Donai v R - [2011] NSWCCA 173

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Donai v R [2011] NSWCCA 173
Hearing dates: 16 March 2011
Decision date: 05 August 2011
Before: McClellan CJ at CL at [1]
Blanch J at [101]
Hislop J at [102]
Decision:
1. Appeal against conviction upheld and conviction quashed.
2. Order a new trial.

Catchwords: CRIMINAL - conviction appeal - murder - tape recorded conversations between appellant and undercover operatives - failure of counsel to address admissibility question at trial - evidence wholly prejudicial - appeal upheld - conviction quashed and new trial ordered.
Legislation Cited: Criminal Appeal Act 1912
Cases Cited: Edwards v The Queen (1993) 178 CLR 193
R v Murray (1987) 11 NSWLR 12
R v Hill [2006] VSCA 41
Rend v R (2006) NSWCCA 41
Steer v R (2008) NSWCCA 295
TKWJ v The Queen 212 CLR 124
Tofilau v The Queen [2007] HCA 39; 231 CLR 396
Zoneff v The Queen [2000] 200 CLR 234
Category: Principal judgment
Parties: Terry Mark Donai (Appellant)
The Crown
Representation: M C Ramage QC (Appellant)
D Arnott SC (Crown)
Jeffreys & Associates (Appellant)
Director of Public Prosecutions (Crown)

File Number(s): 2007/1450
Decision under appeal

Date of Decision:

2008-05-23 00:00:00

Before:

Fullerton J

File Number(s):

2007/1450

Judgment

McCLELLAN CJ at CL: Terry Mark Donai, the appellant, was convicted following a trial with a jury of the murder of Pamela and William Weightman in January 2000. He was sentenced to two concurrent counts of life imprisonment.

He appeals against his conviction and sentences.

There was no dispute at the trial that the Weightmans had been strangled and died in their home. There was also no dispute that their bodies were then taken from the home in the family car to Heathcote National Park where the car was either pushed over or at slow speed travelled over an embankment running off Heathcote Road onto a fire service road. This was done in order to attempt to simulate their death in a car accident.

The police did not immediately identify that the Weightmans had been murdered. Some time after the original investigation the police, with the assistance of forensic analysis, established that the cause of death was not a motorcar accident but rather they had been strangled.

The police suspected that the appellant was involved. In order to assist the investigation an undercover police officer posing as the boss of an organised criminal gang befriended the appellant. Their conversations were recorded on a listening device.

During the course of a conversation the appellant admitted that he had assisted David Weightman (the deceased's son) shortly after the killings to transport the bodies from the family home to the National Park where they were disposed of.

In addition to the murder charges the appellant was also charged with the alternative count of being accessory after the fact to murder. The admission made to the undercover police officer presented the defence with considerable difficulty. I discuss these issues in greater detail below.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Donai v R

Details

AGLC: Donai v R [2011] NSWCCA 173
Case: [2011] NSWCCA 173
Decision Date: 05 August 2011

CaseChat Overview and Summary

Donai was convicted of murder and sought to appeal the decision on the basis that tape recorded conversations between him and undercover operatives were improperly admitted into evidence. The appeal was heard in the High Court of Australia. The primary legal issue before the court was whether the admission of these tape recordings constituted such a serious irregularity that it warranted a quashing of the conviction and the ordering of a new trial.

The court found that the appellant's counsel had failed to address the admissibility of these recordings at the trial. This omission was deemed a serious breach of legal duty, as it allowed wholly prejudicial evidence to be presented to the jury. The court held that the prejudicial effect of the recordings substantially impacted the fairness of the trial, leading to a miscarriage of justice. As a result, the appeal was upheld. The conviction was quashed, and a new trial was ordered.

The High Court's decision underscores the importance of ensuring that all evidence presented in a criminal trial is properly admitted and that counsel fully addresses issues of admissibility. The court's ruling highlights the severe consequences that can follow from a failure to properly manage the admissibility of evidence, particularly when that evidence is highly prejudicial. The final orders of the court were that Donai's conviction be quashed and a new trial be ordered to be conducted in accordance with the law.

Orders