A system failure - Part II

By the 24th of October, Tomi had decided to move to Wollongong. He had no food or clothes, and wanted to get his stuff from Geoff’s place before he moved.

Tomi found Geoff at home, using drugs, and decided to join him. He said Geoff started rubbing his leg and his groin, and told Tomi it was turning him on. He didn’t want to be raped again, he wanted Geoff to leave him along. He got up and went to the kitchen, where he took a knife from a holder next to the microwave. He said he wanted to scare Geoff, so “the thing” would not happen again. He found Geoff standing in the living room, waiting. Geoff came towards Tomi, and Tomi struck out with the knife, intending to scare him. He couldn’t remember where he struck Geoff.

Tomi then searched the unit, grabbing his clothes and a bottle of whisky. He looked for the key but was unable to find it, so he climbed over the balcony. In his haste he left his wallet in the bathroom. At 9:32pm he called ‘000’ from a nearby phonebox:

“Hello, could I get… I would like to report a murder at, um, 11/3 London St, Enmore. Anonymous caller. A murder, someone’s been stabbed”.

The next morning he called Geoff’s unit and left a message on his answering machine. “Hi Geoff, its me, Tomi. I’ll be back home in a week. Ok, bye”.

Around that time Tomi ran into his friend Stone again at the squat in Parramatta. Stone was interviewed and gave the following answers:

“Q: What did he say to you?

A: That he killed someone because he got raped.

Q: What were the words he said to you?

A: He said ‘I done it’.

Q: Were they the words he uttered? ‘I done it’?

A: Yeah.

Q: What did you say in response to that?

A: ‘Done what’?

Q: What did he say?

A: ‘Killed the bloke I was living with because he raped me’.

Stone said he told Tomi he should turn himself in to police.

On the 26th, two days after the killing, Tomi again called ‘000’ from a phone box near Geoff’s house at 7:25pm. He said “Hello, there’s been a murder at 11/3 London St, Enmore. They’vekilled a person, um, I dunno. I done it.”

As it happened, police arrived at the apartment block at around 7:30pm that evening, responding to the concerns of Geoff’s colleagues. Tomi approached the police and told hem he lived at Unit 11 with Geoff. He said he’d been camping for a few weeks and just got back. He went back to the police station for an interview, and Detective Jackson came out to tell him arrangements had been made for an independent adult to be present when he was interviewed, as he was a minor. Tomi looked at Det. Jackson and said “I stabbed him”. Detective Jackson said “What”? Tomi repeated “I stabbed him. I stabbed him ‘cause he was fucking me up the arse”.

In his interview, Tomi said “well, a while back Geoff got me stoned on drink and drugs and fucked me up the arse twice. Last Thursday, after I had drunk half a bottle of Scotch, Geoff kept touching me on the leg and saying ‘you’re making me horny’ so I got up and went to the kitchen and cut his throat and stabbed him a few times”.

Geoff was found lying in the kitchen, with blood all through the unit, suggesting the attack began in the lounge. He was nude, and was probably nude when Tomi attacked him. There was evidence that suggested he was often nude at home.

Psychologists felt Tomi was suffering from an ‘abnormality of mind’ at the time of the stabbing, due to his inability to recall parts, the differences in the details he provided and the nature of the wounds.

There was a 13.5cm cut to Geoff’s throat, and a stab wound to his head, which penetrated the skull, but not the underlying membrane. He also had four stabs in the upper right of his back from 9-18cm, three of which penetrated bones. All four stabs penetrated the lungs, the loss of blood proving fatal.

The injuries suggest that Tomi lost control.

Tomi was put on trial for the murder of Geoffrey Boyson. They jury found him not guilty of murder, but guilty of manslaughter.

Because the jury do not give reasons for their verdict, it is up to the Judge to then work out why they came to such a decision. In Tomi’s case, there was evidence of both ‘provocation’ and ‘diminished responsibility‘, either of which would give the jury grounds to reduce the charge from murder to manslaughter.

Both the Crown and the defence agreed that the defence of ‘provocation’ was established in this case. The law states that a killing is done under provocation where a person loses self-control because of another person’s conduct or behaviour towards him or her, and this can include words or gestures - it does not have to be a physical attack. The test for the jury, is whether a reasonable person, not drunk, would have also lost self-control if he or she was in the killer’s shoes. In this case, being in Tomi’s shoes meant someone from an emotionally deprived background, let down by those who were obliged to take care for him in his early years. The only difficulty was the fact that he had been drinking with Geoff before the incident.

Nevertheless the Judge accepted that provocation had been established, and commented that in such a case, a loss of self-control is more understandable and excusable than for the vast majority of the community.

Tomi’s lawyers also argued that he had a defence of ‘diminished responsibility’. To prove this they had to show two things: that at the time of the killing Tomi had an ‘abnormality of mind’; and that this ‘substantially impaired his mental responsibility’. All psychiatrists agreed, as did the Crown, that Tomi suffered from severe psychiatric issues arising from his background. The psychologists interviewing him for court largely agreed with the conclusions of other medical professionals throughout his life. One wrote “at no time was I able to detect any of the warmth and empathy that I would normally expect in interactions with a fellow human being. I consider this abnormal, even after making due allowance for the fact that he is amidst his trial for murder… In summary, Tomi has gross emotional coldness, shallow affect and lack of empathy, a persistent failure to confirm to social norms, a reckless disregard for the safety of others and lack of remorse. Taken together, this is indicative of gross psychiatric disturbance.”

The real issue therefore, was whether this really affected his level of criminal responsibility for his actions. The Crown argued that it did, saying Tomi had been drinking, and made a conscious plan “to scare“ Geoff, after which he spent time collecting his things and other items from the flat before leaving through a window.

One doctor commented: “If Tomi’s version is accurate, his ability to exercise control over his physical acts at the time of the alleged killing did not appear to be impaired. According to him, he sat in the kitchen for ten minutes pondering what to do before he committed the stabbing. Admittedly, [Geoff] had six stab wounds whereas Tomi did not suffer any significant injury and told police that [Geoff] did not fight back. However I do not feel we can conclude from this that the attack was one committed under impaired control. He did not appear unduly prone to impulsive behaviour.”

However, another doctor stated: “His capacity to judge his situation correctly and control his impulse to kill would have been substantially impaired. Unlike an ordinary person, his personal boundaries would have been grossly disrupted by the cumulative impact of childhood sexual and physical abuse, gross emotional deprivation, institutional abuse, and life on the streets.”

The Judge eventually rejected the Crown’s arguments, and found that Tomi did have diminished responsibility for his actions. However his Honour had some reservations about this, particularly at the sentence hearing, when Tomi was described as laughing, smiling and making eye contact, in stark contrast to the psychiatric symptoms he displayed during the trial. The Judge questioned whether Tomi had in fact been putting on an act, and queried whether there really was an abnormality of mind, but eventually gave him the benefit of the doubt.

Since his arrest in 1996, Tomi’s criminal behaviour had not improved. The following year he was caught starting electrical fires, and escaped fro police. Although he had been granted bail, he was returned to juvenile custody. He improved in the middle of the year following visits from his natural father, but in September when his father visited with the rest of his family (step-mother and two step-sisters) Tomi escaped once more. He emptied a fuel bowser and set it alight, but luckily the damage was quickly contained.

When handing down his sentence, the Judge felt that further custody would not be of any benefit to Tomi - he would be at risk of further institutionalisation, and would have access to illicit drugs. He was supported by the ‘Youth Off The Streets’ program and Father Riley, which offered a supportive family environment with a zero-drugs policy and a positive peer culture. Tomi had shown real progress in his time there, completing his school certificate and studying for his HSC.

Despite Tomi’s early attempt at creating an alibi for himself (leaving a message on Geoff’s answering machine saying he was camping), and his proud boasts that he had eliminated “a faggot”, the Judge found that Tomi was genuinely remorseful for his actions, as seen in his ‘000’ calls, his arrival at the unit afterwards to see police, and his early confession.

Tomi was given a four-year good-behaviour bond. The conditions were that he be of good behaviour, take no drugs, drink no alcohol for twelve months, live at YOTS and participate in all educational, vocational, and drug & alcohol programs as ordered. He was to obey all directions of Father Riley, including regarding his consumption of alcohol.

The Crown immediately appealed Tomi’s sentence, on the basis that it was too lenient. It is rare for the Crown to appeal a sentence, as it has a much bigger hurdle to get over - the defence need only show a sentence was a little harsh to get it overturned, but the Crown must show much more than a little leniency, rather it must prove the sentence was ‘manifestly inadequate’ - a much harder test. These appeals are rarely run, and even more rarely successful.

Unsurprisingly, in this case the appeal was rejected.

A system failure - Part I

Tomi K was born the day after New Year’s Day, 1980. His mother was an alcoholic who drank all through his pregnancy, as well as that of his two-year-old sister Suzie. Visiting DoCS officers constantly found the home littered with rubbish, food scraps, beer and other alcohol bottles, cigarette butts, unwashed plates, cutlery and clothes.

In June 1980 Tomi was hospitalised with severe nappy rash after his mother was found unconscious outside the local pub. Tomi was unkempt, not well cared for, and seemed to be an unhappy baby. He lay miserably in his cot, and did not interact with staff. His mental age was found to be lagging, and he was delayed in his personal, social and language development.

Suzie was in a similar state of late development. She was very small for her age and unable to speak, uttering only monosyllables. She was diagnosed with foetal alcohol syndrome, a type of retardation caused by the mother drinking throughout pregnancy.

Tomi improved a little while in hospital, but regressed once he was released back into his mother’s care. However not long after, in August 1980, his mother dumped Tomi and Suzie with her parents and fled. When DoCS visited, the grandmother was found in a drunk and disorderly state. DoCS intervened and made both children wards of the state, placing them in an institution.

In November 1980 Tomi and Suzie were placed with foster parents, the Banks. Tomi initially settled well, and his development improved. In March 1981 he began to have convulsions, and in May began to display tempter tantrums and would regularly hold his breath as long as he could. He was prescribed with Dilantin and by 1983 had no more seizures.

In 1984 the relationship with the Banks seemed good, although they were a little concerned about unusual behaviour from both of the children. Suzie in particular was displaying overtly sexual behaviour, and Tomi had a habit of putting everything into his mouth and eating it (pica).

In 1985 Tomi started kindergarten. He was still eating everything he could lay his hands on. He seemed to have no fear about it, and it seemed to be a device to get attention, even if it was just to be punished. He was disruptive in class, and had a limited concentration span. He quickly became alienated from other children, and often injured them with sticks and stones. He also liked to urinate and defecate in the sinks and washbowls (encopresis). He had no fear about being punished for any of this, and seemed to have no sense of shame.

In August of 1995 this behaviour became increasingly self-destructive. He would hand upside down on the money-bars and fall onto his own head, bite his own fingers, gouge his own eyes and rub his feet in glass. He talked about death all the time, and was often found trying to hurt or kill small animals. He ate cockroaches, and regularly peed on the floor.

A psychologist who saw the children wrote a report for DoCS: “In summary, Suzie and Tomi are both extremely disturbed children who came from a very deprived background. Their behaviour is typical of that classically described in children with this degree of deprivation including excessive eating of normal and abnormal things as well as a lack of affect and any sense of guilt or responsibility. I should think that the prognosis for the children from a psychological point of view is very dismal indeed… I certainly do not think there is any evidence that there is a neurological disease except for the brain damage and clumsiness which are the result of the alcohol exposure during pregnancy.”

Another doctor commented that both children “have gross behavioural, emotional, educational and cognitive problems … explicable on the basis of the grossest abuse and disruption of attachments in the early years”.

By October of 1985 Mrs Banks was no longer able to cope with the children, Suzie in particular. She asked DoCS to remove the children, and by November she told them that if no alternative placement was found for Suzie within three days, she would leave her at the DoCS office.

In addition to the encopresis and pica, Tomi was also displaying self-harm and other dangerous destructive behaviour, as well as lying, and showing overt sexual interests for his age.

Nevertheless, Tomi and Suzie were not removed from the Banks’ care until March 1986, after a doctor was critical of their standard of care and what he described as “incompetently inappropriate management”. He felt that Mrs Banks was ambivalent towards the children, and had created an isolated, hostile environment. He was of the opinion that if the children had been receiving appropriate care, developmental problems such as poor concentration and co-ordination would have improved.

Suzie and Tomi were sent to institutions including Mirali, and by June they were in the Lindfield unit of Barnardos, which was for severely emotionally disturbed children: “The two children are very difficult management problems who require intensive and continuous care which is far beyond that required for a ward in normal circumstances”.

In April 1987 after some improvement, both children were sent to stay with Miss Williams. Around the same time, their natural mother had been leading a more stable life, and coping well with her three other children. So, despite things going well with Miss Williams, both children were returned to the care of their natural mother in March 1988. In November their status as ‘wards’ was officially removed.

However Tomi’s behaviour continued to decline, and by November 1990 his natural mother and her husband were no longer able to cope. 10-year-old Tomi was constantly running away, deliberately placing himself in danger, sniffing turpentine and other destructive activities. He was suspended from school in December and returned to Minali children’s home.

In 1991 a treating psychologist described Tomi as having a poor self-image, and viewed the world as a threatening place. He was unable to trust most adults, and his behaviour was worst when he was under stress. In February his mother and husband refused to have him back, and once more he was made a ward of the state.

In December that year his mother refused to have him home for Christmas, and his step-father banned him from writing to her. This was the ‘ultimate rejection’ for Tomi, and his behaviour became even worse. He began to escape from the children’s homes and commit crimes.

In 1992 he was charged with two counts of ‘break, enter and steal’ and one charge of stealing a motor vehicle. Psychologist reports for the court showed that he was angry, hurt and disappointed about his mother’s rejection, and blamed his step-father. He was openly defiant, abusive and sullen. He showed no interest in anything, no spontaneity. He was emotionally empty, not even showing any anxiety facing court. He was diagnosed as likely to develop an avoidant personality disorder.

In December 1992 he was sent to live with Mr Walker. He was still showing distress over his mother’s refusal to have any contact with him, and had created an idealised image in his head of his absent father. In a way, despite all his misconduct, he was desperately searching for people who would care for him.

Living with Mr Walker went well, and in 1993 Tomi, now aged 13, asked Mr Walker to adopt him. Its not clear what progress was made with this, and by 1994 Tomi’s behaviour was once more becoming aggressive, and he was caught setting fires and destroying property, including causing over $2,000 damage to a St Vincent De Paul shop. He was sniffing turpentine again, and the stealing and violence increased. In August he was sent back to Minali Children’s Home, where he was charged with damaging property and given nine months probation. He claimed he now hated Mr Walker, and resented his affection.

He still fantasised about having the perfect family, although he was seen to be immature, and still emotionally empty. He spent most of his time getting drunk and taking drugs, and enjoyed self-mutilation. He continually stole cars, and in September of 1994 was found at the home of a known paedophile by Flemington police.

In June 1995 he left the Home to live on the streets. Occasionally he stayed with his sister Suzie, and spent most of his time stealing car radios to buy drugs. But in August he went back to Mr Walker’s house and asked for another chance. Mr Walker claimed Tomi insisted on sleeping in his bed, despite his efforts to get him out.

Around November 1995 Tomi met Geoffrey Boyson at Central station, and began staying with him regularly. Boyson wasn‘t considered ideal by DoCS and Tomi was told to go back to Mr Walker. He did so, but continued to visit Geoff regularly, and eventually left Mr Walker. But in June 1996 Tomi called Mr Walker, asking if he could return. Walker let him come back, but it was not long before he demanded Tomi leave, as his behaviour had not changed.

In August 1996 16-year-old Tomi collapsed from alcohol poisoning, and escaped from the hospital to go and stay with Geoff Boyson, officially taking up residence there in August of 1996. DoCS visited and interviewed Geoff and made police checks, and he came Tomi’s official carer in October of that year. DoCS weren’t entirely happy with the situation, but they did not have a great deal of choice in the end, as Tomi refused to stay anywhere where DoCS assigned him, and continually absconded to Geoff’s place in Enmore.

He lived with Geoff for the next few months, but in fact spent most of his time on the street, doing drug and committing petty crimes to support his habit. He actually spent very little time with Geoff, using his place mainly for drugs, and only staying there when the two of them used drugs together.

Geoff brought home drugs he had confiscated from residents where he worked. Tomi also gave him drugs - this seemed to be the real basis of their relationship. He was adamant he would never have gone to Geoff’s in the first place if he hadn’t been allowed to use there.

Geoff was a gay man with suspected paedophilic tendencies. At his house, advertisements from ‘Campaign’ and ‘Outrage’ were found, as well as an index to advertisements in women’s magazine with images of babies and young children, naked or semi-naked.

The relationship deteriorated between the two in October, when Tomi claimed that Geoff raped him on around the 10th. Tomi said he was on drugs at the time, and not able to resist.

Tomi left Geoff’s place and didn’t return for two weeks. During this time he met up with a friend of his, Stone, at a squat in Parramatta. According to Stone, they had the following conversation:

Tomi: What would you do if someone raped you?

Stone: In what way?

Tomi: Rooted you, and stuff like that.

Stone: I’d kill ‘em

to be continued....

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."

All for a mango... Part I

David Laxale's family came to Australia from Mauritius, but he was born here - the youngest of seven children, with five brothers and a sister. "He was the only one born in Australia out of the seven of us... We doted on him because he was our kid brother" said his brother Jean-Pierre, "we thought this was the great land of opportunity and freedom". 29-year-old David had been living at his mother's house in Berala for a few months in 1997, as he was having some difficulties in his marriage to his wife Suzie. She was pregnant with their second child, and they had a three-year-old son.

Choi Ka Tang was born in Cambodia, the youngest of eight children. He moved to Australia when he was six years old with his mother, who spoke no English. His father stayed behind in Cambodia. He attended Uniting Church camps from when he was 12 years old, and was generally considered to be a good boy. However, his mother, who spoke no English, found living in Australia without her husband stressful, and by the time Tang was 18 years old, they were estranged.

On the evening of Sunday 23 February 1997, Tang and three young friends, Luke (a Greek boy), Andrew and Jason (Lebanese boys), met in a park in Berala. Luke and Andrew had been at Jason's house earlier in the evening, and they met Tang at the park. While they were there, Jason said that Tang showed the boys his new mobile phone, and also a long knife he was carrying. The boys began walking to Andrew's house. On the way, Jason said Andrew gave him a long thin knife, known as a 'butterfly' knife.

As they went past David Laxale's mother's house, Tang spotted a mango tree. He jumped over the fence and started throwing mangoes over to the boys. This was not the first time Mrs Laxale's mangoes had been stolen, and David, who was resting in a room at the back of the house, heard the noise and ran out to see what was going on. He yelled out, and even though he was dressed only in his underwear, he chased the boys into the street, and managed to grab Andrew by the shirt. Andrew hit him back, and Jason and Luke went to help.

Jason saw Tang behind David, wrestling. David managed to grab a hold of Tang and punched him once in the head. Tang responded by punching him back, at which point David fell to the ground. All of them kicked David a few times to the head and body. David tried to get up but fell back down again. Jason said he and Luke ran off first, and Andrew and Tang joined them eventually.

Jason said he saw Tang with a knife in his hand, and blood on his shirt. One of the boys said "did you stab him?" and Jason heard Tang say "yeah, three times". Jason saw Tang wash the blood off himself, then threw his shirt into a wheelie bin. Jason also had blood on his clothing, and Tang told him to take his shirt off and throw it in the bin as well. Jason told police the butterfly knife remained in his pocket the entire time.

David Laxale was stabbed seven times - twice in the chest, three times in the back, and twice in his left arm. He staggered back to the front door of his home and managed to call out to his mother before collapsing on the front door-step. He managed to tell her he had been stabbed, by "a Lebanese" before lapsing into unconsciousness. His mother did her best to help her dying son while the ambulance was on its way, and he was rushed to Westmead hospital. Unfortunately he never regained consciousness, dying the following morning from massive blood loss, as well as blunt force injuries to his head and chest. The post mortem showed that it was possible two knives had been used.

His widow Suzie lamented "my husband was a good, hardworking man. If they had asked, David would have given them four bags of mangoes each."

When questioned by police, Tang initially gave them a false name and date of birth, and gave rather vague, non-committal answers. He admitted meeting his friends, and wandering around looking for fruit. He said they ate a mango from one tree, just taking bites, then moved on to Mrs Laxale's house. He agreed he was the one who jumped over the fence and started throwing mangoes back to the others, but would only say "no comment" about what happened after that.

Several questions were put to him by police, but all he would say was that he had seen blood on David Laxale when he was about one to three metres away, but denied ever producing a knife, or seeing anyone else with one. He said all three boys had blood on them, and he told Jason to throw away his shirt because it was covered in blood. Tang said he threw his own shirt away because it was torn, and denied washing anything at the tap. Later, he admitted he did wash his face and have a drink. He denied owning or carrying a mobile phone, and repeated that he had never seen a knife that night.

Andrew was also interviewed by police, and said that he did not have a knife, and didn't specifically remember seeing anyone else with a knife, but said he thought "one of them was holding a knife" and believed it was Tang. He saw something glinting in the light and saw Tang bending over Laxale, and "he might have stabbed him in that place". He said Tang was "going crazy" and that he had seen blood on his pants when they were at the tap. He told police that the next morning Tang came to his house and said he heard David Laxale had died. Andrew claimed Tang said to him "if anyone says anything, they are going to get it". While he was there, Andrew said Tang borrowed a punching bag from him.

However, Tang said he never went to Andrew's place on the morning of Monday 24th. Although he was found to be in possession of the punching bag, he said he collected it from Andrew one month earlier, when he saw Andrew with some other friends, Manu and Lee. Tang said he had gone back to Manu's house after the stabbing, and stayed there the night. He said he was doing some unpaid work for Manu's father the next day, and that Manu's mother had made him breakfast. He said he stayed at Manu's until his arrest:
"...when we woke up the next morning, Manu's mum made breakfast for us to go to work, and then before we left I overheard them saying that someone got killed picking fruits, picking mangoes, and then I realised that, yeah, I was involved in that."

All four boys were charged with David Laxale's murder and committed for trial. However Andrew, Jason and Luke negotiated with the prosecutor to give evidence against Tang, and in return were only charged with assault occasioning actual bodily harm. They received good behaviour bonds.

Tang went to trial alone, and was vigorously cross-examined. He was grilled about his repeated "no comment" during his police interview, particularly when questioned about his involvement in the attack on Laxale, whether he'd pulled out a knife, and told the other's he'd stabbed Laxale three times. He claimed he didn't understand the police's questions, and that he was not sure at the time what he had really done. He said his answers of "no comment" were meant to be a denial that he had been in possession of a knife, and a denial that he had stabbed Laxale. He also had no explanation for why he had immediately vacated his flat and tried to break his lease, which was seen as "consciousness of guilt".

Tang was also asked about his movements on Monday 24th, the morning after the stabbing:
"Q: On that Monday, did you drive during... did you drive you sister's hatchback?
A: No, I was in the truck all day.
Q: And who is able to confirm this? Joe - that is Manu's father - is one, yes?
A: (nod)
Q: And Joe?
A: Yes.
Q: Sorry, Manu? Yes?
A: Yeah.
Q: You were working with the both of them?
A: Yeah.
Q: On that Monday, you see, I suggest this to you, you were driving your sister's hatchback, and you drove to where Andrew lived. That is what you did, isn't it?
A: No."

Tang was also cross-examined about Andrew's statement to police that Tang had gone to his house the next morning and threatened him, and then collected the punching bag:
"Q: Did you have anyone with you when you went to get that punching bag from Andrew ?
A:Yes.
Q: Who was with you?
A: My two friends, Manu...
Q: And the other? Who is that?
A: Lee."

At the trial, Jason surpised everyone when he gave new evidence, stating that Tang had made a phone call on the night of the 23rd, shortly after the stabbing, to his friend Manu. Jason said he heard Tang say the words "had trouble" and "stabbed someone" as well as saying the name "Manu". The Crown sought an adjournment while police urgently obtained Tang's mobile phone records. They showed that a call had been made on the night after the stabbing to the landline registered to Manu's mother. Tang maintained that he did not recall making such a phone call, but when faced with the phone records, he conceded that he did call Manu, and said he was looking for a lift home.

Jason admitted he had lied to police at first about having a knife, but claimed they never asked him. He also admitted attempting to give the police false information about the other boys. He was cross-examined about his own criminal record, which showed he had been convicted for assault occasioning actual bodily harm several times in the past, even though he was only 16.

Andrew gave reluctant evidence at trial, and the Crown ended up having to cross-examine him as a hostile witness. Eventually, his evidence was similar to Jason's although he did not recall Tang showing them the mobile phone or knife when they were at the park, and he denied giving Jason a butterfly knife, or any other kind of knife. He denied seeing Tang wash blood off himself at the tap. He repeated what he had told police - that Tang came to his house the next morning, told him about Laxale's death and threatened him. He again stated that Tang picked up the punching bag that morning.

Andrew was cross-examined about his earlier statement to police (that he thought Tang was holding a knife that night), and he admitted that he had talked to Luke about it, and it was actually Luke who told him that Tang had stabbed Laxale. Although he had initially said to police "the Chinese bloke did stab him as a matter of fact, cause he told me", he admitted that this was merely an assumption, based on what Luke had told him. He denied making up the story with Jason and Luke.

Luke was also very reluctant to give evidence, and like Andrew, had to be cross-examined as a hostile witness. At first, he denied seeing Tang's phone, but was then reminded of the statement he made to police. He then admitted he had seen the phone, but consistently denied ever seeing a knife. His rather vague description of the fight generally conformed to what the others had described - just punching and kicking, and then running away, although he minimised his own involvement, saying it was mainly Jason and Tang. He remembered being at the tap and someone saying "did you stab him?" and "yeah, three times" but could not say who it was. He was shown his earlier statement where he claimed he heard Tang say "yeah, three times", but at trial he said he could no longer recall, but he didn't think it was Andrew or Jason.

At the trial Luke said "I think I seen a knife" in Tang's hands, and thought he may have heard Tang say "I've got to wash the knife" when he was at the tap, but he didn't see what Tang actually did. He said there was "a bit" of blood on Tang's pants. Luke said he remembered seeing Jason wash blood off his hands and legs, and that Andrew also had some blood on him. However he was once again reminded of his earlier statement, in which he had said he remembered seeing a knife in Tang's hand as they ran away from Laxale. He also told police he saw Tang wash the knife at the tap, and said Tang had "heaps" of blood on his legs, rather than "a bit".

Luke categorically denied that Jason had stabbed Laxale, or had ever admitted to it. It was put to him in cross-examination that his story contained similar "lies" as Jason's version of events, but he replied that was merely a coincidence, and that they had not concocted it together.

The Crown also called evidence from Stephen Roy, a friend of Jason and Luke. He told the court of a conversation he heard between Jason and Luke, in which Jason had said "that dopey Nip shouldn't have stepped in and stabbed him". This was clearly a reference to Tang, being the only Asian in the group.

to be continued...

Minding his own business...

TJ and her boyfriend DK were at their friend Peter Wilson’s flat in Taree one Sunday evening in February 1998. They were all in their late teens, and were drinking together for most of the night. At some point in the early hours of the following morning, they all left with the plan of robbing somebody, to get more money for drinking.

Ernest Coles was a small 67-year-old man who was sitting on a park bench, quietly minding his own business, eating chips. The bench was near at ATM.

Wilson brutally attacked Ernest, punching him about ten to fifteen times around his head. Although he was clearly the main offender, DK also took part in kicking Ernest, and TJ joined in. Wilson eventually called ‘000’ and fled the scene with the others in tow.

When she was first spoken to by police, TJ denied any involvement in the fight, but she returned to police a few days later with her mother, volunteering to be interviewed a second time. On that occasion she admitted that she had joined in kicking Ernest, but had later pleaded with Wilson to stop the assault when she saw Ernest was bleeding profusely, and that she had been the one to convince Wilson to call '000'.

Later, she made a third statement, in which she said it was actually DK who did the kicking, and the only reason she’d confessed before was to protect him. However this was not accepted by the Judge, who found that she had actively taken part in the assault.

Ernest was found with his pockets turned out, and Wilson stole his brown leather coat, which he was wearing when he was arrested.

All three were charged with murder. Wilson pleaded guilty to manslaughter on the basis of diminished responsibility. Two doctors agreed that while his attack definitely constituted murder, in that he intended to kill or at least seriously harm Ernest, he suffered from schizophrenia, and was having an active episode of the illness on that particular night, since he had stopped taking his medication.

Wilson was 18 years old at the time, and sentenced to eight years in prison, with a non-parole period of four years.

TJ also pleaded guilty to manslaughter, but on the basis that she had committed an unlawful and dangerous act. This meant she did not intend to kill or inflict grievous bodily harm upon Ernest, but was aware that what she was a part of risked serious harm to Ernest.

TJ was sentenced to six years in prison, with a non-parole period of three years. She appealed the sentence on the grounds it was too severe, given her limited part in the killing, and the fact that she was only 16 at the time. Her defence also argued that the Judge had not taken into account her background, in that she was aboriginal, and from a large family where her father had been violent to her mother. She had been expelled from school at 14, and had been abusing alcohol and pot since she was around 11 or 12 years old, and indeed was drunk at the time.

The Appeal Court found the Judge did take these things into account, as well as the fact she had only a minor criminal record, and had been making improvements in Juvenile Justice since her arrest, studying TAFE course and excelling in arts and crafts. His Honour had also taken into account her good rehabilitation prospects, as well as her plea of guilty, and her assistance to police in (eventually) identifying DK as the third offender.

The Appeal Court pointed out despite all this she was on a good behaviour bond at the time of the offence, imposed for an earlier assault and robbery. Although she claimed to be heavily intoxicated, her record of interview shows she was well aware of what was going on at the time, and knew exactly what she was doing. Also, the value of her so-called assistance to police ended up being quite dubious, as she went back on her promise to give evidence against DK. As a result, all charges against him were dropped.

Furthermore, although Wilson was clearly the main aggressor, TJ took an active part in an attack that resulted in the death of an elderly man who was innocently going about his own business. The Courts are not inclined to take such actions lightly and as it stated “the community is entitled to regard offences of that kind with particular abhorrence”. Wilson himself would have received a more severe sentence had it not been for his mental illness.

TJ’s appeal was rejected. She was released in February 2001, aged 19.

"I didn't know if I'd killed him good enough"

42-year-old Steven Jarvis’ body was found on the morning of Sunday March 9th 1997 by a couple walking their dog, in a lonely public area reserve near the banks of the Richmond River.

It was obvious he had been stabbed several times in the neck, and a post-mortem examination revealed six such wounds. The majority were only a couple of centimetres deep but the major one was a zig-zag shaped wounds over 4cm long and over 5cm deep. It indicated at least two thrusting movements of the knife, severing the muscles of the neck and going through the back of the tongue to the front of the spine in two places.

There were also cuts on the left side of his neck and bruises to the right that were signs of choking or strangulation, as well as bruises to the chin, above the left ear lobe, and inside the mouth that were signs of punches to the head. There was also obvious bruising to his chest and left arm, plus cuts and scratches on his right arm that showed his arms were held down by somebody’s knees.

Steven also had considerable internal injuries. His chest wall was also bruised, and he had fractures to several of his ribs. These were accompanied by tears in the lining of the rib cage which would have allowed the lungs to collapse. The lungs themselves showed some tears and bleeding into the lower parts, and there were tears around the kidneys. All these showed he had been jumped upon by his attacker.

The medical examiner concluded that the cause of Steven’s death was the combined effect of the stab wounds to the neck, strangulation, and the blunt force injuries to his chest and trunk.

18-year-old Adam Bowhay and his 14-year-old girlfriend Rachel left their homes on the Central Coast in mid-February and travelled to Macksville, where they committed three break-and-enters on the night of the 19th. This included a break-in at the Macksville Trading Post, where Adam stole a number of Swiss Army and other knives. After that they stayed at Nambucca Heads for a few days, before heading up to Byron Bay.

The couple left Byron on March 3rd, deciding to steal a car and drive to Beaudesert, across the Queensland border. They stole petrol from an Ampol service station there on the 6th, then headed to Kyogle to stay with a friend of Rachel’s named Terri Leahy.

The next day they hitched a ride to Casino, arriving at about 9pm on the night of Saturday 8th March. They soon met Steven Jarvis at the Oxford Hotel, where he had had bought them both a drink. Once Steven became too drunk to be served at the Hotel, he gave Adam money to buy them all drinks.

Needless to say, Steven was known to be an alcoholic, a fact which was confirmed at his post-mortem. He has also previously been diagnosed as a schizophrenic, and had been living alone in his room at the Commercial Hotel for about two weeks.

They kept drinking together until around midnight and although Steven hadn’t met Adam and Rachel before this night, he invited them back to stay with him in his room at the Commercial Hotel. The three remained there for about an hour before heading off to the park area, where Steven’s body was eventually found.

Adam and Rachel went back to Steven’s room at the Commercial Hotel and ransacked its contents, taking a small amount of money and other items, including an ATM card.

They hitched a ride from the southern outskirts of Casino to Whiporie, a small village, where they stayed until Monday, when they hitched to Grafton. After that they made their way to Wauchope where they stole a car and drove to the Central Coast. Rachel phoned her mother, and Adam spoke to his step-grandmother, who told him to give himself up to police. He ignored this advice, and the two headed to the South Coast, to Jindabyne, then over the Victorian border to Tallangatta, where they were eventually arrested when their stolen car broke down.

When Adam was first asked by Detective Hunt in Tallangatta whether he knew anything about the murder of Steven Jarvis in Casino, he denied having anything to do with the killing, but said he was with “the bloke” who did it, and said “He wasn’t pissed but only half-pissed”.

He then took part in a lengthy recorded interview at Wangaratta (NSW) with Detective Campbell. This time he immediately confessed that he had been the one who killed Steven, staying he had stabbed him, strangled him, and jumped all over him. He said his reason for doing it was because Steven “pissed him off and kept on touching Rachel”:

“Q: And what happened then?

A: I looked, told him, I said ‘What would you do if I punched you in the mouth‘? He said ‘Id probably ask ‘Why‘? So I smacked him a good one in the head. I told him I was going to keep going, and he pulled out a knife. So I pulled out a knife as well. I know how to use a knife, he didn’t.

Q: What happened then?

A: Well, I stabbed him, strangled him to make sure he was dead, jumped all over him, dragged him down. I took his wallet first and his hotel keys, dragged him down to the side of the river, just left him there. Went back to his hotel, took what I wanted out of his room and left Casino.

Q: Were you alone at the time you say you killed Mr Jarvis?

A: Yeah. Me girlfriend was there but she wasn’t close enough to know really what was going on.”

Adam told how he and Rachel had met Steven Jarvis at the pub that night, and he had bought them between six and twelve beers over the course of the night. Adam said once they went back to Steven’s room at the Commercial Hotel, he began paying too much attention to Rachel. Adam said that Steven was touching her, putting his arms around her, trying to put her hands on her breasts and telling her that she was his. So Adam said he asked Steven to come for a walk with him to go to a party, but of course there wasn’t actually any party. Adam intended to take Steven out and “flog him”.

Adam said that when they got down to the reserve, he punched Steven in the face with force, at which point Steven pulled out a knife. Adam pulled out one of the Swiss Army knives he had stolen from Macksville, and put his arms around Steven’s neck to throw him to the ground. He then straddled him by pinning him down with one knee on each arm, and strangled him. After that he punched him to the head and finally stabbed him in the throat, on one occasion “hacking into his throat with it”. Still unsure whether he had “killed him good enough”, Adam jumped on his chest and head, and kicked him in the ribs. He said “I just schitzed right out on him … I never thought he could get enough, so I just kept on jumping on him”.

“Q: Why did you stab him then?

A: Because if I had of left him there he could have jumped up. He could have had a crack at me. I didn’t know if he was dead or what. I made sure he was dead. I stabbed him. He deserved it anyway. I’m not sorry I done it.

Q: Why did he deserve it?

A: Because mate, look at the way he talked to my girlfriend, touched her. He was probably a child molester …

Q: After you left Casino, lets say, when you were on your way to Whiporie, how did you feel about what happened with Steve when you stabbed him?

A: Didn’t worry me.

Q: Do you still feel that way?

A: Yep. I regret stabbing him, yeah. He probably still should be alive, but if he hadn’t pulled out a knife on me, if he had of treated my girlfriend with a bit more respect then he wouldn’t have got it, would he. Anyone who doesn’t treat her with respect will get the same thing.

Q: Is that the reason you stabbed him?

A: Yeah. I was only going to bash him to start with, but he wanted to pull out a knife, thinking he was a hero. He ain’t no hero now.”

Adam also gave evidence at his trial, in which he conceded that Steven Jarvis had never actually pulled a knife on him, so his actions were never in self-defence. Instead he said he had been provoked into taking Steven down to the park area and giving him a ‘flogging’, by the way Steven was talking to and touching Rachel, which Adam felt was unwelcome and inappropriate.

He said that when he and Rachel got to the Oxford Hotel Steven had introduced himself to them, and early on Steven told Adam that he used to be an ASIO agent, and had been banned from a number of hotels in Casino. Adam said Steven told him he was going to take Rachel away from him. He said Steven had put his arm around Rachel within ten minutes of them walking into the hotel, and she had pushed it off. Adam told him he shouldn’t be doing that.

More beer was drunk, and after that Steven invited them both to go back to the hotel where he was staying. Adam said that on the way back to the hotel, Steven moved from walking alongside him, to around the other side to Rachel and put his arms around her, with his hands on her breasts, rubbing them. Rachel moved away, to Adam’s other side. Adam said this happened about four or five times, and he got really angry, as he had warned Steven several times not to do it. Adam said the thought that Steven was “off the planet, drunk and crazy”.

Despite all this both Adam and Rachel went back to Steven‘s hotel room and drank more. Adam said he took two Seranace tablets that he found in Steven’s room. He said Steven again put his arm around Rachels neck and touched her breasts, and after that became “quite angry”. He said that he decided that he would take Steven out and “flog him“. “It crossed my mind he may have been a child molester or a rapist or something of that nature.” Adam said he told Steven “This is the last time I’m going to warn you. You shouldn’t be touching her like that.”

Adam said he then made up a story about a party, and got the three of them to leave the room. He said once they got to the reserve he punched Steven about three or four times, then threw him to the ground where he started screaming and yelling, so Adam sat on his chest. Steven was still screaming and trying to scratch his face, so he told him to shut up, and pinned his arms down with his knees. Steven still didn’t stop screaming, so Adam put his hands around his throat to make him stop, but every time he released his grip Steven would scream again. Adam said at this stage, Steven “didn’t look too healthy in the face”. Adam asked Rachel for a knife so he could threaten him and scare him into keeping quiet. Rachel, who was nearby, opened the blade of the Swiss Army knife and handed it to Adam.

Adam then told the court he had no recollection of what happened next, but he realised he must have stabbed Steven because he saw lots of blood, and the knife was in his hand. He said he then lost control, and jumped on Steve’s chest a number of times. “I didn’t know if he was dead or not proper - didn’t know if I had killed him good enough, so I jumped on his chest, jumped on his head, kicked him in the ribs. I just schitzed right out”. He insisted that he had no memory of the actual stabbing.

He was asked why he and Rachel didn’t just leave Steven’s company, if they were so offended by his behaviour as Adam claimed. He replied “I don’t know” and said that he now regretted the killing, saying that when he planned to fight him, he did not want him to die and that he wished he was still alive.

Adam said he was very drunk on the night of Steven’s death, and had also been smoking pot, doing speed, and also heroin, which he’d been doing constantly since leaving the Central Coast over three weeks beforehand.

He also insisted that he had been threatened by police in the cells before he took part in the recorded interview, and that he had not been fed properly between his arrest and interview. He claimed that he lied in the interview because he was just saying the first thing that came into his mind, and because he thought it was what the police wanted him to say.

The trial Judge however thought Adam was a “most unsatisfactory witness”, and after reviewing all the evidence surrounding Adam’s arrest, detention and interview, was “most strongly convinced” that he had not been threatened in any way before the interview, and had been properly fed whilst there.

The Judge did not accept Adam’s claims of the amount of drugs he was using at the time. Despite Adam’s claim that at the night before, at Terri Leahy’s place in Kyogle, he had injected himself with a large dose of heroin, smoked about seven or eight cones of pot, and did a good deal of drinking, Terri‘s statement to police said that before they left for Casino, only Rachel had smoked some pot, and Adam had not done anything. He did not seem at all drug affected by the couple who gave them the lift from Casino to Whiporie, and despite his claim that he was ‘out of it’ when he was interviewed, he seemed lucid and intelligent in all his responses.

In addition, during the ‘spree’ leading up to the killing, neither Rachel nor Adam had any money, apart from the proceeds of their break-ins in Macksville, which did not seem to be much. They had no money to pay for petrol at Beaudesert. Yet Adam claimed he was constantly buying and using hard drugs, describing two incidents - one at Ballina where he said he sold some people crushed panadol to rip them off, and one at Byron Bay where he said he ripped off a dealer and got away with it. The Judge rejected this evidence.

At trial, Adam’s claims of provocation, and a defence of diminished responsibility (the ‘loss of control’ when stabbing Steven) were clearly rejected by the jury when they returned their verdict of murder.

Steven was just a lonely drunk who wanted some company. He may well have made some inappropriate comments about Rachel, but he was so drunk he would have been incapable of doing any real harm. The Judge found that even if Steven had in fact touched Rachel’s breasts, his Honour did not believe that this was the real cause for the bashing and murder that followed. Adam and Rachel could have got up and left at any time.

The Judge was of the view that Adam saw Steven as a helpless drunk who was an easy target for his own aggression, and that Adam thought he could have some fun at Steven’s expense. However his Honour doubted that Adam had decided to kill Steven when the left the Commercial Hotel, and may well have only intended to belt him up. Nonetheless, Adam clearly found himself enjoying bashing Steven up, and during this decided to kill him, which he did by stabbing, strangling and stomping on his victim until he was sure he was dead. The way he answered his questions in his interview left little doubt that Adam knew what he was doing, he did it because he wanted to, and that he was proud of it, boasting about it in the interview. Adam never showed any genuine remorse for his actions - any regrets he expressed seemed to be more about his own predicament, than for Steven Jarvis’ lost life.

Alcohol and possibly pot may have made him less inhibited, but this did not reduce is responsibility for his actions. “This was a deliberate and callous attack on one of the less fortunate members of the community, who was quite incapable of defending himself”.

In sentencing Adam, the Judge took into account his background. His parents were separate before he was born, and his mother had married his stepfather. When he was four she deserted the family, taking one of his sisters. His upbringing was left to his step-grandmother, who was not a blood relative, but took him and his remaining sister in with her.

He got into trouble at school, often being suspended. He began drinking and smoking pot at 13, and after New Years Eve in 1995-96 he started using heavier drugs such as speed, pills, cocaine and heroin.

His criminal record showed two arrests in January 1996 for violent disorder, and four charges of malicious damage and stealing. He was also arrested in January for cruelty to a dog, and having stolen goods. He was sentenced in the children’s court to a ‘control order’ which is time in a juvenile justice institution. After his release he was arrested again in Coffs Harbour in August 1996 for stealing a car, driving dangerously and failing to stop after an accident, among other traffic offences. He was imprisoned for four months, during which he was charged with four other break, enter and steal offences.

As the Judge noted, “he does not appear to have learned anything beneficial from his time in custody… He appears to have embarked upon a life of crime and to have decided that Society’s rules do not apply to him.”

Adam Bowhay was sentenced to 23 years in prison for the murder of Steven Jarvis, with a non-parole period of 16 years, making him eligible for release on 19 March 2013.

Adam appealed his conviction and sentence. In handing down the Appeal Court’s decision, one Judge stated “Reflection on [Steven’s] injuries alone is chilling. So also is a consideration of [Adam Bowhay’s] actions. So also is viewing the video record of his interview with police where, at least unemotionally, he talks of what he did. Even were I to set aside the findings of the [trial Judge] that [Adam] set out to have fun and enjoyed some of his actions, and in the ERISP was boasting, I would nevertheless regard the sentence imposed as a proper one. But for [Adam’s] youth, the sentence could well have been considerably longer. One can but hope that before [Adam] is released, he will have taken the opportunity to learn and accept the standards of behaviour required in any civilised society.”

A surprise attack

Sun was born in South Korea in 1979. His parents split up when he was very young, and although his father moved to Australia, he remained in Korea with his mother and his younger brother. Sadly, she was not able to care for them both, and the boys ended up in a State institution where conditions were poor, and discipline was harsh. They weren't reunited with their father until 1994 when they made it to Australia to live with him and his new wife. There were some initial rough patches, but Sun ended up getting along well with his new stepmother.

As Sun had a fairly poor grasp of English, he didn't spend much time at school, turning instead to various unskilled jobs. He was a pretty placid guy, but was prone to acting impulsively on occasions, and had picked up a habit of smoking pot.

Late one evening in April 1997 Sun went to his friend Justin's house to buy some pot. Another friend of Justin's, named Kyle, was also at the house. Sun and Kyle hadn't met before, and did not take to each other. It seems they got into some sort of argument while they were there. Kyle left Justin's shortly after, and Sun hung around for a while, smoking with Justin. He didn't think anything more of the fight with Kyle, and certainly had no plans to see him again.

Sun decided to leave before it became light, and headed off towards his car, parked in a street nearby. Little did he know, Kyle had decided to lie in wait for him, still angered by the fight earlier that night. He armed himself with a knife and hid behind a tree. When Sun walked past, Kyle grabbed him and threw him to the ground. Sun quickly pulled out a knife of his own, a small, folding knife, and as Kyle came towards him a second time, he lunged forwards and stabbed him in the neck and head. The neck wound penetrated Kyle's upper spinal cord and he died instantly.

Sun had clearly been taken by surprise at Kyle's ambush, having thought he'd left a while ago. It was still dark, and he was frightened when thrown to the ground. Although the knife was more of the pocket kind than anything else, and wasn't carried for protection or to injure anyone, unfortunately he managed to take a life with it, even in a fight that only lasted a few seconds.

Sun phoned Justin and told him what happened, and that he'd killed Kyle, although he hadn't meant to. Justin rang him back later in the morning and asked Sun to meet him at Wollstonecraft. When he got there, Sun told Justin that a member of the '5T' gang had also been there at the fight, and the gang was now demanding $30,000 from him to keep quiet about the matter. Justin met up with Sun again later on, and gave him $2,000 to help him out.

Of course, the story about the gang was a lie, and led to Sun being charged with 'obtaining money by deception', in addition to the murder charge. It is not clear why he chose to take this tack, but by the time police got hold of him, they agreed that he was well aware of the enormity of what he had done, and was clearly regretted his actions. He said of Kyle "even though he started the scuffle, he did not deserve to die".

Sun went on trial for murder, but pleaded guilty to manslaughter as soon as it was offered by the Crown (on the second day of his trial).

Due to some confusion about Sun's age (he was actually 17 at the time but believed he was 18) he was detained in the adult prison at Long Bay. He found this experience terrifying. He said he was assaulted by prison officers on one occasion, and was constantly in fear of being sexually abused. Things were a bit better after he was moved to Silverwater Jail, and he managed to get some part time prison work as a sweeper.

He was eventually transferred to Kariong Juvenile Justice Centre once his true age was established through Korean records, but things were a lot worse there. Readers may recall rioting that took place at Kariong in March and April of 1999. It doesn't appear that Sun took an active part in the riots, but the environment was still a harsh and frightening one to be in.

At the end of April Sun was moved to Mount Penang Juvenile Justice Centre, and was unfortunately involved in two rather violent incidents. In one he was just trying to stop a younger boy from being assaulted by a group, and ended up with a fractured cheekbone, that required surgery. In the other incident he turned out to be the aggressor, assaulting another resident who was arguing with him.

Nonetheless he was not regarded as a problem by staff, who described him as "compliant and cooperative" and "a thoughtful, mature young man" who was "not a management problem." It appears in the isolated incident of aggression that perhaps two years of incarceration finally got the better of him, and he snapped.

Sun made the most of his time in custody by furthering his education - not only improving his English, but also studying maths and visual arts. He was on track to complete his School Certificate, and also planned to do his HSC.

He was sentenced to seven years in prison, with a non-parole period of four years. He appealed the harshness of this sentence. A review by the Appeal Court found he was a good man, with strong family support, who was unlikely to re-offend. They reduced his sentence to five years and six months, with a non-parole period of two years and nine months.

Sun was released on 13 February 2000.