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Editors --- "Trial on Christmas Island one of only few to be held before a local jury" [2000] AUFPPlatypus 16; (2000) 67 Platypus: Journal of the Australian Federal Police, Article 9


Trial on Christmas Island

One of only few to be held before a local jury

Federal Agent Justine Adamek and Constable Mike Ward were assigned to a case on Christmas Island in 1998 which resulted in the accused facing a jury of locals at the request of the presiding judge. Despite the usual practice of taking Supreme Court trials to mainland Australia, and with only one other known instance of a jury trial on the Island, the Honourable Justice Pigeon considered it would be valuable for the local community if Ong Kim Siong, who faced a murder charged, was tried on the island so he could be judged by his peers and the local community.

The prosecution alleged that Mr Ong deliberately used his motor vehicle to strike local resident Low Kok Poh, causing serious injuries. Mr Low died several days later as a result of the injuries without regaining consciousness. The trial began on September 16, 1999 in a special sitting of the Supreme Court of Christmas Island. Under its External Territories Program, the AFP maintains a community policing team on the island consisting of a sergeant, five constables and seven locally employed special members. Located 2,500 km north-west of Perth in the Indian Ocean, Christmas Island has a total area of 135 sq kms and a population of 1400, predominantly Chinese but also Malays and Europeans. Its primary industry is phosphate mining.

Forensic examiner Federal Agent Adamek travelled to the Island to provide forensic support to the investigation while Constable Ward who was attached to the AFP's Christmas Island Territory Police was the case officer. Since joining the AFP in 1988 Federal Agent Adamek has held a wide variety of roles in community policing and has had extensive experience in forensic services in the ACT where she attended all manner of crime scenes. She transferred to Western Operations Physical Evidence Team in Perth in March last year where her tasks have included assisting in investigations into drugs, fraud, guns and currency offences.

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Federal Agent Adamek

Constable Mike Ward also has held many community policing roles since joining the AFP in 1986, including those in both the ACT and External Territories Policing. In February this year he returned from a three-month secondment with the AFP's second Australian Civilian Police Detachment with the United Nations Transitional Administration in East Timor. He is now based in Internal Investigation in Canberra.

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Constable Ward

In the following case study, they outline the events uncovered by the investigation which led to the conviction of Mr Ong.

An argument over a $6 gambling debt ultimately was revealed by an AFP investigation in 1998 as the motive which led to the murder of local Christmas Islander Low Kok Poh. Forensic evidence, thorough police investigation and witness statements together with inconsistencies in the accused's version of events during police interviews all contributed to the December 1999 murder conviction of Ong Kim Siong, also a Christmas Island resident.

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A familiar landmark to those who have been to Christmas Island: the disused phosphate mine showing container belt, photphate storage warehouse and cantilever on the lower terrace of the island.

Background

Mr Ong and Mr Low, both members of the Christmas Island Chinese community, regularly took part in card game gambling at the Poon Saan Club in the Poon Saan district.

On the afternoon of October 25, 1998, Mr Ong and Mr Low were gambling with other Chinese men in the gaming room of the Poon Saan Club. An argument between the two men over a gambling debt of $6 escalated to a level where both men stood up and 'faced-off', yelling obscenities at each other.

Witnesses to the argument said Mr Ong was the more aggressive party. The two men had to be separated by the other game participants to alleviate the aggression. Mr Ong then left the gaming room and sat outside at the front of the club. Soon after, Mr Low left the gaming room and exited the club from a door at the back of the building. At the rear of the building was an open stairway which joined the Poon Saan Club with the roadway named San Chye Loh. Mr Low lived in a block of flats towards the end of San Chye Loh.

After Mr Low left the club, Mr Ong was seen returning to his car which was parked at the front of the Poon Saan Club. One witness saw him standing at the rear of his vehicle with the boot open, holding a baseball bat. Mr Ong then got in his car, made a U-turn, and drove quickly the wrong way down the one-way street. His car was seen turning right onto the cul-de-sac San Chye Loh.

A short time later, Mr Ong drove back to the Poon Saan Club. He went into the club and told the men he had been playing cards with earlier that he had "hit someone on San Chye Loh". He then left the club, driving in the correct direction down the one way street and towards his home. Some time later, he drove to the police station, however the police members were at the scene of the collision and Mr Ong did not speak with them. He was driving back up the hill towards the scene (and his residence) when intercepted by police. A search of his car found a wooden baseball bat in the boot.

Police investigation

Soon after attending the collision scene, police conducted inquiries at the Poon Saan Club. Members of the Chinese community at the club were evasive when questioned about the events of the afternoon. Some suggested to police that the collision on San Chye Loh was not an accident, and police were later told of the argument between Mr Low and Mr Ong.

There was a reluctance by members of the public to sign witness statements and offer information to police, partly because of cultural reservations about police, and a stigma attached to 'dobbing in' friends. There may have also been an element of fear involved, given that Mr Ong was known as a debt collector who was rumoured to use heavy-handed methods to inflict his will on others.

Mr Ong, a Singaporean national with permanent residency in Australia, spoke very little English, with Mandarin his first language. Investigating police used two local Mandarin-speaking Special Constables to translate, with the translation for all three interviews provided by Special Constables Ajay and Tay Yeow.

During the subsequent interviews, Mr Ong made several false denials and other inconsistent and misleading claims:

• He denied that he had any contact with Mr Low on the day he was injured. He later said he had in fact seen Mr Low that day, but denied that an argument had occurred.

• He denied driving the wrong way in the one-way street when leaving the front of the club to get to San Chye Loh.

• He said he was driving in San Chye Loh to visit a friend. This friend later told police he was not expecting a visit from Mr Ong.

• Mr Ong claimed the collision occurred as a result of a sudden sinus attack. The pain in his sinuses caused him to look down, and when he looked back up, there was a person on the roadway, he said. However, evidence from a medical practitioner during the trial rebutted that severe sinus attacks could cause pain so extreme that a person's sight would be affected to the extent described by Mr Ong.

• His estimated speed at the time of the collision was varied, ranging from 30km an hour to 50km an hour. However, he also admitted that he "panicked" when he saw the person on the roadway, and instead of using the brake, he pressed down hard on the accelerator.

• He first stated he collided with "a person", then later admitted he knew it was Mr Low.

• Mr Ong maintained the collision was accidental.

• When asked by police why he did not stop to assist the injured person, Mr Ong claimed he was in fear of being beaten by bystanders, despite earlier claims that there were no witnesses to the collision.

In the days following the collision, the police station received several anonymous letters stating that Mr Ong and Mr Low had been gambling together at the Poon Saan Club and that, following an argument, Mr Ong ran over Mr Low. There were also claims involving a baseball bat. Police were of the opinion that some of the authors of the letters were witnesses to the argument, and perhaps the incident, however there was also some indication of rumour and hearsay in the reports.

Police revisited the Poon Saan Club with two Chinese Special Constables and spoke to witnesses. They reiterated that in order to use any information in court, it had to be in the form of signed statements. Eventually, more than a dozen witnesses came forward with information that was used at the trial.

Forensic examination

Following the death of Mr Low in Royal Perth Hospital on October 28, 1998, permission was granted by the AFP's Chief Police Officer for the ACT for an AFP forensic examiner to travel to Christmas Island and provide forensic support to the Christmas Island Territory Police Team.

The five-day forensic examinations were conducted under extreme conditions of high temperatures and humidity as well as during the annual migration of red crabs.

The extensive examination of the motor vehicle involved in the incident, the scale and sketch plans of the Poon Saan district including San Chye Low, Poon Saan Road, and the examinations of the scene and the interior of the Poon Saan Club, were supported by photographs, diagrams and notes. The main aspect of the examination was to establish what had struck the deceased. Clarification was needed as to whether a baseball bat was involved, and whether Mr Low travelled over or under the vehicle.

The conclusions drawn from available evidence was that the front centre of the car's bonnet struck Mr Low. He then travelled diagonally across the bonnet towards the driver's side of the vehicle, falling from the bonnet in the vicinity of the windscreen and 'A' pillar (where the vertical edge of the windscreen met the chassis). He was struck with such force that his skull was fractured. Other injuries were sustained when he fell to the road. There were no impact injuries to the lower regions of his body.

There was a right-hand mark on the bonnet, which suggested Mr Low turned towards the approaching vehicle and extended a hand towards it as he tried to leap out of its path. Forensic examination found that the baseball bat did not appear to have been used to inflict injuries on Mr Low.

The trial

The murder trial of Mr Ong began on Christmas Island on September 16, 1999, with 15 jurors of Chinese, Malay and European descent being selected from the local population of 1400. It is thought that there has been only one previous Supreme Court trial heard on the island.

The preliminary hearing relating to Mr Ong's trial was held in Perth. Arguments against trying the case on the island had centred on the likelihood of locals having heard of the events, the victim or the accused in any crime committed there. However, Justice Pigeon said that for the courts to demonstrate to the local community that the law must be upheld, the accused must be judged by his true peers — other island inhabitants. This, he said, was the essence of the Australian judicial system. With this in mind, he dismissed all arguments to move the trial to Perth.

Justice Pigeon directed the jury to consider only the evidence presented to them during the trial to assist in making a fair decision.

The defence produced only one witness — the accused. Under extensive cross-examination by the Commonwealth DPP team, Mr Ong's evidence varied from his statements to police during taped conversations. Inconsistency in his responses was also evident during cross-examination. His defence was that during a sudden sinus attack, he was stricken by a severe headache that caused him to look away from the road. When he looked back up, a collision was imminent and unavoidable. Immediately after the collision, Mr Ong claimed that he continued driving to the end of the cul-de-sac, where he made a U-turn and drove back out of San Chye Loh and down to the Poon Saan Club. He said he did not look at, or see, any more of the person with whom he had collided. Mr Ong admitted he did not suffer any sinus attacks which caused vision loss while driving before or after the incident.

Despite various witnesses testifying about the argument, the manner of the accused's driving when he turned into San Chye Loh, and evidence from a medical practitioner refuting the medical claims of the accused, he maintained the collision was an accident. He showed no remorse for the death of Mr Low.

The verdict

The jury deliberated for three hours before returning a guilty verdict to the charge of murder. His Honour, in addressing the court after the verdict, said there was no doubt Mr Ong deliberately and callously ran down Mr Low following an argument over a gambling debt of $6. On seeing Mr Low walking along the road, Mr Ong took the opportunity to seek revenge by using his vehicle to cause serious harm.1

Mr Ong was sentenced to 15 years' jail, with eligibility for parole after serving eight years. The time served since the time of the incident was to be taken into account. Mr Ong is currently serving his time in Casuarina maximum-security prison in Western Australia.

Endnote

The crime of murder committed in a small, isolated, predominantly Chinese community could not have been fully investigated without the local knowledge, language skills, and detection of information of the two Special Constables, Ajay and Tay Yeow.

Footnote

1. The issue of whether he intended to kill Mr Low could not be established by the prosecution, which was why the charge was murder, and not wilful murder, which is available under the West Australian Criminal Code.


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