R v Lem (No 2) - [2004] SASC 417

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v LEM (No 2)
Criminal Trial by Judge Alone
Judgment of The Honourable Justice Nyland
16 December 2004
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - PROVOCATION
Trial by judge alone - accused charged with murder - admitted killing victim with hammer - self-defence - provocation - gravity of insult - cultural background and intellectual capacity of accused - subjective test - objective test - finding no loss of self-control - guilty of murder.
Criminal Law Consolidation Act 1935, ss 11, 15; Juries Act 1927, s 7(1), referred to.
R v Singh (2003) 86 SASR 473; Masciantonio v The Queen [1995] 183; Peisley v R (1990) 54 ACrimR 42, applied.
Chhay v R (1994) 72 ACrimR 1, discussed.

R v LEM (No 2)
[2004] SASC 417
Trial by Judge Alone
Nyland J:
The Charge:

The accused is charged on information with the crime of murder, pursuant to s 11 of the Criminal Law Consolidation Act 1935 (CLCA). The particulars of the charge against him are that on 17 May 2003, at Parafield Gardens, the accused murdered his wife, Sokchenda Lam. Upon his arraignment, the accused 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 thereafter proceeded before me as a judge sitting alone pursuant to an election filed by the accused in accordance with s 7(1) of the Juries Act 1927 (SA).
Onus of proof:
In considering the issues which arise for determination, I have at all times borne in mind that the accused does not have to prove his innocence. The accused is to be presumed not guilty of the charge against him unless and until I am satisfied of his guilt beyond reasonable doubt. It is for the prosecution to prove that the accused is guilty of the charge against him and nothing short of proof beyond reasonable doubt will do. It is not enough for the prosecution to show a mere suspicion of guilt, nor to show that the accused is probably guilty. The requirement of proof beyond reasonable doubt also applies to each and every element of the offence charged against the accused.
If, in the course of these reasons, I indicate that I find something proved or I am satisfied about something, that means that I have so concluded beyond reasonable doubt.
The prosecution case is that on or about 17 May 2003, the accused murdered his wife, Sokchenda Lam, at their home at Parafield Gardens by inflicting multiple blows on her body with a hammer. Thereafter the accused disposed of the body by wrapping it in garbage bags and depositing it in the Port River where it was discovered several days later.
Witnesses for the Prosecution:
The following witnesses gave evidence for the prosecution:
Someth Lem and Moeun Lem, the uncles of the accused.
So Soth Lam, Thon Phan, Saroeuth Lim, Ngo Kongheng, Channara Uy, Somalay Sim, Borem Pov, and Vichet Pann who are all members of the Cambodian community and were variously friends or acquaintances of the accused and/or the deceased.
Narom Lam, the brother of the deceased.
Seng Chaing Kong, the President of the Cambodian Association.
Dan The Pham, Huy That Ton, Hung Pham Van, Nghiem Quoc Tran, Thavy Ty and Antony Metti, workmates of the accused.
Ramanathan Narendranathan, a legally qualified medical practitioner. He treated the deceased for an injury to her head at the Lyell McEwin Hospital on 23 March 2002.
Dr David Middleton, a legally qualified medical practitioner. He carried out a forensic procedure on the accused after his arrest on 23 May 2003.
David Sheridan, a police officer and the lead investigator in the case.
Leigh James Thompson and Scott Buckmaster, police officers who attended at the home of the accused on 21 April 2002 with respect to a domestic disturbance.
Susan Chatterton, a police officer. She attended at the home of the accused on 17 May 2002 to follow up the domestic disturbance reported by Thompson and Buckmaster.
Sandrine Sanchez, a police officer. She attended at the home of the accused on 21 May 2003 as a result of a complaint that the deceased was a missing person.
Andrew Graeme Bosley and Cheryl Marie Brown, crime scene examiners. They attended the home of the accused on 23 May 2003.
Dr Alan Cala, the pathologist who carried out the post-mortem of the deceased.
The accused elects to give evidence:
The accused elected to give evidence. I bear in mind that he was not obliged to do so. He could have remained silent in answer to the charge against him, leaving it to the prosecution to prove the charge against him beyond reasonable doubt. He did not, however, do that. The accused elected to give evidence and thereby submitted himself to cross-examination. In assessing his credibility and the weight to be given to his evidence, I regard him on the same footing as any other witness in the case. I will discuss my findings as to the credibility of the accused later in these reasons.
Witnesses for the defence:
The only other witness called by the defence was Mr Richard Balfour, a psychologist. He examined the accused at the Adelaide Remand Centre on 25 September 2004 and gave evidence as to the accused’s level of intellectual functioning.
Admissibility of statements made by Sokchenda to third parties:
In the course of the trial a number of objections were made by the defence with respect to statements made by Sokchenda Lam to third parties on the ground that they infringed the hearsay rule. In order to expedite the evidence at trial I indicated that I would admit the evidence of the impugned statements de bene esse and rule on them in the course of giving my reasons for judgment.
The first group of statements arise in the evidence of So Soth Lam.
(a)In his evidence-in-chief[1], So Soth Lam referred to a phone call in which Sokchenda said she wanted a divorce because the accused had hit her. As a result of that phone call, So Soth went to see Sokchenda at the house. This was the occasion which I have referred to as the “knife sharpening steel incident” which is set out in some detail hereafter.
(b)When giving evidence about this incident[2], So Soth said Sokchenda told him that while she was on the phone the accused came from the back and hit her with the knife sharpener. When the accused gave evidence he disputed hitting his wife from the back but admitted striking her with the steel used for sharpening knives.
(c)So Soth said that on another occasion after the knife sharpening steel incident he received a phone call from Sokchenda who asked for his help[3]. She complained that the accused had chased her with a knife. So Soth said he asked whether she had rung the police and Sokchenda said that she had already done so.
[1] Tr 719-721
[2] Tr 724-725
[3] Tr 728-729
The evidence suggests that the statement in sub-paragraph (b) was made within the hearing of the accused. In that case it would not infringe the hearsay rule. Even if it was not, in my opinion, that statement and each of the other statements made by Sokchenda to So Soth is relevant and admissible, not as to the truth of what was said by Sokchenda, but as evidence of her state of mind. It is also probative of an unhappy and difficult relationship between the accused and his wife. That relationship was the subject of evidence adduced by the defence from other witnesses who conversely gave evidence of statements made by the accused in the absence of his wife as to her conduct towards him. The relationship between the accused and his wife is of some importance in this case as the defence has painted a picture of his wife as an aggressive person who was the instigator of violence towards him. The evidence as to what Sokchenda said to So Soth on each of these occasions is, in my opinion, relevant and admissible to address the balance or imbalance between the accused and the deceased as to the instigation and/or commission of violence in the marriage.
The next group of statements arise in the evidence of Thon Phan. Thon Phan referred to an occasion about two to three weeks before Sokchenda died when Sokchenda attended her house. Thon Phan said she observed bruises on Sokchenda’s cheek[4] and she asked Sokchenda what was wrong. Sokchenda replied that she had a bit of a fight with her husband and that he had hit her, but did not otherwise give her any details. In my opinion, this statement is also admissible, not as to the truth of what was said, but as evidence of the accused’s state of mind and as a piece of circumstantial evidence as to the relationship between Sokchenda and her husband.
[4] Tr 770-771
Thon Phan was also in the house on the night of the knife sharpening steel incident and she said she asked Sokchenda what had happened[5]. Objection was taken to that question but Thon Phan said that Sokchenda did not answer so there is no need to rule upon that matter. Thon Phan went on to express an opinion as to why Sokchenda had not answered her question but that expression of opinion is clearly objectionable and I disregard that part of her answer.
[5] Tr 773
Objection was also taken to a question put to Channara Uy in evidence as to whether she had ever asked Sokchenda how she was getting on with the accused. It is similarly unnecessary to rule on that matter as Channara Uy’s response was that she had never asked because “I see that they okay”. Channara, however, went on to give evidence about a conversation with Sokchenda in which she complained of dizziness. She told Channara that her husband had hit her and caused her to have a headache. Channara said that later that day she noticed bruising on Sokchenda’s neck[6] and marks on her hand, arm and back. Sokchenda complained that her husband had hit her with the knife sharpening steel. In my opinion, this evidence is similarly relevant and admissible as to Sokchenda’s state of mind, but not as to the truth of what she said. There was, however, no dispute that the accused had on that occasion assaulted his wife with the knife sharpening steel, and the medical evidence of Dr Narendranathan confirmed the injuries suffered by Sokchenda as a result thereof.
[6] Tr 793
Somalay Sim gave evidence of complaints made by Sokchenda to her that her husband had hit her[7]. That particular piece of evidence also appeared to relate to the knife sharpening steel incident. Somalay Sim also said that, on a date she could not recall, she saw what looked like teeth marks on Sokchenda’s cheek and Sokchenda told her that her husband had bitten her. In my view, the evidence of that statement is also relevant and admissible, not as to the truth of what was said by Sokchenda but as further evidence of her state of mind with respect to the relationship between the two of them.
[7] Tr 840
Thavy Ty worked with Sokchenda at the chicken factory. She gave evidence that about three months before she died, Sokchenda complained to her that $300 was missing from her purse and she thought her husband had taken it[8]. In my opinion, that evidence is also relevant and admissible to show the state of mind of the deceased, but not as proof of the truth of the assertion contained therein. The accused in evidence, however, also referred to arguments with his wife in which she had accused him of taking the money and it was evident not only from his evidence, but also the evidence of Channara Uy that the dispute about that matter was a source of some contention between the parties.
[8] Tr 1026
The charge of murder:
A person commits murder if he/she causes the death of another person deliberately and unlawfully whilst at the same time intending to cause death or grievous bodily harm. That is the general proposition.
There are a number of elements which must be proved by the prosecution beyond reasonable doubt for the accused to be found guilty of the crime of murder.
The prosecution must prove that:
(1)    The act or acts of the accused caused the death of Sokchenda Lam.
(2)    The act or acts of the accused were conscious and voluntary, that is to say that they were the result of the exercise of the will.
(3)    The act or acts of the accused which caused the death were done with the intention to kill Sokchenda Lam or cause her grievous bodily harm. Grievous bodily harm means really serious bodily harm. The intention must exist at the time when the act which caused the death was carried out.
(4)    The killing must have been done without any lawful justification or excuse, such as lawful self-defence.
If all of the four elements which go to make up the crime of murder are proved beyond reasonable doubt, it will still be necessary to consider the question of provocation. That is an issue which is fairly and squarely raised by the defence in this case.
The onus is upon the prosecution to prove that the killing was not provoked. If there is a reasonable possibility that at the time he killed his wife, the accused was acting under provocation, in the sense that that concept is understood by the law, then the accused would not be guilty of murder but he would be guilty of the crime of manslaughter.
Before turning to a more detailed discussion of the elements which are to be proved by the prosecution, I propose to set out some of the background to this matter and discuss the evidence given by the various witnesses.
Background of the accused:
The accused gave evidence about his upbringing in Cambodia and subsequent immigration to a life in Australia. That evidence was supported by his uncles, Someth Lem and Moeun Lem, and is uncontentious.
I am satisfied that the accused was born in a town or district called Prenup in Cambodia in May 1967. His father was a soldier. His mother and siblings were killed during the war which broke out in Cambodia in about 1975. That also appears to be the year in which the accused last saw his father. The accused was thereafter cared for and raised variously by his grandparents and his uncles, Moeun and Someth Lem. The accused had limited educational opportunities and had some problems in learning. I accept the evidence of Someth Lem that the accused was a slow learner. At about the age of seven, the accused moved to Vietnam and lived there for about six years in a farming community. He went to school for about one year but cannot read or write in either Vietnamese or Khmer. The accused lived in Phnom Penh, Cambodia, from the age of about 13 to 15 and he studied there for about three or four months. In about 1981, members of the family escaped to Thailand and the accused then lived in a refugee camp for a period prior to moving to Australia in about 1982. The accused studied some English in the refugee camp although he said he was in a lower grade.
Upon arrival in Australia, the accused initially lived in Canberra where he did some full time study. He learned English as a second language, maths, science and geography. In 1986, the accused came to Adelaide and lived for a short period with his uncle Someth. In 1987, he moved to independent accommodation in a Housing Trust unit at Mansfield Park. He lived there alone for about 11 years, during which time he studied some CES courses which included training for such jobs as spray painting, crash repair and woodwork. Most of the time, however, he was unemployed. He did not have a driver’s licence, nor own a car. He lived a fairly solitary existence and his main companions were his uncle Someth and two Yugoslav friends who were older than him. He did not have any relationships with females.
The accused’s marriage to Sokchenda Lam:
In about 1995, Someth arranged with a Cambodian acquaintance called Bhun Thar Lam for the accused to marry Bhun Thar’s daughter, Sokchenda. The accused agreed to the proposal and said that at first he thought it was a good idea. He was, however, nervous as he had never had a woman in his whole life and he did not have much money nor a job. It appears, however, that once the marriage was arranged he was able to find a job at a place called Plastic Components at Regency Park where he worked from about 1996 until 1999. During that period, he managed to save money and also obtained his driver’s licence.
In 1996, the accused went to Cambodia to meet his intended wife and spent about four weeks there. The accused then returned to Australia and worked for another year. He returned to Cambodia in about 1997 for his marriage, which he said was a traditional Cambodian marriage. The accused said his wife spoke only a little English and they communicated in Khmer. The accused remained in Cambodia for about four weeks and then returned to Australia where he continued to work with the plastic components company.
Sokchenda arrived in Australian in about August 1998 and after a short stay with his uncle Someth, she lived with the accused in his unit at Mansfield Park for a couple of weeks. In September 1998, the accused purchased a house at Kerry Street, Salisbury Downs which was registered in his name. The accused said the house was purchased with his savings and a loan from the bank.
In 2001, the accused won $43,000 in a lottery which he appears to have used to pay off the mortgage on Kerry Street. He conceded that he occasionally went to the Casino with his Yugoslav friend, Branko. He would probably take $500, but would not lose more than about $250. The accused bought another house at 14 Taarnby Drive, Salisbury Heights, which he registered in his name, and which was rented out. The accused said the rent money was not going towards the mortgage as his wife used the rent for food. He eventually sold Taarnby Drive as it was getting too difficult to service the loan. Any profit appears to have been paid into the mortgage on the purchase of a house at 28 Browning Crescent, Parafield Gardens in April 2002, which was the house in which Sokchenda later died.
On 20 November 2000, their son Nixon was born. On 26 November 2001, Sokchenda became an Australian citizen. The accused said that he was not consulted about his wife’s decision to become a citizen. This was clearly resented by the accused who described his wife as “disrespectful” towards him.
The accused’s complaints with respect to his wife:
The accused suggested there were problems from the start of marriage, but described the relationship rapidly deteriorating from the time their son was born. He said it got worse after Sokchenda took out Australian citizenship. He said that after the purchase of the house at Browning Crescent they had separate bedrooms.
The accused complained that his wife did not listen to him and always did what she wanted to do. She liked to go out with friends at night and never told him where she was going and had no respect for their relationship as husband and wife. The accused complained that Sokchenda created a problem with his uncle, Someth, and that she stopped going to Someth’s house after a dispute over money being sent to the accused’s family in Vietnam. Sokchenda was a member of the Seventh Day Adventist Church, and she complained about Someth to the elders of the Church. This led to a substantial rift between Sokchenda and Someth. The accused, however, continued to see his uncle from time to time against his wife’s wishes. The accused said Sokchenda made it plain that she did not like him going to Someth’s house. The accused complained that she rarely did the cooking. She would come home late from work. She seemed not to care for the family and did not prepare food for Nixon.

The accused said that when they were purchasing the house at Browning Crescent there was an argument about money in the presence of a friend called Somalay Sim. The accused said he wanted to put the money from the sale of Kerry Street into an investment rather than paying off the mortgage. His wife did not agree and in the end he paid it into the house.
The accused said that during 2001, Sokchenda’s mother came for a visit to see her grandson. The accused said he paid for the trip. His mother-in-law stayed with them at Kerry Street. The accused described an incident in which an argument took place in the kitchen. The accused said he was washing the dishes and in the presence of his mother-in-law, his wife struck him with a frying pan on his head. In evidence-in-chief, the accused said that after his wife hit him with the frying pan, he slapped her. His wife then called him a fool or a stupid person. He said that was not the first time she had used those words to him. He said the use of those words made him feel cross. She then went out, not returning until after midnight. In cross-examination, the accused, when asked whether he had slapped his wife after she hit him with the frypan, said that he did not hit her. As Mr Pearce went to put the transcript of the accused’s evidence-in-chief to him, Mr Vadasz interjected on behalf of the accused. Following the interjection, the accused said that he did not remember whether he had either hit or slapped his wife on that occasion. In my opinion, the evidence of the accused as to this incident did not have the ring of truth to it. I am unable to say that it did not occur, but the inconsistency between the accused’s evidence-in-chief and cross-examination as to whether he hit his wife on this occasion adds to my disbelief about this incident and is a matter which I take into account in assessing the credibility of the accused.
The accused also referred to accusations made by his wife that he stole money from her purse, which he said were untrue. That made him very frustrated and angry. She called him a fool or stupid person and treated him like a dog. The accused said that because of what his wife said to him and the way she treated him during the argument, his anger built up and he hit her with a knife sharpening steel on the front of her head. He said he hit her twice. He said she then hit him back causing him to have a black eye and a swollen lip. I will discuss this incident in more detail later in these reasons.
The accused also referred to another occasion when there was an argument about him stealing her money which took place in the presence of Channara Uy. Channara Uy confirmed that argument. I am satisfied that this issue became a significant area of dispute between the accused and the deceased.
The accused said that his wife had assaulted him on other occasions. She would punch him in the face and bite him and scratch him with her fingernails. She would also kick him. He said she was taller and weighed more than he did. He said one time she bit him on the ear. He denied, however, that he had ever called her rude names or said that she was stupid or crazy.
The accused referred to an occasion just after his son’s second birthday in the year 2002 when he was asleep in the granny flat at the back of the house at Parafield Gardens. He said he was sleeping with Nixon in the afternoon and was struck by his wife with a stick three times. He fell unconscious. She took Nixon away and did not come home until the following day. He said the first blow was on his head and the second one was on his back and the other was at the side of his rib. The accused said when his wife returned home the following day. he asked her why she had hit him but she ignored him. The accused, in cross-examination said, however, that he thought that his wife had hit him out of retaliation for the knife sharpening steel incident although that had taken place about eight months earlier. As is the case with the frying pan incident, I have some doubts about whether the accused was telling the truth about this incident of being hit with a stick, but I will also discuss that further later in these reasons.
The accused said there was also an occasion when he was injured by his wife so badly that he had a swollen rib, black eye and fingernail scratches on both sides of his face, including his neck, and he had to take a couple of days off.
The accused said that during 2003, Sokchenda continued to abuse him. She called him stupid, a crazy person and treated him like a dog. She continued going out and being very selfish. When she was not in a good mood she yelled and pointed at him which he said was very disrespectful in Cambodian culture.
Cambodian Culture:
The influence of Cambodian culture upon the accused is a matter which is relevant to the question of provocation, and also helps to explain some of the other events which took place and which culminated in the death of Sokchenda Lam.
Dr Alexandra Gartrell is a specialist in the area of Cambodian studies and Cambodian culture. She gave evidence on the voir dire. By consent that evidence was admitted in the trial[9].
[9] Exhibit D56
Dr Gartrell was a good witness and was clearly knowledgeable in her field, but for the reasons expressed in my ruling on the voir dire, her evidence is, in my opinion, of limited assistance in resolving the issues which arise for determination. In particular, it is undisputed that the accused has lived in Australia for over 20 years and Dr Gartrell candidly acknowledged that she had not studied Cambodian communities outside of Cambodia.
Seng Chaing Kong, however, is the President of the Cambodian Association in Adelaide and in my opinion, was qualified to give evidence about these matters. He has resided in Australia since 1983 and is acquainted with a number of Cambodian families who live in Adelaide. He knew both the accused and his wife, but not well. He has kept up with Cambodian culture by travelling to Cambodia regularly. He also maintains contact with families and new arrivals in Australia and has observed their cultural values and behaviours.
Mr Kong presented as a thoughtful and objective witness and I am able to rely on everything that he said about these matters. Mr Kong described himself as having a mixture of Australian and Cambodian culture, and said that this was common for people who have lived in this country for 15 or 20 years.
He thought that some traditional values were maintained more than others. For example, parents in Australia were friendlier and more accessible to their children than those in Cambodia. He thought that a reduction in Cambodian values of people residing in Australia for many years depended on their origins. He thought that rural people held to the Cambodian culture more strongly than those brought up in the cities.
Mr Kong discussed some of the traditional values between husband and wife. The husband was seen as head of the family so for a female to touch a male on the head would be a disgrace. It was uncommon for a female to strike the male, and if this were to happen, the whole family would feel humiliated, very angry and frustrated. There was, however, in Cambodia, a toleration of domestic violence from a husband to a wife.
In Cambodia, it was not expected that a female would have a job and it would therefore be unusual for both the husband and wife to work for money. He said, however, that it was acceptable for a woman to have friends, depending on what her friends were like.
Mr Kong said, however, that most families in Australia had changed and the women now had the chance to go out to work. This was because of the availability of school and child care as well as the need for income to meet higher living costs. He said it was quite common now for both to work.
Mr Kong said it was not normally acceptable in Cambodian culture for women to go out at night to functions such as parties. He described “going out” as when you were not going anywhere for an important reason, such as a wedding. Mr Kong was understandably unable to give firm answers about what would or would not be appropriate for a woman in terms of visiting friends but thought it would not be acceptable for the wife to go out if the house was not clean and tidy, the children showered etc and the food ready, because all the house cleaning rested on the female side. Mr Kong acknowledged, however, that some men were now starting to help around the house and he said that there had been a blurring of roles within the Cambodian community in Adelaide and some men were taking on more of the housekeeping roles.
Mr Kong was asked about the term “half-seed” which was one of the phrases that the accused complained his wife used to refer to him which he regarded as insulting. Someth Lem also said Sokchenda had used that term to refer to the accused. Mr Kong said he had not heard the actual term but he understood the context. He said it was not a way in which you would refer to someone’s family. This was similar to saying to someone that his mother had not given him enough water (which was also a phrase which the accused complained about his wife using to refer to him) and would be insulting to the family, not just to the person himself, as the effect of that phrase was that you had not grown properly.
Mr Kong said that in Cambodia the expectation was that a woman would marry someone of better education and more wealth than her. Arguing in front of others would be a disgrace to the family. To call a person a “dog” was particularly insulting as dogs in Cambodia were the lowest animal of all, and to use that phrase would be to invite a very strong reaction.
The evidence of Someth and Moeun Lem about the relationship between the accused and his wife:
Someth Lem, the uncle of the accused, arranged the accused’s marriage to Sokchenda. He described the accused as scared when the suggestion was made to him but he said initially the two of them were very happy. He referred to a substantial rift over money between himself and Sokchenda, which appears to have been in about 1999. This was a significant matter as Sokchenda had involved the Church elders in the matter, and it was clear from Someth’s demeanour when describing this incident that there was a substantial degree of animosity between Someth and Sokchenda thereafter, which undoubtedly added to the tension in the home. Someth saw little of Sokchenda thereafter but said the accused complained to him about Sokchenda going out and having lots of friends and being untidy in the house.
Moeun Lem, also an uncle of the accused, gave evidence that although he was aware of the arrangement for the accused to marry Sokchenda, he was not involved in it. He said he was not happy about it because “Saruong, he is not person enough to be a father or be husband for woman”. He thought that his inability to take care of himself, or to get a job or a driver’s licence, made the accused unsuitable for marriage.
Moeun said that following their marriage, and Sokchenda’s arrival in Australia, he would see them about once a month. He said they got on very well for the first six months or so and they would visit him and his family, but that changed and they did not want to be involved with their relatives any more. He did not see them much after they moved to Parafield Gardens.
The evidence of So Soth Lam:
So Soth Lam is a longstanding friend of the accused. He also knew Sokchenda and became a good friend of hers. He was a good witness who, in my opinion, did the best he could to give truthful and objective evidence and I accept what he had to say about these matters. So Soth was born in Cambodia but has lived in Australia since 1988. He met the accused at the Seventh Day Adventist Church in Prospect when the accused was still single. The accused was unemployed and So Soth got him some work at a farm at Nairne where he also worked. So Soth described the accused as not very strong. He said he was a quiet and shy man who did not talk a lot.
In about 1992, the accused discussed financial matters with So Soth and So Soth offered to help him save money. So Soth said the accused looked happy when he told him he was getting married and by the marriage had saved over $20,000 from his wages.
So Soth later met Sokchenda at the Seventh Day Adventist Church at Prospect and they worked together for a while pruning and training vines at Milang. So Soth said that both the accused and Sokchenda called him “uncle” and he continued to help them with their financial arrangements. So Soth described Sokchenda as a strong girl with a strong personality who could cope with hard work. He said she worked for sometime at Joe’s Poultry where she was the foreperson in charge of 10 or 20 people.
So Soth helped the accused and his wife to borrow money to buy their second and third houses. He helped them to find finance, and helped them with paying bills and accounts.
As time progressed, the accused complained to So Soth that he was not really happy with his wife because she did not listen to him. She was thinking about her relatives in Cambodia too much and was sending them money. So Soth said he never saw them fighting together. He did, however, become involved on the occasion on which the accused struck his wife with a knife sharpening steel.
The incident with the knife sharpening steel:
A number of witnesses gave evidence about this particular incident which I am satisfied occurred on 23 March 2002. So Soth Lam said that one day, he thought in 2002, Sokchenda rang him to go to the house because the accused had hit her. At the time, So Soth had visitors at his house and so all of them went to the accused’s house at 6 Kerry Street, Salisbury Downs. Those present included So Soth’s sister-in-law, Thon Phan, as well as a friend called Ngo Kongheng and his wife Sivleant and their daughter, Hong.
So Soth said that when he went into the house, Sokchenda was sitting on the floor in the hallway holding her head with her hands, and she had blood on her head. So Soth asked the accused why he had not washed and cleaned her up but the accused told him she would not allow him to do it. So Soth told the accused to get hot water and towels and he then cleaned Sokchenda’s head. He noticed that she had a split in her head about five centimetres long which was bleeding. He asked Sokchenda how she got the injury and she said she was on the phone and that the accused came from behind and hit her with a knife sharpening steel. So Soth asked the accused why he had done that and the accused replied that they had had a fight and were quarrelling. He could not remember whether the accused said what they were quarrelling about. After cleaning the wound, So Soth saw that Sokchenda needed stitches so he and Thon Phan took her to the Lyell McEwin Hospital. So Soth said that after the doctor treated Sokchenda, he drove her home. When they arrived at the house, the accused said to his wife “Sorry darling I did this wrong to you”, and helped her inside. So Soth said that on this occasion, Sokchenda also had injuries to the back of her head, neck, back, fingers and left wrist. So Soth did not describe any injuries to the accused on this occasion although the accused’s evidence was that he had a black eye and swollen lip as a result of his wife hitting him back. So Soth did say, however, that after that incident, there were times when he saw scratches on the accused’s face as well as bruises on Sokchenda.
So Soth said he saw scratches on the accused’s face on an occasion about two or three months before Sokchenda died and the accused told him that something fell on his face. Two hours later Sokchenda came to his house wearing sunglasses and he saw that she had a bruise on her eye and a mark on her jaw. She said they had a fight but it was not discussed any further.
Thon Phan also gave evidence about attending at the house on the knife sharpening steel occasion. She said that when they went into the house, she saw Sokchenda sitting in the hallway on the floor with her head bent and bleeding from the head. The accused was in the TV room a couple of metres away. She said she looked after Nixon while So Soth cleaned up Sokchenda. Thon said she asked the accused why it had happened like this and he told her “Because [Sokchenda] was not home, always was out”. She said the accused did not say how Sokchenda got the injury, and she was scared to ask. Thon also said that she saw Sokchenda with bruises to her cheek about two to three weeks before she died. She asked what was wrong with her cheek and Sokchenda told her that she had had a fight with her husband but did not say what the fight was about.
Ngo Kongheng also went to the house on this occasion. He knew the accused from the Seventh Day Adventist Church at Prospect and had also met Sokchenda. Ngo did not speak to Sokchenda at the house but he said that after So Soth took Sokchenda to the hospital, he remained behind. He asked the accused why he was fighting because husband and wife should not be fighting and the accused said that he had lost control and “he don’t know why he do like that”. Ngo told him that husband and wife should not fight, and asked him to pray to God to forgive him. They then prayed together to God to forgive them for what they had done wrong.
Ngo said that he was sure that the accused had said in Khmer that he had lost control. When he was asked to say what the accused had said to him in Khmer, the interpreter translated his words as “He feel like he can’t control his tempers, so it’s so angry” and “because angry can’t control himself”. In cross-examination, Ngo agreed that the police might have suggested the words “lost control” and then he said he could not remember exactly what words the accused had used.
Dr Ramanathan Narendranathan is a legally qualified medical practitioner working at the Lyell McEwin Hospital. He treated Sokchenda at the hospital at 9.10 pm on 23 March 2002 for an injury to her head. He described a contusion to the right parietal region, about five centimetres in diameter, with an imprint image on top of it. The contusion had swelling and bleeding consistent with being sustained by a blunt injury. There did not appear to be any particular pattern to the imprint to enable Dr Narendranathan to say what type of instrument had caused the injury.
There was also a laceration in the left frontal area (left forehead above and to the left of the eyebrow) which was linear, superficial and bleeding. It was about one and a half centimetres long and needed two sutures. Dr Narendranathan said there was another imprint abrasion consisting of two parallel marks, about a quarter of a centimetre apart and about eight centimetres long. He did not recall where this was but thought it must have been on the shoulder or head. He also said there was a 6 centimetres necklace type injury (chain-pattern injury) around Sokchenda’s neck which was comparable with having been caused by the chain she was wearing. He did not notice any other injuries. He considered they were recent, and were consistent with having been sustained in the previous few hours.
Dr Narendranathan prescribed Panadeine for pain and sutured the wound and Sokchenda was discharged after four hours. Dr Narendranathan said that the only thing he noticed about Sokchenda’s demeanour was that although she was bleeding from the wound in her head she was not holding the wound to prevent bleeding, which is what he would normally have expected. He said she was more in shock, holding her head and crying, rather than actively stopping the bleeding.
The evidence of the accused’s workmates at Loumet:
Dan The Pham, Huy That Ton, Hung Pham Van and Nghiem Quoc Tran worked with the accused at Loumet, a factory which makes rubber balls.
All of these witnesses were Vietnamese and gave evidence with the assistance of an interpreter. They were patently honest witnesses and I accept their evidence. They communicated with the accused, whom they called “Bon”, in Vietnamese, although they said he was not fluent in it. None of them knew the deceased.

Dan The Pham said he recalled an occasion, he thought in 2003, when the accused came to work with a scratch on his face. The accused did not say how he had got it but Mr Pham recalled the accused saying his wife wanted to go to a disco and that he had hit her.
Huy That Ton also saw injuries on the accused on one occasion but could not remember the date. He thought it might have been last year. He saw a scratch on the accused’s face and the accused said they had an argument about his wife not looking after the child. He also said the accused complained several times about Sokchenda going to discos. Mr Ton said that the accused said that his wife did not show him respect and called him names like “buffalo” and “cow”. He did not recall the accused complaining of being called a “dog”. Mr Ton said that in the week before his arrest, the accused told him that he had had a fight with his wife because she went to a disco and then his wife left. Mr Ton did not see any injuries on the accused that week.
Hung Pham Van also referred to an occasion when he had seen the accused with scratches and a bruise on his face and the accused complained that his wife had hit him. Mr Van vaguely recalled the accused mentioning his wife accusing him of taking money. He said that shortly before his arrest, the accused told him that they had an argument and his wife ran away. He said there were other occasions but he could not specifically remember any other than these two. He also remembered the accused telling him of an argument about one month before his arrest.
Nghiem Quoc Tran also saw a scratch on the accused’s face and neck which he thought was at the beginning of 2003.
Antony Metti is a company director with Loumet. He said the accused started work there in about May 1999. He recalled seeing the accused with a fat lip shortly after he started work and he saw scratches on him three, four, or it might be five times. He said he once spoke to him about his injuries, which he thought might have been a couple of years ago, and the accused said his wife hit him while he was asleep. On the defence case, this supports the evidence of the accused as to the occasion on which he says he was hit with a stick when asleep. Mr Metti said he last saw injuries on the accused about one month before his arrest. He said the accused complained to him that he was not happy with his wife. She did not want to look after his son and she was always out and he had to cook and clean and put the child into day care. Mr Metti could not recall the accused complaining about the use of insulting names.
The evidence of Saroeuth Lim about the deceased’s activities:
Saroeuth Lim was born in Cambodia and moved to Australia in 1989. She said she met Sokchenda a few years ago through another friend, Channara Uy, and became friendly with her. She said she saw Sokchenda about twice a year before she died, although in cross-examination agreed that Sokchenda visited her about once a fortnight, which I think is more likely to be correct. The inconsistency, in my opinion, was the result of linguistic difficulties as Saroeuth was a quietly spoken woman who gave evidence through an interpreter. This does not cause me to have any concerns about her credibility as a witness. Ms Lim said that Sokchenda would visit her house sometimes, although she never visited Sokchenda’s. Apart from visits to the house, they never went out together, and did not go to discos. Saroeuth said that the visits were in the day time, sometimes on weekdays and sometimes weekends. She knew that Sokchenda was married but never met her husband.
The evidence of Channara Uy about the relationship between the accused and the deceased:
Channara Uy is Cambodian. She has lived in Australia since 1988. She gave evidence through an interpreter. She presented as a gentle woman who looked much younger than her stated age of 50 years. She clearly had a close relationship with the accused and the deceased. They called her “auntie”. She also was a patently honest witness and I have no hesitation in accepting everything that she said. She attended the Seventh Day Adventist Church in Paralowie and met the accused through that Church when he was still single. She later met Sokchenda at the Church although Sokchenda did not attend regularly. They worked together for a couple of years pruning grape vines after Nixon was born. Later, Sokchenda stopped working with Channara and got a job at the chicken factory but they still saw each other on a regular basis because Channara looked after Nixon.
Channara also saw Sokchenda socially now and again. She described Sokchenda as a close friend, even though Sokchenda was younger and closer in age to Channara’s daughter. Channara said that she and Sokchenda would go to Sunday markets together and had also attended a wedding reception and had been to see a Cambodian singer on another occasion. Once they went to a Thai restaurant. Channara said that Sokchenda had other friends but she did not know where she went with them. She did not know if Sokchenda went out a lot at night but she had overheard that other friends had been out with Sokchenda at New Year.
Channara went to Sokchenda’s house a few times but did not talk to the accused very much apart from saying “hello”. She said that Sokchenda called the accused “Pa Van” which meant “father of Van”, that is Nixon, which was the traditional way of addressing a husband. Similarly, the accused called Sokchenda, “mother of Van”.
Channara saw Sokchenda after the knife sharpening steel incident. Sokchenda said she was dizzy and that her husband had hit her which caused her to have a headache. Channara saw bruises on Sokchenda’s neck and arms and stitches in her head and bruises in a straight line on her back. Sokchenda said she had had a fight with her husband and he had hit her with a knife sharpening steel but she had not called for the police because she felt sorry for her husband and did not want the child to end up with no father.
Channara said that about two to three weeks before Sokchenda died she went to the house. The accused opened the door and she heard Sokchenda crying. Channara said they continued to talk loudly in front of her. There was an argument about some missing money. Sokchenda said that she had put $600 in her handbag and that about $150 was lost. The accused said he had not seen it and Sokchenda said “We have three people here. Only the little one and us two. Who took it? The little one would not take it”. Sokchenda said that if there was a thief, they would probably have taken it all. The accused continued to deny any knowledge saying “I don’t know, I didn’t see your money where you put it”. Channara said that the two of them continued to talk louder and louder about the money and Channara said that if they were going to fight she would take the child to her house.
The accused said to Sokchenda “You die soon” but Channara said that he did not say it in a threatening way. He was simply cursing her. Sokchenda said to Channara that if she had not been there, the accused would have hit her again. Channara said that Sokchenda did not curse back at the accused but just said “My money lost, my money lost”. Channara said to them “Don’t fight, just talk. Just talk with the mouth not fighting, not physical fight”. This calmed them down and Channara then went home.
Evidence of Thavy Ty:
Ms Ty met Sokchenda Lam at the Seventh Day Adventist Church at Prospect, and worked with her at the chicken factory. She gave evidence about the deceased’s activities. She said Sokchenda worked afternoon shift at the factory, which was from 11.30 am to 7.30 pm, and that she was always keen to work overtime, staying until 9.30 pm. She also said that Sokchenda would sometimes work at a vineyard on the weekends.
Ms Ty said she had not talked with Sokchenda about her personal life, and had never heard her talk about going out on the weekends, nor had she gone to any discos or clubs with her. She said Sokchenda told her about three months before she died that $300 was missing from her purse, and that she thought her husband had taken it.
Police attendance with respect to domestic disturbances:
Leigh Thompson and Scott Buckmaster are police officers. They attended at the accused’s house at 28 Browning Crescent, Parafield Gardens on 21 April 2002 in response to a domestic violence report. They spoke to the accused and Sokchenda. It appeared there had been a verbal argument between the two, and they wished to speak to someone about it.
Constable Buckmaster said that he had since thought about the matter and he remembered the male mentioning something about being unhappy because his wife was at work and catching up with friends at work. He said “It appears as though it was a jealousy-type situation, but that’s pretty much the extent of it”. He had the impression that it was an “ongoing” problem and not just an isolated matter. He said they did not appear to be in an aggressive situation and the police officers simply put in a report and suggested that it be followed up by the domestic violence unit.
Susan Chatterton was a police officer working at the Elizabeth Child and Family Investigation Unit in May 2002. She attended at the house at 28 Browning Crescent, Parafield Gardens on 17 May 2002. This was a routine follow up as a result of the earlier attendance. She described her role as offering assistance to people involved in domestic disputes if they wanted it. She said she spoke to the accused and his wife and she recalled that the accused was upset that Sokchenda had lots of friends and was not at home all of the time with him. She was out doing some things of her own and not home looking after him. Ms Chatterton was unable to recall anything in particular which either of them had said as the main conversation was conducted by her partner, Constable McDonald.
Findings as to the relationship between the accused and the deceased:
I am satisfied that the accused is a man of limited intellectual capacity and resources who, prior to his marriage, was content to lead a simple and uncomplicated lifestyle. It was, therefore, inevitable that problems would occur as the result of an arranged marriage to a woman who was clearly more intelligent and socially adept than him and who appeared to make friends easily.
Mr Vadasz, in his closing address described the accused as having suffered three or four years of contempt, vilification, abuse and violence at the hands of the deceased. In my opinion, however, that is not borne out by the evidence.
The picture of Sokchenda Lam which emerged from the evidence of the Cambodian witnesses was that of a woman who worked hard, often at two jobs, and up to seven days a week, and whose social activities appeared primarily to consist of visiting friends. There was no evidence to support the assertions of the accused that she neglected her household duties, nor his claim that she went out to places such as discos.
I find as a reasonable possibility, however, that as time progressed, Sokchenda followed an increasingly independent lifestyle and that was a source of resentment by the accused and something which he considered disrespectful to him and which led to arguments between them. I am satisfied that there were arguments between them with respect to financial matters, such as sending money back to Cambodia, the disposition of the Taarnby Drive monies and the accusation by Sokchenda that the accused had taken money from her purse. I am satisfied that the argument which took place in the presence of Channara Uy about stealing money was a particular matter of aggravation between the accused and his wife. The accused’s continuing anger and resentment about that matter was evident when the accused gave evidence on that topic.
I am satisfied that the deterioration in the relationship resulted in arguments between the accused and his wife which at times resulted in acts of physical violence by each against the other, the most serious of which would appear to be the knife sharpening steel incident in which Sokchenda was the victim.
I think it is likely that the occasion in 2003 when the accused’s workmates described seeing scratches on the accused’s face was the same occasion in 2003 which was referred to by So Soth, although I am unable to be satisfied beyond reasonable doubt about that matter. On the occasion So Soth described, however, Sokchenda also had injuries to her face from which I infer that there was an altercation in which each inflicted injuries to the other.
As I said earlier, I did not believe the evidence of the accused about the frypan incident and I also found aspects of the evidence relating to the assault with the stick to be lacking in credibility. Although Antony Metti (for whom the accused worked at Loumet) gives some support to the evidence of the accused as to this incident, as he recalled a complaint by the accused about being hit when he was asleep, he did not mention a stick, nor say that he observed any serious injury to the accused at the time of the complaint. If the assault was as serious as the accused suggested, it is surprising that the accused did not obtain any medical treatment for his injuries, nor report the matter to the police, nor for that matter further pursue the matter with his wife.
In my opinion, the accused endeavoured to portray his wife as a bad and violent woman, or as he called her, “a monster”[10], in order to justify his violent behaviour towards her, and his attempts to do so undermine his credibility.
[10] Tr 1330
Events surrounding the discovery of the body of the deceased:
I now turn to the events surrounding the discovery of the body of Sokchenda Lam in the Port River on 21 May 2003 and the eventual arrest of the accused on 22 May 2003 for his wife’s murder.
The prosecution case is that the accused killed his wife on Saturday, 17 May 2003. Borem Pov saw her at about 7.30 pm on that date and, apart from the accused, appears to have been the last person to see her alive. Borem Pov is from Cambodia and moved to Australia in 1985. She met Sokchenda through Channara Uy about two months before she died. She said that during that time, Sokchenda would often come to her house to borrow DVD’s to watch. She said she sometimes came at night but mainly during the day. She described Sokchenda as a cheerful, happy person. She said that if she was having a meal when Sokchenda arrived, Sokchenda would sometimes join her, but they never went out together and they never went to discos.
Borem said that at about 7:30 pm on Saturday, 17 May 2003, Sokchenda came to her house to borrow a tape to watch. Borem refused to lend her any because she had not returned the last ones she had borrowed. Borem invited Sokchenda to have a meal with them but she said “No”, she was not hungry.
Borem said that Sokchenda did not seem very happy and in cross-examination agreed that Sokchenda said she was bored and felt sad, and that she was in a “bad mood”. She said that usually when Sokchenda visited she would have a casual conversation with Borem, but on that Saturday she refused to have a meal and just wanted to borrow some tapes. She said that Sokchenda was wearing casual at-home clothes, a fleecy grey tracksuit. Sokchenda left at about 8 pm.
The following day, that is Sunday 18 May 2003, Channara Uy tried to call Sokchenda four or five times but no-one answered the phone. Channara said that on Monday night, the accused rang her and said that on Tuesday he would bring Nixon to her to be looked after while he went to work, Monday having been a public holiday. Channara said she asked him why he was going to bring Nixon to her and he said that Sokchenda was not at home and he did not know where she had gone. Channara asked him if she had taken the car or the child and he said “No”, she had not. Channara said that she asked him if they had had a fight and he said “Saturday evening I have a little bit of an argument”. Channara asked him to ring some other friends in case Channara had gone to visit them.
So Soth Lam said that on the Sunday morning, at about 7 or 8 am, the accused came to see him to borrow the spare house key which So Soth had with him from time to time. He did not see the accused again that day. So Soth said, however, that on the Monday evening, the accused rang and asked him if he had seen his wife. The accused said some “Europe look like” had taken her from the house. The accused said he had not rung the police because she was a big girl. So Soth suggested the accused ring Channara but the accused said that it was Channara who had told him to ring So Soth. So Soth then rang Channara and also Sokchenda’s father in Cambodia.
On Tuesday, that is, 20 May 2003, the accused brought Nixon to Channara’s house. He said that Sokchenda had not come home yet. Channara described the accused as appearing normal. She said that he later collected Nixon at about 4.30 pm. Channara said she again enquired after Sokchenda and that her boyfriend, who was there, asked the accused if he had gone to the police to report her missing. Channara said the accused replied “I don’t need to report to police. She’s a big girl and if I had lost my child I would”.
So Soth said he went to the accused’s house on the Tuesday evening to collect some computer discs and a camera from the granny flat. He said the accused did not invite him into the house, which he thought was unusual.
On Wednesday, that is, 21 May 2003, Channara looked after Nixon again. She said that by this time she was getting very worried and was keeping an eye on the accused as to what had happened. Channara said she asked for the keys to the house so she could take Nixon there later, but the accused would not give them to her. At about 10 or 11 she went around to the house.She said she and Nixon knocked on the door and the window and Nixon called out for his mother but no-one answered. Channara said that she waited around for about two hours. Later on Wednesday, Channara called So Soth and they went to the police station to report Sokchenda missing. The police said they could not file a report because they were not relatives and suggested that maybe Sokchenda had gone to a women’s shelter. Channara said that the accused collected Nixon at about 4 pm. She said he looked very tired and he said he could not eat nor sleep.
Channara then spoke to Borem Pov about Sokchenda’s disappearance. Eventually Channara, together with Borem Pov, Saroeuth Lim and Vichet Pann, went to the accused’s house. Channara said they wanted to collect a battery charger and DVD but the main reason they went there was because they were really worried about Sokchenda’s disappearance. Channara said that the accused offered to open the carport to get the battery charger but Vichet said she wanted to look in the house, and in the end the accused unlocked the door and they went inside. The accused looked for the DVD and Vichet and Borem went to talk to him. Channara said she looked around calling out for Sokchenda but there was no answer. She said that one room was locked which she had never seen locked before. She said that usually that room contained a bed and dressing table.
Vichet Pann said that she heard Channara ask the accused where Sokchenda was, and she heard him say that she was missing from home for two or three days. Vichet said she walked around the house and she also saw that one room had the door shut. She asked the accused if she could have a look at the room, but he said “That room [has] plenty of things. There’s nothing special, is only things in there”. Vichet said that she stopped questioning the accused and did not take any notice of what mood he was in.
Borem Pov said she did not speak to the accused herself when at the house, but she listened to the conversation that the accused had with Channara and she heard Channara say “Why didn’t you report it to police?” because Sokchenda had never been missing before. She said the accused replied, “I will not report her to the police because she is a mature, grown up person. If my kid was missing, I would report it to the police.” Borem said that from his voice she thought he was angry. He was replying with just short answers.

Borem said she looked around the house for her DVD’s but could not find them. She noticed that one of the rooms was locked, and said that one of the women asked the accused to open the door but he refused.
Saroeuth Lim said that when they went into the house, the accused was there eating with his son. She said they all went inside and Vichet, Channara and Borem talked to the accused. She said it was just a casual conversation about how nice the house was. Saroeuth said they were talking amongst themselves about Sokchenda but she did not take any notice of what they were saying. Saroeuth walked towards the back of the house and she noticed that the door of one room was closed. Vichet asked the accused to open the door and he said “No, can’t open the door … there’s things inside the room”. Saroeuth said he seemed angry.
Later that night, Channara and Borem made some enquiries to try and find out if Sokchenda had gone to work at the chicken factory. They discovered that she had not been to work that week and one of her friends had phoned the police again that night. Channara said that on the Thursday morning, that is, 22 May 2003, the accused dropped Nixon off early in the morning. When he picked him up that afternoon, the accused told Channara the police had been to his house and he thought that Sokchenda’s friends at the chicken factory might have reported something to them.
Missing Persons Report:
Probationary constables Sandrine Sanchez and Matthew White were the police officers who attended at the accused’s house at Parafield Gardens, on 21 May 2002. They said this was in response to a request from a friend who had not seen Sokchenda for some time. The friend was concerned because they usually saw each other on a regular basis and he asked police to check on her welfare.
Sanchez said they attended at the house at about 10 pm and spoke to the accused who told them that he did not know where Sokchenda was and he could not help with their inquiries. The accused said they had had an argument on the Sunday and Sokchenda had decided to leave. He said she did not want to listen to him and she wanted to go, so he let her go. She was an adult and could do whatever she wanted to do. He could not remember what the argument was about and said it was just a verbal argument. The police officers looked through the house, which included the third bedroom which was locked. They looked inside and there was nothing in the room but a dresser with a mirror. The accused did not turn on the lights. Constable Sanchez recalled thinking there was something unusual about the floor covering but could not say if all or some of the carpet was missing.
Sanchez said that she was able to understand the accused quite clearly and he was very co-operative with them, but gave the appearance of being unconcerned about his wife’s disappearance. He said a number of times in regard to his wife that she “never listens”. They decided to put a missing persons report into the system as she had left her child behind and had not let anyone know where she was.
Discovery of Body:
At about 4.30 pm on 21 May 2003, the body of an unidentified Asian woman was located floating in the Port River. The body was wrapped in black garbage bags.
Exhibit P43 consists of a bundle of witness statements relating to that discovery. These statements were admitted into evidence on the basis that this was the evidence that each of the witnesses would have given if he or she had been called to give evidence. The statements provided the following evidence:
(a)    Statement of Robert Richard Muhleder, dated 14 July 2003. At about 4 pm on Wednesday, 21 May 2003, Mr Muhleder was with his friend Crystal Demell at Fishermans Wharf markets. He saw a black plastic bag bobbing up and down. It appeared to have something in it which looked like a body. He pulled the bag towards a pontoon and was able to see a hand and stomach area inside the bag. He secured the bag to a hose reel and then went to the Commercial Hotel and spoke to Steve Moffatt, the owner, and asked him to call the police.
(b)    Statement of Crystal Gayle Demell, dated 14 July 2003. She was with Mr Muhleder when he discovered the body.
(c)    Statement of Graham Vickridge-Smith, dated 14 July 2003. Mr Vickridge-Smith owns the yacht next to where the body was found. He was at work all day on 21 May 2003. He did not see anything that was of use to the police investigation.
(d)    Statement of Tara Preece, dated 14 August 2003. She is an education officer and works for the Maritime Museum. She took a group of children out on a boat, dolphin spotting on 21 May 2003. On her return, she noticed a dark garbage bag floating on its side in the water.
(e)    Statement of Noel Percy Rogers, dated 19 July 2003. He is a fisherman and at about 10 am on 21 May 2003 was fishing at what is called the Wheat Silo’s beach. He saw a black garbage bag floating by in the water.
(f)     Statement of Steven Daryl Moffatt, dated 19 July 2003. He is the publican of the First Commercial Inn at Port Adelaide. He spoke to Mr Muhleder and then saw the bag in the water, following which he rang the police.
(g)    Statement of Peter Walls, 22 July 2003. He was a volunteer at the Maritime Museum and was involved in the school boat excursion. He checked the pontoons as a result of another staff member’s concern that there was a bag floating near them, but was unable to locate the bag.
(h)    Statement of Stephen Edward Frost, dated 8 August 2003. Mr Frost was working on a building project at Port Adelaide on 21 May 2003. At about 12.45 pm, he was walking back to work after lunch and observed a large garbage bag floating in the water. It appeared to contain something quite large that was causing it to float, partially submerged.
(i)     Statement of Dianne Kaye Bruce, dated 28 July 2003. She is a kindergarten worker who was taking the children out dolphin spotting on the boat. She also saw the bag floating in the water alongside the pontoon and she thought at the time it looked like a body but did not say anything about it as she did not want to alert the children.
Retrieval of Body:
In due course, the body was removed from the river to the mortuary. Exhibit P44 consists of a further bundle of witness statements from the various police officers involved in the recovery of the body. These also were admitted into evidence on the basis that this was the evidence which would have been given by each of the witnesses if he or she had been called. These statements are as follows:
(a)    Statement of Christopher John Matthews, dated 6 November 2003. He was a police officer who attended at the scene after the report of the body in the water.
(b)    Statement of John William Schulz, dated 9 November 2003. He is a CIB officer from Port Adelaide. He went to the scene and made certain observations.
(c)    Statement of Sarah Van der Wielen, dated 22 May 2003, a uniform police officer. She secured the area and began an operations log detailing people arriving on the scene.
(d)    Statement of Cynthia Maree Healey, dated 30 May 2003, a uniform officer from Port Adelaide. She attended the scene and kept guard at various locations and made certain observations.
(e)    Two statements of Glenn Jarrod McKenzie, dated 25 May 2003 and 14 October 2003 respectively. He is a member of the police water operations unit and assisted with the removal of the body from the river.
(f)     Statement of Mark Lee Jacobs, dated 3 July 2003. He is a member of the water operations unit and a qualified diver. He assisted with the removal of the body from the river on 21 May 2003. On 23 May 2003, he attended at the wharf area on the western side of the Port River, approximately one hundred metres north-east of the boat ramp. He searched the bottom of the river and retrieved some cream coloured house bricks from the seabed. Three were in a separate location from the first two and of the three, two were tied together with white nylon weaved cordage.
(g)    Statement of Jarrod Richard Cook, dated 9 July 2003, another member of the water operations unit who was involved with locating the bricks and cordage.
(h)    Statement of Robert Michael Brownridge, dated 30 September 2003. He is a member of the special task and rescue group, water operations unit, who is also a police diver. He was the driver of the police boat and assisted the divers.
(i)     Statement of Ashley Ronald Surman, dated 10 October 2003. He is a police crime scene officer who took the bundle of eleven photographs which were admitted as Exhibit P39.
Police Investigation:
Detective Senior Constable David Sheridan is a member of the Major Crime Investigation Branch. At about 8.30 am on 22 May 2003, he arrived at work and was told a body had been located in the Port River. He was asked to be the lead investigator with respect to this matter. He gave detailed evidence on the voir dire, as to the steps taken by the police with respect to their investigation of this matter leading to the eventual arrest of the accused and my findings as to those matters are set out in my separate ruling on the voir dire. In the course of their investigation, the police conducted four interviews with the accused which were the subject of the voir dire application. On 21 September 2004, I refused the application by the defence to exclude the interviews from evidence at the trial.
The first interview took place at the home of the accused at 28 Browning Crescent, Parafield Gardens on 22 May 2003 and the second at the Salisbury Police Station on the same date. The accused denied any involvement in the death of his wife in the course of both of those interviews.
The third interview took place at the Elizabeth Police Station in the early hours of 23 May 2003. In the course of that interview, which followed a visit from the accused’s uncles, Moeun and Someth Lem, the accused admitted killing his wife and gave details to the police as to what had occurred.
The fourth interview consists of a series of conversations which took place at various sites on 23 May 2003, in the course of which the accused showed the police where he had dumped the bloodstained mattress, the carpet and other items, where he had disposed of items of clothing, and the location on the Port River at which he had dumped the body.
On the prosecution case, the third interview is the most significant as it includes admissions by the accused to the police as to his intention at the time he killed his wife. The transcript of the interview includes the following interchange[11]:
[11] Exhibit P18, at pp 14-16
“A.   And I finally, I did, and I hit her so hard.
Q.     Where did you hit her.
A.     And kill her.
Q.     First with the hammer. Which part of the body.
A.     I think the back.
Q.     On the back.
A.     Yeah, the back.
Q.     Whereabouts in the back.
A.     The back.
Q.     That ti- How many times you hit her on the back.
DETECTIVE LINTON:
Q.     Just show me on my back. Whereabouts.
A.     Oh, a lot of time here.
DETECTIVE SHERIDAN:
Q.     A lot of times up there.
A.     Yeah, a lot.
Q.     Okay.
A.     In the back.
Q.     Where else did you hit her.
A.     And then er in the leg.
Q.     In the leg.
A.     Yeah.
Q.     Which leg.
A.     I don’t know whether right leg or left leg.
Q.     Okay.
A.     And in the arm and, and the neck.
Q.     The neck.
A.     The neck.
Q.     Yeah. Yeah.
A.     You know –
Q.     Anywhere else.
A.     And chest.
Q.     Mm hm.
A.     And the rib, might be broken rib, and the head.
Q.     Yeah.
A.     Yeah, I hit her so hard and I finally kill her.
Q.     Did you hit her –
A.     I did it to – To tell you the truth.
Q.     Okay.
A.     Yeah.
Q.     Did you hit her in the face.
A.     Yeah, I hit her in the face, only hand.
Q.     Didn’t use the –
A.     Hand.
Q.     Hammer on her face.
A.     I can’t remember whether I hit in, in the face or not.
Q.     Okay.
A.     But in the rib yes. Of course, in the head.
Q.     How many times do you think you hit her.
A.     Ooh, I cannot count. I hit her until she dead.
Q.     All right, so once you started hitting her –
A.     Mm hm.
Q.     Were you trying to kill her or what were you trying to do.
A.     I try to kill her.
Q.     Once you started hitting her with the hammer that was –
A.     Yeah.
Q.     What you want to do.
A.     What happen, if I don’t kill her, she still alive and a husband live, live together, he one day, he might kill me, you know, so when one die and one living or one die, one go to gaol.
Q.     When did you decide that you wanted to actually kill her.
A.     I had not decide to kill her but I just lose my er my mind.
Q.     Okay.
A.     Yeah.
Q.     But –
A.     That, that, that, that I – I shouldn’t hit her so hard, you know -
Q.     But did you –
A.     Yeah
Q.     Decide to kill her when you went out to get the hammer –
A.     Mm hm.”
Admissions to Someth Lem and Moeun Lem:
Someth and Moeun Lem saw the accused at the Elizabeth Police Station prior to the accused making his confession to the police in the third interview. Moeun said that the accused told them that he hit his wife with a hammer and took her body to the Port River. Moeun, however, did not ask the accused for details. Someth said the accused told them that there had been an argument about Sokchenda going out because Nixon had a rash and was crying a lot at night. The accused said they had an argument and he tried to stop her, but she swore at him and he slapped her face. She bit and scratched him and he got a bleeding nose. He then went to the kitchen and got the hammer with which he hit her but he did not give any details.
Someth subsequently had other conversations with the accused at the Adelaide Remand Centre. The accused told him that Sokchenda had been swearing at him and swearing about his mother, as well as about Someth and his father. The accused told Someth that he slapped Sokchenda on the face and she started to kick and punch him so he went to the kitchen to find something to fight her with. Someth asked the accused why he hit her so many times and the accused said he “could not control himself and cannot stop his hands”.
Post Mortem Examination:
Dr Allan Cala is the forensic pathologist who carried out the post-mortem examination on the evening of 21 May 2003. Dr Cala’s report was admitted in evidence as Exhibit P30. Photographs taken in the course of the examination are part of Exhibit P31 and a chart which indicated where the various injuries were located was admitted as Exhibit P47.
Dr Cala gave Sokchenda’s weight with clothes as 71 kilograms but thought the naked weight was probably about 68 kilograms. He could not be accurate about the time of death due to the condition of the body and the environment in which it had been located, but thought it could have been up to six or seven days earlier. The condition of the body and the various injuries he observed were consistent with her having been killed on the preceding Saturday evening.
Dr Cala’s report summarises the findings of his examination as follows:
“Examination of the body showed numerous scalp lacerations and depressed skull fractures. The curved nature of the skull fractures was suggestive of infliction by a hammer or similar implement. Later detailed brain examination showed patchy subarachnoid haemorrhage and putrefactive changes. There were also multiple ovoid and circular shaped bruises on various parts of the body, also possibly inflicted by a hammer or similar, with defence-type bruises on the hands and forearms.
There was a transverse mid-shaft fracture of the left tibia, surrounded by haemorrhage ie the deceased was alive at the time this injury was inflicted. This injury would have been severely incapacitating. There were multiple bilateral rib fractures with two fracture-induced lacerations to the right lung posteriorly. The mandible and maxilla were also fractured. The liver was lacerated, although there was no blood in the abdomen. There was no evidence of strangulation or sexual assault. No foreign bodies of any type were found within the body.”
The detailed findings made by Dr Cala are contained in pp 7 to 12 of Exhibit P30 and refer to 20 injuries to the head and neck, 14 to the trunk, nine to the right arm, five to the left arm, eight to the right leg and six to the left leg. Dr Cala explained, however, that it would be quite wrong simply to add up the list of injuries and then equate them to the number of blows as some of the listed injuries had been grouped and others, such as injuries, 8, 9 and 10 on the trunk, 12 and 3 on the right arm, 1 and 5 on the left arm, and 3 on the right leg were, in his opinion, the result of more than one blow, and in some cases, three or four. He considered that Sokchenda was alive when each of the blows was administered.
Dr Cala described the mandible, that is the bottom part of the jaw, as being a strong bone which required a substantial degree of force to break it. He made a similar comment with respect to the maxilla. He thought that the injury to the maxilla was inflicted whilst the deceased was still alive as there was some bleeding associated with it. Dr Cala gave detailed evidence, with the assistance of the photographs, of injuries which showed areas of bruising. Dr Cala explained that a bruise could not occur in a deceased person as all bodily functions cease at the time of death as the blood would cease pumping.
The injury to the left leg was a tranverse fracture which he said would be extremely painful and the function of the leg would be severely impaired. It was consistent with being caused by a hammer and consistent with some form of very severe blunt trauma.
Dr Cala said that ribs 8, 9, 10 and 11 were broken on each side and had penetrated the lungs. He said that the ribs, although long and slender, are nevertheless quite strong and a lot of force would have been required not just to crack through the ribs, but to forcibly snap them in two, and then protrude them into the chest cavity to lacerate the lungs. It was similar to a motor vehicle type rib fracturing where the ribs fracture as a result of a high speed collision and then bend inwards to puncture the lung. He thought a hammer blow over a rib area once would not be enough to fracture it that way but several blows were possible. As there were a number of fractures along the adjacent ribs he did not think that one hammer blow could cause it, given the small diameter of the head of a hammer. As the ribs are over quite a large area he would therefore favour several blows forcibly applied, or a kick or a number of kicks, or a stomp. Dr Cala said that if the deceased was lying on her stomach so her back was uppermost and somebody forcible brought their heel down or jumped on her or something like that, that might have caused this sort of rib fracturing. There was a lot of bleeding in association with those fractures, so the deceased was still alive when they were inflicted.
Dr Cala said there were a couple of lacerations to the liver in the right lobe which might have been caused by kicks to the side or being stomped on. He did not think a hammer blow would cause that sort of injury, given its more focal application and small size. He thought it would require a large force spread over a fairly large area to compress the liver which is a large organ. If the deceased was jumped upon a number of times, that might have caused that injury. That also was a type of injury associated with motor vehicle accidents.
The skull fractures on the right side of the head were, however, the most serious, and Dr Cala said that they indicated that the blows may well have been inflicted at or around the same time and were likely to have caused the deceased to become unconscious almost immediately. There were no fractures to the left side of the skull although there was bruising.
Dr Cala identified the fractures in photograph 62 of Exhibit P31. He said that the semi-circular shape of the skull fractures were evident in photo 62 where the muscle from above the right temple had been shaved off, and that the shape of the fractures was consistent with having been caused by a hammer. Dr Cala said that if you looked at the ovoid shaped bruises appearing in photograph 55, in conjunction with fractures to the skull and other lacerations, that indicated a concentration of blows to the righthand side of the face. Dr Cala agreed that he had no way of ascertaining which particular blow was the first blow that was struck, nor the sequence in which they were inflicted, or whether she was standing or lying during the time she received the bulk of the blows. He considered, however, that the most likely explanation of the injuries to the hands and forearms were defence injuries. He thought they were inflicted before the deceased lost consciousness. He thought that once consciousness was lost, in all likelihood her blood pressure was very low and her heart may have been beating quite erratically and he thought that in that situation it was most unlikely for the forearm and other injuries to have been inflicted. He favoured that she was alive at the time the forearm injuries were inflicted because there was bleeding associated with them and quite substantial bleeding. That suggested that her blood pressure was in all likelihood normal at the time. That being so, she might well have been functioning quite normally, rather than being unconscious and lying on the ground from head injuries or from a combination of all of the injuries.

Stingel was also discussed in Masciantonio v The Queen[36]. In that case, the High Court said (per Brennan, Deane, Dawson and Gaudron JJ at 66-67):
“The test involving the hypothetical ordinary person is an objective test which lays down the minimum standard of self-control required by the law. Since it is an objective test, the characteristics of the ordinary person are merely those of a person with ordinary powers of self-control. They are not the characteristics of the accused, although when it is appropriate to do so because of the accused’s immaturity, the ordinary person may be taken to be of the accused’s age.
However, the gravity of the conduct said to constitute the provocation must be assessed by reference to relevant characteristics of the accused. Conduct which might not be insulting or hurtful to one person might be extremely so to another because of that person’s age, sex, race, ethnicity, physical features, personal attributes, personal relationships or past history. The provocation must be put into context and it is only by having regard to the attributes or characteristics of the accused that this can be done. But having assessed the gravity of the provocation in this way, it is then necessary to ask the question whether provocation of that degree of gravity could cause an ordinary person to lose self-control and act in a manner which would encompass the accused’s actions.”
[36] [1995] 183 CLR 58
In Peisley v R[37], the Court of Criminal Appeal of New South Wales in considering the question of provocation (per Wood J with whom Gleeson CJ and Grove J agreed) said (at 48):
“More is required than anger or loss of temper or building resentment. There must, in my view, be a loss of self-control which I understand to include a state in which the blood is boiling or a state of fear or terror, in either case, to the point where reason has been temporarily suspended.”
[37] (1990) 54 ACrimR 42
In Chhay v R[38], however, the Court of Criminal Appeal of New South Wales found that there was no requirement that the killing immediately follow the provocative act or conduct of the deceased. Loss of self-control can develop after a lengthy period of abuse and without the necessity for a specific triggering incident. It is therefore necessary to assess the gravity of the provocative conduct in the context of the entire relationship between the accused and the deceased.
[38] (1994) 72 ACrimR 1
From these various authorities it can be seen that there is a minimum standard of self-control set by the law as the test for determining whether the deceased’s conduct amounted in law to provocation. The test is whether those words and actions might cause a person possessed of the power of control to be expected of an ordinary person but of the age of the accused, to lose his self-control to such an extent as to do what the accused did. This is an objective test.
An ordinary person for this purpose is a person of ordinary powers of self-control, whose powers of self-control are not diminished by unusual excitability, unusual pugnacity or unusual aggressiveness, anxiety or stress. However, in order to assess the degree of insult or offence constituted by the deceased’s words and/or actions, that is the gravity of the conduct of the deceased, it is necessary to take into account the personal characteristics of the accused, which might affect the degree of insult or offence to him. In this case, that includes his age, his background, his ethnicity, past behaviour, the personal relationship between the accused and the deceased, and the accused’s level of intellectual functioning.
Having determined the degree of insult or offence which would have been caused by the deceased’s words and actions to a person with those characteristics, it is then necessary to determine whether insult or offence to that degree would be capable of causing a person of ordinary powers of self-control to lose control to such an extent as to do what the accused did.
If I decide that the words or actions, or both, of the deceased amounted to provocation in law according to the ordinary person test, it would then be necessary to consider whether it is a reasonable possibility that provocation actually caused the accused to lose his self-control, and whether he inflicted the fatal injuries whilst not in control of himself and before he regained his composure.
The onus is upon the prosecution to prove beyond reasonable doubt that the killing was unprovoked. The accused does not have to prove that he acted under provocation. The prosecution must satisfy me beyond reasonable doubt that the accused did not lose his self-control or, if he did, that an ordinary person of the age of the accused would not have lost his self-control in the circumstances or, if he did, that he would not have gone on to kill the deceased. If the prosecution fails to satisfy me that the killing was not provoked, the prosecution has failed to satisfy me as to the charge of murder. That would not relieve the accused of the guilt of unlawful killing. It would, however, reduce his crime from murder to manslaughter.
Defence submissions:
Mr Vadasz described the accused as a man who throughout his life was well below average in mental development and physical strength. He became involved in an inadequate marriage to a woman of superior intellect and strength who constantly belittled him and treated him disrespectfully in the presence of others. He submitted that this aspect of the matter was supported by the evidence of Channara Uy who was present during the argument about stealing money and that of Somalay Sim who described an argument in her presence about the disposition of the Kerry Street proceeds.
Mr Vadasz referred to the evidence of Susan Chatterton, the police officer who visited the home following the domestic violence call, as to the accused having difficulties and cultural problems with his wife. The defence also relied on the evidence of Scott Buckmaster to show that the accused was unhappy because his wife spent too much time at work and catching up with friends. There was also the evidence of the workmates of the accused as to the accused’s injuries, and his complaints that his wife wanted to go to a disco.
On the defence case, the evidence of the accused was also supported by Dr Middleton, to whom he showed bite marks, where he said his wife had bitten him a year before.
The defence placed some weight on the evidence of Seng Kong that Cambodians see life in terms of mental strength, and that as such the accused must have been the subject of some ridicule. On the defence case, the fact that the accused had to become involved in the domestic chores and childminding, and that his wife went visiting against his wishes, would have caused problems in any relationship, but was aggravated in this case by virtue of the ethnicity of the people involved. Mr Kong clearly thought that the suggestion from either spouse that the other had stolen their money would be highly insulting, and agreed that calling someone a “dog” would lead to serious consequences.
Mr Vadasz submitted that the family background of the accused was important to an understanding of the nature of the accused and his ability to cope with an accumulation of abusive behaviour at the hands of the deceased, and thus very important to the question of whether or not there was a sudden and temporary loss of self-control.
Mr Vadasz submitted that the accused relied very much upon his uncles – particularly Someth - and that the deceased’s estrangement from them effectively cut the accused off from the only two people to whom he could turn for assistance. As far as Someth was concerned, this was a deliberate action on the part of the deceased and part of a stream of vilification of the accused by his wife. Mr Vadasz submitted that the fact that the accused told his workmates about what his wife did to him from time to time was evidence of his attempt to find whatever assistance he could but discovering there was no-one who could really help him. Mr Vadasz urged me to accept the accused as a truthful witness as to essential matters. He suggested that the account of Borem Pov as to the deceased on Saturday evening as being in a bad mood, was consistent with the evidence of the accused as to the state in which his wife arrived home that night and started an argument. Mr Vadasz also referred to the accused’s production of his wife’s purse from his car at the request of the police as demonstrating his lack of sophistication to appreciate that if she had left home as he was suggesting she would have taken her purse, ID or credit cards.
Mr Vadasz further submitted that the fact that the accused told the police about the nature of his relationship with his wife drew attention to him and laid the foundation for suspicion in a manner that a cunning person would not. On the defence case, the accused’s statements to the police about his loss of control were spontaneous and truthful, as the accused lacked the necessary cunning to concoct a provocation defence on the spur of the moment. Mr Vadasz submitted that the things the accused told the police in the third record of interview[39] about the loss of control constitute the “very essence of the limited defence, the failure to cool down, the loss of control”.
[39] Exhibit P18, pp 5 and 6
The defence relied on the evidence of Mr Balfour to demonstrate that the accused is a concrete thinker, and so conveys his ideas and responds to questions in a particular way. In particular, Mr Vadasz submitted that the accused does not give any “historic aspects” or go back through history, but sticks to what is in his mind, and uses this to explain any inconsistencies about when things happened. Mr Vadasz also submitted that the accused’s answers in the records of interview need to be weighed very carefully in light of his tendency to suggestibility, acquiescence and repetition.
Mr Vadasz also referred to the evidence of the relatively isolated and lonely existence of the accused prior to marriage as contrasted with the change thereafter which included gaining employment, learning to drive, acquiring property and having a child. Mr Vadasz submitted that by killing his wife, the accused had effectively destroyed his own life and that of his child, and there was no explanation for doing that, other than a loss of self-control as he described.
Mr Vadasz submitted that against the entire background of the relationship between the parties which included the cultural aspects of the matter, the deceased had, on the night in question, provoked the accused into losing his self-control and acting as he did.
Mr Vadasz further submitted that an “ordinary person” could in that situation have been provoked to act as the accused did, and although the only characteristic of the accused which was relevant to the ordinary person test was that of age, in this case some adjustment had to be made to the hypothetical age of the accused in the light of the evidence of Mr Balfour that the accused was less mature than a person of his chronological age. Taking into account all of those circumstances, Mr Vadasz submitted that the accused should be found not guilty of murder.
Prosecution submissions:
Mr Pearce submitted that the killing of Sokchenda Lam was unprovoked. On the prosecution case, the accused was simply angry, and lost his temper. He only lost control in the sense that he resorted to violence, and was not concerned about the consequences. Mr Pearce submitted that the accused was aware of the significance of questions being asked of him in court concerning his intention when inflicting blows on the deceased, and suggested that every time such a question was asked, he reverted to the same answer, namely, “My angers rise and I can’t control myself”.
On the prosecution case, the accused’s assertion that he accepted and understood his wife’s last words to him, namely, “if you hit me you will go to gaol”, but continued regardless, pointed away from the notion of a sudden and temporary loss of self-control.
Mr Pearce further submitted that although the things which the accused asserted the deceased said to him on the night in question might have been insulting and offensive, they were not automatically provocative in the legal sense, and it was necessary to ask whether they were such as to have made the accused have a sudden and temporary loss of self-control such that he was no longer the master of his own actions. Mr Pearce submitted that the answer given by the accused to the police in the third interview[40] was indicative of an appreciation that the accused was aware he had started something and made a positive decision to finish it.
[40] Exhibit P18, p 15 at line 27
Mr Pearce also referred to the conflicting accounts given by the accused as to how the altercation came about that night which undermined his account of what occurred. He initially told the police that the fight occurred because his wife wanted to go somewhere with a friend for the long weekend. He told his uncles that they argued because his wife wanted to go out again on the Saturday night, but he wanted her to stay at home because Nixon had a rash. The accused’s evidence at trial was that his wife had been absent from the home on the Thursday and Friday, and she returned home on Saturday morning. After shopping together in the morning, his wife was away for the rest of the day and returned home at about 10.30 pm. He said that when she came in the door she was not in a good mood and was yelling and pointing at him and calling him names and accusing him of doing something behind her back on the Thursday and the Friday.
Mr Pearce acknowledged that in assessing the gravity of the actions of the deceased on the night in question, I was required to look at the cumulative effect of the behaviour of the deceased towards the accused throughout the marriage but submitted that when one looked at what had happened on this particular night, it was little more than the type of argument which the accused had experienced before, for example, the occasion when he had assaulted his wife with the knife sharpening steel, which demonstrated an ability to retain control.
Mr Pearce also referred to the failure of the accused to tell police exactly what words his wife used on the night in question, which he further submitted undermined the credibility of the accused as to what he now says to the court about those matters.
The effect of the accused’s statement to the police in his third interview[41] was that if he continued to assault his wife she would leave him. She might get another husband and he might kill him. The accused therefore continued with his actions for his own self preservation and that was the nub of the matter. In summary, Mr Pearce submitted that the accused did not lose control on the night in question. He was not provoked by his wife to act as he did. He acted out of anger.
[41] Exhibit P18, p 15 at line 27
Mr Pearce further submitted that even if there was a reasonable possibility that the accused was provoked from a subjective point of view, the words and conduct of the deceased, looked at objectively, would not have caused an ordinary person in the situation of the accused to lose control and to go on to inflict injuries of such a nature and extent as those which the accused inflicted on his wife. The killing was therefore unprovoked and the accused was guilty of murder.
Conclusion:
In resolving this matter I must first consider whether it is a reasonable possibility that the deceased said and did things on the night in question that caused the accused to lose his self-control.
I have earlier set out the evidence of the accused as to what his wife said and did which he says led to him losing control. Throughout his evidence the accused constantly asserted the position that his wife had been very rude to him and argued with him. He also described a physical assault to his person, accompanied by yelling and using insulting language to him and his family, such as “half seed”, “dog”, “stupid” and saying “your mother was a prostitute”.
Despite adverse findings I have made with respect to the credibility of the accused generally, and not believing his account of what took place on the night he killed his wife, I am prepared to find as a reasonable possibility that there was an argument that night in the course of which Sokchenda Lam used some physical violence towards the accused and also used the words which he has attributed to her. In order to assess how offensive and insulting those words and actions might have been to the accused, it is necessary to have regard to the history of the relationship between the accused and his wife, the age and intellectual capacity of the accused, as well as matters relevant to his ethnicity.
Mr Kong’s evidence is clearly of significance when assessing the gravity of the deceased’s conduct towards the accused that night. Mr Kong described a hierarchical society in which wives are expected to be subservient to their husbands. The constant theme running throughout the evidence of the accused was that his wife was, over a lengthy period of time, and on the night in question, disrespectful to him. Mr Kong referred to a society in which domestic violence from a man to a woman was tolerated but not the reverse. Mr Kong considered the types of words attributed to the deceased would be extremely insulting to a Cambodian man. He also considered that a suggestion from either spouse that the other had stolen money, as had happened on the occasion when Channara Uy was present, would be highly insulting to the other.
In considering the age and mental capacity of the accused, I have had regard to the evidence of those who knew the accused, such as his uncles Someth and Moeun Lem, as well as the evidence of Mr Balfour, all of which I have previously discussed. As mentioned earlier, Mr Vadasz relied on the evidence of Mr Balfour in submitting that the age of the accused for the purposes of the “ordinary person” test, should to some extent be adjusted by reason of his lack of maturity.
Although Mr Balfour said that the accused had a mental age of roughly less than a ten year old, he pointed out that this referred only to the accused’s intellectual functioning, and not to his life experiences. He said that although someone may have a chronological age of 40, but the mental age of a ten year old, that person will still have had vastly greater life experience than a ten year old would ever have. Accordingly, there has been a trend away from expressing a “mental age” and instead a preference for speaking of IQ. Mr Balfour said that there was no instrument to which he could refer in order to measure social maturity or life experience. These comments illustrate the difficulty in attributing a lower chronological age to the accused as Mr Vadasz suggested, whether it be in the assessment of the gravity of the insult or for the “ordinary person” test.
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 behaviour 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.
The accused was unable to give any satisfactory explanation for the obvious inconsistency between his various accounts of what caused the argument that night. Although I thought that during part of the cross-examination as to these matters there were some linguistic problems, I nevertheless gained the impression that the accused was aware of the inconsistency, and deliberately sought to avoid the issue by taking refuge in a lack of understanding, and I take that into account as adverse to his credibility.

It is not possible for me to make any finding as to how the altercation came about that night although I think it is unlikely that Sokchenda Lam was intending to go out, as the clothes that she was wearing when she was at the house of Borem Pov were clearly those that she was wearing at the time of her death and appeared to be her work clothes. Although Borem Pov agreed in cross-examination that the deceased was in a bad mood when she was at her house, I was left with the overall impression from her evidence that Sokchenda was unhappy (as she described in evidence in chief), rather than in the aggressive, violent mood which the accused attributed to his wife immediately upon her return home.
Although Mr Vadasz relied on the evidence of Dr Middleton as supporting the evidence of the accused as to the assault upon him by his wife, I note that apart from a tiny scab on the accused’s ear and a minor abrasion to his left chin, Dr Middleton did not observe any recent injury to the accused as might have been expected if, on the night in question, the accused had been subjected to the violent assault by his wife that he described.
There was a degree of deliberation in the actions of the accused which I have earlier discussed when considering the question of intent which, in my opinion, is inconsistent with the accused assault upon his wife as being in response to provocative conduct on her part. This includes the evidence of the accused that he recalled his wife’s last words to him to the effect that if he hit her he would go to gaol, and his decision to proceed nonetheless.
As I have earlier indicated, I did not believe the evidence of the accused as to what happened in the house that night. I am, however, satisfied that whatever the deceased said and did made the accused very angry. As he repeatedly said throughout his evidence, she was very rude and disrespectful to him. The difficulty the accused has in controlling his temper was evident in his evidence about the women who came to the house as being “wicked” and “hypocrites”.
Having considered all of these matters, I find as a reasonable possibility that what the deceased said and did to the accused on the night in question was considered by him to be highly insulting and disrespectful. I am satisfied that made him very angry. I do not, however, believe that it caused him to lose control. I am satisfied that the accused acted out of anger as he had done earlier on the occasion of the knife sharpening steel incident. He was very angry, and that is what he meant when he said he lost control. I am satisfied that he resented his wife’s increasing independence. He considered that she was causing him a lot of trouble. 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.
In view of that finding, it is unnecessary to consider the objective part of the test for provocation, but for completeness I will do so. If I had found as a reasonable possibility that the conduct of Sokchenda Lam caused the accused to lose his self-control, it would be necessary to consider whether conduct of that kind might or could have caused an ordinary person to lose the power of self-control, that is, a hypothetical person with powers of self-control within the limits of what is ordinary for a person of that age. In considering this part of the test, the only relevant personal characteristic of the accused which I take into account is his age. I have earlier referred to Mr Vadasz’ submission that in this case the chronological age of the accused should be reduced to allow for his immaturity and I have commented on the difficulties associated with that approach. I nevertheless assess this matter on the basis that the hypothetical ordinary person is an immature, 37 year old man. In my opinion, as grave as the insult might have been to the accused, I do not think that conduct or insult of that kind was such as would have caused the ordinary person to lose control to the extent of subjecting his wife to a prolonged and brutal assault in which up to 100 blows were administered with a hammer. I therefore find the accused guilty of the crime of murder.