Justice or Vengeance.

Carlotta McIntosh Copyright 2022

Why Phuong Ngo should not be in prison.

Why Phuong Ngo should not be in prison

The fatal shooting of Cabramatta MP John Newman on the night of Monday 5 September 1994 in the driveway of his home, shocked the nation. Newman was given a state funeral and the murder was dubbed Australia’s first political assassination. Vietnamese born former Fairfield Councillor Phuong Canh Ngo was sentenced to jail for life for the murder, but his two alleged accomplices Quang Dao and David Dinh were acquitted. Ngo was arrested in 1998 and his papers have been marked never to be released. He continues to maintain he is innocent.

Ngo is a model prisoner. He has served almost 25 years behind bars in some of our toughest prisons. He is 64. If he lives to the age of 80 or 90, he will have served the equivalent of two life sentences. As the law stands at present, he has no right to a review of his sentence and will die in jail.

This lock-them-up-and-throw-away-the-key mentality harks back to the convict era when public floggings and hangings were commonplace. Today we believe we are better than that and routinely lecture dictatorships such as Myanmar and China for human rights abuses against minorities. As Australians we claim the moral high ground on human rights, yet when it comes to sentencing laws, we ignore international human rights agreements to which we are a signatory.

Driven by victims’ impact groups, sensationalist media and politicians eager to benefit from the law-and-order vote, we have confused justice with vengeance, an eye for an eye, a life for a life. In Australia the death penalty by hanging has been abolished and replaced by mandatory life (means life) sentencing.

Pope Francis is an outspoken critic of life sentencing. “The practice of keeping a prisoner in jail removes all hope and is generally considered inhumane,” the pope said during a recent visit to a prison in Rome.

Former Director of Public Prosecutions Nicholas Cowdery has made his views of mandatory sentencing known since he became DPP in 1994. In his biography Frank and Fearless, Cowdery argued that “mandatory sentencing laws stop judges and magistrates from doing an important part of their job – making the punishment fit the crime and the criminal and achieving justice”.

Sentencing Ngo to life, Supreme Court Justice Dunford said he would have set a parole date but was prevented by mandatory sentencing laws. Quoting Section 19A of the NSW Crimes Act, Justice Dunford said Ngo’s crime fell into the worst category of crimes.

“I am satisfied to the criminal standard that Phuong Ngo's motive for the killing of John Newman was naked political ambition and impatience. He wanted to be the Legislative Assembly member for Cabramatta. (…) He could not wait until the next general election due in 1999, so he needed to remove John Newman as the sitting member in order that he could run in the preselection ballot which, on the numbers, he had a very good chance of winning. The method he chose was to have John Newman killed.”

In Europe a similar British provision for life imprisonment with no mechanism for review was declared to be inhuman by the Grand Chamber of the European Court of Human Rights. The court held that for a life sentence to remain compatible with Article 3 of the European Convention on Human Rights, there must be a possibility of review.

Under NSW truth in sentencing legislation there is no provision for review, no glimmer of hope for offenders who have been sentenced to life. Review is an assessment, based on criteria such as rehabilitation, whether or not they pose a threat to society, prison records and years served.

Ngo joined the Labor party in 1993 and for a while he was the golden son. The ALP hierarchy had encouraged Ngo to raise funds for the party and stack the Canley Vale branch with his fellow Vietnamese. In one night, Ngo raised several thousand dollars at a Labor party function in Canley Vale. The Governor General Bill Hayden opened the Mekong Club where Ngo held large party branch meetings. Bob Hawke and Grahame Richardson visited Cabramatta, but when Ngo was arrested and charged with the murder, the party bosses turned their thumbs down and threw him to the lions.

Over lunch in Chinatown about nine hours before the murder on Monday 5 September, the then General Secretary of the NSW ALP, John Della Bosca, offered Newman’s seat to Ngo who declined. He reminded Della Bosca that he wanted and indeed expected to go to the upper house, not the lower house where Newman sat. Federal MP for Fowler Ted Grace and ALP numbers MP Grahame Richardson gave evidence that Ngo wanted to go to the upper house. Della Bosca told the court that the offer of the Cabramatta seat was meant for the 1999 elections, not for 1995. Newman was the endorsed candidate for 1995 and dis-endorsement was against party rules, Della Bosca said.

Anyone who has followed ALP politics knows that the party bosses in Sussex Street have a history of overruling the branches and installing candidates of their choosing. We saw that most recently in the federal electorate of Fowler, when Christina Keneally was parachuted in over the local candidate, Tu Le.

The 1995 state elections were due in six months. Opposition leader Bob Carr had high hopes of becoming Premier, but he feared negative publicity, over the conduct of two Labor MPs, Newman and St Marys MP Tony Aquilina, could damage the prospects of victory. Newman was gaining a reputation as a bully and Aquilina was accused of accepting a bribe.

Newman’s successor Reba Meagher told a judicial inquiry into the Ngo conviction that on 5 September 1994 Della Bosca had offered her a choice between St Marys and Cabramatta because there were two MPs “who probably would not be contesting the next election”. The MPs were Tony Aquilina and Newman.

Friday 7 October 1994, page one of the Canberra Times reports that the St Marys MP was destined for the high jump.“NSW Labor back bencher Tony Aquilina – facing the end of his political career at the urging of NSW Labor leader Bob Carr – says the moves against him could be part of a broader political agenda.“Mr Carr has written to state Labor general secretary John Della Bosca recommending Mr Aquilina be dis-endorsed for failing to "measure up to the standard that I think the party is entitled to demand from people who have the honour of representing the Labor Party in the state parliament".

Newman was assassinated at 9.30pm on 5 September and would almost certainly have lost his candidacy had he lived. Rumours had been circulating about Newman’s propensity to settle an argument with his fists and ABC Four Corners was preparing an investigation into his bullying behaviour towards his staff. The investigation was shown on 19 September 1994.

Justice David Patten, who presided over the inquiry into Ngo’s conviction, noted in his report conflicting evidence between Meagher and Della Bosca.

“There was an apparent conflict between the evidence of Ms Meagher given to the Inquiry and the evidence of Mr Della Bosca given at the trial of Mr Ngo, in that he had denied an awareness, before Mr Newman’s murder, of any attempt to withdraw his preselection. Counsel Assisting the Inquiry interviewed Mr Della Bosca and the decision was taken that little purpose would be served by calling upon him to give evidence.” (really!! italics mine)

The jury did not believe the two main prosecution witnesses A and B; that Ngo was the mastermind and the other two carried out the crime. The two accused of carrying out the murder; the driver and the shooter were acquitted.

Why was Ngo the only accused to be convicted? If Ngo is telling the truth and he knew that Newman’s parliamentary career was about to end, then he had nothing to gain. The prosecution case for motive, on the evidence presented in the trials and at the judicial inquiry, does not stand up.

This is not an argument for Ngo’s innocence, but an appeal for a review of his sentence. He has been through an inquest, a committal hearing, three trials, an appeal and a judicial inquiry and found guilty. Guilty or not, Ngo has been locked up for 25 years and the identity of the killer is still unknown.

It is time for NSW to abolish mandatory sentences and to trust in the wisdom and experience of our judges, to honour our commitments to progressive human rights and build a judicial system based on justice not vengeance.

A Criminal Cases Review Commission such as has been set up in the UK, Canada and New Zealand could, where appropriate, review the sentences or the conditions of the sentences of lifers who have served 25 years or more in detention.

Carlotta McIntosh - Author (Copyright 2022)