R v Lem (No 1) - [2004] SASC 416

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Voir Dire)
R v LEM (No 1)
Ruling of The Honourable Justice Nyland
16 December 2004
CRIMINAL LAW - EVIDENCE - CONFESSIONS AND ADMISSIONS - STATEMENTS - RECORDS OF INTERVIEW - DISCRETION TO EXCLUDE
Accused charged with murder - application to exclude confessional evidence contained in four records of interview - whether statements voluntary - persons in authority - unfairness discretion - whether interpreter required - public policy discretion - statements admissible - application dismissed.
Supreme Court Rules R 9; Summary Offences Act 1953, ss 74C, 74D, 74E, 78, 79A; Correctional Services Act 1982, s 28, referred to.
Cleland v The Queen (1982) 151 CLR 1; Azar (1991) 56 ACrimR 414; R v Dolan (1992) 58 SASR 501; R v Bodsworth [1968] 2 NSWR 132, applied.
R v Johnson [2003] 232 LSJS 171, discussed.

R v LEM (No 1)
[2004] SASC 416
Ruling on voir dire
Nyland J:

Upon his arraignment, the accused pleaded not guilty to the charge that on 17 May 2003 at Parafield Gardens, he murdered Sokchenda Lam but guilty to the crime of manslaughter. The plea to manslaughter was not accepted by the prosecution in satisfaction of the information.
Rule 9 Notice:
Before the trial commenced, Mr Vadasz, counsel for the accused, sought the exclusion from evidence of a number of interviews conducted between the accused and the police, pursuant to Rule 9 of the Supreme Court Rules. The Rule 9 Notice was subject to a number of amendments in the course of the hearing but in its final form was in the following terms:
“The Applicant hereby applies to the Court seeking the making of the following orders:-
1)An order excluding as evidence to be led in the trial all interviews between police and the Applicant.
GROUNDS – FIRST AND SECOND INTERVIEW
(i)The police failed to fully and properly advise the accused of his rights pursuant to Section 79A of the Summary Offences Act prior to the first and second record of interviews notwithstanding the fact that the applicant was a suspect and was in police custody and/or under defacto arrest.
(ii)Although the applicant agreed to proceed without an interpreter, it was clear that English was not his first language and it was unfair to continue without the assistance of an interpreter.
PARTICULARS
(i)       The applicant was under de-facto arrest.
(ii)The police were required to fully and properly advise the applicant of his rights pursuant to section 79A of the Summary Offences Act.
(iii)    The police failed to advise the applicant of his rights.
(iv)No attempt was made to allow the applicant to avail himself of those rights.
(v)Although the applicant agreed to proceed without an interpreter it was clear that English was not his first language and it was unfair to continue without the assistance of an interpreter.
GROUNDS – THIRD INTERVIEW
(i)The accused was unlawfully removed from the custody of the police officer in charge of the Police Station. I refer to Section 78 of the Summary Offences Act.
(ii)There had been a lapse of 5 hours and 12 minutes between the police advising the accused of his rights under Section 79A and the record of interview.
(iii)In view of the delay mentioned above, the police were obliged to again advise the accused of his rights pursuant to Section 79A.
(iv)The applicant wished to avail himself of certain rights. He was denied this opportunity. In particular, he wished to have someone present during the record of interview.
(v)In the circumstances of placitum four the police should have taken steps to contact the Duty Solicitor System operating within the Elizabeth Police Station at the time.
(vi)The police failed to provide details to the applicant of the “certain things” told to police by the applicant’s uncles.
(vii)There was unfairness in conducting the interview at 12.40 am after the accused had been in police custody since about 5.00 pm the previous day.
(viii)Although the applicant agreed to proceed without an interpreter, it was clear that English was not his first language and it was unfair to continue without the assistance of an interpreter.
(ix)The police failed to comply with the provisions of Section 74D of the Summary Offences Act with respect to a conversation that occurred between the accused and police after the second interview and immediately prior to the commencement of the third interview while the accused was being conveyed by the police to the interview room immediately after the consent for the forensic procedure to obtain DNA was obtained.
PARTICULARS
(i)That the police failed to make a written record of the conversation or failed to audio tape that conversation and failed to read that conversation back into the subsequent video taped interview (SLR 30 and SLR 31).
1B)    An order that the third record of interview was not made voluntarily.
PARTICULARS
(i)     The applicant was told by Someth Lem to tell the truth and cooperate with police.
(ii)    The police asked Someth Lem to get his nephew to cooperate.
(iii)     The applicant undertook to his uncle, Someth Lem, to tell the truth and cooperate with the police.
(iv)   As result of his relationship with Someth Lem and also his Khmer background, the applicant felt under an obligation to provide a further statement to police.
(v)    The applicant has an intellectual disability and is within the mental retardation range.
(vi)   It was oppressive to resume the interview at 12.40 am.
1C)An order that the conversations that took place between the accused and the police after the accused was removed from the custody of Group 4 at the Elizabeth Magistrates Court cells and conveyed to various sites by vehicle on 23 May 2003 be excluded.
PARTICULARS
(i) That the police failed to comply with the provisions of Section 28 of the Correctional Services Act in that they failed to obtain the consent of the Manager of the Adelaide Remand Centre in whose custody the accused was prior to removing the accused from the cells.”
There are, therefore, four interviews which are the subject of the application for exclusion, namely:
1.     The interview which took place at 28 Browning Crescent, Parafield Gardens on 22 May 2003 (the first interview).
2.     The interview at the Salisbury police station on 22 May 2003 (the second interview).
3.     The interview at the Elizabeth police station in the early hours of 23 May 2003 (the third interview).
4.     The series of conversations which took place at various sites on 23 May 2003 (fourth interview).
Witnesses for the prosecution:
The following witnesses were called by the prosecution on the voir dire:
Detective Senior Constable David Sheridan, a member of the Major Crime Investigation Branch. Sheridan was the lead investigator with respect to this matter and was the person who conducted each of the interviews with the accused.
Detective Sergeant Phillip Linton, a member of the Major Crime Investigation Branch. Linton was present at each of the interviews which are the subject of this application.
Moeun Lem and Someth Lem, the uncles of the accused. They attended at the Elizabeth police station on the evening of 22 May 2003 and spoke to the accused prior to the third interview, and subsequently gave statements to the police.
Senior Constable Rosalie DeLurant, a victim contact officer at Major Crime Investigation Branch.
Dr Allan Cala, a forensic psychologist employed by the Forensic Science Centre. Dr Cala conducted the post-mortem examination of the deceased.
Witnesses for the defence:
The accused did not give evidence on the voir dire but the following witnesses gave evidence on his behalf:
Dr Alexandra Gartrell, an anthropologist specialising in Cambodian studies and Cambodian culture.
Derek Taylor, the general manager of the Adelaide Remand Centre.
Dr Jack White, a psychologist who examined the accused on 31 August and 12 September 2004. He gave evidence as to the intellectual capacity of the accused.
In addition to hearing the evidence of the witnesses, I admitted a large number of exhibits which included the video recordings of each of the interviews. I therefore had the opportunity to observe the conduct and demeanour of the accused in the course thereof.
Background:
On 21 May 2003, at about 4.30 pm, the body of an unidentified Asian woman was located floating in the Port River. The body was wrapped in black garbage bags.
On 22 May 2003, at about 8.30 am, Sheridan arrived at work. He was informed that a body had been located in the Port River and he was tasked to be one of the lead investigators in the matter.
At about 9.35 am, Sheridan, and police officers Kinsman and Linton went to the Port River to familiarise themselves with the location at which the body had been found.
At approximately 10 am, the police officers returned to the Port Adelaide CIB to get a full briefing and to pool information. They were advised that the body had been located wrapped in a plastic bag. The post-mortem disclosed substantial injuries to the body. It was believed that the woman had been assaulted and murdered. At that stage there was no information as to the identity of the victim.
At 2 pm, the police officers attended the mortuary and spoke to Dr Cala who had conducted the post-mortem. They did so to get a better insight into the victim’s injuries and to familiarise themselves with what had happened. Dr Cala told them that the woman appeared to have been beaten with a hammer and had substantial fractures all over her body. The police were also informed that there was a lot of vegetable matter in the plastic bag which contained the body. As a result, arrangements were made for checks to be made in storm water drains and with the Ports Authority in order to locate the dump site.
At 2.25 pm, while the police were still at the mortuary, Kinsman received a phone call from the missing persons section. He was advised that a missing persons report had just been received with respect to an Asian female. She had been missing since about Sunday, which fitted in with the forensic evidence as to the possible time of death of the body. The date of birth of the missing woman made her about 25 years of age and that also was consistent with the approximate age of the body found in the river.
The report indicated that probationary police officers Sanchez and White had attended at the missing woman’s house at 28 Browning Crescent, Parafield Gardens late on the night of 21 May 2003. They spoke to the accused who told police that he had not seen his wife since the previous Sunday, when they had had an argument about her wanting to leave. The accused said he had not been able to stop her as she was an adult. She had not contacted him since but the accused said he was not worried and he did not wish to report her missing.
Sheridan and the others suspected that the missing woman might be the person whose body had been located in the Port River. The police therefore decided to go to the house at Parafield Gardens to speak to the accused.
At about 4.15 pm Sheridan and Linton attended at the house, together with Detectives Kinsman and Halliday. DeLurant, the victim contact officer, also went to the house with them. She described the role of a victim contact officer as being to assist the families of people that have been murdered, and to help organise identification processes, counselling and funerals. She also assisted the families of an accused because quite often they also were involved.
Arrangements were also made for crime scene officers to attend the premises, as police believed that might have been the last location at which the victim had been seen.
When the police arrived at the house no-one appeared to be home. Sheridan eventually went to the back of the house and gained access to the carport where a brown Corona was parked. A check disclosed that the car was registered in the name of Sokchenda Lam, the wife of the accused. Sheridan decided to gain entry to the house to see if there was anything that might assist in the investigation. Sheridan intended to use his general search warrant to enter the house, but in order to avoid any damage he contacted a locksmith to attend.
At 5.12 pm, a locksmith attended at the premises. At that time Senior Constables Bosley and Bowes from the physical evidence section, a photographer named Greg White from the photographic section, and two fingerprint people, Senior Constable Andrews and Senior Constable Noack were also in attendance.
As the locksmith was endeavouring to gain access to the house, a blue Subaru was sighted coming down the driveway. Sheridan knew from his earlier motor vehicle checks that a blue Subaru was registered to the accused. He therefore was aware of the possibility that the accused was arriving home.
Sheridan said this was very much the early part of the investigation and he did not know where the accused was going to fit into it. He had some concerns about the accused so decided to err on the side of caution. He therefore obtained a cassette player from his car and had that ready to record his conversation with the accused as he alighted from his vehicle. At the same time, Detective Halliday obtained a video camera to record what took place.
The First Interview:
Sheridan then conducted the first interview with the accused in the driveway area outside the house. The interview was recorded on both audio and video although some problems were encountered with the audio recording. VD P4 is the video cassette of that interview and VD P3 is the transcript of it which consists of 23 pages.
At the beginning of the interview, Sheridan told the accused that police had located a female body in the Port River. He said to the accused that he was not sure that it was his wife but they would like to confirm that. Sheridan told the accused that he did not have to answer any questions but that anything that he did say was going to be recorded and might be used in evidence. He then asked the accused if he understood that and the accused said “Yeah”[1].
[1] VD P3 p 2
The accused told police that he had last seen his wife on the Saturday before. The police asked whether the accused had a photograph of her and the accused produced his wife’s driver’s licence from her purse which was in his car[2].
[2] VD P3 p 2
Sheridan believed that the photograph on the licence was that of the woman he had seen at the mortuary. He told the accused that that was his belief, and asked him whether he had any idea how her body could have come to be in the Port River. The accused said he did not have any idea.
Sheridan told the accused that his wife had been murdered and asked the accused whether he had any involvement in that. The accused was adamant that he did not know how that had occurred. He denied that he had killed her. He told Sheridan that he loved his wife very much but they sometimes had arguments[3].
[3] VD P3 p 4
Sheridan told the accused that he needed to interview him and ask further questions. For that purpose he would like to go back to the Salisbury Police station where the interview could be recorded properly in an interview room. Sheridan said to the accused “Are you happy to come back to the Salisbury police station with us?” After a pause, the accused responded “Mm, yes okay”[4].
[4] VD P3 p 4
Sheridan’s explanation for not wanting to speak with the accused in more detail at the house was that there was a risk of losing the conversation from background noise and such matters as wind and that it could be recorded more accurately at the police station. Sheridan said that at that stage he did not turn his mind to the question of whether or not the accused was prepared to go with police. Sheridan opted to go to the Salisbury police station as that was the closest station to the address. Salisbury was not, however, a charging police station. Sheridan said that if he was going to arrest someone he would take that person to Elizabeth, which was a charging station with cells in which to deposit a prisoner.
In the course of the conversation at the house, Sheridan stopped the accused from entering the house as he suspected that it might be a crime scene.
Before they left the house, Sheridan spoke to Kinsman about continuing the search of the house with Kinsman’s warrant, as Sheridan’s would no longer apply. There was then a discussion with the accused about his ability to read English. The accused said he did, but not very well. The accused was shown the warrant which he was able, haltingly, to read in part[5].
[5] VD P3 p 7
The accused told police that he was born on 3 May 1967 and that he had lived in Australia since 1982. He was asked whether he had a good command of the English language and he said “No”. When asked whether he could speak the English language well and understand it he said “Yeah, it’s okay, yeah”. Police asked whether he needed an interpreter present to help him understand them and the accused said “I think it’s okay, I can handle”[6].
[6] VD P3 p 11
Police said it was a serious matter that they were investigating, ie, a murder, and again asked the accused whether he was happy that he could understand them and the accused again said it was okay[7]. He told the police that he was Cambodian, as was his wife.
[7] VD P3 p 11
At the time of the interview, the accused had his young son, Nixon, with him. Police told the accused that DeLurant would bring Nixon back to the Salisbury police station. As it happened, DeLurant and Nixon travelled back to the Salisbury police station in the same car as the accused, Sheridan and Linton. The accused asked whether he should leave his car at the house and police told him that they would give him a ride back to the house.
At 5.41 pm, Sheridan turned off the video although the audio tape continued to record. Before leaving the house, Sheridan was informed by Kinsman that police had found a room inside the house that had been locked. They had gained access to it with a key which they had obtained from the accused. The carpet and underlay were missing from the locked room and Sheridan understood that in the master bedroom the mattress was missing although the ensemble base was still there.
The police also discovered that the lid or door of a floor safe in the master bedroom was missing. The safe was cemented into the floor. This later proved to be irrelevant to the investigation as the accused eventually explained that it had been removed when the house had been sold by the previous owners. Before leaving the house, Sheridan was also advised that spots of what appeared to be blood had been located on the ceiling and the curtains in the locked room.
Sheridan said that although the information conveyed to him at the house as to what had been located inside caused him to have concerns about the accused, he did not at that stage treat him as a suspect, as he thought that at the end of the day there might still be some rational explanation for these things.
As far as the accused’s language was concerned, Sheridan thought the accused could understand him quite well although he could not use large words.
The Second Interview:
At 6.02 pm Sheridan arrived back at the Salisbury police station with the accused. At 6.09 pm, together with Linton, Sheridan commenced the second interview which was recorded on video. The video is VD P6 and the transcript is VD P7 and consists of 57 pages.
Sheridan reminded the accused that he did not have to answer any questions but that anything he said would be recorded[8]. There was a further discussion about the accused’s ability to understand what was being said and the accused indicated that he did understand but he sometimes had difficulty understanding big words. Sheridan again told him of his right to have an interpreter present to help him and the accused said: “Yeah, okay, I don’t mind, but I still think is Khmer is my language, the same as English, so it’s 50/50, you know”[9].
[8] VD P7 p 3
[9] VD P7 p 4

Sheridan again asked him whether he needed an interpreter and the accused said “Probably not”. Eventually the accused said that he did not need an interpreter.
At about that point in the interview, there was a knock on the door[10]. DeLurant handed over a note which contained information relayed from Kinsman who was still at the house and read:
“Black bedhead in shed has plenty of blood on it
Located clear tape similar to that used in shed.
[10] VD P7 p 4
[11] VD D25
black plastic bags in shed.” [11]
Sheridan told the accused that having looked at the photograph on the driver’s licence, he believed the person located in the river was the accused’s wife. There was thereafter a discussion about the body having been floating in the river and the accused responded “very strange”[12]. Sheridan asked the accused whether he killed her and the accused responded “No, no, no, no, no”[13].
[12] VD P7 p 5
[13] VD P7 p 6
The accused went on to say, however, that he had assaulted his wife in the past and she had been to hospital[14]. Sheridan asked the accused whether his wife had ever cut herself badly in the house and the accused said that there had not been any bleeding in the house[15].
[14] VD P7 p 6
[15] VD P7 p 8
There was some further discussion about the room in the house which was locked and also the fact that the mattress part of the bed in the main bedroom was missing[16]. This part of the interview is of some significance on the prosecution case, as it is clear that at that stage Sheridan was mistaken in what he put to the accused concerning the rooms in the house and the contents thereof. The accused, however, corrected Sheridan. He told him there was no bed in the main bedroom. All that was in that room were clothes, which later proved to be the case. In fact, it was the locked room from which the mattress and carpet were missing[17].
[16] VD P7 p 9
[17] VD P7 p 10
Whilst the interview continued, a further note was passed under the door from DeLurant which indicated that the police at the house had checked the boot of the Subaru and that a blood smear had been found in the boot on the right wheel arch. This information was later put to the accused who suggested that the blood could possibly be fish blood[18]. Sheridan also referred to the discovery of the blood in the locked room and on the bedhead, as well as the plastic bags and tape similar to that in which the body had been wrapped, and put to the accused that it looked as if he had killed his wife, but the accused denied this[19].
[18] VD P7 p 39
[19] VD P7 p 40
There was a further discussion about the accused’s activities on the Sunday and Monday. Eventually Sheridan withdrew from the room and after a very brief discussion with Linton, returned. At 7.22 pm, Sheridan told the accused that he was going arrest him for the murder of his wife. The accused said “… I tell you the truth, I did not, I didn’t do it”[20].
[20] VD P7 p 54
Sheridan then gave the accused his rights, pursuant to s 79A of the Summary Offences Act 1953. After he had been given his rights, the accused asked police to contact his uncle Someth Lem. The accused subsequently spoke to his uncle on the telephone. Sheridan also spoke to Someth Lem and explained that the accused had been arrested and was being taken to the Elizabeth police station.
Sheridan said that Someth Lem wanted to know if he could come to the police station to see the accused and Sheridan responded that that would be up to the cell sergeant, but he could not see any reason why he would not be able to see him. At 7.28 pm, the interview ended. The police then took the accused to the Elizabeth police station where he was processed and formally charged with the murder of his wife
At 8.25 pm Sheridan was advised that Someth Lem had arrived at the station. Sheridan said Someth wanted to see the accused and wanted to see him as well. Sheridan went to speak to Someth Lem who was with his brother, Moeun Lem.
Sheridan said that neither uncle could understand why he had arrested their nephew and they did not believe he could have murdered his wife. Sheridan said that he therefore informed them of some of the evidence that had been collected, such as the blood in the bedroom and in the car and the missing carpet. Sheridan then arranged for them to be taken to a visitors’ room to see the accused. The accused was not present when Sheridan left them in the room.
Sheridan was adamant that prior to the uncles seeing the accused he had not in any way asked them to act on his behalf and said that what they spoke about was entirely up to them.
Sheridan said that at approximately 9.45 pm, he received a call from police station staff advising that the uncles were back at the station, that admissions had been made to them by the accused and they wanted to make statements to police.
Sheridan said that he and Linton then returned to the police station. The uncles said that the accused wanted to talk to the police and tell them what had happened.
At approximately 9.50 pm, Sheridan took a statement from Moeun Lem[21], and Linton took a statement from Someth Lem[22]. Both statements refer to admissions by the accused that he killed his wife with a hammer.
[21] VD P11
[22] VD P12
At approximately 11.43 pm, Sheridan saw the accused in the cells and went through a forensic procedures interview with him and took a buccal swab. At 11.54 pm, the buccal swab procedure was completed[23].
[23] VD P14
At 12.15 am, Sheridan had a further forensic procedure interview with the accused relating to examination of his body and taking fingernail scrapings and blood sample. At 12.18 am, the accused signed his consent to those procedures[24].
[24] VD P15
The Third Interview:
After the forensic procedures interviews, due to problems with the audio tape during those interviews, Sheridan decided to take the accused to the CIB office interview room for a further conversation. The audio problem is evident when the video tape of those interviews is played. The charge counter was informed that the accused was being moved to another interview room. Sheridan said that his reason for talking to the accused again was that Someth Lem had told police that the accused wanted to talk to them and tell them what had actually occurred. In my opinion, there was nothing untoward in Sheridan moving the accused from one room to another, and a complaint that this removal of the accused from the interview room to another room constituted an unlawful removal from custody, was abandoned by Mr Vadasz in the course of submissions.
Sheridan spoke to the accused about being re-interviewed. 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. Yes, I want to tell the truth”. None of that conversation was recorded.
At 12.40 am, Sheridan and Linton had a further conversation with the accused which was recorded. The video recording is Exhibit VD P17 and the transcript (consisting of 34 pages) is VD P18. Sheridan reminded the accused of his right to have someone present during the interview[25]. The accused mentioned his uncle but Sheridan informed him that his uncle was probably not the appropriate person at that stage as he had provided a statement to the police earlier in the evening. Sheridan asked the accused whether he wanted anyone present other than his two uncles and eventually the accused said he was happy to talk on his own[26]. The accused was also asked whether he wished to have an interpreter present and he said “Probably not”. He went on to say that he was happy to talk to the police about what had happened[27]. Thereafter the accused gave the police a detailed statement in which he admitted killing his wife by hitting her with a hammer. He told the police that he had “lost his mind” and had “lost control”. He said he hit her until she was dead. He told the police where he had dumped the body in the river. He explained that he had put her in the plastic bags and wrapped and taped her at home. He also told the police that he had placed five bricks with the body before he dumped it[28].
[25] VD P18 p 2
[26] VD P18 p 3
[27] VD P18 p 4
[28] VD P18 p 20
Towards the end of the interview, the accused disclosed that a friend had been to the house since he killed his wife. This was a man named Branko Azirovic. The accused said that Azirovic was not involved with the murder and had not helped dispose of the body. He was adamant that the murder was his fault and he did not want to give the police Azirovic’s address.
Azirovic was later charged with the offence of assisting an offender and he pleaded guilty to, and was sentenced for, that offence. Azirovic provided police with information about his assistance to the accused in disposing of such items as the mattress and carpet. The particulars provided by Azirovic apparently matched very closely the information provided by the accused in the course of this interview.
The third interview was conducted in the early hours of the morning. Sheridan said that they decided to conduct the interview at the time because the accused through his uncles said he wanted to tell his side of the story and he and Linton decided that it was best to do it straight away.
The Fourth Interview:
The following morning, the accused appeared in the Elizabeth Magistrates Court and was represented by a solicitor called van Kruyssen. The accused was remanded in custody. Sheridan said he spoke to van Kruyssen in court and told him that he wanted to take the accused to various locations to find out such matters as where he had dumped the mattress and the body. Van Kruyssen subsequently conveyed the accused’s consent to Sheridan.
At approximately 11.45 am, Peter Batley, a CIB Inspector, signed an authority (Form PD 34) to remove the accused from the Correctional Services institution. A copy of that document is part of Exhibit VD P10. The copy is not, however, countersigned with the approval of the manager of the Correctional Institution as required by s 28 Correctional Services Act 1982.
The police thereafter audio taped and, when possible, video taped further conversations with the accused after he was removed from the Elizabeth cells. The video recording is Exhibit VD P20 and the transcript of this is VD P21 and consists of 41 pages.
At 11.59 am there was a short conversation at Elizabeth police station between police and the accused before they went to look at the various sites where the mattress, clothing and other items, as well as the body were dumped. Thereafter the police went to the accused’s home to collect some clothing for him. At 12.01 pm they stopped at a truck stop on Salisbury Highway where the accused showed the police where he had buried the mattress and carpet. At this location there were several large piles of leaves which the accused, while handcuffed, tried to dig through for some minutes without success. The mattress and carpet were later found by police.
At about 1.28 pm, police attended with the accused at a wharf area at Port Adelaide. This was a pier opposite Pier 11 on the other side of the river. The accused pointed out the location at which he had dumped the body. House bricks and white rope were later found by police divers in that location.
At 1.46 pm the police and the accused attended the carpark at Portside Community Church to look at an industrial bin where the accused said he had dumped blankets, pillow case, pillow and quilt in a black plastic bag. The police did not search the bin as they ascertained that the bin had been emptied the previous day.
Voluntariness:
The onus is upon the prosecution to establish on the balance of probabilities that each of the four interviews was voluntarily made. If any of those interviews was made voluntarily and was therefore admissible, it would then be necessary to consider whether any or all of them should be excluded by me in the exercise of discretion on public policy grounds or for unfairness.
In The Queen v Cleland[29], Murphy J described the test of voluntariness as follows:
“Voluntariness. To be admissible the alleged confessional statement must be voluntary, that is, made by the choice of the accused completely free from any threats or other pressure. It may be a question of classification whether a confession induced by false representations or other trickery is voluntary. In older decisions these were regarded as negating voluntariness (see for example Reg v Johnston; Attorney-General (NSW) v Martin; see also various statutory provisions such as Crimes Act (NSW) 1900, s. 410; Evidence Act 1928 (Vic), s. 144 which treated inducement by false representations as requiring exclusion).
In Reg v Johnston Hayes J. said:
‘ ... that word [voluntary] is to be understood in a wide sense, as requiring not only that the prisoner should have free will and power to speak, or refrain from speaking, as he may think right, but also that his will should not be warped by any unfair, dishonest, or fraudulent practices, to induce a confession.
Upon this principle it is that, in the tenderness of modern times, Judges have uniformly refused to receive in evidence a confession that has been either certainly or probably procured by a promise of good or a threat of evil; by exciting a hope of reward or a fear of temporal punishment other than that which the law has prescribed for the offence charged. So also a confession will be rejected if it appears to have been extracted by the presumed pressure and obligation of an [illegal] oath, or by pestering interrogatories, or if it has been made by the party to rid himself of importunity, or if, by subtle and ensnaring questions, as those which are framed so as to conceal their drift and object, he has been taken at a disadvantage, and thus entrapped into a statement which, if left to himself, and in the full freedom of volition, he would not have made. These are cited merely as instances of the several ways in which a confession may be unfairly and improperly procured, so as to deprive it of the character of being voluntary ... ’.” (Footnote references omitted)
[29] (1982) 151 CLR 1 at 13
In Azar[30], Gleeson CJ (then President of the New South Wales Court of Appeal) summarised the principles with respect to voluntariness in the following way:
[30] 56 ACrimR 414 at 417
“1. Evidence that an accused has made a statement which contains some admission may not be received in evidence against him unless the Crown establishes that the statement was voluntary.
2. In this context the meaning of the word ‘voluntary’ is not self-evident. Having regard to the variety of circumstances that might accompany the making of an admission, or a confession, some of which might be personal to an accused, and others of which might be external to him, and which might affect in one way or another his decision to make the statement, it is not surprising that judicial expositions of the rule have usually been accompanied by an explanation of what is meant by the concept of voluntariness.
In Ibrahim [1914] AC 599 at 609 there appears the classic statement of the relevant principle:
‘It has long been established as a positive rule of English criminal law that no statement by an accused is admissible in evidence against him unless it is shown by the prosecution to have been a voluntary statement, in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercised or held out by a person in authority.’
In Cornelius (1936) 55 CLR 235 at 245, Dixon, Evatt and McTiernan JJ said:
‘At common law no confession is admissible in evidence unless it is a free and voluntary statement. If it is made as a result of violence, intimidation, or of fear, it is not voluntary. It is not voluntary if it is given in consequence of a threat made, or a promise of advantage given, in relation to the charge by a person in authority, as, for instance, an officer of police.’
In McDermott (1948) 76 CLR 501 at 511, Dixon J said:
‘At common law a confessional statement made out of court by an accused person may not be admitted in evidence against him upon his trial for the crime to which it relates unless it is shown to have been voluntarily made. This means substantially that it has been made in the exercise of his free choice. If he speaks because he is overborne, his confessional statement cannot be received in evidence and it does not matter by what means he has been overborne. If his statement is the result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure, it cannot be voluntary. But it is also a definite rule of the common law that a confessional statement cannot be voluntary if it is preceded by an inducement held out by a person in authority and the inducement has not been removed before the statement is made: per Cave J in Thompson. The expression “person in authority” includes officers of police and the like, the prosecutor, and others concerned in preferring the charge. An inducement may take the form of some fear of prejudice or hope of advantage exercised or held out by the person in authority (Ibrahim; Voisin [1918] 1 KB 531). That is the classical ground for the rejection of confessions and looms largest in a consideration of the subject.’
In Lee (1950) 82 CLR 133 at 149 the High Court said:
‘The word “voluntary” in the relevant connection does not mean “volunteered”. It means “made in the exercise of a free choice to speak or be silent”.’
It is the references in the cases to ‘free choice’ that have apparently inspired the argument for the appellant in this case.
3.The simplicity of words such as ‘in the exercise of a free choice to speak or to remain silent’ can be deceptive. There are many situations in which a person who makes an admission, if left uninfluenced by other persons or considerations, would not have done so. It does not follow that a statement made in such circumstances is involuntary. People speak under all manner of constraints, and impelled by all manner of influences, and the meaning that a psychiatrist or a philosopher would attach to the concept of free choice in this context is not necessarily the same as that which a lawyer would give it.”
After discussing a number of cases and articles which considered this question, Gleeson CJ went on to say:
“7.There is authority for the proposition that what will render a confessional statement involuntary must be some factor external to the accused, although, obviously, the operation of that factor will usually need to be judged by reference to matters personal to the accused. In Collins (1980) 31 ALR 257 at 307, Brennan J said:
‘The ultimate question is whether the will of the person making the confession has been overborne, or whether he has confessed in the exercise of his free choice. If the will has been overborne by pressure or by inducement of the relevant kind, it does not matter that the police have not consciously sought to overbear the will. ...’
A confession is not held to be involuntary merely because the confessionalist is by nature or temperament predisposed to confess and is furnished with an opportunity to do so; it is the effect of an external factor, of the kind referred to by Dixon J in McDermott’s case, upon the will which determines admissibility.’
It is unnecessary for present purposes to consider whether there might not be some circumstances in which the personal condition of an accused will alone be such as to render a statement involuntary: cf Ward (1979) 44 CCC (2d) 498. It suffices to say that, usually, the inquiry is as to some matter external to the accused.
8.It is also important to note that what is involved is an inquiry as to the accused's will, rather than as to the accused’s state of knowledge, including knowledge of his legal rights. What a person knows or does not know may be relevant, as an evidentiary fact, to the question whether the person's will has been overborne, but knowledge or belief, on the one hand, and will, on the other hand, are different concepts.
9.There is no justification for the proposition that a statement is voluntary in the relevant sense only if the maker of the statement was aware, at the time it was made, that the law offered a choice between speaking or remaining silent. Admissions are frequently made by accused persons, often to persons other than police officers, and sometimes to police officers, in circumstances where the maker of the statement is uninterested in, and unaware of, the legalities of the situation. ...”

He went on to say:
“10.On the other hand, a person's awareness, or lack of awareness, of his right to silence may be of practical or evidentiary significance if an issue arises as to whether the person’s will has been overborne, for example, by police officers in the course of questioning. Whilst the failure of police to caution a suspect before questioning is often relied on as a reason for rejecting evidence of admissions on the grounds of unfairness, it may also be of factual relevance to the question of voluntariness: Banner [1970] VR 240 at 247; Van der Meer (1986) 35 ACrimR 232 at 237. Just as the fact that a person is mentally handicapped may be of relevance to an argument that his will has been overborne, so also the fact that a person is unaware of his legal rights may, in combination with other facts and circumstances, be relevant to such an argument. However, mentally handicapped people can make voluntary admissions (Sinclair (1946) 73 CLR 316) and so can people who are unaware of their legal rights.”
Gleeson CJ concluded in Azar that the appellant’s lack of awareness of his right to silence did not of itself prevent the statements being made voluntarily and upheld the trial judge’s conclusion that the appellant’s will had not been overborne.
In Dolan[31], King CJ discussed when the obligation arose for a police officer to caution a suspect. He said at 505:
“It has always been accepted that while the investigation is at the stage at which the police officer is simply gathering information or giving possible suspects the opportunity of clearing themselves, there is no need for the caution. At that point there can be no question of involuntariness or unfairness arising out of omission of the caution. It seems to me, however, that where a police officer has reached a stage in his investigations at which he has reasonable grounds for suspecting a particular person, he ought not to interrogate that person without advising him of his right not to answer questions. This is particularly so, where the police officer is about to embark upon a systematic interview issuing in a typed record of interview or audio or audiovisual tape. Omission to administer the caution at the commencement of such an interview, must put the answers at risk of being rendered inadmissible or excluded in the exercise of the judge’s discretion.”
[31] (1992) 58 SASR 501
In this case, in order to determine whether each interview was voluntarily made or, if it was, whether it should be excluded on the grounds of unfairness or for public policy reasons, it is necessary to have regard to the evidence called by the defence which related to the cultural background of the accused, the level of his intellectual capacity and his ability to comprehend conversations and events without the assistance of an interpreter.
Dr Alexandra Gartrell:
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.
Dr Jack White:
Dr White is a psychologist who examined the accused at the request of the defence. He initially saw the accused on 31 August 2004 for a period of two hours and subsequently on 12 September 2004 for about one hour.
Dr White administered a series of tests to the accused to assess his level of cognitive functioning. He also undertook a personality evaluation. Dr White’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. Other tests were specifically designed to look at personality traits and Dr White said that his assessment of the accused’s general personality profile was (Tr 413):
“Generally, he was elevated on the neuroticism factor score and particularly he was high on measures of anxiety, anger hostility, depression and self-consciousness. He was also in the average range for extroversion. He was a person who was elevated on warmth here. Very low on assertiveness. He was in the low range for openness. He tended to be fairly conservative with his ideas. He was also low on agreeableness, so he was quite low in terms of trusting others. He was also low on compliance; so, by that, we mean he tended to be relatively stubborn and single-minded about things; and, finally, he was low on competence or the final category, conscientiousness, and one of those subscales was particularly competency. He was also very low on achievement orientation. He was quite high on that measure in terms of dutifulness and he perceived himself to be quite self-disciplined.”
Dr White 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. Mr Vadasz placed considerable weight upon Dr White’s opinion in support of his application to exclude each of the interviews as being involuntary and particularly the third interview in which the accused made a full confession to the police after speaking to his uncles at the Elizabeth police station.
The assessment of the accused’s intelligence as being in the mental retardation range was based on tests which apparently had been developed in America and adapted for Australian conditions. I thought therefore that it was hardly surprising that the accused performed poorly on them. By way of example, the Weschler Adult Intelligence Scale test included such questions as “Who was Ned Kelly?” “Who was Donald Bradman?” “Who was Charles Kingsford Smith?” “Who was Martin Luther King?” “Whose name is usually associated with the theory of relativity?” and “Who was Prime Minister of England during the Second World War?” The accused was unable to answer those questions although he was able to answer such questions as where the sun rose, how many weeks there were in a year, the capital of Italy, the date on which Australia Day fell, the main theme of the book of Genesis and was able to name at least two Prime Ministers of Australia. I appreciate that some care must be taken in considering aspects of one specific and standardised test, but I nevertheless thought that a test such as this was of limited use in assessing the accused’s level of intellectual functioning, and in my view, undermines Dr White’s assessment of the accused as being on the borderline range of intellectual retardation.
Perhaps more extraordinarily, given the attack upon the police for conducting each of their interviews without the assistance of an interpreter, Dr White did not use an interpreter to administer the various tests to the accused. In order to test his level of comprehension, the accused was asked a number of questions which included “What is the thing to do if you find an envelope in the street that is sealed and addressed and has a new stamp?” The accused was given a zero score for his response which was “Put it in the red box”, as the correct response was “To put it in the post box”. The accused was asked “Why do some people prefer to borrow money from a bank rather than from a friend?”. The accused scored zero for his response “If the borrow for buying a house – bank has a lot of money”. The correct response was “The recognition of a specific way in which a friendship can be strained when money is borrowed or of a specific advantage for borrowing from a bank. A friend may need the money for an emergency and you may not have it. Borrowing from a bank assures you of privacy. The bank is impersonal and objective. A friend might tell other mutual friends. Borrowing from a bank lets you keep your personal independence. Borrowing from a bank establishes credit so that you won’t be embarrassed. You can borrow more money from the bank”. Dr White said that the accused did not seem to comprehend or express in a clear way the relevance of these two concepts, but I do not find that surprising. If an interpreter had assisted with these matters the results might well have been different.
On a test which was headed “Similarities”, the accused scored zero as he repeatedly described the items listed as different. This suggests that the accused did not understand the nature of the test. For example, for the item “orange and banana”, the correct answer was fruit, whereas the accused said “they taste different”. The accused did not score for “work and play”, for which the correct answer was “Basic human activities. Things that all people do, activities valued by society, give value to living, both requiring effort for success”.
As with the earlier tests, I was not surprised that the accused scored poorly. I would have thought that some of the questions put to the accused in the course of testing him would have created difficulties for anyone of a non-English speaking background. In reliance on these tests, Dr White described the accused as a concrete thinker. He said that the accused would have difficulty in processing complex information but probably would not have difficulty with simple information. Mr Pearce cross-examined Dr White as to the suggestion made by him in evidence that the nature of the questioning of the accused by the police was complicated and that the responses might therefore be the result of intimidation. Mr Pearce put to Dr White that there was no evidence in the interviews to support that assertion. Dr White responded somewhat defensively that “there is no evidence to say that the person was not intimidated”. The evidence then continued (Tr 445):
“Q.   Listen to my question. I suggest there is no evidence in either of these first two interviews that supports any proposition that the accused was intimidated by the police questioning.
A.     All right. Let’s –
Q.     And, if so, can you point it out to us.
A.     The first question I would need to ask is: what evidence would we need in order to show that a person is being intimidated? My reaction – my response to that would be you have to ask the person at the time of the interview ‘Did you feel at any stage that you were intimidated?’ That type of question is not asked. We cannot infer, on the basis of the questions that were asked, whether or not the person was intimidated.
Q.     I didn’t ask you to infer that he was intimidated. I asked you to look and point out to us, for example, where there might be evidence that is capable of supporting that proposition.
A.     I’ve provided you with that. I’ve said, if you look at the data, if you look at the research, the research tells us that the nature of this type of questioning, where a person is asked to give responses to what can be quite complex questions and answers in a ‘Yes’ pattern, often that may be reflective of intimidation. You can’t prove that until you actually ask the question of whether or not the person at that time felt that they were intimidated by those questions.
Q.     So we are best off asking the accused about that.
A.     I would think so.”
Mr Pearce submitted that Dr White lacked credit and should be completely rejected as a witness. This was particularly so, based on evidence given by Dr White for the defence in R v Johnson[32] another matter in which an accused had been charged with murder and had been similarly described by Dr White and placed in the mental retardation range. In that case, Dr White had suggested that the accused may have been confused and may not have understood some of the questions that had been put to him by the police officers. He had also described that accused as a submissive character who would not have understood the complexity of the occasion.
[32] [2003] 232 LSJS 171
I was ultimately left with the impression that there was a strong defence bias arising out of the evidence of Dr White, 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. I therefore place little reliance upon it.
Moeun Lem and Someth Lem:
Moeun and Someth Lem are brothers and are the uncles of the accused. They were honest witnesses who did the best they could to give a factual account of the background and upbringing of the accused and their subsequent dealings with him and the police at the Elizabeth police station. In my opinion, they provide the best evidence about the accused’s cultural background, intellectual capacity and level of comprehension.
Each of them gave evidence in English without an interpreter but there was on occasion some difficulty in communication. I also thought that Someth’s evidence was at times coloured by his concern for the accused and the predicament in which the accused now finds himself. He also endeavoured from time to time to provide some justification for the actions of the accused. I accept, however, the evidence of these two witnesses as to the accused’s past history which I summarise as follows:
·The accused was born in a Cambodian community in South Vietnam in 1967 and moved to Cambodia with his parents as a young boy.
·Following the death of his mother and siblings during the occupation of Cambodia by the Khmer Rouge, the accused lived with relatives.
·Between 1975 and 1979 the accused lived in Vietnam, spending some time with his father’s family, and the rest with the family of Moeun and Someth (his uncles on his mother’s side).
·The accused lived a simple life, mainly in a rural community with limited amenities, until finally moving to a refugee camp in Thailand prior to coming to Australia.
·In 1982 at the age of about 15 the accused came to Australia to join Moeun in Canberra.
·The accused remained with Moeun’s family in Canberra until 1988 when he moved to Adelaide, where he stayed with Someth for a few months, following which he moved into a housing trust unit.
·The accused was a slow learner and developed more slowly than other children. He had trouble at school and difficulty learning.
·Moeun described the accused as a naughty child, and very clumsy. He described him breaking a bed, a television, and a soap holder in the bath as a teenager. He was, however, very tidy and kept his home very neat.
·Moem and Someth both said that the accused was not very good at looking after himself, and the only thing he could cook was “sticky rice”. Prior to his marriage he lived largely on takeaway food.
·When the accused came to live in Adelaide he was unable to get employment. Someth said that when the CES sent him for a two day trial of work in a factory he was sent home as he could not do the work. Someth described him as “half a seed, not complete”.
·Someth arranged with Bun Thar Lam, the father of the deceased, for the accused to marry her. They married sometime in 1996 in Cambodia and in about 1997 the deceased came to Australia. Their son, Nixon, was born in 2000.
·The accused owned a house at 6 Kerry St, Salisbury Downs and another house in Salisbury North, as well as the one at Browning Crescent, Parafield Gardens, that being the address at which they were residing at the time the accused killed his wife.
·At the time that the accused killed his wife he was employed at a factory which made balls, and his wife was working at a chicken factory.
The applications to exclude the First and Second Interviews:
Against that background I now turn to the application to exclude each of these interviews. The accused seeks to exclude the first and second interviews on similar grounds and they can therefore be dealt with together. Mr Vadasz sought the exclusion of these interviews, first on the grounds of a failure to properly advise the accused of his rights, pursuant to s 79A of the Summary Offences Act 1953, and secondly, due to the lack of provision of an interpreter.
Section 79A of the Summary Offences Act 1953:
This 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.”
The police did not give the accused his s 79A rights until the end of the second interview, although the accused was cautioned at the commencement of each interview that anything he said would be recorded and might be used in evidence.
The accused did not give evidence on the voir dire so I only have the evidence of the police officers about these matters. I have no hesitation in accepting Sheridan and Linton as witnesses of truth. Sheridan’s evidence was that when he spoke to the accused at the house, the accused was not a suspect and it is obvious that at the time the police went to the house, the investigation was in its infancy. The body had only recently been located and initially was not identified. It was not until the accused produced the photograph of his wife that Sheridan was able to link the dead woman to the accused’s missing wife. Sheridan, nevertheless, took a very cautious approach by ensuring that from the outset he recorded all of his conversations with the accused. In addition, he cautioned the accused at the very beginning of the first interview that he was not obliged to answer any questions although in my view it was unnecessary at that time for him so to do.

Sheridan’s suspicion of the accused obviously increased as matters were revealed in the course of the examination of the house, but I accept his evidence that he had not reached the stage at which he believed he could arrest the accused, which would have required him to give the accused his rights pursuant to s 79A.
Linton also described the accused’s status at the house as unknown. He said that he had not turned his mind as to whether there was enough information to warrant an arrest. He said that they wanted to speak with the accused at the Salisbury police station because they “just didn’t know what had happened”. He said “Because we didn’t know where the inquiry was going we felt obliged that we would have to video tape it” and indicated for reasons of comfort and practicality it was considered more convenient to go to Salisbury. Linton said that if the accused had tried to leave at that stage the police would not have stopped him as the suspicions they had fell far short of that which would be sufficient to arrest and charge him.
If the accused was effectively under arrest at the house, I do not think that Sheridan and Linton would have decided to take him to the Salisbury police station, which was not a charging station, as opposed to Elizabeth which was. I accept their evidence that they were still investigating the matter at that stage.
In my opinion, there was no obligation upon the police to give the accused his rights pursuant to s 79A while they were at the house. I also do not think that the accused was under de facto arrest when he arrived with the police at the Salisbury police station. The police at that stage were still gathering information. Sheridan, nevertheless, again adopted a cautious approach and reminded the accused that he did not have to answer any of his questions. He also recorded all of the conversation that took place.
Linton’s evidence was that as the interview progressed, more information came in. He said that towards the end of the interview he was becoming concerned about some inconsistencies in the accused’s story and thought that the accused was becoming closer to being someone involved in the homicide. Linton thought that the turning point might have been when they were advised that there was blood on the bedhead but the accused told them that neither he nor his wife had ever bled in the bedroom.
I accept the evidence of both Sheridan and Linton that it was only towards the end of the interview that they were satisfied that there was sufficient evidence to arrest the accused and formally charge him. In my opinion, there was no breach of s 79A with respect to the first and second interviews.
Failure to provide interpreter:
Both interviews were conducted with the accused without the assistance of an interpreter, although it was obvious that English was not the first language of the accused. The accused did not give evidence that he was unable to comprehend questions put to him by the police. I have observed the video recording of each of these interviews. The police were clearly alert to the accused’s language difficulties, and in my opinion did the best they could to keep their language simple. The repetition of a number of questions and statements which appear in the transcript of the respective interviews reflects the attempt by the police to ensure that the accused did understand the various matters that were being put to him from time to time.
I agree with the prosecution submission that the questioning of the accused about the contents of the master bedroom is of some significance. Sheridan’s confusion about the contents of the locked room/master bedroom and the clarification of those matters by the accused indicates that the accused clearly understood what was being put to him on that topic and he was able to correct Sheridan’s misconception. The accused was asked on several occasions whether he required an interpreter but was happy to continue without one.
Linton said that he turned his mind to the accused’s needs soon after meeting the accused. He said “My belief after listening to him for some time was that he had a good understanding of English. When I say ‘a good understanding’, it wasn’t as good as mine, but he certainly understood the questions we were asking him and gave answers I thought were appropriate to the questions we asked him”. The accused has resided in Australia for over 20 years and, in any event, indicated in the course of the second interview that he was about 50/50 in English and Khmer.
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. The accused was not under de facto arrest so as to require his s 79A rights to be given to him and there are no grounds upon which the discretion to exclude should be exercised in his favour.
The evidence of the first and second interviews are therefore admissible.
The application to exclude the Third Interview:
A number of grounds are relied upon with respect to the exclusion of the third interview. I have already dealt with issues relating to the lack of an interpreter and I need not repeat those matters.
Mr Vadasz 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 Mr Vadasz’ 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 his 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.
Breach of s 74D of Summary Offences Act 1953:
Mr Vadasz further submitted that there had been a breach of s 74D of the Summary Offences Act 1953 at the commencement of the third interview. That section requires an investigating officer who suspects a person of having committed an indictable offence and proposes to interview the suspect, to record the interview on video tape or audio tape, if reasonably practicable.
Section 74E provides that the evidence of an interview between an investigating officer and defendant is inadmissible unless the officer has complied with the provisions of s 74D or the court is satisfied that the interests of justice require the admission of the evidence despite the investigating officers’ non-compliance.
“Interview” is defined in s 74C to include “(a) a conversation; or (b) part of a conversation; or (c) a series of conversations”. Mr Vadasz complained that the police had failed to comply with the provisions of s 74D with respect to the conversation which occurred between the accused and Sheridan after the second interview and immediately prior to the commencement of the third interview while the accused was being conveyed by the police to the interview room. This was immediately after the forensic procedure interviews had taken place. Mr Vadasz complained that the police had failed to make a written record of that conversation or to audio tape it, and had failed to read the conversation back in a subsequent video tape interview.
As the accused did not give any evidence with respect to that conversation, the only evidence is that of Sheridan. Sheridan said he did not believe that this was a conversation to which the provisions of s 74D applied.
Mr Vadasz submitted, however, that this interchange was part of the series of conversations which included the third interview in which the accused made a full statement about the killing of his wife. He submitted that this conversation should therefore have been recorded and the breach of s 74D required not only that conversation, but all of the conversations which followed thereafter, to be excluded.
Mr Vadasz considered this conversation to be of considerable significance as it in part provided the explanation for the accused’s sudden change of position from that of complete denial during the first and second interviews to a full confession in the third. I reject that submission, however, as the explanation for the accused’s change of heart clearly emerges from the evidence of Moeun and Someth Lem as to their discussion with him.
Although a broad interpretation is to be given to the term “interview”[33], I do not believe that this particular interchange between Sheridan and the accused was an interview for the purposes of s 74D. There was a legitimate reason for Sheridan moving the accused to another part of the police station and I accept his evidence that when he spoke to the accused at that time he was doing no more than extending him the courtesy of explaining why they were moving to another interview room. Sheridan’s belief that this was the case is supported by the meticulous care he took from the very beginning of this investigation to ensure that conversations with the accused, including those in motor vehicles between various locations, were recorded on audio and where possible video tape. In any event, if there was a breach, I would have considered that pursuant to s 74D the interests of justice required the third interview to be admitted, notwithstanding the failure to record that part of it. The third interview contained detailed particulars from the accused about the killing of his wife and there was independent evidence which supported the reliability of what was said by the accused, such as the forensic examination of the body, the location of the items removed from the house, and the bricks and tape located in the river.
[33] R v Karger (2002) 83 SASR 135
Voluntariness:
The principal ground upon which the accused seeks to exclude the third interview is, however, the question of voluntariness. There is no dispute that up until the time that the accused’s uncles spoke to him at the Elizabeth police station, the accused denied any involvement in his wife’s death. It is therefore necessary to consider the circumstances in which the accused then confessed to the police to determine whether his will was overborne such as to render the statements made to the police involuntary and therefore inadmissible. In order to determine that matter it is necessary to consider the evidence of Moeun Lem and Someth Lem as to what happened at the Elizabeth police station on 22 May 2003 leading up to the accused making his confession to the police.
Evidence of Moeun Lem as to 22 May 2003:
Following the television report of the discovery of the body in the Port River, Moeun called his brother Someth and asked him to call the police. Moeun then went to Someth’s house, where they received a phone call from the police station saying that the accused had been spoken to and needed help. Moeun said he and Someth then drove to the Elizabeth Police station.
Moeun said that at the police station he and Someth were told that the accused had been arrested because his wife had been murdered. Moeun was very clear that the police did not tell them that the accused had murdered his wife. They were told about the blood in the house and in the boot of the car.
Moeun initially thought that the police had got the wrong person, but when he heard about blood in the house, he thought it was the accused. This accords with Sheridan’s evidence that the uncles were initially in disbelief when he first spoke to them and that was why he told them about such matters as the blood in house and the car.
Moeun was clear that the police officers did not say anything else to him before he saw the accused. In particular, Sheridan did not tell him that the accused had denied killing his wife, nor did the police instruct him to say anything to the accused, or tell him what to do.
Moeun said that when he and his brother saw the accused he told them that he had had a fight with his wife and that after that, on Sunday morning, she had disappeared. Moeun asked the accused if he had killed his wife, but the accused denied it and said he loved his wife. Moeun then asked the reason for the blood in the house and the car, and initially the accused said the blood in the car was fish blood.
Moeun said that at about that point Someth started to talk about belief in God, and the importance of telling the truth when you have done something wrong. The accused then said to Moeun “Do I have to tell the truth, uncle?” and Moeun said “Yes, you have to tell the truth”. The accused then 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 said neither he nor Someth had yelled at the accused, said bad or insulting things to him, or threatened or pressured him in any way. After the accused confessed, they told him not to worry, that they would look after his son and that everybody would be okay.
Moeun said that after they finished talking to the accused, a police officer took them back to the entrance area where Sheridan was. Moeun said that he was not expecting to see Sheridan there, but “we just saw him and we told him we would like to report that”. This contrasts with Sheridan’s evidence which was to the effect that he received a phone call to come down to see them, but in my view nothing turns on that.
Evidence of Someth Lem as to 22 May 2003:
Someth said he spoke to both the accused and Sheridan when he received the call from the Salisbury police station, but could not remember who he spoke to first.
In that call the accused told him that he had been arrested and was accused of killing his wife. Someth asked the accused whether he had done that and the accused said “I don’t know. She just disappear”.
Someth said that before they saw the accused at the police station, they spoke to Sheridan but Sheridan did not ask him to do anything, just to wait and see. He did recall, however, a phone call from Sheridan the following day in which Sheridan said the accused had co-operated and told them everything. Someth said that when he and Moeun spoke to the accused, at first he said he did not know where his wife had disappeared to. Someth started to talk to him, and told him to tell the truth and talked about his belief in God and the importance of telling the truth. Someth said that after this the accused agreed to tell the truth, and asked who would come to visit him and look after his son. Someth and Moeun told the accused that they would look after his son and his properties and come to visit him. The accused then told them about the argument leading up to him killing his wife, and what happened.
Mr Pearce, for the Director of Public Prosecutions, asked Someth about whether he had pressured the accused in any way to tell the truth, and Someth said that he “Just instruct him and tell him tell him that if he telling the truth, his punishment or penalty will be not as bad”. Someth said that this was his experience of the law and his view of the best way to go, and not something which had been conveyed to him by the police.
Someth was asked if anyone had asked him to get the accused to tell the truth but he said that he could not remember if anyone told him to do this or not, but that it was just in his conscience to do that. He agreed that it was his idea to speak to the accused about telling the truth, that it was part of the culture of his country, and that it was better to confess than to hide or to lie.
Persons of Authority:
Mr Vadasz submitted that the statements by the accused in the third interview were not voluntary, as the accused was told by his uncle Someth to tell the truth and co-operate with the police, and that as a result of the accused’s relationsip with Someth and his Khmer background, the accused felt under an obligation to provide a further statement to the police. The statement was therefore induced by a person in authority and should be excluded as being involuntary.
Mr Vadasz suggested that the offer by the uncles to look after the accused’s son and his properties amounted to a “bargain” struck by the uncles with the accused. Mr Pearce submitted, however, that the conversation between the uncles and the accused amounted only to general and appropriate discussion between family members about what arrangements would be put in place after the accused told the truth and the inevitable consequences took place. On the prosecution case, no improper pressure or duress was placed on the accused by his uncles who, in any event, did not constitute persons of authority in a legal sense. Mr Pearce acknowledged that case law regarding persons of authority had expanded in recent times to encompass persons other than law enforcement officers, but tended to be limited to persons with the power to initiate or discontinue legal proceedings. In the majority of cases, the civilians who have been regarded as being persons in authority were either complainants or parents of complainants in sexual cases, and the prosecution submitted that ultimately the High Court authorities have made clear that only a person with a role to play in the legal proceedings as such can constitute a person in authority for the purposes of involuntariness.
On the defence case, however, the relationship between the accused and his two uncles is unique, due to their cultural background, and also to the accused’s limited level of cognitive functioning. Consequently the uncles should be regarded as persons of authority capable of inducing the accused to make admissions involuntarily. Mr Vadasz submitted that the uncles had greater authority over the accused’s behaviour than would normally be the case due to their authority in the Cambodian hierarchical system and because he required their direction and guidance. He said that Someth, in particular, stood in the position of father.
On the defence case, a pact or compact was struck between the accused and his uncles. Such agreements form part of the Cambodian cultural ethic, and on the defence case this constituted a strong case of pressure or response to authority which resulted in the accused making admissions to the police which he would not otherwise have made.
Mr Vadasz submitted that the uncles’ promise to look after the accused’s child and his home was a classic case of inducement, and the change in the accused’s stance before and after speaking to his uncles was diametric. It was not possible, therefore, to be satisfied, on the balance of probabilities, that the statements made by the accused were voluntary.
There is clearly a close relationship between the accused and his uncles. Someth, in particular, could be regarded in many ways as standing in loco parentis to the accused, and the accused was likely to respond to directions from him. I am, however, satisfied that when Moeun and Someth told the accused to tell the truth, they acted completely on their own initiative. They did not do so as a result of anything said or done by the police. 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.

This is an issue which was considered in R v Bodsworth[34]. The New South Wales Court of Appeal discussed the difficulty in dealing with the common law application of the rule excluding admissions obtained by inducement and said (at 139):
“In an attempt to apply the rule for practical purposes of a criminal trial, we are disposed to emphasize two tests. The first is to avoid putting ingenious constructions on colourless words so as to detect a hint of improper inducement, as was at one time the case, but rather to construe the words only according to their natural, obvious and common-sense meaning. The second is to apply the rule so as not to exclude confessions unless the inducement is of a temporal character. Merely to urge a person on moral or religious grounds to ‘speak out’ or ‘tell the truth’ is not likely to cause him to tell untruths, and it is difficult to see on what principle to be applied in today’s detection of crime a statement which follows such exhortation should be excluded. In this connexion we add the following to the examples already given: ‘If you have committed a fault, you may not add to it by stating what is untrue’ (R v Jarvis (1867) LR 1 CCR 96), or where the mother of two boys said to them, ‘You had better, as good boys, tell the truth’ (R v Reeve and Hancock (1872), LR 1 CCR 362). The confessions which ensued were in each case admitted.
In the cases of Thompson [1891-4] All ER 376, Cleary (1963) 48 Cr App R, Smith [1959] 2 All ER 193; [1959] 2 QB 35, and Richards [1967] 1 All ER 829, the real vice of the inducement was to indicate that a temporal advantage would ensue if the accused made some statement. But we are not persuaded to extend the rule which forbids admissibility to what, properly construed, is in effect an exhortation to tell the truth.”
[34] [1968] 2 NSWR 132
In my opinion, the statements made by the accused in the third interview were voluntary and are therefore admissible.
Unfairness:
Mr Vadasz submitted, however, that even if the statements made in the third interview were voluntary they should have been excluded on the grounds of unfairness.
The third interview took place at 12.40 am. Mr Vadasz complained that it was unfair to conduct it at that time and said there was no reason why the interview could not have taken place the following day when the accused was not affected by fatigue. Sheridan’s explanation for conducting the interview at that hour was that after he and Linton had spoken to the uncles, they believed that the accused wanted to get the matter off his chest. That is why they continued on and conducted the interview notwithstanding the lateness of the hour. Linton’s evidence was that there was nothing about the accused’s demeanour or appearance that gave him any concern about whether or not he was alert enough to be interviewed at that time. He said he felt the accused was “quite fit to answer the questions and to be interviewed”.
It was obviously a very late hour to interview the accused. This was, however, an investigation which had escalated quite rapidly over the course of the day. Once the police had obtained the statements from the accused’s uncles as to the accused killing his wife, I can understand their wish to follow the matter up with expedition.
Having viewed the video recording of that 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 12.40 am. I am not prepared to exercise my discretion on the basis of that matter to exclude the third interview.
In considering whether there are any grounds upon which the third interview should be excluded I have also borne in mind that the accused made admissions to his uncles immediately prior to making his statement to the police. The evidence of Moeun and Someth Lem as to those admissions is relevant and admissible against the accused at his trial.
Section 28 of the Correctional Services Act 1982:
Mr Vadasz further submitted there had been a breach of s 28 of the Correctional Services Act 1982. He relied upon that as a ground for exclusion of the fourth interview as well as a further ground upon which the third interview should be excluded as a matter of discretion, as he suggested this was indicative of the cavalier attitude of the police towards the rights of the accused throughout their investigation.
Section 28(4) of the Correctional Services Act provides that where a prisoner is suspected of having committed an offence or has been charged with an offence, the manager of the correctional institution must, at the request of a member of the police force, release the prisoner into the custody of that member of the police force for the purpose of investigation of the offence, obtaining evidence as to the commission of the offence, or identifying the prisoner as the person who committed the offence in accordance with law.
In this case, Sheridan was clearly alert to the provisions of s 28 as he arranged for Batley to sign the form to remove the accused from custody. The evidence of Sheridan as to what he did with the form thereafter was, however, confusing. Mr Taylor was at the relevant time the general manager of the Remand Centre and was the person whose signature should have been obtained on the form. He gave evidence, however, that there was no record in his files of the form having been received, although a number of other s 28 authorities had been received in the relevant week. On that basis he considered the form had not been received nor signed by him.
Having considered the evidence about this matter, I think it is probable that Sheridan handed the form to a Group 4 officer at the Elizabeth court on the understanding that it would be faxed through to the Remand Centre. Sheridan did so believing that that was the appropriate course to take. I am unable, however, to reach any final conclusion about what happened thereafter. For present purposes, however, I proceed on the basis that the appropriate counter signature was not obtained as required by s 28. On that basis, can it be said that Sheridan behaved improperly in taking the accused out of custody for the purpose of the fourth interview? I am satisfied that Sheridan honestly believed that he had attended to all that was required by s 28. The staff at the charge counter who handed the accused over to Sheridan recorded that removal in the charge counter record book as being pursuant to s 28 which suggests, at least as a possibility, that the necessary documentation was provided to them.
Mr Pearce pointed out that, in any event, the provisions of s 28 are mandatory. They do not allow the manager of the Remand Centre any discretion to refuse to release a prisoner into custody once the appropriate form is signed. Nevertheless, s 28 is an important provision clearly designed to safeguard a prisoner from improper police practices. Any breach, even if unintentional, is not to be taken lightly and I think more care should have been taken by Sheridan to ensure that the document was properly completed and recorded. I bear in mind, however, that not only was the removal recorded at the charge counter, but that Sheridan ensured that all of the conversations which took place between him and the accused after his removal from custody were recorded on audio and in some cases, video. There is, therefore, an accurate record of what occurred. The accused was more than co-operative during the course of the subsequent inquiry and there is no suggestion from him that the police indulged in any untoward behaviour in the course thereof.
I am satisfied that Sheridan genuinely believed that he had correctly attended to all the paperwork necessary to remove the accused out of custody, otherwise there was no point in him obtaining Batley’s signature. In my view, any breach of s 28 in this case can be regarded as technical in nature and was not such as would require the evidence of the fourth interview to be excluded.
I find that the fourth interview was voluntary and is therefore admissible. In my opinion, there are no matters arising out of the third or fourth interviews which would enliven the discretion to exclude on the grounds of any improper behaviour on the part of the police or any unfairness to the accused.
For the above reasons, on 21 September 2004, I ruled that the evidence of each of the interviews could be led in evidence at the trial of the accused.