R v Ong [1999] WASC 51

1 PIDGEON J: The accused person has been committed to the Supreme Court at Christmas Island for trial on a charge that on 25 October 1998 in the Territory of Christmas Island he murdered Kok Poh Low contrary to s 279 of the Criminal Code. At a Directions Hearing on Monday 31 May 1999 an application was made on behalf of the accused person to change the venue to Perth.

2 The basis of the application is that having regard to the magnitude of the offence and the smallness of the community, it would not be possible to obtain a fair trial before an impartial jury. There was submitted in support of the application an affidavit from an investigator in Perth who rang a number of persons on the island and asked them certain questions. This affidavit sets out conversations from three or four persons as representing a sample. It would be difficult and indeed not desirable for an investigator to go further as he would be talking about the trial with potential jurors. There is also a letter from the Official Secretary to the Administrator saying:

"The population is probably no more than 1600 people at the present time. The ethnic mix is such that some 70 per cent is Chinese; 15 per cent is Malay and the balance is made up of Caucasians."

"The magnitude of the alleged crime in such a small community and in the context of most other incidents on Christmas Island, as well as the ethnicity of the dead person and the person who allegedly caused the death, is such that it impacted the community. That is, it was hot news for a while. In the absence of newspapers and other local media it provided a topic of conversation, and again in the absence of local media, I daresay that a lot of that conversation was not informed and was based largely on hearsay."

4 The nature of the Crown case and of the defence and the issues the jury will be called upon to judge is contained from the following extracts from the transcript of the proceedings before me.

"DAVIES, MR: The crown case, your Honour, is that on 25 October last year the accused man together with the victim, a Mr Low, and some others were playing gambling games at the Poon Saan Club which is a Chinese club on Christmas Island. During the course of that game an argument broke out between the accused man and the victim concerning, it seems, perhaps a small gambling debt but the argument escalated and there were insults traded backwards and forwards, at which point the argument was broken up by other members of the club who told the accused and the victim to both go home and leave the argument alone.

The victim walked out a side door of the Poon Saan Club and was walking up some stairs to where he lives, and the crown case is that the accused determined to pursue the victim to carry on with the argument that they had been having.

The accused got into his vehicle which was, on the crown case, parked in front of the club, did a U-turn or a three-point turn, and drove that car the wrong way up a one-way road. He then came around the corner into the street into which the victim lives and at that point the victim stepped out onto the road, having come up the stairs from the club, and the crown case is that the accused then saw the victim and deliberately ran him down, causing his death.

To put that in its context, the defence, as I understand it, is that all of that happened but when the accused came into the road into which the victim stepped, the accused had some attack of sneezing or something of that nature, causing the accused to close his eyes and, not being in proper control of the vehicle, run down the victim. That's the case, your Honour.

PIDGEON J: All right. Mr Hogan, is there anything you wish to say so that I know - that can help on the issues?

HOGAN, MR: Yes, your Honour. I have no difficulty with outlining what our proposed defence may be and it's, I think, first of all to take away from some of the things the crown case might be as to motive and things of that nature and then to demonstrate accident as what occurred, yes, and in very broad terms that's what we're talking about."

5 The principles on which I must act are clear and not in dispute with counsel. Section 577 of the Code provides that I am empowered to change the venue "for good cause". On the face of it a criminal case should be tried in the locality where the alleged offence was committed and the accused and witnesses reside (see R v Giddings [1916] VR 359 at 362 per Cussen J referred to by the Court of Criminal Appeal in Grieves & Ors v R, unreported; SCt of WA; Library No 8724; 18 February 1991). The law has been set out by Gallop J in Toh & Chong (1986) 30 A Crim R 203 at 204 where his Honour said:

"It is well established law that very strong reasons should be shown before the court should intervene to change the venue of trial: see Lemon v AG (1932) 50 WN (NSW) 19; Holden (1956) 73 WN (NSW) 444 and Cattell (1967) 86 WN (Pt 1) (NSW) 391. Those reasons include that a fair trial cannot be had at the place of trial by reason of local prejudice or by reason of widespread prejudice among the class from which the jurors are selected, or where local prejudice might be thought to exist justice must not only be done but be believed to be done: see Halsbury's Laws of England, Vol 11, par 221 and the cases there cited."

6 Gallop J in the case to which I have referred shifted a trial from Christmas Island to Perth. In that case there was before him evidence of specific prejudice to the accused person. In the present case there is no evidence of prejudice of that type. The application, in the present case, is made on the basis of the nature of the crime charged and the size of the community. It is submitted that there could not be a fair trial and there would not be the perception of a fair trial.

7 Most of the difficulties referred to by Mr Hogan on behalf of the accused person are difficulties that have been experienced by the Supreme Court in this State over many years when conducting trials in small communities. In times past they were experienced on the North-West circuits where jury panels have been small and they are to an extent still being experienced in some circuits. It is of importance, if possible and if it can fairly be done, for the trial to be conducted in and by the community where the offence is alleged to have occurred. If it is not possible to conduct a fair trial it must be shifted. It is my view that the difficulties referred to can be overcome by a jury properly instructed. There is always a possibility in any community, and particularly in a small community, that a person conducting a survey, particularly near the time when the offence is alleged to have been committed, will find a percentage who considers that an accused person is guilty. This does not mean that persons, initially expressing such a view, later, when serving as jurors would adhere to such view. They would receive instructions to put out of their mind anything they have heard of the trial or any pre-conceived ideas and to judge the matter with a neutral mind entirely on the evidence. It is my view, as it has been my experience, that when persons are called upon to carry the responsibility of a juror and hear the evidence directly, such persons adopt a different attitude and quickly adapt to and adjust to a direction that all rumours must be put out of their mind and that they judge the situation on what they hear directly by evidence. What a person, even in the metropolitan area, might say to a person conducting a poll and survey, is different from what that person, if called upon to act as a juror and sworn so to do, would say and do. Jurors take their duties very seriously and adhere to instructions. I am having regard to the issues to be judged and the extent to which any may raise passions. I see nothing exceptional in this area.

8 I have been informed that there was a jury trial in 1991. As far as I know there has not been one since. I have ascertained that it is anticipated that there would be in excess of 300 qualified jurors available for the panel

9 I do not see a factor present which would prejudice a fair trial and I would not change the venue.