A common misconception is that a convicted person can keep appealing his conviction(s) until he gets a favourable result. Actually, getting even a single appeal heard at the Court of Criminal Appeal is a mammoth task, and getting a favourable result is less likely than not.
Statistics will paint a better picture – the Office of the NSW DPP releases annual reports, and the relevant edition1 which included my appeal of July 2012 shows that 68 per cent of NSW Supreme Court prosecutions resulted in convictions during the reporting period.
In that same period, there were 69 appeals against convictions at the NSW Court of Criminal Appeal (NSW CCA). Multiple appeals from one appellant are considered discretely in that figure. Less than half (30 out of those 69 appeals) were allowed by the CCA2.
Out of those, just 11 appeals resulted in acquittals3.
Two of those 11 acquittals were those entered against my two convictions for murder.
A BRIEF EXPLANATION of the procedure of trial and appeals will allow those not so familiar with the workings of the legal system to better understand what happens in the courts, when and why.
Firstly, after a guilty verdict at trial, the prisoner is sentenced by the presiding trial judge. After the sentence is pronounced, the prisoner then has these three options before him:
1. To accept the guilty verdict and the sentence. In this case, he does not appeal and simply does the sentence imposed.
2. To accept the guilty verdict but be of a mind that the sentence imposed is too severe. In this case, he can attempt an appeal against the severity of the sentence, for example, a reduction in the jail term.
3. To be of a mind that a miscarriage of justice has occurred in the determination of a guilty verdict. In this case, he can attempt an appeal against the conviction itself.
While the prisoner has the right to ask for a review of the verdict and/or of the sentence, the Crown, too, may attempt an appeal if it believes that the sentence imposed is too lenient.
You will notice it is ‘attempt an appeal’, not simply ‘appeal’. No appeal is automatically granted – before either prisoner or the Crown is allocated precious time in a courtroom before three judges of the CCA to contest the earlier decision(s) of the Supreme Court, they must first provide a concrete basis on which to be awarded that time. The appellant must demonstrate that he is not attempting an appeal simply because an avenue may exist. This filter has been put in place to prevent frivolous attempts by prisoners to keep appealing as a means of ‘trying their luck’.
Every trial at the NSW Supreme Court, where I was tried, is presided over by a Justice, a judge who is among the most senior and experienced judges in New South Wales. The NSW Court of Criminal Appeal, where my appeals were heard, is presided over by a panel of three judges. CCA Judges are regarded as being perhaps ‘the best of the best’ – Supreme Court judges who have shown such an excellent understanding of the law in their respective careers that they have been given the privilege, and been charged with the responsibility, of adjudicating the decisions of other senior judges.
The first step in the appeal process against conviction is the preparation of the written ‘Grounds for Appeal’, a document listing the legal arguments supporting the appellant’s assertion that the trial miscarried. The arguments contained therein are based on precedence, and explain the prisoner’s basis of challenging the validity of the lower court’s decision. The soundness of these arguments must be to the satisfaction of the three senior CCA judges whose task it is to determine whether there is merit to the proposed appeal.
You can only ask for your appeal to be heard; the CCA may decide that there is not enough merit for the three judges to even hear your arguments in court. In such cases, the appeal is ‘summarily dismissed’ and no change in sentence and/or conviction occurs.
But if they assess the formal legal arguments submitted to be legally sound and of potential merit, the prisoner wins the right to have his appeal heard in court at the CCA. An appeal hearing date is set, usually about four to five months from that decision.
If a prisoner is appealing, the Crown gets a copy of the written submissions which were delivered to the CCA immediately. They scrutinise the arguments contained therein and then formulate a response. The Crown prepares a document containing its counter-arguments to the points raised by the prisoner, with the objective of convincing the judges that there is no merit to the prisoner’s appeal. The Crown is permitted to not reveal this document until only a week before the hearing.
Then, it comes down to that day in court. Except in rare circumstances, no evidence is adduced at an appeal hearing and the prisoner is not allowed to speak; only legal representations made by counsel are considered.
The behaviour of Crown Prosecutors at appeal is markedly different from that at trial. Standing before the senior judges of the appeal bench, they eschew the conjecture and spurious claims they flaunt and dangle before juries. Attempts to manipulate dubious conclusions from the evidence are few, and usually immediately shot down. In my experience, appeal proceedings are much less frustrating than trial for the prisoner.
The prisoner can choose not to appear at his own appeal. I always insisted on being present to be fully aware of what transpired. That might seem like a no-brainer to most people, but going to a one-day appeal hearing means being uprooted from your jail of classification – Lithgow in my case – to a city jail for a few weeks or months. Most essentially, it means the loss of your one-out and, for me, that meant the debilitating prospect of being put in an ‘unclean’ cell and not being able to obtain the requisite cleaning materials to clean it for days or weeks. It meant not being able to sleep on the ‘dirty’ bed and being unable to use the ‘dirty’ plastic cutlery. Hell, basically.
After the convictions at the first trial, it was some time before I could consciously bring myself to work on the case again. All the effort invested for two years before had come to nought and everything seemed pointless.
But my family and friends did not give up so easily, and did not allow me to wallow in my despair. My cousin Ramesh, himself a successful criminal lawyer in Singapore, was adamant that we had the evidence to show the courts that the convictions should not stand. We engaged the services of Sydney barrister Tim Game, SC to argue the appeal at the CCA.
Tim’s plan was to appeal both convictions and the life sentence imposed for Tony’s murder. I was fully for the former but completely against the latter. In fact, I sent a letter (Appendix A) to the solicitor assisting Tim in the preparations, instructing them not to appeal the sentence because ‘a successful reduction in my sentence might be used in the future as a precedence to reduce the sentence of someone who has killed two people.’
The solicitor, David, informed Tim and when Tim came to meet me in jail to discuss the case a few months into the preparations, he told me outright that he would not fight the conviction if I did not allow him to appeal the sentence as well. I don’t know exactly why, but I assume it might be because it’s almost impossible to lose a sentence appeal on life-without-parole. I relented – we had paid them too much already to start over with another team.
The other point of contention we faced was Tim and David’s insistence on pushing for a re-trial instead of an outright acquittal as David Dalton, SC and solicitor Andrew Scali would at the second appeal.
Tim and David expected the judges to concentrate on technicalities and virtually ignore any calls for an acquittal. It was only through a lot of pressure from my family, especially Ramesh in his capacity as a well-respected criminal lawyer, that ultimately convinced them to address that ground in their written submissions. It was still not as comprehensive as we thought it could have been.
On the day of the appeal hearings in October 2008 at the Queen’s Square Court Complex, I sat and listened as Chief Judge at Common Law, Justice McClellan, Justice Blanch and Justice Hislop of the NSW CCA queried Tim and Crown Prosecutor Leslie Babb, SC (who is now the NSW Director of Public Prosecutions).
The initial part of the arguments dealt with the first two Grounds of Appeal, namely the trial Prosecutor’s allegations of ‘lies’ and the trial judge’s failure to direct the jury correctly on that allegation; and the manner in which the trial Prosecutor addressed the blood issue and the failure by the trial judge to clarify that for the jury. (Both these Grounds would be successful, and result in a re-trial being ordered.)
The judges, however, were more than interested in hearing the third Ground – that the verdicts themselves were unreasonable and not supported by the evidence. When they asked Tim to elaborate on that, he was caught unprepared, and asked for a short break.
I was ecstatic! The judges had acknowledged the other technicalities, but now were specifically asking for the reasons that the verdict was ‘unsafe and unsatisfactory’, despite the fact that the written submissions had been so light on detail.
I was led down to one of the small legal conference cells, which are claustrophobic boxes about 1m2, concrete on either side, the locked door behind and a window of thick glass in front. Your legal team are on the other side of the glass, and the very small holes in the glass make it hard to hear or be heard by those on the other side.
I was waiting with a huge grin on my face when they walked in on the other side.
“They see it!” I said, “They want us to elaborate on the ‘unsafe verdict’!”
After being told so many times before by David that that aspect was almost impossible to succeed with, the judges’ positive response had me on a cloud. After all those years, I felt for the first time that things might be set right.
David, however, was very eager to play down the judges’ positive response. Tim was hard to read, but he seemed truly apologetic that he had underestimated the strength behind the argument; a man of his accomplishments does not like to be wrong.
Tim asked, “So, okay. What do you want me to say?”
I had brought with me a folder of all the material regarding the appeal, including my correspondence with them. I pulled out the letter I had sent them and said, “Here. It’s all here. You know the case so well by now, but the basis for that ground is what I concentrated on in this letter to you. Use it as the basis of your verbal submissions!”
Tim had an officer take the document from me and bring it across to him. I waited happily as I watched him read it in silence on the other side of the glass. Finally, he nodded and said, “Okay.”
Just then, David asked me to excuse them, and took Tim to the back of their side of the room. He talked quickly and quietly. I did not want to seem rude, so I pretended to scan the other documents in my folder, all the time wondering what could have necessitated a private conversation between them at that point.
After that conversation, we went back up to the courtroom where the judges waited for an elaboration of Ground 3. I was beaming as Tim stood up. He told them that the basis of Ground 3 was in the written submissions he had already provided the court. He sat down.
I felt betrayed. The judges seemed puzzled. I believe that they gave the re-trial based not on the grounds that were delivered, but because they realised that there was a solid basis for a verdict of acquittal to be entered, but were unable to do so when my team had come unprepared, and then squandered the opportunity they had graciously extended.
I was not surprised when, two months later, the CCA revealed its judgment overturning the convictions. I was disappointed that they had been limited to ordering a re-trial by my own legal team.
I do not know if some part of Tim’s ego made him not fight because it would have shown that he had so badly misjudged the strength of the case before the hearing. David seemed to be calling the (not so accurate) shots, from his suspicious (to me) behaviour inside the legal conference area on the day of the appeal, immediately followed by Tim’s refusal to elaborate on the grounds after the judges had requested and allowed him time to.
David actually contacted me after the appeal, asking if I wanted to retain him for the re-trial. I did not reply.
The judges presiding over my appeal hearing in June 2012 were Justice Tom Bathurst, Justice James Allsop and Justice Elizabeth Fullerton.
Justice Bathurst was the Chief Justice of New South Wales and Justice Allsop was the President of the Court of Criminal Appeal. As such, the two most senior and experienced judges of the Court of Appeals heard and decided my appeal.
Justice Elizabeth Fullerton was then newly promoted to the CCA bench.
The appeal was scheduled to be heard on Friday, 20 July 2012. However, due to sustained questioning by the bench of both Crown and defence lawyers, the matter was unable to be resolved by the end of the day and was adjourned to the following Tuesday, 24 July.
The Crown Prosecutor put up a spirited fight in the face of the evidence. He was obviously familiar with the opinion of the first appeal bench in overturning the convictions partly due to the lack of blood on me. When this bench’s questioning headed the same way, he innovatively attempted to explain it away using the ‘Naked Killer’ theory. Yes, that is the exact term used in the highest court of the state. The judges smirked.
They noted the change in the police case from trial to appeal:
“At the trial, the Crown strenuously resisted (coughing) as the explanation for the blood on the appellant… some or a good proportion of the blood on (Ram) was expirated blood from a cough by Mr Tan. In these circumstances there was even less blood spattered on him from the ferocious attack.
It was the dearth of forensic evidence… the Crown had squarely to confront. It did so by embracing what had been substantially resisted (before) – by accepting that Mr Tan coughed over the appellant while he was speaking to the ambulance operator and that the reason that there was so little other blood on him was that he had washed himself before calling 000. This would require, in order for there to be no blood-spattered clothes, that the murder of Mr Tan was undertaken naked.”
The ‘Naked Killer Theory’ stated that I, as assailant, was traipsing about the house naked with a baseball bat and knife when Tony arrived home and attacked him not wearing a stitch. What exactly would prompt a naked man to wield sharp weapons in a struggle was not part of his theory. It was concocted purely to explain the ‘dearth’ of blood on me from Tony when blood spatter from the attacks on him speckled the walls, door and ceiling.
Having resisted through both trials that Tony coughed blood as I said I had observed, the Crown realised that they could not fool the appeal judges into rejecting the conclusive medical evidence of Dr Hersch and Dr Matheson, and so incorporated the cough into this bizarre new theory. It still glossed over the fact that the entire house had been tested and no blood was found to have been washed away anywhere.
AFTER FURTHER QUESTIONING on the second day, the judges ‘reserved’ their decision, meaning that they had obtained what information they required from both parties through the representations made and the evidence presented, but were withholding their decision until they could further confer among themselves.
I was taken back that evening to my cell at Long Bay C.C. and locked in.
THE DECISION ON my first appeal, heard on 16 October 2008, was also reserved, and it was handed down two months later, on 17 December 2008. I expected a similar wait now.
Having been through the process before, I had no expectations. I had learnt that hopes are very quickly – and very painfully – dashed when you are being churned through the criminal justice system. ‘No hope’ was the best mindset to adopt, because the alternative bore with it the virtual promise (and memory) of agonising disappointment.
The news broke on 27 July 2012 in Singapore that I had been acquitted.
A number of news reports and analyses in the days following my acquittal referred to it as ‘sudden’. True, to everyone carrying on with their own lives, unaware of the process, it must have seemed to have come out of the blue.
But not for me. For me, it was the culmination of two years of seemingly unending effort and mental agony after the second trial that had been initiated immediately on the pronunciation of the verdicts.
Each and every day after both trials was a battle fought on two fronts.
The first was that which raged in my own mind. The depression that set in as the verdicts manifested themselves in the cold reality of a prison cell meant to hold me till the day I died battled the fire that ignited itself in indignant pursuit of the recognition of truth. The latter won in the end and I got to preserve my sanity, but the battles lost along the way have made and left their enduring marks on me.
The other front was the mammoth task of preparing an appeal in prison, which meant constantly revisiting the murders, my arrest, the thousands of questions asked and answered in police interview rooms, every agonising day of trial and the verdicts themselves in an environment not in the least conducive to research or concentration. There was no way to review any of the audio or video evidence. I spent hundreds, perhaps thousands of hours sifting through every single sentence, picture and exhibit from the proceedings available to me – what is presented in this book is a mere distillation of facts from the tomes of material. All this had to be done while the mental battle raged simultaneously in my head, draining me and circumventing the orderly, rational thought the daunting task demanded.
Almost two years after my second trial, I was given the opportunity to present my case to the NSW Court of Criminal Appeal – there was nothing sudden about it; it was the culmination of the long process of preparing an appeal, filing it and then waiting to get it heard. It took almost two whole years of concerted effort while incarcerated in a maximum security prison, with all the horror and spirit-crushing experiences that entails.
‘Sudden’ for many people, but not for me.
Channel News Asia produced a short documentary on the saga as part of their ‘Get Real’ series. In it, the narrator says during the introduction, “After two failed appeals… suddenly acquitted.”
But both my 2008 and 2012 appeals were successful. Both times, the judges decided that, based on the evidence and testimony, there should not have been convictions in the first place. That is why the convictions were quashed at both appeals.
At the second appeal, the judges came to the decision of acquittal on both charges virtually immediately after the hearings. People familiar with the justice system know that that is virtually unheard of in as serious a matter as a double homicide. The bench was so strongly of their opinion that they gave the order that I be freed even before they had the time to formally write out their rationale.
It was not through technicalities. Rather, both panels of judges recognised that the weight of the evidence did not support a conviction and stated as much.
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1 The Office of the Director of Public Prosecutions, NSW, Annual Report 2011–2012
2 Ibid.
3 Ibid.