R v Lem - [2005] SASC 140

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v LEM
Judgment of The Honourable Justice Besanko
14 April 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL
Application for leave to appeal against conviction - applicant found guilty of murder after a trial before a Judge alone in the Supreme Court - where applicant confessed to the murder during the last of three interviews with police - where applicant put forward a defence of provocation - leave to appeal refused with respect to a ground alleging that the Judge erred in equating the rejection of the applicant's evidence with the rejection of the defence of provocation - leave to appeal refused with respect to a ground alleging that the Judge erred in finding that the applicant did not lose self-control - leave to appeal refused with respect to a ground alleging that the Judge erred in failing to exclude the third interview on the basis that a brief conversation between the applicant and police between the second and third interview was not recorded in breach of s 74D of the Summary Offences Act 1953 - leave to appeal refused with respect to a ground alleging that the Judge erred in failing to exclude the third interview on the basis that the statements made by the applicant were involuntary - leave to appeal refused with respect to a ground alleging that the Judge erred in failing to exclude the third interview on the basis of unfairness as the police interviewed the applicant at 12.40am - leave to appeal granted with respect to a ground alleging that the Judge erred in failing to exclude the third interview on the basis that the police did not give the applicant a reasonable opportunity to exercise his right to have someone present at the interview under s 79A of the Summary Offences Act 1953 - leave to appeal granted with respect to a ground alleging that the Judge erred in failing to exclude the third interview on the basis of unfairness as the applicant wanted someone to be present during the interview.
Criminal Law Consolidation Act 1935 s 352; Juries Act 1927 s 7; Summary Offences Act 1953 ss 74C, 74D, 74E, 79A, referred to.
R v ADW (2002) 84 SASR 178; R v Lem (No 1) [2004] SASC 416; R v Lem (No 2) [2004] SASC 417; R v Bodsworth [1968] 2 NSWR 132; Pollard v The Queen (1992) 176 CLR 177; Selig v Hayes (1989) 52 SASR 169, considered.

R v LEM
[2005] SASC 140
Criminal

BESANKO J: This is an application for leave to appeal against a conviction for murder (s 352 Criminal Law Consolidation Act 1935). The applicant puts forward seven proposed grounds of appeal and they are set out in a document entitled Amended Grounds and dated 31^st March 2005. None of the grounds involve a question of law alone and, in those circumstances, leave to appeal is required.
The applicant was tried before a Judge of this Court sitting alone (s 7 Juries Act 1927). The Judge delivered detailed reasons for finding that the applicant was guilty of murder. It is unnecessary for me to consider the grounds upon which the Full Court may interfere with the decision of a Judge sitting alone (see R v ADW (2002) 84 SASR 178) because for the purposes of this application I am prepared to proceed on the assumption that each ground of appeal is, subject to leave being obtained, a matter that may be considered by the Full Court.
The applicant was charged with murdering his wife on 17^th May 2003. Upon his arraignment the applicant pleaded not guilty to the charge of murder but guilty to the crime of manslaughter. That plea was not accepted by the prosecution and the trial proceeded before the Judge. The issue before the Judge related to provocation.
Before the jury was empanelled, the Judge was asked to make various rulings concerning the admissibility of evidence. She made those rulings, and some of them are the subject of the application for leave to appeal. She delivered detailed reasons for her rulings (R v Lem (No 1) [2004] SASC 416).
The Judge also delivered detailed reasons for reaching the conclusion that the applicant was guilty of murder (R v Lem (No 2) 2004 SASC 417).
The proposed grounds of appeal
As I have said there are seven proposed grounds of appeal. It is convenient to begin with ground 7 because it relates to a ruling made by the Judge on the voir dire. Ground 7 is in the following terms:
7.    The Learned Trial Judge erred in declining to exclude the third record of interview.
Particulars
(i) The Learned Trial Judge erred in finding that there had not been a breach of section 74D of the Summary Offences Act 1953 [Judgment paragraphs 108-114]
(ii)     The Learned Trial Judge erred in finding that the interview was voluntary in that there had not been material inducements by persons in authority. [Judgment paragraphs 115-136]
(iii) The Learned Trial Judge erred in ruling that there was not a breach of section 79A of the Summary Offences Act. [Judgment paragraphs 105-107]
(iv)    The Learned Trial Judge erred in failing to consider whether questions of unfairness arose in circumstances where the accused wished someone present during the record of interview.
(v)     The Learned Trial Judge erred in finding that in the circumstances there was no unfairness in proceeding with the record of interview that commenced at 12.40am. [Judgment paragraphs 137-142]
The applicant was interviewed by the police on three occasions on 22^nd and 23^rd May 2003. The applicant sought to have excluded from the evidence at trial statements made during the course of the third interview which commenced at 12.40 am on 23^rd May 2003. It seems that during the first and second interviews the applicant denied any knowledge of the fate of his wife. Between the second and third interviews the applicant had a discussion with two of his uncles, Moeun Lem and Someth Lem. They told the applicant that he had to tell the truth, and at that point, the applicant told them that he had hit his wife with a hammer, put her body into black plastic bags and taken it to the Port River. Moeun Lem and Someth Lem told the applicant not to worry and that they would look after his son. They also told him that they would look after his properties and come to visit him.
Moeun Lem and Someth Lem then saw Mr David Sheridan who was a detective senior constable and the policeman leading the investigation into the killing of the applicant’s wife.
Mr Sheridan then spoke to the applicant about being re-interviewed. The Judge summarised what was said during this brief conversation according to the evidence of Mr Sheridan which she appears to have accepted.
He said he told the accused “Your uncles have indicated that you wish to talk to us, we will go up to the interview room upstairs because this one is not working properly” or words to that effect. Sheridan said the accused replied in words to the effect “yes, I want to tell the truth”. None of that conversation was recorded.
In her reasons for finding the applicant guilty of murder the Judge relied on certain statements made by the applicant during the course of the third interview. In particular the applicant, in response to the question “Were you trying to kill her or what were you trying to do?”, said “I try to kill her” ([219]). When asked what might happen if he did not kill his wife, the applicant said “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” ([221]).
I turn now to consider each of the grounds in paragraph 7. I remind myself that it is only necessary for the applicant to show that a ground of appeal is reasonably arguable.
As to 7(i), s 74D of the Summary Offences Act 1953 (“SOA”) deals with the recording of interviews between an investigating officer and a suspect. Counsel for the applicant argued that the brief conversation between the applicant and Mr Sheridan should have been recorded, and that because of the definition of “interview” in s 74C, that conversation and the third interview should have been excluded. The Judge decided that the brief conversation did not constitute an interview for the purposes of s 74D, and in any event, she would have admitted the third interview in the interests of justice pursuant to s 74E ([114]). Nothing was put by counsel for the applicant to suggest that it is reasonably arguable that the Judge erred on this point.
As to 7(ii) the Judge concluded that the statements made did not constitute material inducements, but rather were words of reassurance after the applicant had decided to confess. She said:
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 referred to R v Bodsworth [1968] 2 NSWR 132. Again, nothing was said by counsel for the applicant to suggest that it is reasonably arguable that the Judge erred on this point.
As to 7(iii) and (iv) it is convenient to deal with these two grounds together. I have read the third interview. It is correct that at one point the applicant, on being advised that he had the right to have someone present during the interview, asked if he could have one of his uncles present. He was told that as they had given statements to the police about what the applicant had said, it would not be appropriate for those persons to be present. In the end, the applicant was asked whether there was someone else he wanted to have present or whether he was happy to talk to the police on his own. He said that he was happy to speak to the police on his own.
Under s 79A of the SOA a person apprehended by a police officer on suspicion of having committed an offence is entitled to have a solicitor, relative or friend present during any interrogation or investigation to which the person is subjected while in custody, and a police officer must as soon as reasonably practicable after the apprehension of a person inform him of that right. The applicant was informed of his right to have someone present. It was said that he was not given the opportunity to exercise that right, and in the circumstances, it was unfair for the interview to proceed and the third interview should be excluded on the ground of unfairness.
Counsel for the applicant submitted that, in order to comply with s 79A, a police officer must not only inform a person of his rights, but he must also give him a reasonable opportunity to exercise those rights (Pollard v The Queen (1992) 176 CLR 177) and that what is a “reasonable opportunity” will depend on all the circumstances of the case. He referred to the fact that English was not the applicant’s first language and the fact that the applicant had asked to have one of his uncles present and had been advised that that would not be appropriate, and he submitted that the applicant was not given a reasonable opportunity to exercise his rights under s 79A. I think these grounds are reasonably arguable and accordingly, I grant leave to appeal on grounds 7(iii) and 7(iv).
As to 7(v), the Judge made a finding that the police did not behave improperly or unfairly in interviewing the applicant at 12.40 am. I have considered her reasons for reaching that conclusion ([137] – [141]). Nothing was put by counsel for the applicant to suggest that it is reasonably arguable that the Judge erred on this point.
The first six grounds of appeal are in the following terms:
1. The verdict of murder was unreasonable and against the weight of evidence.
2.The ruling by the Learned Trial Judge that the accused did not lose self control was unreasonable and against the weight of the evidence. [Judgment paragraph 280]
3.The Learned Trial Judge erred in rejecting the evidence of the accused as to the behaviour of the deceased during the marriage. [Judgment paragraph 274]
4.The Learned Trial Judge erred in rejecting the accused’s version of events at the house on the night in question. [Judgment paragraph 279]
5.The Learned 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 Learned Trial Judge erred in finding that the conduct in question was such as would not have caused an ordinary person to lose control. [Judgment paragraph 281]
Counsel for the applicant did not argue the application for leave to appeal by reference to each of the above grounds. He contended that the Judge made two important errors.
The first error said to have been made by the Judge was that she equated rejection of the applicant’s evidence with rejection of the defence of provocation. Counsel for the applicant referred to Selig v Hayes (1989) 52 SASR 169 and he referred to the following passage in the Judge’s reasons:
More significantly, my rejection of the evidence of the accused as to the behaviour of the deceased during the marriage 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 by the deceased to the accused. Although I am satisfied that there was an acrimonious relationship between the two of them, I reject the suggestion that the accused was the “victim” in the relationship. As expressed earlier, however, I am satisfied that the accused resented his wife’s increasing independence which he considered rude and disrespectful to him.
Counsel referred to the language used by the Judge in this passage. He also submitted there was such an overwhelming case of a long history of abusive and violent behaviour by the deceased to the applicant that the Judge must have relied on her rejection of the applicant as a witness to support her conclusion set out above and that this was impermissible. I have considered the Judge’s reasons for judgment carefully. Although a number of witnesses gave evidence that they noticed scratches on the faces of both the applicant and the deceased during 2003, the Judge found that those scratches were the result of an altercation between the applicant and the deceased in which each inflicted injuries upon the other ([93]). She rejected the applicant’s portrayal of his wife as a violent and abusive woman, finding that that was not borne out by the evidence. The Judge was entitled to make those findings and, having done so, she was entitled to find that there was no evidence to support the way in which the defence put the case in relation to provocation. I do not think that she used those findings to bolster the prosecution case in respect of provocation, and I do not think that it is reasonably arguable that she equated rejection of the applicant’s evidence with rejection of the defence of provocation. In my opinion, it is not reasonably arguable that the Judge erred by overlooking the fact that the prosecution was required to negative the elements of provocation beyond reasonable doubt.
The second error said to have been made by the Judge was that given the ferocity of the attack – the applicant hit the deceased one hundred times – the Judge erred in reaching the conclusion that the applicant did not lose self-control. It was submitted that it was reasonably arguable that the Judge erred in reaching the following conclusions:
Even if there is a reasonable possibility that what the deceased said and did in the course of the initial argument caused the accused to lose his self-control, I am satisfied that by the time he collected the hammer from the kitchen and returned to the bedroom, he had regained control. At that time, he made a positive decision to end her life. I am satisfied that the killing was unprovoked.
I do not think it is reasonably arguable that the Judge erred in not concluding that by reason of the ferocity of the attack it must be said that the applicant lost control. Nor do I think it reasonably arguable that the Judge erred in concluding that even if there was a reasonable possibility that what the deceased said and did in the course of the initial argument caused the accused to lose his self-control, nevertheless by the time he collected the hammer from the kitchen and returned to the bedroom he had regained control, and at that time, he made a positive decision to end her life.
Conclusion
I grant leave to appeal in relation to grounds 7(iii) and (iv) of the Amended Grounds but refuse leave with respect to the other grounds in that document.