(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.
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
R v Lem [2005] SASC 405
Case
[2005] SASC 405
Decision Date
CaseChat Overview and Summary
The appellant, Mr Lem, was convicted by a single Judge of murdering his wife and sentenced to a non-parole period of 20 years. The appellant was granted leave to appeal against the conviction on three grounds and leave was refused on all other grounds. The appellant then applied to the Full Court for leave to appeal against both the conviction and the sentence. The legal issues included the admissibility of evidence from a police interview, whether the trial Judge should have exercised a discretion to exclude the evidence, whether there was a misapplication of the principles relating to proof to certain evidence, and whether the Judge rejected Mr Lem’s explanation for certain answers given to the police in a manner that was unfair. The court found that the Judge’s conclusions were supported by the evidence and that the verdict was not unreasonable or unsafe. The appeal against conviction was dismissed, but leave to appeal against the sentence was granted. The appeal against sentence was subsequently dismissed. The Full Court granted leave to appeal on two grounds but refused leave on all other grounds.
Orders
Orders of the court
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Background
Background to the litigation
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.
Evidence
Evidence Before The Court
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.
Decision
Reasons for decision
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.