Em v The Queen

• Jurisdiction: Australia Federal only
• Court: High Court
• Judge: Gleeson CJ,Heydon J,Gummow,Hayne JJ,KIRBY J
• Judgment Date: 04 October 2007
• Neutral Citation: 2007-1004 HCA A,[2007] HCA 46
• Docket Number: S59/2007
• Date: 04 October 2007

[2007] HCA 46

HIGH COURT OF AUSTRALIA

Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ

S59/2007

Sophear Em

Appellant

and

The Queen

Respondent

Representation

S J Odgers SC with A Francis for the appellant (instructed by Legal Aid Commission of New South Wales)

D C Frearson SC with J A Girdham for the respondent (instructed by Solicitor for Public Prosecutions (NSW))

Evidence Act 1995 (NSW), ss 84, 85, 90, 137, 138.

Em v The Queen

Criminal law — Evidence — Confessions and admissions — Discretionary grounds for exclusion — Unfairness discretion — Police covertly recorded a conversation with the appellant in a park — Appellant made certain admissions — Appellant not aware that he was being recorded — Appellant under mistaken belief that admissions to police could only be used against him in criminal proceedings if recorded electronically — Police deliberately omitted the second part of the standard caution, namely that anything said or done by the appellant could be recorded and used as evidence in court — Interpretation of s 90 of the Evidence Act 1995 (NSW) — Whether admitting evidence of admissions in these circumstances was unfair — Reliability of the admissions — Whether right to silence impugned — Whether jury should have been warned by the trial judge that an admission made in these circumstances may be unreliable.

Words and phrases — ‘unfair’.

ORDER

Appeal dismissed.

Gleeson CJ and Heydon J. After a trial in the Supreme Court of New South Wales before James J and a jury, Sophear Em (‘the appellant’) was convicted of murdering Joseph Logozzo; assaulting Joseph Logozzo with intent to rob him while armed with a dangerous weapon; and firing a firearm with disregard for the safety of Marianne Logozzo. He was sentenced to 25 years imprisonment for the first offence, 10 years imprisonment for the second offence and two years imprisonment for the third offence. At that trial the appellant was also charged with five other offences, namely that, being armed with a dangerous weapon, the appellant had robbed Michael Kress, his wife Beverly Kress, his daughter Alyson Kress, his son Jonathon Kress, and Ramzi Tamer, who was a friend of his daughter. In the course of the trial the appellant pleaded guilty to those charges. He received five concurrent sentences of imprisonment for 12 years in relation to them.

2 The appellant's appeal to the Court of Criminal Appeal (Giles JA, Grove and Hidden JJ) against conviction and sentence was dismissed 1. By special leave, the appellant appeals to this Court against the Court of Criminal Appeal's order dismissing his appeal to it against conviction. The Notice of Appeal makes two complaints. One is that the primary judge erred in overruling an objection to part of a confession recorded by police officers in a suburban park on 15 May 2002. The other complaint is in the alternative; that the jury should have been given a warning about the unreliability of the confession. If the first complaint is made out, the appellant contended that there should be no order for a new trial, but that he should be acquitted of the Logozzo offences. For the reasons given below, the appeal should be dismissed.

The crimes

3 The Logozzo home invasion. The three counts to which the appeal relates concern a ‘home invasion’ on 7 January 2002. The home invaded was that of the Logozzo family in Cecil Hills, a suburb of Sydney. Mr and Mrs Logozzo arrived at their residence shortly after midnight. They were confronted by two men wearing dark clothes, balaclavas and large ski goggles. One was armed with a rifle and the other with a pistol. The men forced the Logozzos into their house. Other occupants of the house were threatened with the weapons, forced to leave the upstairs bedrooms in which they had been sleeping, and made to lie on the downstairs lounge room floor. The man with the rifle pointed it at Mr Logozzo and forced him upstairs so that property to be stolen could be identified. In the course of a struggle on the stairs and in the lounge room Mr Logozzo was shot in the chest by the man with the pistol. Mrs Logozzo ran to her husband's aid and

was shot in the hand by the man with the pistol. The intruders then fled. Mr Logozzo was taken to hospital but was pronounced dead.

4 The Kress home invasion. On 17 January 2002 another home invasion took place nearby, at the residence of the Kress family in West Hoxton. Late in the evening Mr Michael Kress, his wife Beverly, their son Jonathon (aged 16), their daughter Alyson (aged 17) and her boyfriend, Ramzi Tamer, were at the Kress residence. At about 11.30pm Mr Kress opened his garage and stood at the open door smoking a cigarette. A car which had been stolen the previous day stopped opposite his driveway. Three men alighted from the car dressed in dark clothing and balaclavas. Two were wearing ski goggles. One carried a pistol, one a rifle and one a knife. The man carrying the pistol ran up the driveway and said: ‘Get in quick, don't shout, if you shout, I'll shoot you.’ The men forced all the occupants of the house to lie on the floor of the downstairs bar area, tied their hands and placed masking tape over their mouths. Numerous items of property were stolen. The man with the pistol told them to keep their heads on the ground for another ten minutes and not to call the police on pain of death. The appellant, who was 19 at the time of the offences, admitted being one of the three men, but gave evidence seeking to exculpate himself, which James J did not accept.

The police investigation before the 24 April 2002 conversation

5 The police received information leading them to believe that two persons who committed the Logozzo home invasion might have been parties to the Kress home invasion, and that on each occasion an AK47 assault rifle and a .32 handgun were used. On 16 February 2002 police officers executing a search warrant at premises in Canley Vale in connection with an unrelated matter found a fishing licence in the name of Mr Kress and a watch owned by Alyson Kress which had been stolen during the Kress home invasion, black electrical cable ties similar to those used to restrain the Kress family, and a balaclava. At that time the appellant and a friend of his, Mao Vann, were living on the premises. The watch was found in Vann's room. During the search, the appellant was asked: ‘Who is Michael Kress?’ He replied: ‘Might be a friend of ours.’

6 On 22 February 2002 the appellant was interviewed by police officers in relation to the killing of a person on 9 February 2002. After being cautioned, he answered over 270 questions.

7 The police then discovered that SIM cards registered in the name of two persons having an address of 1/119 Chester Hill Road, Bass Hill had been used in a mobile phone stolen during the Kress home invasion. This caused police officers to execute a search warrant on 24 April 2002 at 1/119 Chester Hill Road, Bass Hill, which were premises then occupied by the appellant. Until then the appellant had not been the subject of police interest in relation to either the Logozzo or the Kress home invasions. The appellant was made to wait in the lounge room for an hour while the house was searched. He was then taken to his bedroom while it was searched. In the appellant's bedroom the police found a carry bag containing, inter alia, black clothing, a balaclava, ski goggles, cable ties, two pairs of gloves, a roll of grey duct tape, and a sheath knife. He admitted that he owned those items, apart from the cable ties, but he said under questioning later that they had been used for fishing. Another occupant of the premises, Arno Do, was arrested in relation to a firearm found in the search. Liane Tran, who also occupied the premises, was taken to the police station for questioning about the use of her SIM card in a mobile phone stolen during the Kress home invasion.

The 24 April 2002 conversation

8 On 24 April 2002, following the search of the premises, the appellant was arrested. He was taken to Bankstown Police Station. He was questioned in an interview room about both the Logozzo and the Kress home invasions by Detective Senior Constable Bradley Abdy and Detective Senior Constable Michael McLean. Detective Abdy told the appellant he was to be asked about the Kress home invasion and administered the following caution: ‘I want you to know that you don't have to say or do anything unless you wish as anything you say or do may be recorded and later given in evidence at court.’ He was given a document to the same effect and a written summary of Pt 10A of the Crimes Act 1900 (NSW) 2. He was also told that the interview would be recorded on a ‘video and audio machine’. The following conversation then took place. The appellant said: ‘I'm not going to say anything to you if you turn that on. I don't want to look like a dickhead.’ Detective Abdy said: ‘I can turn the audio tapes on and leave the video off if you want?’ The appellant said: ‘No, nothing.’ Detective Abdy said: ‘Well how about I turn the tapes on and you state that objection on them?’ The appellant said: ‘I won't say a word if you turn it on.’ Detective Abdy said: ‘What about we write down what you say?’ The appellant said: ‘No.’ Detective Abdy said: ‘Mick and I are going to ask you some questions anyway and it is up to you what you say.’

9 The detectives then put a number of damaging circumstantial matters to the appellant in relation to the Kress home invasion. After a few minutes the appellant twice said that he did not want anything recorded on the tapes. After the second refusal he said: ‘But what do you want to know, like where is the gun and stuff?’ The detectives then left the room. On their return the following conversation took place. Detective Abdy said: ‘Well Sophear what is it going to be are you going to talk to us or not?’ The...