14 May, 2010

All for a mango... Part II

The jury returned a verdict of guilty. They were satisfied that it was Tang who had inflicted all the stab wounds.

The sentencing Judge felt that Tang's attack on David was a spontaneous reaction to protect his younger friends, and while that explained his actions, it certainly did not justify them. His Honour felt that Tang had not intended to kill David, but had nevertheless intended to cause him very serious harm. David Laxale was an unarmed member of the public who was merely protecting his property. Despite his use of a weapon, Tang's youth and good references were taken into account, and he was sentenced to 15 years in prison, with a non-parole period of 11 years.

David's family reacted strongly. His brother Jean-Pierre said "11 years is not enough for murder. He'll be out when he's 29 - my brother died when he was 29 - he'll still be a young man... If someone's convicted of murder and found guilty, beyond reasonable doubt, the law should be that you serve 25 years, and that's it. People will then think about the consequences before they commit the crime."

Tang appealed his conviction. His defence argued that Jason, Andrew and Luke were accomplices in the stabbing, and all had motives to minimise their own participation in the events. They pointed to the post-mortem evidence of the possibility that more than one knife was used, and the evidence that at least one other of the boys was carrying a knife.

Another major appeal point concerned Tang's first interview with police, where he had replied "no comment" to their questions. Although he had not made any confession, his denials were seen as "significant admissions", particularly in relation to the knives. When compared with the police interviews conducted with Andrew, Jason and Luke, Tang's responses cast a poor light on his credibility, and it was inevitable that he was judged unfairly.

This became a major problem when it was revealed that Tang had not given correct information about his age. Although he admitted lying at first, he subsequently told police his real name, and gave them what he believed was his real date of birth, in January 1979. His mother also gave his date of birth, but in February 1979. In any event, it appeared to police that Tang was 18 years old at the time of the attack, and therefore he was treated like an adult.

As it turned out, once birth records were obtained from Cambodia, he was actually born in September 1979, making him only 17 at the time of the attack, and therefore a juvenile. When juveniles are interviewed by police, there must be an adult present at all times, and they must receive advice from a legal representative about the right not to answer questions and make admissions. The defence argued that the interview was therefore illegally obtained, and should not have been played at Tang's trial.

The Crown argued that the police had no way of knowing Tang's date of birth was incorrect, and therefore they had not done anything wrong. It also argued that in any case, the interview had not really affected the outcome of the trial.

The Appeal Court rejected the Crown's argument, stating that the interview, and the cross-examination of Tang about his responses, was "devastating in its effect", and that had the jury only seen his oral evidence at trial, they may well have acquitted him. Also, despite the police not deliberately doing anything wrong, it didn't change the fact that there was a real chance Tang would not have answered the questions the way he did, if he had been given some proper legal advice, and had an adult present.

The Appeal Court ordered that a new trial be held.

This time around, the Crown case rested on the evidence of Jason - that he saw Tang with a bloody knife and heard him admit to stabbing Laxale three times. Jason admitted being in possession of a knife himself, as he had at the first trial, but despite extensive cross-examination, denied he had inflicted any of the other four stab wounds on Laxale. In any case, Jason had been granted an immunity from prosecution when he decided to admit having a knife.

Tang gave new, different evidence at his second trial. He admitted going to the park with the others, and then deciding to go and steal some fruit. They stole a mango from a house in Berala (not Mrs Laxale's yard) which Jason then cut up with a knife. Tang said he also saw Andrew with a butterfly knife earlier that evening, but he was not sure if the two were the same.

He admitted that when they got to the Laxale's mango tree, he was the one who jumped over the fence and started throwing the fruit back over to the other boys. He saw a barely dressed man run out of the house yelling, and grab his friend Andrew. Tang said he jumped into the attack to help Andrew, but was then punched by David himself. He said he fell to the ground, dazed, and when he looked up he saw Jason stabbing David with the knife in his right hand. He was a few metres away at that point, and entered the fight again to help his friends. That was how he came to have blood on his pants. He saw David get up and then fall back down again, and they all fled the scene together.

When they stopped at the tap, Tang said to Jason "you stabbed him, didn't you?" and Jason replied "yeah". They all stopped and washed blood from themselves. Tang said he heard Luke say to Jason "you're fucked". He looked at Jason and saw the knife in his hand, so he took the knife from him and washed it under the tap, before handing it back again. At this point, he realised it was the same butterfly knife he saw Andrew with earlier.

He said he couldn't remember if he phoned Manu that night, but might have done so, to see if Manu was home, so that he could go and stay there. Then he went home and got his sister's car and drove to Manu's place, where he stayed until he was found by police.

Tang said he had not told anyone about this before because he wanted to protect his younger friends, and he was also fearful of the consequences. He said he was particularly afraid of Jason and Andrew. He again denied going to Andrew house the next morning to get the punching bag, or threatening him while he was there.

The Crown submitted to the jury that they should reject Tang's evidence, and find that he had inflicted at least two of three stab wounds upon David, and even if Jason had also stabbed him, Tang was still guilty of murder and should be convicted.

The jury agreed, and once again returned a verdict of guilty. Clearly, they rejected Tang's new version of events - even though they did not know about his police interview. Jason had far greater credibility in front of the jury - his surprise evidence about the mobile phone call (which was immediately confirmed by the telephone records) gave his version of events a lot of weight, and the fact that he had freely admitted that he was also carrying a knife, gave his story a "ring of truth".

As before, the Judge approached the sentence on the basis that Tang had not intended to kill David Laxale, but had nevertheless intended to inflict grievous bodily harm. It was another case of the dangers of carrying knives, and their potential to be used with fatal consequences. Applying the principles of double jeopardy, the Judge did not impose a greater sentence than he had received the first time around (although his Honour felt a bigger sentence was justified), and sentenced him to 15 years in prison once more, with the same non-parole period of 11 years.

Jean-Pierre Laxale was again outraged, stating that Judges gave no consideration to victims or their families when making decisions: "A maximum sentence of 15 years is so frequently reduced to 11 years... If it happened to one of their sons I guarantee they would change the law. You can serve more time in prison for fraud than for murder - that doesn't add up."

David's sister-in-law Lana told supporters outside court that "I'd like to saw how proud I am of the Crown Prosecutor [Barry Newport QC]. It was a very difficult trial because of the way the jury was kept blind about the previous trial."

Tang appealed his conviction once more. This time, his appeal concerned the fact that Manu and his father Joe were not called as witnesses, as it seemed they may have been able to provide crucial evidence. They may have been able to confirm whether Tang did in fact stay at their house on the night of he 23rd, whether Manu's mother served him breakfast the next morning, and whether he worked for Manu's father Joe on Monday 24th, as he claimed. Manu may also have been able to give evidence about the contents of the phone call that the records showed Tang made to his house from his mobile phone on the night of the 23rd - in particular, whether Tang had made any reference to "trouble" or "stabbing", or whether he was just finding out if he could stay over that night.

Lastly, Manu may have been able to confirm or deny Tang's claim that he collected the punching bag from Andrew one month beforehand, when Manu and Lee were there, as opposed to the morning after the stabbing, as Andrew claimed.

At the conclusion of the trial, the Judge gave the jury what is known as a Jones v Dunkel direction. They were told that they should not speculate about what a witness, who was not called to give evidence, might or might not have said. More importantly, they were told that since Tang did not call Manu or his father to give evidence, the jury must conclude that they would not have said anything to support his case.

However, the Judge made a crucial error. The Jones v Dunkel direction cannot be given against an accused person, because it basically reverses the onus of proof (the Crown must prove every element of the charge against the accused - the accused has the presumption of innocence on his side, and does not have to prove anything). The direction can only be given against the Crown. The Judge should have told the jury that they must conclude that Manu and his father would not have said anything to assist the Crown case.

As a result, the Appeal Court overturned Tang's conviction once more, and again, a new trial was ordered.

The third trial for the murder of David Laxale began in 2004. By this stage, Tang had been in jail for over seven years. He was suffering from depression and had been attacked in jail by other prisoners, and was generally in poor health. The trial proceeded as before, although Luke was now living overseas and could not be located. Tang chose not to give evidence this time around.

The jury took only one hour and 20 minutes to acquit Tang of all charges. He walked free from custody, to the joy of his vocal support group "Friends of Choi Tang" who had been protesting his innocence outside the court every day. They emphasised David's dying statement that he'd been stabbed by "a Lebanese" and the fact that the mangoes Tang had removed from the tree were twisted off by hand, not cut with a knife. "Choi was [previously] convicted simply on the stories of three people who were originally accused and charged with a crime and committed for trial. They did a deal with the public prosecutor and got off scot-free."

Not so happy, were David's family. His brother Jean-Pierre said "I feel more hurt actually to know that David has been killed and someone has served seven years for it and that's all. It hurts more now than before, to know the others are out as well... Its pretty bad because the jury doesn't know much about the accused and his background, and what he's done before and after the crime, which I think is wrong... What about him lying under oath in at least one trial? How fair is that?"

Brother Daniel Laxale found the result "pretty shocking... The audacity of the thing is that they all admitted being there, either punching or kicking my brother, I learnt that as a school student, if someone mucked up in class and didn't own up, the whole class went down. For my liking, even if one did the stabbing, all of them contributed. They didn't hold him back, they all contributed with their silence. They were all in it together."

Jean-Pierre added "the jury were not aware of what happened at the last trial. The day after my brother was murdered, the accused was arrested for robbing someone and holding a knife at someone's throat. Why shouldn't this be raised in court? The jury took less than 90 minutes to decide whether he was guilty or not. And to me, that is just not good enough."

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