Judge’s conclusion is readily supportable on the facts.
I can find no basis for rejecting the Judge’s conclusion. I would reject this ground of appeal.
Should the Judge have exercised her discretion to exclude the evidence of the interview?
Mr Vadasz submits that the Judge should have found that the circumstances in which the interview took place made it unfair to use the interview against Mr Lem: R v Lee (1950) 82 CLR 133 at 159; R v Swaffield (1998) 192 CLR 159 at 189.
In support of this submission Mr Vadasz relies on all of the circumstances already referred to. He submits that the caution given was not adequate, having regard to Mr Lem’s limited command of English and unfamiliarity with the legal system. He submits that Mr Lem was not adequately informed of his rights. He submits that it was not fair to proceed after Mr Lem said that he would like someone present, but was told that his uncles were not appropriate persons to be present. He submits that Detective Sheridan inappropriately invited Mr Lem to go ahead with the interview. He submits that having regard to Mr Lem’s personal circumstances, and the circumstances of the interview, he was in a position of real disadvantage, and for that reason it was unfair to admit the evidence and to use it against him.
As I have already said, the Judge found that Detective Sheridan gave Mr Lem a sufficient reminder of his rights at the beginning of the interview. He had been informed of them earlier. She found that he understood the questions, and had a sufficient command of English to answer them. On this point Mr Pearce, counsel for the Director, made the point that at trial Mr Lem gave his evidence in English, and needed very little help from the interpreter who was present. The Judge found that there was nothing about the appearance of Mr Lem on the video recording of the interview to suggest that he was too tired to deal adequately with the interview.
I am not persuaded that the Judge erred in dealing with this issue. I do not agree that she failed to consider the interview in the appropriate context. There is no particular reason to doubt the general reliability of what Mr Lem told the police. Mr Lem was not denied his rights, on the Judge’s findings.
Quite apart from that, I have given careful consideration to the issue. I accept that Mr Lem was not as well placed to deal with the interview as would be a person of average intelligence and for whom English is the first language. Nevertheless, I must recognise that in some respects the Judge was better placed to decide that issue than I am. To some extent the decision on this issue turns on findings of fact that the Judge was better placed to make. But this Court is in a position to consider in broad terms whether it is fair to Mr Lem to admit the evidence of the interview. The issue is not whether Mr Lem was treated unfairly by the police, but whether the use of the evidence is unfair to him, having regard to all the circumstances. But it is also pertinent to bear in mind that the onus was on Mr Lem to show that it was unfair to him to admit the evidence.
I am not persuaded that there is any unfairness. The Judge’s finding of fact that Mr Lem understood questions, and was able to give a fair account of himself despite the fact that he was of limited intelligence and was not completely fluent in English, are significant findings. So is the finding that Mr Lem was not too tired to deal with the situation. There is no indication of any pressure being applied by the police. Mr Lem himself wanted to speak to the police. I have a slight concern that Mr Lem was not informed more clearly of his entitlement to have a solicitor present, but he was told of that right. Detective Sheridan referred twice to his right to have a friend, relative or solicitor present.
Mr Vadasz has not shown that the Judge erred. I reject this ground of appeal.
The Judge’s findings and the requirement of proof beyond reasonable doubt
The effect of Mr Lem’s evidence was that his wife had treated him very badly for some years. He said that she treated him with contempt, particularly having regard to his expectations of her based on his Cambodian background. He said she had abused him, and had been violent towards him. He elaborated on these matters in evidence.
Mr Lem described two particular incidents when Sokchenda Lam treated him violently. Once, in 2001, she struck him with a frypan. In 2002 she hit him several times with a stick while he was asleep, hard enough to knock him unconscious. These two incidents are part of a pattern of behaviour described by him.
The Judge did not accept Mr Lem’s evidence about these incidents. She was not satisfied that they occurred as described. In other words, she appears to have accepted that some such incident occurred, but to have rejected Mr Lem’s claim that it was as serious an incident as he described. She said that she was not satisfied that the incident did not occur.
The Judge rejected other complaints made by Mr Lem against Sokchenda Lam. But she accepted that there was tension between them, that the marriage was unhappy, and that there was violence on both sides.
The Judge said that the evidence from Mr Lem that she did not accept was given to portray Sokchenda Lam as “a monster”, and that this evidence undermined Mr Lem’s credibility. Later she said that her rejection of Mr Lem’s evidence about his wife’s behaviour “destroys the central plank of the defence case with respect to provocation, that is, that what the deceased said and did that night amounted to the ‘final straw’ in a long history of abusive and violent behaviour by the deceased to the accused”.
Mr Vadasz submits that as the Judge did not find beyond reasonable doubt that the incidents described by Mr Lem did not occur, she was not entitled to use her conclusion about these incidents as matters that undermined Mr Lem’s credibility. Unless she rejected his evidence beyond reasonable doubt, his credibility was not damaged. She had to proceed on the basis that if it was a reasonable possibility that the incidents occurred as described, she should proceed on the basis that those incidents might have occurred as described by Mr Lem.
There is no substance in this submission. First, it attributes inappropriate weight to a finding as to two particular incidents alone. Second, as I understand her reasons the Judge did reject Mr Lem’s account of these two incidents, as she was entitled to. What she accepted was that an incident of the kind described occurred. But she rejected Mr Lem’s details of the incident. She also rejected his claim that he was the victim in the relationship.
In the end, she came to consider the issue of whether she was satisfied beyond reasonable doubt that the things Sokchenda Lam said and did on the night in question did not cause Mr Lem to lose his self control. She had to decide that issue in the light of the evidence about the relationship between husband and wife. As I understand her reasons, the Judge was satisfied beyond reasonable doubt that it was not a relationship in which Mr Lem was the victim in a series of violent incidents. But she reached her conclusion about the night in question on the basis that there was a long history of acrimonious and sometimes violent disputes. The Judge was not bound to treat each incident described by Mr Lem as a fact, unless she was able to reject the evidence beyond reasonable doubt. Proof beyond reasonable doubt was the standard to be applied in answering the question that the Judge posed at [268]. In reaching a conclusion about the relationship between husband and wife, she was not required to consider each separate incident against that standard. Moreover, she was entitled to reason that Mr Lem’s credibility suffered because she was clearly satisfied, beyond reasonable doubt, that he had made false claims about the relationship.
The Judge did not err in her approach. Her finding that he did not lose self-control on the night in question at is not based on erroneous reasoning.
The Judge’s reference to the preliminary hearing
In cross-examination Mr Lem explained certain answers to Detective Sheridan, during the course of the interview, as being a mere repetition of a question. For example, when he said “I tried to kill her”, he was merely repeating the question “Did you try to kill her?”.
The Judge rejected this explanation for the answers. She relied in part on her observations of Mr Lem giving evidence and, no doubt, upon the video recording of the interview. She referred to the fact that when arguing for the exclusion of the evidence of the interview Mr Vadasz had argued that repetition of questions was the explanation for certain answers given by Mr Lem. The Judge said that the fact that Mr Lem, when he gave evidence at trial, offered the same explanation suggested that he had fastened on to what counsel had said, and was now using it as a convenient excuse.
Mr Vadasz submits that Mr Lem was not cross-examined to this effect, and that it was unfair for the Judge to reach this conclusion without giving Mr Lem the opportunity to comment.
The issue for the Judge was whether Mr Lem was in fact repeating the questions that were put to him. The answer to that question depended substantially on the Judge’s assessment of the video recording of the interview, and to some extent on how Mr Lem gave evidence. The Judge’s comment that Mr Lem was fastening on what counsel had said could only be a consequence of a conclusion that the suggested explanation was not a true explanation. In any event, in the context of the case as a whole this point is a mere trifle, even if it was inappropriate for the Judge to reason as she did. I am satisfied that it did not result in a miscarriage of justice.
Orders
I would grant leave to appeal on grounds 7(i) and 7(ii) of the original notice of appeal, and on ground 4 of the further grounds of appeal. I would refuse leave to appeal on all other grounds on which leave to appeal is sought. I would dismiss the appeal against conviction.
Appeal against sentence
The Judge imposed the mandatory sentence of life imprisonment. She fixed a non-parole period of 20 years.
The Judge sentenced on the basis that Mr Lem falsely blamed his wife for all of the problems in the marriage. The Judge accepted that Sokchenda Lam was more independent than was acceptable to Mr Lem, and that this aggravated him.
The Judge accepted that he was unlikely to offend again, and that imprisonment would be difficult for him, particularly because of his limited intelligence. The Judge referred to the impact of the crime on the family of Sokchenda Lam. Her mother committed suicide after the killing. Her brother moved from Cambodia to Australia to care for the son of Mr Lem and the deceased.
The Judge accepted that the killing was not premeditated. But it involved a prolonged and truly brutal attack on Sokchenda Lam. Mr Lem displayed some remorse, but the Judge said that he still displayed resentment towards the deceased.
Mr Vadasz pointed to a number of matters which, he argued, called for a lesser sentence. First, the plea of guilty to the charge of manslaughter. But Mr Lem was convicted of the greater crime of murder, and the fact that he had killed his wife was not an issue. In my opinion the plea of guilty to manslaughter was nothing more than acknowledging the inevitable. I consider that Mr Lem’s limited intelligence is not a significant factor in the circumstances of this crime. He was fully responsible for what he did. His previous good character was relevant. But it is not uncommon in the case of crimes involving domestic violence that the offender is a person who otherwise has a good record. It is relevant that this was Mr Lem’s only offence, but there was a history of domestic violence on his part, and there remains the need for general deterrence. The crime was impulsive, but as I have already mentioned, it was a prolonged attack, and one of the utmost brutality. The extent of Mr Lem’s remorse is doubtful. His conduct in the first few days after the killing, involving the telling of lies and covering his tracks, indicates that.
The non-parole period is a very substantial one, but is not out of line with non-parole periods fixed for somewhat similar cases. The truth of the matter is that there is very little by way of mitigation that can be identified. Perhaps the most significant point is the observation made by Mr Balfour, a psychologist. He described the crime as the action of an intellectually disabled man, trying to assert his cultural authority over his wife so that she would conform to a cultural gender role, whereas his wife was in a country and society in which she was encouraged to assert and develop her individuality, and to break with cultural traditions. However, while that helps one understand the crime, it does no more than identify the circumstances from which the crime arose. The law must extend its protection to women in the position of Sokchenda Lam. There must be many families in Australia in which the same tensions arise, and the courts must make it clear that resorting to violence in that situation will be severely punished.
The sentence is a heavy one. But I am not persuaded that it is so heavy as to indicate that the Judge gave insufficient weight to the factors identified by Mr Vadasz. Having considered the submissions, I would grant leave to appeal against sentence, but would dismiss the appeal.
BLEBY J: I agree that leave to appeal should be granted on grounds 7(i) and 7(ii) of the original notice of appeal and on ground 4 of the further grounds of appeal, and that leave should be refused on all other grounds. I agree that the appeal against conviction should be dismissed. I agree that leave to appeal against sentence should be granted and that the appeal should be dismissed.
I agree with the reasons of the Chief Justice.
GRAY J:
Introduction
On 16 December 2004, the appellant, Saruong Lem, was convicted of the murder of his wife, Sokchenda Lam, on 17 May 2003 at Parafield Gardens. He was sentenced to life imprisonment. A non-parole period of 20 years was fixed. This is an appeal against conviction. Leave is also sought to appeal against sentence.
Upon arraignment, the appellant pleaded not guilty to the charge of murder,[1] but guilty to the charge of manslaughter.[2] The prosecution did not accept that plea. The trial continued before a Judge of this Court in the absence of a jury pursuant to section 7(1) of the Juries Act 1927 (SA).[3]
[1] Section 11 of the Criminal Law Consolidation Act 1935 (SA).
[2] Section 13 of the Criminal Law Consolidation Act 1935 (SA).
[3] Section 7 of the Juries Act 1927 (SA) provides:By his willingness to plea to manslaughter, the accused admitted to killing his wife. However, it was the defence case that he was provoked. On the defence case, the accused was an intellectually disabled man who was experiencing serious difficulties in his marriage and other aspects of his personal life. His wife, it was said, was verbally and physically abusive towards him; she neglected her home duties and failed to care for their son. Her conduct – in particular her insulting comments, acts of violence and general disrespect for her husband – was exacerbated, according to the defence, by the cultural context in which it occurred.
On the defence case, Sokchenda was acting in a provocative manner on the night that the accused killed and this conduct constituted the final straw in what the defence described as an “accumulating and escalating regime of contempt, vilification and abuse”.
In addition to the provocation defence, defence counsel challenged the lawfulness and fairness of the police investigation – in particular, the police interviews with the accused – and contended that evidence adduced from that investigation was unreliable.
Circumstances of the Offending
It was the prosecution case that on Saturday 17 May 2003, the appellant murdered his wife, Sokchenda, at their home at Parafield Gardens by inflicting multiple blows to her body with a hammer. The appellant then dumped Sokchenda’s body, wrapped in garbage bags, in the Port River. A passer-by discovered her body several days later and alerted police.
Sokchenda was last seen by a witness other than the appellant at about 7.30pm on 17 May 2003, when she visited her friend, Borem Pov, to borrow a DVD. Borem described Sokchenda as being in “bad mood”. The following day, Sunday 18 May 2003, Channara Uy, another friend of Sokchenda, attempted to telephone Sokchenda, but nobody answered.
At about 7 or 8am on Sunday 18 May 2003, the appellant attended the home of So Soth Lam and asked to borrow the spare house-key.
On Monday 18 May 2003, the appellant telephoned So Soth Lam and asked whether he had seen Sokchenda, telling him that some “Europe look like” had taken her from the house.
On Monday 19 May 2003, the appellant rang Channara and told her he was going to bring his son, to her house the following day to be looked after while he went to work. Channara asked why, and the appellant told her that Sokchenda was not at home and he did not know where she was. He told Channara that they had had a “little bit of an argument” on Saturday night.
The friends of the appellant and his wife became increasingly concerned about Sokchenda’s whereabouts, and on Wednesday 21 May 2003, a number of them attended the appellant’s house. Channara noticed that a room in the house was locked which she had never seen locked before. She asked to look in the locked room, but the appellant refused. At about 4.30pm that day, the body of an unidentified Asian woman was located floating in the Port River. The body was wrapped in black garbage bags. Police removed the body from the river to the mortuary.
A post mortem examination disclosed injuries to Sokchenda’s body. The forensic pathologist could not be accurate as to the exact time of death, due to the condition of the body and the environment in which it had been located, but estimated death could have been up to six or seven days earlier. The pathologist described the condition of the body as follows:
Examination of the body showed numerous scalp lacerations and depressed skull fractures. The curved nature of the skull fractures was suggestive of infliction by a hammer or similar implement. Later detailed brain examination showed patchy subarachnoid haemorrhage and putrefactive changes. There were also multiple ovoid and circular shaped bruises on various parts of the body, also possibly inflicted by a hammer or similar, with defence-type bruises on the hands and forearms.
There was a transverse mid-shaft fracture of the left tibia, surrounded by haemorrhage ie the deceased was alive at the time this injury was inflicted. This injury would have been severely incapacitating. There were multiple bilateral rib fractures with two fracture-induced lacerations to the right lung posteriorly. The mandible and maxilla were also fractured. The liver was lacerated, although there was no blood in the abdomen. There was no evidence of strangulation or sexual assault. No foreign bodies of any type were found within the body.
The pathologist provided extensive evidence regarding the exact nature of the injuries suffered by Sokchenda and the type of force required to inflict such injuries.
The trial Judge made the following findings regarding the forensic evidence:
The most serious injuries were the five fractures to the right side of her head, all of which were very severe. [The forensic pathologist] considered that Sokchenda would have lost consciousness and died within a few minutes of the infliction of them. He thought that it was unlikely that she was unconscious at the beginning of the attack. He thought that the injuries to the shins and back indicated that she was moving around and he thought the injuries to her hands and arms were defensive injuries. He conceded that that was not the only explanation but thought that it was the most likely.
I am unable to make a finding beyond reasonable doubt that the accused kicked or “stomped” on his wife as was suggested by [the forensic pathologist] with respect to some of the injuries such as the fractured ribs and the liver, but I am satisfied that the accused subjected his wife to a prolonged and brutal assault with the hammer and that each of the blows was administered with considerable force. I am also satisfied that the blows which resulted in the five fractures to the right side of Sokchenda’s head were administered last and were administered one after the other.
At 10pm on Wednesday 21 May 2003, police attended at the appellant’s home in response to a request from a friend who had not seen Sokchenda for some time. Police spoke to the appellant, who told them that he had had an argument with his wife on Saturday night and that she had decided to leave. He said he did not know where Sokchenda was and could not help them with their inquiries. The police officers noticed the locked room and looked inside without turning the lights on. The trial Judge found that police officers in attendance were able to understand the appellant quite clearly and said that he was cooperative, although he expressed little apparent concern regarding his wife’s disappearance.
Further police investigations led to the later arrest and charging of the appellant. These further events are the subject of complaint on this appeal and are discussed in detail later in these reasons. As earlier observed, it was the Crown case that the appellant struck his wife forcefully with more than 100 blows with a hammer, causing injuries from which she died. This conduct, according to the Crown, was the subject of admission by the appellant.
Grounds of Appeal
The amended grounds of appeal advanced by the appellant were as follows:
1. The verdict of murder was unreasonable and against the weight of evidence.
2.The ruling by the trial Judge that the accused did not lose self-control was unreasonable and against the weight of the evidence.
3.The trial Judge erred in rejecting the evidence of the accused as to the behaviour of the deceased during the marriage.
4.The trial Judge erred in rejecting the accused’s version of events at the house on the night in question.
5.The trial Judge gave inadequate weight to the accused’s “mild intellectual disability”, cultural background and the fact that English is not his native language when assessing the credibility of the accused.
6.The trial Judge erred in finding that the conduct in question was such as would not have caused an ordinary person to lose control.
7. The trial Judge erred in deciding to exclude the third record of interview:
i. in finding that there had not been a breach of section 74D of the Summary Offences Act 1953 (SA);
ii. in finding that the interview was voluntary in that there had not been material inducements by persons in authority.
iii in ruling that there was not a breach of section 79A of the Summary Offences Act.
iv. in failing to consider whether questions of unfairness arose in circumstances where the accused wished someone present during the record of interview.
v. in finding that in the circumstances there was no unfairness in proceeding with the record of interview that commenced at 12.40am.
On 14 April 2005, a Judge of this Court granted leave to appeal in respect to grounds 7(iii) and 7(iv). The Judge refused leave to appeal on all other grounds. The appellant made application before the Full Court for leave to appeal on grounds 1 to 6 and grounds 7(i) and 7 (ii).
On 19 April 2005, the appellant filed further proposed grounds of appeal:
1.The trial Judge erred in admitting evidence of statements by the deceased upon the basis that either the statements were made in the accused’s presence or were relevant to the deceased’s state of mind where such statements were inadmissible and/or alternatively were used for an impermissible purpose by the trial Judge.
2.The trial Judge erred as a matter of law in the application of the burden of proof to her consideration of the accused’s evidence.
3.The trial Judge erred in taking into account a view formed by her based upon an answer given by the accused in the context of an interjection by defence counsel, in taking into account evidence adduced and the argument of the defence counsel on the voir dire, where the accused did not have the opportunity to respond and where such matters were no part of the evidence properly introduced at the trial.
4.The trial Judge erred in her approach to the question of whether the prosecution had excluded the issue of provocation beyond reasonable doubt.
A Judge of this Court granted leave in respect of further grounds 2 and 3 of the proposed grounds of appeal. The appellant sought leave from the Full Court in respect of further ground 4. Further ground 1 was abandoned.
In addition to the appeal against conviction, the appellant seeks leave to appeal against the length of the non-parole period. He claims that in all the circumstances it was manifestly excessive. A Judge of this Court refused leave to appeal against sentence on 5 August 2005. The appellant seeks leave from this Court.
The Court heard the appeal and all applications for leave at the same time. These reasons address all matters raised before this Court.
The grounds of complaint raised a number of issues for consideration. These issues can be broadly divided into two categories: issues arising from the police investigation and issues arising from the defence of provocation and the nature of the relationship between the appellant and his wife.
Appeal Against Conviction - Police Investigation
Central to the prosecution case, and a key aspect of many of the grounds advanced, was the evidence of the police investigation and, in particular, the record of the third interview between the appellant and the police. It was during this interview that the appellant confessed to police that he killed his wife. As a result, to address these grounds it is necessary to recount the details of the police investigation.
At about 8.30am on Thursday 22 May 2003, Detective Senior Constable David Sheridan, a member of the Major Crime Investigation Branch was informed that a body had been located in the Port River. He, along with other police officers, conducted an investigation into the death leading to the arrest of the appellant.
In the course of their investigation, the police conducted four interviews with the accused. These interviews, along with other aspects of the police investigation, were the subject of challenge. On 21 September 2001, the trial Judge referred the application by the defence to exclude the proposed evidence at trial for a voir dire hearing. The findings of the trial Judge on the voir dire hearing will be discussed in further detail later in these reasons.
The first interview of the appellant by police took place in the appellant’s home at Parafield Gardens on 22 May 2003. The second interview occurred on the same day at the Salisbury Police Station. During both of these interviews, the appellant denied any involvement in the death of his wife.
The third interview took place at the Elizabeth Police Station in the early hours of 23 May 2003. This interview followed an earlier attendance at the police station by the appellant’s uncles, Someth and Moeun Lem. During the course of the third interview, the appellant admitted killing his wife and provided detail to the police as to what occurred.
The fourth interview consisted of a series of conversations between the police and the appellant. These conversations took place at various sites connected to the offending conduct.
The third interview was the most significant to the prosecution case. It included admissions by the appellant as to his intention at the time he killed his wife.
Prior to the appellant making his confession to the police, Moeun Lem informed the police that the appellant had confessed to hitting his wife with a hammer and taking her body to the Port River. Someth said that the appellant had told him that there had been an argument about Sokchenda leaving the house. When asked why he had hit her so many times, the appellant told his uncles that he “could not control himself and cannot stop his hands”.
When police asked Someth Lem what he had said to the appellant prior to the third interview, he said they had spoken about their belief in God and the importance of telling the truth. At trial, Someth gave the following evidence regarding his conversation with the appellant prior to his confession: “I just instruct him and tell him, tell him that he must be tell the truth, his punishment or penalty will not be as bad.”
The trial Judge referred to the following passage of the third interview in her reasons:
A. And I finally, I did, and I hit her so hard.
Q. Where did you hit her.
A And kill her.
Q. First with the hammer. Which part of the body.
A. I think the back.
Q. On the back.
A. Yeah, the back.
…
The neck.
…
And chest.
…
And the rib, might be broken rib, and the head.
Q. Yeah.
A. Yeah, I hit her so hard and I finally kill her.
Q. Did you hit her –
A. I did it to, To tell you the truth.
…
Q. Were you trying to kill her or what were you trying to do.
A. I try to kill her.
Q. Once you started hitting her with the hammer that was –
A. Yeah.
Q. What you wanted to do.
A.What happen, if don’t kill her, she still alive and a husband live, live together, he one day, he might kill me, you know, so when one die and one living or one die, go to gaol.
Q. When did you decide that you wanted actually to kill her.
A. I had not decide to kill her but I just lose my er my mind.
Unfairness Discretion
Counsel for the appellant articulated four grounds on which the appellant asserted that the trial Judge erred in admitting the evidence of the third interview on the grounds of unfairness:
-the lateness of the hour that the interview had been conducted - 12.40am;
-the knowledge held by the police officer that the appellant wished to have somebody present during the interview and the subsequent continuation of the interview in the absence of any other person;
-the appellant’s level of intellectual functioning; and
-the appellant’s language difficulties.
At times during submissions, counsel for the appellant suggested that alleged departure from section 79A of the Summary Offences Act 1953 (SA) also “fuelled” the unfairness complaint.
In her reasons, the trial Judge noted that all interviews of the appellant by the police had been conducted in the absence of an interpreter, notwithstanding the fact that it was obvious that English was not the appellant’s first language. However, the Judge found that during the interview the appellant clearly understood what was being put to him. In addition, the Judge found that the police made numerous attempts to ensure the appellant had understood the various matters put to him. In relation to the first and second interviews, Her Honour found:
I accept that the accused is a person of limited educational background and intellectual capacity and that he had some linguistic problems. Notwithstanding those matters, I thought that he was able to understand the questions put to him by the police, which included the fact that he did not have to answer questions and that he was not under any obligation to go to the Salisbury police station with them.
In my opinion, the statements made by the accused to the police in both the first and second interviews were voluntary.
Although the trial Judge acknowledged the appellant’s intellectual disability, she treated the psychological evidence led by the defence at the voir dire with considerable qualification:
[The psychologist] administered a series of tests to the accused to assess his level of cognitive functioning. He also undertook a personality evaluation. [The psychologist’s] opinion at the conclusion of his testing of the accused was that by reference to DSM IV criteria, the accused was in the mental retardation range.
…
[The psychologist] considered that a person of the accused’s profile and level of functioning was likely to go along with what police asked him to do.
…
I was ultimately left with the impression that there was a strong defence bias arising out of the evidence of [the psychologist], who eventually acknowledged, after some obfuscation, that he was mainly requested by defence lawyers to prepare reports. I do not, however, reject him as a witness of credit, but I did not find his opinion to be persuasive for the reasons I have already mentioned.
The trial Judge also expressed reservations in relation to another expert witness called by the defence. At the hearing of the voir dire, the defence called Dr Alexandra Gartell, a specialist in the area of Cambodian studies and Cambodian culture. Although acknowledging Dr Gartell’s expertise, the trial Judge found her evidence to be of limited assistance and observed:
Dr Gartrell is a specialist in the area of Cambodian studies and Cambodian culture. She has a doctorate of philosophy from the University of Melbourne which was conferred in 2003. Her doctorate was concerned with the experiences of people in Cambodia with physical disability and factors critical in shaping these experiences. For that purpose, Dr Gartrell spent one year living in Cambodia during which time she worked in a small rural village which was as unaffected as possible by outside influences. She had previously spent two years living in Phnom Penh. She described the family obligations and respect for elders in Cambodian culture. She said there was an expectation that if an elder person within a father/child relationship told a younger person to behave in a certain manner, the expectation was that the younger person would act accordingly.
Whilst clearly knowledgable in her field, Dr Gartrell acknowledged that she had not actively studied Cambodian communities outside of Cambodia. The community she had studied was not Christian and she acknowledged that an observance of the Christian faith, such as in the case of the accused who was a Seventh Day Adventist, would affect the value system of a person in comparison to the community she had studied. She also agreed that a long term exposure to western culture would affect the way that people applied the traditional Cambodian ways. She agreed that as the accused had lived in Australia for 21 years it was a possibility that the western influences had had an impact on him and that the strict traditional values could become watered down or diluted through exposure to western cultures. In view of those matters, I consider that the evidence given by Dr Gartrell is of limited assistance in resolving the issues which arise for determination in this matter.
Counsel for the appellant submitted that the trial Judge erred in admitting into evidence the third interview between the accused and the police. Counsel said that, given the appellant’s intellectual disability and difficulty understanding complex concepts in English, it was unfair for the police to proceed in the absence of a solicitor or interpreter or some other person present to assist the appellant.
Counsel further contended that the appellant’s cultural background and his relationship with his uncles had an impact on the appellant’s experience of the police interview and that the police officers’ failure to address these issues gave rise to unfairness.
Counsel also expressed concern regarding the lateness of the third interview, being 12.40am, and the period - some eight hours - spent at the police station prior to the third interview. Counsel said that there was no urgency in terms of the need to complete the interview at that time.
Counsel further submitted that the third record of interview demonstrated that the interrogating officers had placed improper insistence and pressure on the appellant, in relation to both the initiation and the continuance of the interview. Counsel said that this was contrary to section 79A of the Summary Offences Act and the accepted rules as to the manner of carrying out police interviews. These rules include the requirement that police desist from questioning if the suspect indicates an unwillingness to answer questions or an unwillingness to do so in the absence of a solicitor.[4]
[4] See The Queen v Evans [1962] SASR 303. See also The Queen v Bennett and Clark (1986) 44 SASR 164 where it was observed that the new section 79A did not in any way affect the accepted rules as to the manner of carrying out police interviews. These observations were referred to in R v Flam (1990) 155 LSJS 368 at 376.
Counsel submitted that the combination of the accused’s language and intellectual difficulties, together with the circumstances surrounding the third interview, placed the accused in a position of marked disadvantage. Counsel said that these factors enlivened the trial Judge’s unfairness discretion, which ought to have been exercised to exclude the evidence of the third interview. Counsel referred to Pfitzner[5], where Doyle CJ noted:[6]
In most cases unfairness is founded upon the behaviour of the investigating police, and its effect upon the accused or upon the circumstances of the accused. But there is a significant body of case law which recognises that circumstances personal to the accused, for which the police are not responsible, may provide a basis for the exercise of the discretion.
…
In my opinion, in the absence of some direction from higher authority, this Court should proceed upon the basis that the discretion to exclude confessional statements on the grounds of unfairness is not confined to situations involving police impropriety. In my opinion circumstances which provide a basis for the exercise of the discretion may arise out of the mental state of the accused person. A mental condition which produces an inability to make a proper choice whether to answer questions or not (as distinct from a loosening of the tongue which might flow, for example, from the effects of alcohol) may provide a basis for the exercise of the discretion. Likewise, as is suggested in some of the judgements referred to, irresponsibility in the sense of an inability to apprehend or to comprehend the situation in which the person is placed when called upon to answer questions, might provide a basis for the exercise of the discretion.
[5] Pfitzner v The Queen (1996) 66 SASR 161.
[6] Pfitzner v The Queen (1996) 66 SASR 161 at 179-180.
Counsel for the Crown accepted that the evidence of intellectual disability was a relevant factor for the trial Judge to take into account when assessing the weight of his evidence and the appellant’s credibility. However, as Counsel for the Crown pointed out, there was other evidence before the court that was also relevant to this assessment. In particular, the Judge had the advantage of having seen the video recordings of each of the police interviews and had the opportunity to observe the appellant giving evidence in court.
Counsel for the Crown submitted that the appellant has been a resident of Australia for more than 20 years, has acquired and maintained property, and has obtained employment. Counsel further submitted that the appellant concocted a false version of events when police first interviewed him in relation to his wife’s death. Counsel for the Crown contended that the findings made by the trial Judge regarding the appellant’s credibility and intellectual capacity were open, and should not be subject to interference by an appellate court. Counsel said that it is not the role of this Court to assess or interfere with the weight a jury or Judge alone attribute to a particular item of evidence.
Counsel for the Crown also disputed the significance of the time the police conducted the interview. Counsel said that interviewing the accused at 12.40am did not affect the reliability of the confessional evidence, nor did it prejudice the appellant in the conduct of his defence. The lateness of the hour, counsel for the Crown submitted, was no basis for rejecting the evidence of the third interview pursuant to the unfairness discretion.
The circumstance of the police investigation is a relevant matter to consider when exercising the discretion to exclude evidence on the basis of unfairness to the accused. In Pollard Deane J observed:[7]
At one extreme are cases in which what is involved is an "isolated and merely accidental non-compliance" [Bunning v. Cross (1978) 141 CLR 54 at 78] with the law or some applicable judicially recognized standard of propriety. In such cases, particularly if the alleged offence is a serious one, it would ordinarily be quite inappropriate to exclude evidence of a voluntary confessional statement on public policy grounds. The critical question in those cases will be whether the evidence should or should not be excluded on the ground that its reception would be unfair to the accused. At the opposite extreme are cases where the incriminating statement has been procured by a course of conduct on the part of the law enforcement officers which involved deliberate or reckless breach of a statutory requirement imposed by the legislature to regulate police conduct in the interests of the protection of the individual and the advancement of the due administration of criminal justice. Such cases manifest "the real evil" at which the discretion to exclude unlawfully obtained evidence is directed, namely, "deliberate or reckless disregard of the law by those whose duty it is to enforce it" [Bunning v. Cross (1978) 141 CLR 54 at 78] In such cases, the principal considerations of public policy favouring exclusion are at their strongest and will ordinarily dictate that the judicial discretion be exercised to exclude the evidence.
[7] Pollard v The Queen (1992) 176 CLR 177 at 203-204.
Intellectual capacity is a relevant matter to have regard to when considering the unfairness discretion. In the present case, the trial Judge acknowledged the appellant’s intellectual difficulties, but found that, upon viewing the video of the interview and reading the transcript, the conduct of the interview was not such as to give rise to any unfairness.
The appellant has failed to demonstrate any error in the trial Judge’s approach to the exercise of her discretion. The Judge had regard to all relevant factors and made findings open on the body of evidence before her. No irrelevant matters were taken into consideration. No error of principle has been identified.
Section 79A of the Summary Offences Act
Section 79A of the Summary Offences Act casts an obligation upon police officers to inform suspects of their legal rights upon arrest. The section provides:
(1)Subject to this section, where a person is apprehended by a police officer (whether with or without a warrant)—
(a) the person is entitled to make, in the presence of a police officer, one telephone call to a nominated relative or friend to inform the relative or friend of his or her whereabouts; and
(b) where the person is apprehended on suspicion of having committed an offence—
(i)the person is entitled to have a solicitor, relative or friend (in the case of a minor the relative or friend must be an adult) present during any interrogation or investigation to which the person is subjected while in custody; and
(ii)if English is not the person's native language—the person is entitled, if he or she so requires, to be assisted at an interrogation by an interpreter; and
(iii)the person is, while in custody, entitled to refrain from answering any question (unless required to answer the question under this or any other Act or law).
(3)A police officer must, as soon as is reasonably practicable after the apprehension of a person—
(a) inform that person of his or her rights under subsection (1); and
(b) warn the person that anything that he or she may say may be taken down and used in evidence.
Counsel for the appellant submitted that, during the appellant’s third interview with the police, the interrogating officers failed to administer properly the caution required pursuant to section 79A of the Summary Offences Act and failed to observe the rights granted to the appellant under that Act. Counsel for the appellant said that, in light of these circumstances, the trial Judge erred in failing to exercise her discretion to exclude evidence of the third interview on the grounds of resulting unfairness to the accused.
Counsel for the appellant accepted that the appellant was “given his rights” by police prior to the third interview. However, counsel contended that the manner in which the police explained his rights to the appellant, and their failure to ensure that the appellant fully understood those rights and was given the opportunity to exercise them, resulted in an unfairness to the appellant.
The following exchange took place between the investigating officer and the appellant at the commencement of the third interview:
Q.Okay. I’m going to remind you, you don’t have to answer any questions but anything you do say may be recorded and may be used in evidence. Do you understand that.
A. Yes, I understand that.
Q.Okay. And you also remember that your right, that you’re allowed to have a, someone present during an interview or interrogation, including a friend or relative or a solicitor.
A. Mm, my relative.
Q.You, you have the right to have someone present, a friend, a relative or a solicitor while I’m talking to you. Do you understand that. You have the –
A. You mean now or in court?
Q. If that’s what you wanted, yes, you’re allowed to have someone present now.
A. Now?
Q. Yeah, that’s something I told you before, I’m just reminding you.
A. Yeah.
Q.That now I’m talking to you, you have the right to have someone present. Do you wish to have anyone present.
A. If you don’t mind, I can have right, my uncle, so to have it here?
Q. Your uncle is probably not the appropriate person at this stage.
As earlier observed, at the time of this interview, the appellant’s uncles had provided statements to the police of the appellant’s admission to them that he had killed his wife. It was entirely appropriate for the police to refuse to allow the appellant’s uncle to attend the interview in light of his statement.
The interview continued:
Q. Do you want to have anyone present other than your two uncles.
A. Mm, I wouldn’t mind to have –
Q. Sorry.
A. I wouldn’t mind.
Q. You what, sorry.
A. I wouldn’t mind about it.
Q. What, you don’t want anyone present or you do.
A. Mm.
Q. Your uncles are probably not the right people to have here, okay.
A. Yes. Yeah, I know.
Q. Because they have made statements against you.
A. Yes.
…
Q.So is there anyone else that you want to have present or you’re happy to talk to us on your own.
A. Well er I’m happy to talk with you on my, my own.
Q. Okay.
Shortly after this exchange, the police officer asked the appellant whether or not he required an interpreter to be present during the interview:
Q.Oh sorry, before we go any further, do you wish to have an interpreter present now while we’re talking together.
A. Mm no, probably not.
Q. Okay then. You’re happy without an interpreter.
A. Yeah.
Q. Okay.
…
Q.Do you wish to make a phone call to anyone to advise them of your whereabouts before we do this interview.
A. Well, if I phone, I phone my uncle Someth, yeah, no anybody yeah, that I know –
Counsel for the appellant submitted that the video recording of the interview disclosed that in relation to this response, the appellant said, “I do not know anybody else.” The interview continued:
Q. But you’ve already spoken to him already, haven’t you.
A. Yeah, yes. Yeah.
…
Q. Okay are you happy to talk to us now.
A. Yes, I’m happy to talk now.
Q. Okay. What do you want to tell us about the murder of your wife.
A. Yeah. I would like to tell you why I did it.
Counsel for the appellant submitted that, as the appellant clearly indicated that he wanted somebody to be present during the interview, the police ought to have reminded him that he was entitled to have a legal representative present. Counsel said that the appellant did not “pick up” on his right to have a legal representative present. Counsel referred to the observations of this Court in Rankine,[8] where Perry J observed:[9]
Informing a person of his rights under [section 79A] is intended to afford a real and effective opportunity for the suspect to consider the implications of his position, and so far as is possible to elect whether he wishes to say anything, and if so whether he wishes some other person, including a solicitor, to be present during the interrogation.
[8] R v Rankine (1993) (CCA(SA), 18 June 1993, Judgment No. S3390).
[9] R v Rankine (1993) (CCA(SA), 18 June 1993, Judgment No. S3390) at 20.
However, it should be noted that Rankine concerned a number of serious allegations of police misconduct in the investigation proceess, the nature of which clearly distinguishes Rankine from the present case. Perry J went on to observe:[10]
It is unreal to think that the appellant could possibly have applied his mind properly to those matters whilst being held face down on the ground. Whether the attempt to inform him of his rights while he was in that position arose from an excess of zeal, from a thoughtless disregard of the significance of the process, or from a deliberate desire quickly to pass over the statutory formalities so as to proceed with other matters, the episode reflects poorly on the officers concerned. I trust that this Court does not see evidence of similar conduct in the future.
[10] R v Rankine (1993) (CCA(SA), 18 June 1993, Judgment No. S3390) at 20.
Counsel for the appellant further submitted that it would have been apparent to the police officers conducting the interview that the appellant had language problems and intellectual functioning problems, and that in light of these factors, the police should have made additional efforts to ensure that he was aware of his right to have a legal representative present at the interview. Counsel contended that, although the police may have recited the terms of section 79A, such recitals were meaningless in the circumstances in which the police made them. In support of this submission, counsel referred the Court to numerous authorities[11] emphasising the importance of the proper conduct of police investigations when dealing with evidence of confessions or admissions.
[11] R v Bennett and Clark (1986) 44 SASR 164; Pfitzner 66 SASR 161 at 179; R v Lobban (2000) 77 SASR 24 at [52]; R v Lee (1950) 82 CLR 133 at 159; R v Rankine (1993) (CCA(SA), 18 June 1993, Judgment No. S3390) at 14.
Counsel contended that the police ought to have allowed the appellant the opportunity to access legal assistance. Counsel further contended that this matter was not considered by the trial Judge when making her ruling and admitting the evidence of the third interview. However, this submission appears to be unfounded given Her Honour’s observations in her reasons for the voir dire ruling:
[Defence counsel] submitted that due to the lapse of time between the end of the second interview when the accused was given his s 79A rights, and the third interview, those rights should have been repeated at the commencement of the third interview. Sheridan effectively did that, however, as at the commencement of the third interview, he reminded the accused of his right not to answer any questions and to have someone present if he so wished. Sheridan said that having advised the accused of his right to have a lawyer, he did not think to go any further than that. He said that he took the accused’s statement “I’m happy to talk with you on my own” for what it was and proceeded with the interview.
The thrust of [defence counsel’s] submission on this point was, however, that the police should have made some effort to obtain the assistance of a solicitor for the accused after he was advised that this uncle was not an appropriate person to be present as he was now a potential witness, but in my view, there was no obligation upon the police to do that.
Counsel for the appellant submitted that the interviewing police officer should have informed the appellant that there was a duty solicitor available to him, should he want legal representation. This may arguably have been a desirable course to follow. However, the failure of the police to provide the appellant with this information, having complied with section 79A and been told by the appellant that he was happy to proceed with the interview, does not give rise to any identifiable error on the part of the trial Judge regarding her exercise of discretion to admit the evidence.
Counsel for the Crown submitted that it was clear from the video and transcript recordings of each of the police interviews with the appellant that the appellant had an entirely adequate command of English for the purposes of those interviews. It was said that the appellant understood his rights and the investigating officers acted prudently and in good faith at all times.
The appellant was given his rights pursuant to section 79A when arrested at the conclusion of his second interview with police. There was no obligation on the investigating officers to inform the appellant of these rights prior to any subsequent interview.[12]
[12] R v Warner (1988) 49 SASR 125 at 129-131.
Even though there was no obligation on the investigating officers to do so, they reminded the appellant of his right to remain silent, his right to an interpreter and his right to have a friend or solicitor present at the interview prior to the third interview. No breach of section 79A occurred.
When determining whether or not to admit confessional evidence, public policy considerations (such as the nature and seriousness of the offence charged, the probative value of the evidence and whether there has been substantial compliance with proper procedure) must be weighed against the need to protect the individual from unlawful or improper conduct. In the present case, the balance was in favour of admitting the evidence.
In the circumstances of the present case, the trial Judge found no improper conduct on behalf of the police. The Judge found that the interrogating officers had complied with their obligations under the Summary Offences Act. These findings were open on the evidence before the Court and, in particular, can be supported by the transcript and video recording of the police interviews. In addition, the Judge observed that, had the police investigation fallen short of the requirements of the Summary Offences Act, the departure involved would be of such a minimal nature that there would be no risk of unfairness to the appellant and she would exercise her discretion to admit the evidence.
The discretion to admit evidence rested with the trial Judge. The Judge has the opportunity to assess the credit of witnesses and, in the present case, to view the video recording of the interview between the police and the appellant. In the present case, the Judge made the following finding regarding the police conduct of the third interview:
Having viewed the video recording of [the third interview] there is nothing in the demeanour of the accused which, in my opinion, suggests that he was having a problem in answering the questions put to him by the police. The accused did not make any request to delay the questioning to the following day. The matters which he relayed to the police as to what had happened with his wife and the steps he had taken thereafter to dispose of the body and other items were all consistent with the evidence arising out of the post-mortem and other inquiries made by the police, which support the reliability of the account he gave to the police.
I do not consider that the police behaved improperly or unfairly in interviewing the accused at 12.40am. I am not prepared to exercise my discretion on the basis of that matter to exclude the third interview.
It is well established that it is not sufficient for an appellant to demonstrate that the discretion to exclude evidence could have been exercised in a different way, or to persuade this Court that it would have exercised the discretion in a different way. Error in the exercise of discretion must be shown.
In the circumstances of the present case, the appellant has failed to establish that the trial Judge erred in the exercise of her discretion. The transcript of the police interviews discloses that the appellant was given his rights and apparently understood them. The interviewing police officer repeated the appellant’s right to have a person present at the interview on several occasions and in plain language. Twice during the third interview, the police officer informed the appellant of his right to have a solicitor present. By his responses, the appellant demonstrated an awareness of his right to have a person present, but declined after learning that his uncle would not be an appropriate person. At the commencement of the third interview, having previously been informed of his section 79A rights and reminded of almost all of those rights, the appellant made an apparently informed decision to decline to exercise any of his rights.
The appellant did not give evidence about the police interviews at the voir dire. There was no material before the Court suggesting that the appellant was not aware of his right to legal representation at the police interview.
Section 74D of the Summary Offences Act
Section 74D of the Summary Offences Act enacts an obligation on police officers to record interviews with suspects. The section provides:
(1)An investigating officer who suspects, or has reasonable grounds to suspect, a person ("the suspect") of having committed an indictable offence and who proposes to interview the suspect must ensure the following requirements are complied with:
(a) if it is reasonably practicable to record the interview on videotape, a videotape recording of the interview must be made;
(b) if it is not reasonably practicable to record the interview on videotape but it is reasonably practicable to record the interview on audiotape, an audiotape recording of the interview must be made;
(c) if it is neither reasonably practicable to record the interview on videotape nor reasonably practicable to record the interview on audiotape—
(i)a written record of the interview must be made at the time of the interview or as soon as practicable after the interview; and
(ii)as soon as practicable after the interview, the record must be read aloud to the suspect and the reading must be recorded on videotape; and
(iii)when the videotape recording begins (but before the reading begins) the suspect must be invited to interrupt the reading at any time to point out errors or omissions in the record; and
(iv)if the suspect in fact interrupts the reading to point out an error or omission, the suspect must then be allowed a reasonable opportunity to do so; and
(v)at the end of the reading, but while the videotape recording continues, the suspect must again be invited to point out errors or omissions in the record and allowed a reasonable opportunity to do so; and
(vi)if the investigating officer agrees that there is an error or omission in the record, the officer must amend the record to correct the error or omission and if the officer does not agree that there is an error or omission in the record, the officer must nevertheless make a note of the error or omission asserted by the suspect in an addendum to the record of interview.
(2)If the suspicion, or a reasonable ground for suspicion, arises during the course of an interview, the investigating officer's obligations under subsection (1) arise at that point and apply to the interview from that point.
(3)In deciding whether it is reasonably practicable to make a videotape or audiotape recording of an interview, the following matters must be considered:
(a) the availability of recording equipment within the period for which it would be lawful to detain the person being interviewed;
(b) mechanical failure of recording equipment;
(c) a refusal of the interviewee to allow the interview to be recorded on videotape or audiotape;
(d) any other relevant matter.
(4)As soon as practicable after a videotape or an audiotape recording is made under this Part, the investigating officer must give the suspect a written statement of the suspect's right—
(a) if a videotape recording was made—
(i)to have the videotape played over to the suspect or the suspect's legal adviser (or both); and
(ii)to obtain an audiotape recording of the sound track of the videotape; or
(b) if an audiotape recording (but no videotape recording) of the interview was made—to obtain a copy of the audiotape.
(5)Arrangements must be made, at the request of a suspect, for the playing of a videotape at a reasonable time and place to be nominated by an appropriate investigating officer.
(6)A suspect must be provided, on request and on payment of the fee fixed by regulation, with—
(a) an audiotape of the soundtrack of a videotape recording of an interview with the suspect under this Part; or
(b) a copy of an audiotape recording of an interview with the suspect under this Part.
Interview is defined in section 74C to include:
"interview" includes—
(a) a conversation; or
(b) part of a conversation; or
(c) a series of conversations;
In Karger,[13] I made the following observations about the operation of section 74 and the meaning of “interview”:[14]
There is no reason in principle why the legislative provisions should not have a broad application or why “interview” as used in s74D(1) should be accorded a restricted meaning. A broad interpretation of the definition of interview does not appear to be contrary to the legislative intention. Having regard to the mischief being addressed by ss74C-74E there is every reason to give a broad interpretation to the legislative scheme. In the event that recording equipment is not available the obligation of the investigating officer is to make a written record as soon as practicable of the conversation. There is no requirement for a verbatim record. On the ensuing videotape recorded interview the written record must be read to the suspect who then has the opportunity to point out any error or omission. Such a procedure is not unduly burdensome. It is directed towards meeting the concerns of the court in McKinney v The Queen. The submission that the meaning of “interview” should necessarily be restricted must be rejected
A proposed conversation that relates to a relevant suspicion and to an investigation being undertaken in relation to that suspicion is an “interview” within the meaning of s74D. The investigating officer proposed to have a conversation with the appellant to further his enquiries. He was investigating the appellant as a suspect with respect to the indictable offence of murder. He was following up a matter arising from previous interviews with the appellant. It was at least a possibility that the proposed conversation may have led to the disclosure of important evidence. The fact that the investigating officer may not have appreciated this at the time is not to the point.
The other members of the Court agreed with these observations.
[13] R v Karger (2002) 83 SASR 135.
[14] R v Karger (2002) 83 SASR 135 at [115]-[116] (footnotes omitted).
In Mekic,[15] this Court further considered the application of section 74D, and applied the above observations of the Court in Karger as quoted above. The challenged conversation in Mekic involved a telephone discussion in which the police officer was seeking to arrange time for an interview. The accused volunteered information. The conversation was held not to be an interview. I there observed: [16]
Counsel for the Crown submitted that the purpose of the legislation was to protect those who may be vulnerable to police questioning. However, it was contended that if the legislature intended all conversations between police officers and persons of interest related to offences to fall within the requirements of section 74D, it would have been explicit in saying so. In accordance with the observations in Karger, it was said that section 74 applied to those conversations where there was a reasonable suspicion on the part of the police who proposed to interview a suspect with respect to an offence.
While Detective Yazarloo did have a suspicion about the involvement of Mr Mekic in the offending, and did intend to interview him later, the telephone conversation did not amount to an interview such that the requirements of section 74 were enlivened. There was no request for information made by the detective. The information proffered by Mr Mekic did not result from any questioning by the detective. The circumstances of the telephone call and the interchange between Mr Mekic and the police officer did not amount to an interview for the purposes of section 74 of the Act.
The other members of the Court agreed with these observations.
[15] R v Mekic [2004] SASC 134.
[16] R v Mekic [2004] SASC 134 at [28]-[29].
At the hearing of the appeal, counsel for the appellant referred to passages of the interviews between the investigating officer and the appellant where counsel for the appellant said that he was “parroting” or repeating back part of the previous question in answer to the officer’s inquiries. Counsel for the appellant said that this gave rise to a risk of suggestibility.
However, a review of the entire transcript from the third interview between the investigating officer and the appellant demonstrates that on occasions the appellant expressed an intention to kill his wife in a manner free from any risk of suggestibility. He volunteered such information to police in the absence of any direct questions on the issue, and in circumstances where there can be no suggestion that the appellant was merely repeating the question or “parroting” answers. For example, during the third interview, the following exchanges occurred:
Q. What happened in that argument.
A. We er, and she didn’t respect me, she didn’t listen. She want to do her way.
Q. Yes.
A.Yeah. And then finally, you know, she made me feel very angry, you know, they way that she speak to me. She treat me like an animal.
Q.Yes.
A.Yeah, then I feel angry and then finally, you know, I get a hammer then I hit her so hard then I finally kill her on that night.
…
A. By the law and just I, I know, I, I, I was er, you know, guilty.
Q. Okay.
A.I murder, murder my wife but because she made me feel very angry that made me do it.
…
Q. Okay, so you’ve gone out the kitchen to find –
A. Yeah.
Q. What you could –
A. But if I, I get the hammer and hit him and see I, I, I feel very sorry, you know –
Q. Okay, so –
A. Yeah, I hit her so hard and I finally kill her.
…
Q. Were you trying to kill her or what were you trying to do.
A. I try to kill her.
…
Q. What you want to do.
A.What happen, if I don’t kill her, she still alive and a husband live, live together, he one day, he might kill me, you know, so when one die and one living or one die, one go to gaol.
…
Q. So you had to keep hitting her all the time to kill her.
A. Yeah.
Q. Or did you hit her a couple of times, go away and then come back.
A. No, no, no –
Q. She’s still alive and then keep-
A. No, no, no, I, I hit her until she dead
The trial Judge was required to be satisfied beyond reasonable doubt of the appellant’s guilt. Before the evidence of his confession could be accepted, Her Honour was required to reject all other reasonable explanations consistent with the appellant’s evidence. This gave rise to an exploration of the topic of repetition. The above passage from the written reasons demonstrates that Her Honour turned her mind to the issue of repetition or suggestibility and excluded the particular defence hypothesis as a reasonable explanation for the appellant’s answers to police questions and his ultimate admission. This conclusion was open to the Judge on all of the evidence.
As earlier observed, prior to the hearing of the trial, counsel for the defence challenged the admission of evidence of the police investigation, in particular, the evidence of the appellant’s confession during the third interview. A voir dire hearing commenced before the trial Judge. Witnesses were called and a video recording of each interview was tendered and viewed by the trial Judge. On 16 December 2004, the Judge published reasons for her ruling dismissing the appellant’s application.
Counsel for the appellant sought to advance as a ground of appeal against conviction the complaint that the trial Judge erred in using events of the voir dire when making her findings at the trial. In particular, counsel said that it was erroneous for Her Honour to refer to events of the voir dire when making an adverse decision regarding the accused’s credit at trial. Counsel referred to the passages in the reasons for verdict referred to in paragraph 116 above as well as the following:
Although the accused obviously has some linguistic difficulties, there was nothing which emerged in the course of the trial which caused me to alter the view I expressed on the voir dire as to his ability to understand and answer the questions put to him by the police in the course of their interviews with him.
[Counsel for the Crown], in the course of his closing address, referred to lies told by the accused in his initial interviews with the police which included a denial of killing his wife and an assertion that he loved her very much as well as such matters as his proffered explanations for the blood in the car and the room being locked, which on the Crown case demonstrate an ability to fabricate and maintain a story. [Counsel for the Crown] also referred to the lies told by the accused to his uncles when he initially spoke to them at the police station, as well as the course of deceptive conduct embarked upon by the accused to conceal the death of his wife, which included lying to So Soth Lam, Channara Uy, the women at the house, and the police who were following up the missing persons report. I am satisfied that the accused lied on each of those occasions, and the fact that the accused constructed and maintained a false story to each of these people is a matter which I take into account in assessing his credit. Although the accused, in evidence, denied that he had lied to the police to cover up his wife’s death, I consider limited weight can be given to that particular denial as I thought this aspect of the matter was possibly an example of the accused being genuinely confused by the form of questioning, or else an example of the type of concrete thinking described by Mr Balfour. I can also understand the accused lying to the police who came to the house because he was scared, as by that stage he must have been aware of the difficulty of continuing to conceal what he had done.
Counsel contended that the trial Judge failed to give counsel notice that she would be making use of events at the voir dire hearing when determining the verdict at trial. Counsel said that the Judge formed the view that the appellant’s evidence at trial was influenced by something he had seen or heard at the time of the hearing of the voir dire. It was further submitted that the appellant was not cross-examined on the topic of whether he was drawing upon something he had seen or heard at the voir dire when giving evidence at the trial.
Counsel referred to what he described as the general rule that a voir dire hearing should not take place in the presence of a jury unless it will not result in any prejudice of an accused.[41] Counsel submitted that that general rule also applied to a trial by judge alone.
[41] R v Bradshaw (1978) 18 SASR 83.
It has been accepted that at trial a defendant may be cross-examined on evidence given at a voir dire hearing. In Murphy,[42], Doyle CJ reviewed the relevant authorities on the matter and observed:[43]
In this State it has been treated as well established that a person who gives evidence on the voir dire may be cross-examined on the trial on that evidence: R v Wright [1969] SASR 256 at 262, 270, 277. That right on the part of the prosecution is, of course, subject to the trial judge’s discretion, the discretion being based on fairness to the accused: see R v Wright (at 265-266, 270-271, 278). I do not consider that anything said by the High Court in MacPherson v The Queen (1981) 147 CLR 512 is inconsistent with the view which has been taken in this State: see at 523-524 per Gibbs CJ and Wilson J, at 534-535 per Mason J. The present case does not raise the more difficult issue of cross-examination at trial on evidence given by an accused on the voir dire going directly to the issue of guilt: see J D Heydon, Cross on Evidence (Aust ed), pars 11050-11060 and the cases cited there. In Australia, so far as I am aware the House of Lords decision in R v Brophy [1982] AC 476, holding that relevant evidence given at the voir dire is not admissible at the trial, has not been followed.
[42] R v Murphy (1996) 66 SASR 406.
[43] R v Murphy (1996) 66 SASR 406 at 415-416.
The above authorities suggest that in appropriate circumstances and with appropriate notice, a trial Judge may be entitled to make use of events at the voir dire.
As earlier observed, counsel for the appellant submitted that at critical stages of the third interview the appellant was simply repeating part of the interviewing officer’s question and was not providing an answer as such. The trial Judge rejected this submission and in particular rejected the suggestion that the appellant was repeating as it was put “parroting” an interviewing officer’s question rather than answering the question. It was in this context that Her Honour had regard to the events of the voir dire. Her Honour was using that material in the context of discussing possible reasons to explain the appellant’s claims. Her Honour’s use of the matters in the voir dire in this limited way was restricted to the fact that the appellant was present at the voir dire when Mr Balfour gave evidence and defence counsel made submissions on the question of repetition.
A trial Judge should inform counsel in advance of any proposed use of events or evidence at the voir dire. This did not occur in the present case. The topic was not raised with the appellant when he gave evidence.
On the hearing of the appeal, counsel did not advance any alternative explanation for the trial Judge’s observations of what had occurred at the voir dire hearing, or of its suggested significance. Counsel put no submissions regarding any possible alternative course that would have been followed at trial should counsel have been informed in advance of the Judge’s proposed use of events at the voir dire hearing.
The trial Judge’s use of events at the voir dire, having regard to the matters set out earlier in these reasons and in particular paragraphs 116-119 did not result in a real risk of unfairness to the appellant. The evidence of the appellant’s confession was before the Court at trial. This included the video recordings of the record of interview. The appellant gave evidence at trial, and the trial Judge had the opportunity to assess his credibility. As earlier explained, a review of the entire third record of interview demonstrates that on the issue of intention there was no mere repetition of the interviewing officer’s questions. No ground has been established for interfering with the Judge’s findings. The complaint concerning the limited use of events occurring at the voir dire does not give rise to a miscarriage of justice in the circumstances of this case and does not constitute a ground for interference by this Court.
Did the Trial Judge Otherwise Err?
The Domestic Relationship between the Appellant and his Wife
An issue on appeal is the trial Judge’s findings regarding the nature of the relationship between the appellant and his wife. It was the defence case that the appellant and his wife’s relationship had been turbulent and punctuated by acts of violence by both parties. It was said that, for some time prior to the offending, the appellant had been complaining about the deteriorating state of his marriage and of acts of violence perpetrated by his wife against him. Evidence relating to the appellant and his wife’s relationship was said to give rise to the defence of provocation.
The appellant is a Cambodian man born in May 1967. His mother and siblings were killed in the war in Cambodia in 1975. The appellant last saw his father in 1975. In 1982, he immigrated to Australia with his grandparents and uncles, Moeun and Someth Lem. The appellant and his wife married in 1997. The marriage was arranged by the appellant’s uncle. The marriage arrangements and ceremony were in traditional Cambodian style. The marriage ceremony took place in Cambodia.
Following the marriage, the appellant return to Australia. In 1998, his wife arrived in Australia. The two purchased a home in Salisbury Downs. In 2001, the appellant won $43,000 in a lottery. They apparently used this money to pay off the mortgage on the Salisbury Downs home. In 2002, the appellant and his wife moved to Parafield Gardens, the house in which Sokchenda later died.
On 20 November 2000, the appellant’s son was born. On 26 November 2001, Sokchenda became an Australian citizen. At trial, the appellant said that his wife had consulted him about her decision to become a citizen. The trial Judge found that the appellant resented his wife’s decision to become an Australian citizen, and described his wife as “disrespectful” towards him.
The appellant gave evidence at trial suggesting that there had been problems within his marriage from its commencement and increasing in gravity following the birth of their son. The appellant said their relationship had deteriorated further following his wife’s decision to become an Australian citizen. The appellant said that he and his wife had separate bedrooms at the Parafield Gardens home. At trial, the appellant made complaints about his wife including the following:
-she did not listen to him and always did what she wanted to do; for example, going out with her friends at night;
-she had no respect for their relationship as husband and wife;
-she created a problem with the appellant’s uncle and complained about him to the leaders of her Church;
-she rarely cooked, and neglected her home duties;
-she did not care for the family and did not prepare food for their son;
-she argued with the appellant about money in front of their friends;
-she struck him in the head with a frying-pan in front of his mother-in-law and verbally abused him (“the frying-pan incident”);
-she accused the appellant of stealing money from her purse (“the purse incident”);
-she called him a fool and treated him like a dog;
-she assaulted the appellant on numerous occasions, punching him in the face, biting him and scratching him with her fingernails; and
-she struck the appellant with a stick whilst the appellant was sleeping with his son (the “stick incident”).
The trial Judge noted the appellant’s complaints in her reasons and acknowledged that the relationship was volatile and sometimes violent. However, the Judge did not accept all of the appellant’s allegations concerning his wife’s acts of violence towards him.
In relation to the frying-pan incident, the Judge made the following findings:
The accused said he was washing the dishes and in the presence of his mother-in-law, his wife struck him with a frying pan on his head. In evidence-in-chief, the accused said that after his wife hit him with the frying pan, he slapped her. … In cross-examination, the accused, when asked whether he had slapped his wife after she hit him with the frypan, said that he did not hit her. As [counsel for the Crown] went to put the transcript of the accused’s evidence-in-chief to him, [defence counsel] interjected on behalf of the accused. Following the interjection, the accused said that he did not remember whether he had either hit or slapped his wife on that occasion. In my opinion, the evidence of the accused as to this incident did not have the ring of truth to it. I am unable to say that it did not occur, but the inconsistency between the accused’s evidence-in-chief and cross-examination as to whether he hit his wife on this occasion adds to my disbelief about this incident and is a matter which I take into account in assessing the credibility of the accused.
A number of witnesses gave evidence at trial regarding the purse incident, wherein the appellant complained that his wife had accused him of stealing from her. Evidence was adduced at trial to the effect that, following an argument regarding the stolen money, the appellant had struck his wife with a knife-sharpening steel. In relation to the incident, the Judge observed:
The accused also referred to accusations made by his wife that he stole money from her purse, which he said were untrue. That made him very frustrated and angry. She called him a fool or stupid person and treated him like a dog. The accused said that because of what his wife said to him and the way she treated him during the argument, his anger built up and he hit her with a knife sharpening steel on the front of her head. He said that he hit her twice. He said that she then hit him back causing him to have a black eye and a swollen lip…
Following the incident, Sokchenda telephoned a friend, So Soth Lam, and told him that her husband had hit her. So Soth Lam attended at the house. So Soth Lam gave evidence at trial. The trial Judge found him to be reliable and credible. Thon Phan, another friend of Sokchenda, also attended the house and gave evidence at trial. Sokchenda Lam was taken to hospital and treated by Dr Narendranathan, who gave evidence that she suffered injury to her head consistent with being hit with a blunt instrument.
In relation to the appellant’s claim that his wife struck him three times with a stick whilst he was sleeping with his son (the stick incident), the Judge observed:
[The appellant] said he was sleeping with [his son] in the afternoon and was struck by his wife with a stick three times. He fell unconscious. She took [the child] away and did not come home until the following day. He said the first blow was on his head and the second one was on his back and the other was at the side of his rib. The accused said that when his wife returned home the following day, he asked her why she had hit him but she ignored him. The accused, in cross-examination said, however, that he thought that his wife had hit him out of retaliation for the knife sharpening steel incident that had taken place about eight months earlier. As is the case with the frying pan incident, I have some doubts about whether the accused was telling the truth about this incident of being hit with a stick…
Evidence was adduced at trial regarding Sokchenda’s strained relationship with the appellant’s uncle, Someth Lem. Often, the two would argue about money, and Sokchenda had involved leaders in her Church in the matter. The trial Judge found that there existed a “substantial degree of animosity” between Someth Lem and Sokchenda that created tension between the appellant and Sokchenda.
Cambodian Culture
Evidence was called at trial and reference made in the reasons of the trial Judge to the impact of Cambodian culture on the appellant’s relationship with his wife. Material was before the Judge regarding traditional Cambodian marriage relationships and the nature of marriage relationships in Cambodian communities in Australia. For example, the Judge noted that in traditional Cambodian marriage relationships it was not expected that a wife would have employment. However, the Judge said, there was evidence that most Cambodian families in Australia accepted that women worked and socialised with colleagues and friends in the absence of their husbands. The Judge noted that both calling a person a “dog” and a wife insulting her husband were particularly offensive in traditional Cambodian families.
Friends and colleagues of the appellant and Sokchenda gave evidence regarding the nature of their relationship. There was evidence that both had been observed to be showing physical signs of domestic violence. There was also evidence that the police had attended the Parafield Gardens home on a number of occasions in response to domestic disturbances.
Rejection of the Provocation Defence
The trial Judge made the following findings regarding the nature of the relationship between the appellant and his wife:
[Defence counsel], in his closing address described the accused as having suffered three of four years of contempt, vilification, abuse and violence at the hands of the deceased. In my opinion, however, that is not borne out by the evidence.
The picture of [Sokchenda] which emerged from the evidence of the Cambodian witnesses was that of a woman who worked hard, often at two jobs, and up to seven days a week, and whose social activities appeared primarily to consist of visiting friends. There was no evidence to support the assertions of the accused that she neglected her household duties, nor his claim that she went out to places such as discos.
I find as a reasonable possibility, however, that as time progressed, Sokchenda followed an increasingly independent lifestyle and that was a source of resentment by the accused and something which he considered disrespectful to him and which led to arguments between them. I am satisfied that there were arguments between them with respect to financial matters, such as sending money back to Cambodia, the disposition of the Taarnby Drive monies and the accusation by Sokchenda that the accused had taken money from her purse. I am satisfied that the argument which took place in the presence of [a friend] about stealing money was a particular matter of aggravation between the accused and his wife. The accused’s continuing anger and resentment about that matter was evident when the accused gave evidence on that topic.
I am satisfied that the deterioration in the relationship resulted in arguments between the accused and his wife which at times resulted in acts of physical violence by each against the other, the most serious of which would appear to be the knife sharpening steel incident in which Sokchenda was the victim.
I think it is likely that the occasion in 2003 when the accused’s workmates described seeing scratches on the accused’s face was the same occasion in 2003 which was referred to by So Soth, although I am unable to be satisfied beyond reasonable doubt about that matter. On the occasion So Soth described, however, Sokchenda also had injuries to her face from which I infer that there was an altercation in which each inflicted injuries to the other.
As I said earlier, I did not believe the evidence of the accused about the frypan incident and I also found aspects of the evidence relating to the assault with the stick to be lacking in credibility. …
In my opinion, the accused endeavoured to portray his wife as a bad and violent woman, or as he called her, “a monster”, in order to justify his violent behaviour towards her, and his attempts to do so undermine his credibility.
Counsel for the Crown submitted that central to the appellant’s characterisation of his marriage to Sokchenda was the suggestion that he was a victim of her violence and abuse. The trial Judge expressly rejected this suggestion. Although the Judge found that the deterioration of the marriage relationship had resulted in arguments between the appellant and Sokchenda, including violent arguments, Her Honour did not accept the appellant’s versions of events regarding the frying-pan incident and found that his evidence regarding the stick incident lacked credibility. The Judge found that the appellant had attempted to portray his wife as a “bad woman” to justify his violent behaviour towards her.
Counsel for the Crown submitted that each of these factual findings and inferences reasonably arose from the evidence at trial. It was said that the Judge’s conclusions were based in part on her assessment of the witnesses and in particular on the evidence of the appellant himself. The Judge had the advantage of seeing and hearing the witnesses. Counsel submitted that the appellant had failed to establish that the Judge had misused her advantage in seeing and hearing the evidence or that she had proceeded under a misapprehension of fact. Nor was there any suggestion that the Judge acted on evidence that was inconsistent with the facts incontrovertibly established by other evidence or that her conclusions were glaringly improbable.[44]
[44] Devries v Australian National Railway Commission (1992-1993) 177 CLR 472 at 479.
Counsel for the Crown submitted that the trial Judge’s finding that the appellant’s offending was unprovoked was correct and supported by the evidence. Counsel for the Crown said that the law of provocation takes no account of cultural sensitivities when looking at the “ordinary person”. The ordinary man, it was said, was not a man of Cambodian background. Counsel for the Crown submitted that although it could be said that Sokchenda’s behaviour prior to her death was insulting or disrespectful to the appellant, it was not open on the evidence to conclude that such behaviour would have caused the ordinary person to lose control to the extent of intentionally killing with a prolonged attack in which 100 blows were administered with a hammer.
Conclusion on Appeal Against Conviction
As observed in ADW,[45] an appeal brought pursuant to section 353 of the Criminal Law Consolidation Act 1935 (SA) is not an appeal by way of rehearing. In particular, the Court of Criminal Appeal does not have the power to substitute its own findings for those of the trial Judge.[46] An appeal against conviction can be successful where the verdict is unsafe and unsatisfactory in that it is unreasonable or cannot be supported by the evidence. A verdict will be held to be unreasonable if, having regard to all of the evidence, the appellate court concludes that it would be unsafe, unjust or dangerous to allow a verdict of guilty to stand. The court must conclude that it was not open to the trier of fact to be satisfied beyond reasonable doubt of the guilt of the appellant on the evidence adduced at trial. [47]
[45] R v ADW (2002) 84 SASR 178.
[46] R v ADW (2002) 84 SASR 178 at 183; see also Fleming v The Queen (1998) 194 CLR 250 at 258.
[47] See Whitehorn v The Queen (1983) 152 CLR 657 at 660; Chamberlain v The Queen (No 2) (1984) 15 CLR 521 at 530-534.
In the present case, an assessment of the evidence reveals that there was adequate evidence upon which the trial Judge could be satisfied beyond reasonable doubt of the guilt of the appellant. In respect of grounds 2 to 6, (that the Judge erred in ruling that the accused did not lose self-control, in rejecting the evidence of the accused as to the behaviour of the deceased during the marriage, and in rejecting the accused’s version of events on the night in question; she paid inadequate weight to the accused’s intellectual disability, and erred in finding that the accused’s conduct was such as would not have caused an ordinary person to lose control), the appellant requested this Court to review factual findings made by the Judge. As earlier observed, there was a sound evidentiary basis for the Judge’s findings of fact and such findings cannot be interfered with, even if this Court would have ultimately made different factual findings. The other grounds of appeal advanced by counsel for the appellant have not been made out.
Leave to appeal should be granted on grounds 7(i) and 7(ii) of the original notice of appeal and on ground 4 of the further grounds of appeal. Otherwise leave to appeal should be refused.
The appeal against conviction should be dismissed. No error of law has been identified. There is no risk of a miscarriage of justice.
Application for Leave to Appeal Against Sentence
When sentencing, the Judge had regard to the appellant’s personal circumstances, including his Cambodian background and his intellectual disability. The Judge also had regard to the appellant’s relationship with his wife:
At trial, you endeavoured to justify your actions and to attribute the problems in your marriage to your wife, which included evidence that she neglected her household duties and went to places such as discos. That, however, was not borne out by the evidence, which showed Sokchenda to be a decent and hardworking woman.
I am, however, satisfied that, to some degree, Sokchenda endeavoured to assert her independence, which meant that she was away from home from time to time, either pursing employment or visiting friends, and that was clearly a source of aggravation for you. That aspect of the matter does, however, need to be considered in the light of the evidence relating to the influence upon you of your upbringing in Cambodian culture and an apparent toleration in that culture of domestic violence from husband to wife.
The Judge also carefully considered the appellant’s level of intellectual functioning:
Dr Balfour gave detailed evidence at trial about the level of your intellectual functioning, and he provided a further report dated 4 April 2005, the contents of which I bear in mind when considering the appropriate sentence.
He considers that you have a mild intellectual disability, but were not suffering from any mental impairment at the time you committed this crime.
He described your offending behaviour as the actions of an intellectually disabled man who was trying to assert his cultural authority over his wife so that she would conform to a rigid cultural gender role. On the other hand, your wife found herself in a liberal country where she was encouraged to assert and develop her individuality and break with cultural traditions.
The Judge had regard to the appellant’s prospects of rehabilitation. She noted that, as an intellectually disabled person, the appellant would experience greater hardship than an inmate of normal intelligence and, in that situation, would be vulnerable. The Judge also had regard to the seriousness of the appellant’s offending and its impact on Sokchenda’s family. She noted that Sokchenda’s mother had committed suicide following the death of her daughter, and her brother, Narom Lam, has left Cambodia and moved to Australia to care for Sokchenda’s son.
The Judge considered the appellant’s co-operation with police and expression of remorse. However, she observed that the appellant’s remorse was tempered by his ongoing resentment towards his wife, demonstrated during the appellant’s evidence at trial. The Judge noted that this might be partially explained by the appellant’s cultural background and level of intellectual functioning.
When considering the seriousness of the offending conduct, the sentencing Judge observed:
You subjected your wife to a prolonged and brutal attack in which up to 100 blows were inflicted with a hammer. The nature and extent of your wife’s injuries enables me to be satisfied that your wife put up a struggle before you administered the fatal blows to the right side of your head, but you, nevertheless, persisted in your attack.
It is impossible to envisage the fear and suffering that she experienced in the last moments of her life.
This is a very serious example of domestic violence committed against the background of earlier domestic violence which, in my opinion, makes general deterrence of particular importance in the sentencing process.
As earlier observed, the appellant was sentenced to life imprisonment with a non-parole period of 20 years fixed. The non-parole period was backdated to commence on 22 May 2003, the date the appellant was first taken into custody.
The appellant seeks leave to appeal against the sentence imposed on the grounds that the non-parole period of 20 years was manifestly excessive. Counsel submitted that the Judge erred in the sentencing process by failing to pay adequate regard to:
-the appellant’s plea of guilty to manslaughter, which was rejected by the prosecution;[48]
-the appellant’s intellectual disability;[49]
-the appellant’s expression of contrition and remorse;[50]
-the provocative circumstances surrounding the offence;[51]
-the appellant’s cultural background and experience;[52] and
-the appellant’s prospects for rehabilitation.[53]
In addition, counsel said that the Judge had erred in attaching excessive weight to the principle of general deterrence, and had failed to take account of the appellant’s previous good character.
[48] R v Lane (1990) 53 SASR 480; R v Garve (1996) 65 SASR 483.
[49] R v Masolatti (1976) 14 SASR 124.
[50] Hansen v R (1995) (CCA(SA) 22 February 1995, Judgment No. S4984); Yengi v Police [2002] SASC 220.
[51] R v Whittingham (1988) 49 SASR 67.
[52] R v Reci (1998) 198 LSJS 373.
[53] R v Von Einem (1985) 38 SASR 207 at 219.
Counsel submitted that, despite the Judge’s rejection of the defence of provocation, the provocative nature of Sokchenda’s behaviour towards the appellant was a material matter to consider when sentencing. In Whittingham[54], this Court considered the effect of provocative circumstances of the offending on the sentencing process. That case involved a charge of assault occasioning actual bodily harm. When allowing the appeal against sentence, King CJ observed:[55]
The offence itself was a nasty one, the thrusting of a glass into a man’s face and the twisting of that glass in his face. I have no doubt that the use of the glass was intentional. What can be said in the appellant’s favour [is] that he was subjected that night to a great deal of provocation from [the victim]. There is no doubt in my mind that [the victim] or was behaving very badly, very aggressively, and that this put a considerable amount of pressure upon the appellant’s temperament being disposed as it is, as appears from his record, to angry outbursts. There was no excuse for what the appellant did but I think the circumstances in which the offence occurred do mitigate, to some degree, the seriousness of his action. There is no doubt I think that his action in using the glass was an impulsive action brought about by the aggressive and provocative behaviour of [the victim] and his companion.
[54] R v Whittingham (1988) 49 SASR 67.
[55] R v Whittingham (1988) 49 SASR 67 at 73.
Counsel for the Crown submitted that the question of general deterrence was a relevant issue to factor into the sentencing process. Counsel said that the non-parole period fixed by the Judge was not one that was outside the range of appropriate sentences for a brutal killing of this type.
The Judge had regard to all relevant matters when sentencing the appellant, including the appellant’s personal background, intellectual disability and the nature of his marital relationship.
Little regard could be had to the offer at the start of the trial to plead guilty to the crime of manslaughter. A verdict of guilty of that crime was at the very least almost inevitable.
Leave to appeal against sentence should be granted. The appeal against sentence should be dismissed.
(1) Subject to this section, where, in a criminal trial before the Supreme Court or the District Court—
(a) the accused elects, in accordance with the rules of court, to be tried by the judge alone; and
(b)the presiding judge is satisfied that the accused, before making the election, sought and received advice in relation to the election from a legal practitioner,
the trial will proceed without a jury.
…
(4) Where a criminal trial proceeds without a jury in pursuance of this section, the judge may make any decision that could have been made by a jury on the question of the guilt of the accused, and such a decision will, for all purposes, have the same effect as a verdict of a jury.
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