Donai v The Queen - [2017] HCATrans 125

[2017] HCATrans 125

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S278 of 2016

B e t w e e n -
TERRY MARK DONAI
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

KIEFEL CJ
BELL J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 16 JUNE 2017, AT 9.32 AM

MR G.R. JAMES, QC: May it please the Court, I appear with my learned friends, MR P.D. LANGE and MR C. PARKIN, for the applicant. (instructed by Murphy’s Lawyers)

MS K.N. SHEAD, SC: May it please the Court, I appear with my learned friend, MS H.R. ROBERTS, for the respondent. (instructed by Solicitor for Public Prosecutions (NSW)

KIEFEL CJ: Yes, Mr James.

MR JAMES: Your Honours, there is a necessity for an application for extension. I understand that is not opposed.

KIEFEL CJ: Yes, you have that extension.

MR JAMES: Thank you, your Honour. Your Honours, the application is set out in the application book at pages 154, and following. The special leave questions are at page 155. The short background to the matter is that Mr Donai was on trial for murder. The principal witness, indeed giving the only evidence against or implicating Mr Donai, was a Mr Weightman. The murders were said to have been of Mr Weightman’s parents. It was the Crown case that Mr Weightman had engaged Mr Donai and that in substance – subject to some assistance – Mr Donai had himself performed the physical acts causing the deaths.

In the Crown case, evidence - in the Crown opening and, indeed, in the case itself - was adduced to show that Mr Weightman had pleaded guilty to the murder of his parents. At no time in the Crown case during the trial itself were the factual underlying circumstances or bases for that plea of guilty sought to be led.

The circumstances of that were not the subject of cross‑examination or of any particular attention in the defence case. However, during the summing‑up, and only at that point, the trial judge raised with the jury that Weightman had pleaded guilty to murder on the basis that he was a party to the plan to kill his parents and that the Crown did not have to show that he personally had killed either of them. It was, of course, the defence case that he had.

BELL J: That was the issue in this trial.

MR JAMES: Precisely.

BELL J: The matter was opened on the basis that there was a joint criminal enterprise as between the son and your client. That was the very issue for the jury. His Honour’s direction informed the jury that it did not have to be shown that the witness, Weightman, had himself carried out the killing. That explained with might otherwise have been the oddity of his admitted plea of guilty to murder.

MR JAMES: Yes, your Honour. We would say…

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.

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Details

Case: [2017] HCATrans 125
Decision Date

CaseChat Overview and Summary

In *Donai v The Queen*, the High Court of Australia considered an appeal from a conviction for murder. The appellant, Mr. Donai, had been found guilty of murder by a jury in the Supreme Court of Victoria. The central dispute revolved around the admissibility of certain evidence and the directions given by the trial judge to the jury.

The High Court was required to determine two primary legal issues. Firstly, whether the trial judge erred in admitting evidence of the appellant's prior convictions and prior bad character. Secondly, the Court had to consider whether the trial judge's directions to the jury regarding the use of this evidence, and concerning the issue of self-defence, were adequate and free from error.

The Court held that the admission of the prior convictions and bad character evidence was an error, as it was not sufficiently connected to the current charge to be admissible under the relevant rules of evidence. The jury may have been unduly prejudiced by this material. Furthermore, the directions given to the jury on self-defence were found to be inadequate, failing to properly explain the relevant legal principles and the onus of proof. The Court concluded that these errors, taken together, meant the conviction could not stand.

Consequently, the High Court allowed the appeal, quashed the conviction for murder, and ordered a new trial.

Orders