By Leslie Smith (2024)
Introduction.
In a judge's bench-book you will read that a jury has no interest in why the person in the dock killed "whoever". The question for the jury is not "motive", but "deed". Did he (or she) do it? That is the law. On the same night John Newman died Task Force GAP got the first suspicion that Phuong Ngo “did the deed” because “he stood to get some benefit from John Newman’s death”. That was the final point Fairfield City councillor Ken Chapman - friend of John Newman - wrote in the statement he gave detectives. The assumed benefit was political; both Newman & Chapman believed Ngo wanted to replace Newman as the sitting member in the electorate of Cabramatta. Chapman’s assumption was the jumping-off point for the police investigation.
Whether the jury considered motive or not, Justice John Dunford certainly did when he sentenced Ngo to prison for all-of-life. The motive for the murder, Dunford wrote, was an insatiable[1] and impatient ambition. Thus the murder struck at the heart of our democratic system. For that reason the law demanded an all-of-life sentence.
15 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, but had given the Labor Party hierarchy an undertaking that he would not run for pre-selection whilst John Newman was the sitting member. He [Ngo]could not wait until the next general election due in 1999; and so he needed to remove John Newman as the sitting member in order that he could run in the pre-selection ballot which, on the numbers, he had a very good chance of winning. The method he chose was to have John Newman killed.[1]
This account challenges Justice Dunford’s view. Notice particularly two phrases: "satisfied to the criminal standard" and "could not wait until the next general election due in 1999". Justice Dunford was certain beyond doubt – that is the criminal standard. My purpose in writing this account is to overturn that certainty, not with some nebulous doubt but with a different certainty – that John Della Bosca offered Phuong Ngo the opportunity to replace Newman as the ALP candidate for Cabramatta in the 1995 state election. The offer was made over lunch on the same day John Newman was murdered. Ngo declined the offer. That is the point of this account. Justice Dunford’s sentence - “whole of life” - depended on incomplete evidence and shonky argument. Surprisingly the entire question of motive began with and depended on the meaning of a single word “next”, found in Justice Dunford’s phrase, “the next general election due in 1999.”
Any child easily understands the meaning of “next door” or “next Christmas”. “Next” depends on some understood point of reference - in either space or time. Justice Dunford’s reference was the murder of John Newman in 1994. In N.S.W. elections are help at a fixed 4-year interval. N.S.W. voted in 1991; an election was scheduled for (and held) in March 1995. Whence then cometh the next election in 1999? That choice was deliberate and no simple oversight in editing or typing. And so, a child might ask: Why did Justice Dunford write that “the next election” was in 1999, and not the year 1995?”
[1]Justice Dunford did not use the word "insatiable". Doubtless some with a penchant for percision will say that. According to Justice Dunford, Ngo was ambitious and impatient to such a degree that he was driven to murder. Is such an ambition not able to be satisfied?
[1]Justice Dunford, in handing down the sentence, October 2001. Emphasis (and italics) are added.
Who would guess that the answer to that question might require the several thousands of words you are reading here, and that those involved with the evidence of “next” were not children? On the contrary, the question attracted the attention of the Senior Crown Prosecutor, a Supreme Court Judge, a Police Superintendent, two government ministers and a company of well-informed legal wigs.
The Next Election. The link between "the next election" and the year 1999 began when Phuong Ngo gave evidence in his second trial. (2T/d35). He spoke about lunch with John Della Bosca, then General Secretary of Labor Party only hours before John Newman was shot.
Q. [Brett Walker, SC, for Ngo] Was anything said [during lunch] about Mr Newman and the seat of Cabramatta?
A. [Ngo] At that lunch I recall Mr. Della Bosca has told us that either he just come back from a meeting with the then Leader of the Opposition, Mr. Bob Carr, or he just had a conversation with Mr. Bob Carr, that there had been a lot of complaints about Mr. Newman and that Mr. Newman would not be re-endorsed for the following election.[1]
The Police Running Sheet. Some weeks after the shooting, and unknown to Ngo, detectives used the mobile system call record to reconstruct the journey Ngo made on that day from the western suburb of Cabramatta to ALP headquarters in Sussex Street, Sydney. They found and interviewed John Della Bosca. A brief record[1] from the interview read:
"Newman was mentioned during lunch. Della Bosca suggested that Ngo run against Newman in next election. Ngo said words to the effect of 'No, I've given my word to Newman that I won't run for the legislative assembly[1] as member for Cabramatta, [he] would not oppose Newman in pre-selection."
Superintendent Kaldas & John Della Bosca. The police running sheet remained undisclosed[1] until the day Ngo gave evidence, but Superintendent Kaldas clearly knew about it. He retrieved the record from the case library that same day and took it to Della Bosca. After reading it John Della Bosca gave Kaldas a statement. In paragraph #5 he wrote:
5. [During lunch] a discussion took place about Mr. NGO's political ambitions. I recall suggesting to Mr. NGO that at some point in the future he would be free to run in pre-selection against Mr. Newman. However, the opportunity for that to happen in the 1995 election had already passed as Mr. NEWMAN had already been endorsed for the 1995 election as had the majority of candidates for that next election.
The words "Ngo would be free to run ..." suggests both ambition (run) but with restraint (free). If evidence means anything the restraint was self-imposed in 1994. That theme will become a key point in this account. Della Bosca told the detectives he said, "... I [Ngo] have given my word ...". There would be no race in 1995, not because Newman was (or was not) the nominated candidate, but because Ngo had given his word. In Della Bosca's statement in 2000, there is an implied race, but "some time in the future" (i.e. not 1995). The meaning of Della Bosca’s evidence has changed in the interval between ‘95 and ‘99. The effect of that change will be apparent shortly.
[3]Evidence of Mr. Phuong Ngo, second trial, 35th day.
[4]These records are commonly called a running sheet – i.e. a “running” record of daily police work.
[5]Here I substitute the word 'assembly' for 'council'. The lawyers agreed that the police mistakenly wrote 'council' where 'assembly' was intended.
[6 ]At the beginning of a criminal trial The Police/The Crown must make a full disclosure (‘discovery’) of any documents produced during the investigation. The running sheet was kept secret from defence until the forty second day of the trial or thirteen days after Ngo gave his evidence. '
The Back-Room Agreement. Phuong Ngo stood as an independent candidate in the state election in 1991. He got little support in that ballot. Ted Grace, a federal MP, saw some promise in Ngo’s politics and introduced him to The Party. Anxious to avoid public contention a three point back-room “deal” was forged. Ngo would not seek election in the Lower House against Newman in Cabramatta. He would support the ALP by raising funds and through a local newspaper he sponsored. In return the party would support him to stand for a seat in the Upper House. That was the unmentioned background to the report in the police running sheet, “No, I have given my word ….”.
Again, the final sentence Della Bosca’s statement, para. #5, has two points of interest. It might read: that Newman had already been endorsed for the 1995 election - full stop, but he continued, ending with "for that next election." "That" is a demonstrative pronoun. A demonstrative pronoun distinguishes one item from many similar items. (e.g. President Kennedy spoke about civil rights in June, 1963. Later that year (not 1964/5/6 ...) he was assassinated.) In paragraph #5, above, the final sentence ends with the phrase “that next election”. Here “next” uniquely identifies the election in 1995. What then, is the function of “that in the sentence? You will shortly see Della Bosca present the election in 1999 as “the next” in order to explain the same phrase on the police running sheet.
The Back-Room Agreement. Phuong Ngo stood as an independent candidate in the state election in 1991. He got little support in that ballot. Ted Grace, a federal MP, saw some promise in Ngo’s politics and introduced him to The Party. Anxious to avoid public contention a three point back-room “deal” was forged. Ngo would not seek election in the Lower House against Newman in Cabramatta. He would support the ALP by raising funds and through a local newspaper he sponsored. In return the party would support him to stand for a seat in the Upper House. That was the unmentioned background to the report in the police running sheet, “No, I have given my word ….”.
Again, the final sentence Della Bosca’s statement, para. #5, has two points of interest. It might read: that Newman had already been endorsed for the 1995 election - full stop, but he continued, ending with "for that next election." "That" is a demonstrative pronoun. A demonstrative pronoun distinguishes one item from many similar items. (e.g. President Kennedy spoke about civil rights in June, 1963. Later that year (not 1964/5/6 ...) he was assassinated.) In paragraph #5, above, the final sentence ends with the phrase “that next election”. Here “next” uniquely identifies the election in 1995. What then, is the function of “that in the sentence? You will shortly see Della Bosca present the election in 1999 as “the next” in order to explain the same phrase on the police running sheet.
Q. [Mr Walker, SC for Ngo] When you saw the [police] running sheet on 30 March, you say you identified an error in that sentence you have read, is that correct?
A. [Mr. Della Bosca] That's correct.
Q. What is the whole of the error you have identified?
A. The sentence: "Della Bosca suggested that Ngo run against Newman in the next election."[1]
The words "next election", Della Bosca explained, did not refer to the election in 1995, but the year 1999. His explanation went thus: He was General Secretary of the ALP. Unlike the detective who wrote the running sheet, he knew that the pre-selection ballot for the '95 election had been finalised by September '94. John Newman was the nominated ALP candidate in the Cabramatta district, and so, Della Bosca said, he knew the earliest opportunity for Ngo to challenge Newman would be (in the words used by Justice Dunford) 'the next general election due in 1999'. Walker continued:
Q. What you now say is that the next available opportunity for there to be a contest between Ngo and Newman, for Labor Party candidacy, would be the pre-selection for the Lower House election scheduled for March 1999, is that correct?
A. Yes.[1]
That was it! Justice Dunford depended on that understanding, carried into the third trial, when he sentenced Ngo. But John Della Bosca's statement brought a second change in understanding the situation. In the police running sheet he suggested Ngo challenge Newman; Ngo turned the suggestion aside, saying "No, I have given my word ...". In Della Bosca's statement, from the year 2000, the emphatic "no" is gone. Della Bosca's suggestion (in 1994) became opportunity in 1999 and “opportunity" became ambition, impatience and then motive. The result was a life sentence. Phuong Ngo would die in prison.
When a journalist asked Harold Macmillan about the most difficult circumstances he encountered, as Prime Minister, Macmillan responded, “Events, my dear boy, events.” Only a few hours after the lunch-time conversation, an unexpected event occurred. John Newman was dead.
[7]Transcript, R v Ngo & others, 2T/d42. Again, the original appears without emphasis or italic font. They appear here to elucidate Mr. Della Bosca intended understanding of "the next election".
(8] ibid, but note: This evidence was given on voire-dire and thus heard only by Justice Wood, not any jury.
Whether Della Bosca spoke about an election in ‘95 or ‘99 matters little; we humans act according to our belief, and not the belief of some other person. And so, if Ngo believed Della Bosca referred to an election in 1999 his impatience might result in murder, as Justice Dunford wrote. If Ngo believed John Newman was to be dis-endorsed (as he claimed), there would be no point in murder. Prosecutor Tedeschi put that idea to the third jury at the end of the trial.
If, on 5 September, Phuong Ngo had been told, "John Newman's going to lose his endorsement", then he [Ngo] wouldn't have needed to kill him. Why would he kill him if he [Newman] was going to lose his endorsement for the 1995 election? That's the point of it [evidence about dis-endorsement] in this trial and that's why it is important that John Della Bosca refuted that.”
This account of murder, motive and a “whole of life” sentence might end with a lying and guilty man, but Harold Macmillan’s “law of events” unexpectedly produced deus ex machina. In 2008 a commission of inquiry into Ngo’s conviction heard astonishing evidence from Reba Meagher about Newman and dis-endorsement. Her evidence reversed the idea that Ngo was lying. She told of a conversation with John Della Bosca; again it was on the day John Newman died.
Q. [Counsel assisting, Mr. Colefax.] What time was this conversation that you had with Mr Della Bosca on 5 September?
A. It was about 4 o'clock in the afternoon.
Q. As best you can recall, could you tell his Honour the substance of the conversation?
A. I received a phone call from John Della Bosca during the course of the day asking me to go into Sussex Street and meet with him. When I arrived, he asked me about whether I would be interested in standing for Parliament and I said I would be. He said that there were problems with two members of Parliament that probably wouldn't be contesting the next election and that was in the seat of Cabramatta and the seat of St Marys. He asked me to give consideration to which seat I would like to be a candidate for and to go away and think about that.[1]
Q. And was it at 4pm you had this face to face meeting with Mr Della Bosca?
A. That's right.
Q. Can you remember the time of the telephone call which preceded it in which you were invited to go to his office?
A. It was around midday.
John Newman was The Member for Cabramatta in the lower house. Notice Reba Meagher’s words in the phrase "the next election". No barrister has drawn together these threads. I am confident Reba Meagher used this phrase naturally and without any knowledge about their fateful role in the sentence handed down to Ngo seven years earlier.
The lunch in Ngo's evidence sat between Meagher’s mid-day call and the 4pm meeting. The conversation was about the seat of Cabramatta (and one other) where “there were problems”. One may reasonably infer John Della Bosca's intention before the lunch when he scheduled the meeting with Reba Meagher at 4pm.
[9]On September 5th the procedure for selecting the ALP candidate for Cabramatta was finished. Before Meagher could represent the ALP in that election Newman must be dis-endorsed or resign.
A diary entry by Bob Carr, then leader of opposition in the NSW parliament, mentioned the circumstances around the dismissal of Tony Aquilina, the member for St. Mary’s.
Acting Justice Patten understood the conflict in the evidence of Reba Meagher (before him) and Della Bosca (before Dunford).[10) He wrote:
Given that the conversation with Mr Della Bosca directly affected her personal interests in an important way, it seems unlikely to me that Ms Meagher’s evidence was unreliable.[11]
Unscrambling Patten's double negative I have: It seems likely to me [he might have written] that Ms Meagher's evidence was reliable. He did not call Della Bosca as a witness, saying there was nothing to be gained from that. When Mr Hastings & Ms Pepper, (representing Ngo) submitted that the political motive "could no longer be reasonably sustained" Patten dismissed the submission. He was not prepared, he wrote, to accept the unsupported evidence of Ngo.[12]
That submission assumes that Mr Della Bosca shared, at lunch with Mr Ngo, the information he subsequently conveyed to Ms Meagher on 5 September 1994. The only material on that subject before the jury at the third trial was Mr Della Bosca’s evidence who, in answer to a question by Mr Nicholson, “Did you consider in 1994 that there was a possibility that Mr Newman mightn’t be a candidate in thenext election?”, replied “In September 1994, no I don’t believe so”.[13]
If Ngo was to run against Newman at some time in the future, then Patten must accept “evidence” from a witness he did not call - John Della Bosca. After that he must discount the evidence he accepted without reservation – that Della Bosca told Meagher Newman probably wouldn’t contest the 95 election. We are left with a reductio ad absurdum, namely this: That Della Bosca suggested Ngo challenge Newman in an election still four years in the future when he knew Newman was to be dis-endorsed. Patten himself must invoke some form of speculation contrary to Ngo's evidence to explain how Ngo "knew something".
Doubt and Certainty. At the beginning of this account you read about Justice Dunford’s confident belief that Phuong Ngo was driven to murder by an impatient political ambition. Acting on that belief he sentenced Ngo to die in prison. My purpose in writing this account began with Justice Dunford’s belief. I was consumed by my need to understand how (or why) he believed that word “next” in the police running record referred to the year 1999, rather than the obvious. I got the surprising answer only after reading thousands of pages of legal transcript accumulated over a decade. Who would believe that the interpretation of a single word would have such a far-reaching effect? Who would imagine that the police would withhold such important evidence about motive from defence? Who would imagine that a party secretary would forget key details from a conversation about dis-endorsement? Who would imagine that Justice Patten, after hearing plain evidence supporting the evidence that Ngo gave years earlier, would write that he could not accept Ngo’s unsupported evidence?
[10]Report to the Chief Justice in the conviction of Phuong Canh Ngo (D.A. Patten) para 482/pg 197.
[11] ibid para 483/pg 198.
[12]Report to the Chief Justice in the conviction of Phuong Canh Ngo (D.A. Patten) para 492/pg 204.
[13]Report, by D.A. Patten para 493/pg 200.
A Comment about Mandatory Sentences. This account has no interest in verdict - as I wrote at the beginning. That topic belongs in another place. Ngo's matter merely illustrates an argument made by Nicholas Cowdery.[1] Mandatory sentencing is bad law:
"Facing an election in 1999 Premier Carr announced a new policy that would force judges to impose minimum sentences set by the government."
And after that:
“The NSW Bar Association and I publicly criticised the [...] sentencing policy as being created for 'naked political ends'. To put it bluntly, the new policy didn't help the justice system at all. It was just intended to attract votes in the upcoming election campaign." (NC -Frank & Fearless, pg 11. Italics added.)
Justice Dunford referred to that legislation when he wrote that he would impose a lesser sentence if his hands were not been bound by legislation.
43 Where a life sentence is imposed, the Court has no power to set a non-parole period: [...] nevertheless this is not a case where I believe he [Ngo] necessarily needs to be kept in custody for the whole of that time …”
Then
“ ... if I had the power to do so, I would fix a non-parole period, but it would be a long one [...] I echo the remarks of Wood CJ at CL in Harris at [123] that Parliament might usefully give consideration to whether the Court should have power to fix a non-parole period in cases to which s 61(1) applies.
A closing comment. In the disturbing matter of Lindy Chamberlain (The Dingo Baby case, 1982) prosecutor Ian Barker told the jury the Crown did not submit a motive for the murder. In law, motive is not a requirement for a guilty verdict. Less that three years later the guilty verdict in her case was set aside by Justice Trevor Morling in a Royal Commission. Murder without motive is a rare thing.
[14]Formerly Director of the Office of Public Prosecution.
LNS Revised 2023-Aug 1st.
Revised 2024-Sept-12th.
Copyright (c) 2022 Leslie Smith.
Postscript
On the 30th anniversary of the death of John Newman Superintendent Kaldas, leader of Task Force GAP, the investigating authority, spoke about Newman’s death and Ngo’s conviction.
"There is no doubt in any sane person's mind that Phuong Ngo is guilty of the murder of John Newman"
Since I harbour enormous doubt about the conviction, logic demands that I must raise my hand to the charge of insanity, but not here. My doubt about the verdict will be a subject in a second account.
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