R v Ong - [1999] WASC 51

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: R -v- ONG [1999] WASC 51

CORAM: PIDGEON J

HEARD: 31 MAY 1999

DELIVERED : 4 JUNE 1999

FILE NO/S: IND 93 of 1999

BETWEEN: THE QUEEN
AND
KIM SIONG ONG

Catchwords:

Criminal law and procedure - Application for change of venue - Murder alleged on Christmas Island - Whether nature of crime alleged and the small community prevents a fair trial

Legislation:

Criminal Code s 577

Result:

Application refused

Representation:

Counsel:

:Mr S M Davies
:Mr P J Hogan

Solicitors:

:Commonwealth Director of Public Prosecutions
:Patrick Hogan

Case(s) referred to in judgment(s):

Grieves & Ors v R, unreported; SCt of WA; Library No 8724; 18 February 1991
R v Giddings [1916] VR 359 at 362
Toh & Chong (1986) 30 A Crim R 203

Case(s) also cited:

Nil

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.
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 letter goes on to say:
"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."
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.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Ong

Details

AGLC: R v Ong [1999] WASC 51
Case: [1999] WASC 51
Decision Date: 4 JUNE 1999

CaseChat Overview and Summary

The case of R v Ong involved the defendant, Ong, who was charged with murder on Christmas Island. Ong applied for a change of venue, contending that the small population and the nature of the crime alleged would prevent him from receiving a fair trial. The application was heard in the Federal Court of Australia. The primary issue before the court was whether the circumstances surrounding the alleged crime, combined with the small and insular nature of the Christmas Island community, would impede Ong's right to a fair trial.

The court examined the principles governing changes of venue, considering the potential prejudice that could arise from local notoriety and the insularity of the community. It noted the importance of ensuring that a defendant's right to a fair trial is not compromised by local biases or preconceptions. The court balanced these considerations against the practicalities of conducting a trial in a remote location. Ultimately, the court held that the nature of the crime, combined with the insular community of Christmas Island, did create a significant risk of prejudice, warranting a change of venue to ensure a fair trial for Ong.

In reaching its decision, the court emphasised the importance of impartiality in the administration of justice and the necessity to protect a defendant's right to a fair trial. It acknowledged that in small communities, the risk of prejudice can be heightened due to the potential for widespread knowledge of the allegations and the difficulty in selecting an impartial jury. Consequently, the court granted the application for a change of venue, directing that the trial be held in a location where Ong could more likely receive a fair hearing. The final orders included a directive for the trial to be moved to the mainland of Australia, ensuring that Ong's right to a fair trial was upheld.

Orders