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

Copyright in the High Court of Australia

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 this.  The case against my client was not simply a case of joint criminal enterprise.  Joint criminal enterprise was utilised but the case really was simpler than that.  The case against Mr Donai was that he intentionally killed the two victims.  The fact that he had been engaged to do so by Mr Weightman, on the Crown case, was, in effect, incidental.  His case was “I did not kill them; he did”. 

So that the direction or information or whatever it was given at that point we submit was capable of, and probably did, influence the jury.  It, in effect, told the jury about matters of fact that were not before them.  Those matters, at least in the form in which they came, embraced the idea that Mr Weightman had not himself killed the parents and that had been accepted by the Crown.  He had been party to Mr Donai killing the parents and that was the basis upon which the plea had occurred.

Our objections to it, even if it had been tendered by the Crown – it may well have been inadmissible as hearsay – the fact of the plea, of course, was readily available and had to be adduced for the purposes of looking at Mr Weightman’s credit.  What has happened instead ‑ ‑ ‑

BELL J:   It had to be adduced also, in fairness to your client, in circumstances in which a substantial discount had been given in recognition of the plea.

MR JAMES:   Yes, precisely.  That is what we meant about credit, if your Honour please.  There are a whole lot of consequences to the fact that there had been this agreement between the Crown and the accused to enter a plea on a certain basis.  But, nonetheless, in the way in which it was put to the jury it was quite capable of putting to the jury that the Crown and the Court had proceeded in relation to Weightman on the basis that his involvement did not include the physical acts the accused asserted he had performed.

KIEFEL CJ:   But you cannot really say that the direction would have been understood by the jury as determinative of Weightman’s claim.  Rather, it was by way of explaining what would otherwise have been something of an inconsistency.  He is pleading guilty but he is saying he did not do the killing.

MR JAMES:   But, your Honour, with respect, all of that was before the jury in the evidence of Weightman.  This added in, in effect, says to the jury “and that is the way the court and the Crown have treated him” – not just the Crown but the court and the Crown and it is the judge in the summing‑up with no opportunity to defence counsel to address on it beforehand ‑ ‑ ‑

KIEFEL CJ:   But it is necessarily implicit in your submission that the direction somehow conveys to the jury some acceptance on the part of the court of what Weightman is asserting to be his position.

MR JAMES:   Yes.

KIEFEL CJ:   But there are a series of directions given by the trial judge that his evidence must be weighed by the jury very carefully.

MR JAMES:   They are a very different thing, with respect, your Honour.

KIEFEL CJ:   They must go together.

MR JAMES:   The acceptance by the court is another – is a different concept which is that, firstly, he pleads.  He gets a reduction in sentence indicating that the court has accepted the basis of the plea - and that is in evidence - and that it is on the basis of this joint enterprise. 

So the upshot of it is that what is said at that point by the judge – and, frankly, there was no need for the judge to do it – is referring to the basis of his plea.  He would plead guilty to murder on the basis that he was party to the plan to kill the parents and it did not have to be shown that he personally had killed either of them. 

What a jury will get from that is that it had been accepted by the Crown, and the court previously on sentence, that he had not actually killed the parents and they could take that into account as the judge in this trial telling them that that is the basis on which things had proceeded and that would have a significant effect upon the case being made by Mr Donai.

BELL J:   If the trial judge had said it is probably necessary for you to understand that in law a person may plead guilty to the crime of murder and have that plea accepted notwithstanding that the person did not personally do the act causing death that could not have been objected to.

MR JAMES:   If his Honour had gone slightly further and said “and you should not take it that the fact of that plea being accepted and the sentence being reduced because of it means that there is any imprimatur of any kind being given to that scenario”.

BELL J:   But, Mr James, to take the Chief Justice’s point up with you again, if one reads the whole of the summing‑up, the issue that was crystal clear for the jury was whether the Crown had established beyond reasonable doubt that one could accept Mr Weightman’s word about these matters having regard to circumstances, including that he stood to gain as a person complicit in the offence on his own account, by nominating Mr Donai.

MR JAMES:   Yes.  Your Honour, we cannot dispute that the trial judge gave the relevant directions and the case was replete with a focus on Weightman’s credit.  Once that happens, anything that comes from the trial judge which can have the capacity to influence the jury on that issue and particularly as to the distinction between merely being party to a common enterprise or actually doing the killing is something which is, firstly, an error of the timing on which it is done, the content of it and, thirdly, it is not a matter either for the trial judge or later for the Court of Criminal Appeal to take the view that it is just clearing up a misconception or a potential misconception the jury might have thought that Mr Weightman did have some greater role but his bargain with the Crown on the previous occasion speaks against it.

That is, in our submission, not a role that the judge, nor the Court of Criminal Appeal, should have adopted.  Indeed, the objection that was made was made promptly, was made in terms of both discharge and also about, later, appropriate directions.  So the matter was squarely raised at trial, squarely raised on appeal and it, in our submission, includes a serious procedural irregularity in that the judge has, in effect, stepped into the arena. 

He might not have meant to.  He might have been wanting to clear up what he thought was a possible factual problem.  But that is not his role.  It could not be said that it would not – where the focus is squarely on Weightman’s credit on that issue of he did it, not me – likely to be other than of influence on the jury.  Your Honours, I can take your Honours to the individual passages but that is the crux of it.

GAGELER J:   When you say individual passages, it is one sentence, is it not?

MR JAMES:   What your Honour is referring to now is the passage that appears abstracted at page 157.  I was referring more generally to the earlier references in the application book to where the trial judge’s summing‑up occurs.  The summing‑up itself was succinct and the directions were quite specific.  His Honour made a decision which he, in fact, set out to counsel in argument that he did not intend to descend into the detail of it.  With this aspect of it, however, his Honour goes to the point of clearing up what he sees as might be a misconception. 

At page 157 of the application book, paragraph 1.8, counsel immediately sets out what he sees as the vice of what occurred.  From 1.12 onwards, we refer to what is appropriate in relation to a plea and that this is not, as counsel pointed out, within the authorities to justify the judge coming into the case beyond the Crown.

If the Crown had wanted to put this into evidence, they would have.  But, as your Honour Justice Bell has already pointed out to me, the Crown wanted to have two heads of liability, both the actual infliction of the murder and the party to the common enterprise.  The defence case accepted the “accessory after the fact” count – or counts – but contended no, I did not do the killing, he did, and I was not party to a joint enterprise to do it.

Now, your Honours, that is the crux of what counsel says at page 158 concerning the precise problem.  In the written submissions in the application book we point out that, in effect, the judge was putting in evidence as to the basis of the agreement between the Crown and Mr Weightman for the plea that Mr Weightman had entered. 

BELL J:    The case was opened on the basis that it was the Crown case against your client that there had been a joint enterprise.

MR JAMES:   Yes.

BELL J:   That is how the case was opened.  Beyond informing the jury that as a matter of law a person may be guilty of murder notwithstanding that they have not themselves done the physical act producing death, what harm is done, do you say, by the judge saying, “You probably need to know that the plea was entered on this basis”?  It would be unlikely that the jury would think other than that the Crown, in its case against Mr Donai, was accepting that Mr Weightman’s liability was as a party to a joint enterprise to the murder of his parents?

MR JAMES:   Your Honour, we accept that in the concept of joint enterprise, putting aside legal technicalities, to a jury the idea that one has been convicted on a joint enterprise basis tends to support the proposition that the other party in the joint enterprise of two is likely to have been in it too.  We accept that.  That is the prejudice up with which we had to put by the way in which the Crown case was opened, but this goes further.

This is, in effect, indicating that the defence, as a factual basis, has some problem with that plea and that was the perception at trial, and it is not of course a matter of straight law.  His Honour does not put it on that basis: 

It’s probably necessary for you to understand that David Weightman pleaded guilty to murder on the basis that he was a party to the plan to kill his parents and it did not have to be shown that he personally had killed either of them.

Now, that is going further than simply directing as to the various legal bases and, of course, the fact that it was the Crown’s case and his case that he had been party to a joint criminal enterprise was before the jury from first to last.  This is an addition to that.

Your Honours, the relevant directions that his Honour gave under section 165 in no way ameliorate the effect of that statement, in our submission, on the jury and, indeed, Mr Ramage raised that again and again.  The direction under section 165 was the customary direction.  There were customary directions that the evidence of Weightman had to be scrutinised but scrutinised on the basis apparently that the defence case was he did it but he had only pleaded guilty on the other basis.

Now, we submit that even if it was a worthy object for his Honour to try to disabuse the jury of any misconception they might have experienced, firstly, he should not have done it in the summing‑up; secondly, he should not have done it without at least raising it with counsel beforehand for the purposes of submissions. 

The Crown had itself not sought to lead in evidence that Weightman’s liability, his plea could be used, as it were, to negate the proposition that he might have killed himself and the content of what his Honour said was in addition – leave aside the timing of it and the way in which it was said – something which counsel could not deal with at all and the directions themselves could not deal with adequately, unless there was some specific reference to it.  That direction was sought but it was not given.

So our submission to your Honours is that this could at least influence the decision by the jury.  The Court of Criminal Appeal went so far as to suggest that it might have - would have to go to the point of showing that it would have disposed in effect of the accused’s case.  It does not have to go that far.  In our submission it is not a matter of saying does it matter?  This is not a proviso question where the judge has acted in the way in which he has here and our submission is therefore that it is a matter in which both procedurally and substantively the scales have been weighed by the judge against the accused’s account.

That is the gravamen of it.  We say it is a special leave question because again and again we are finding that persons involved in crimes are giving evidence subsequent to pleas of guilty and the directions as they

have hitherto been understood to be appropriate are those which we have referred to in our written submissions.

BELL J:   But those that you have referred to in your written submissions address different circumstances.  When two people are charged with committing an armed robbery and one pleads guilty in the course of the trial, different issues arise.  To a trial which is a clear‑cut contest, can you accept beyond reasonable doubt this man when he says, “I didn’t do the act.  It was the fellow in the dock”?

MR JAMES:   Your Honour, those situations happen all the time.  Again and again, persons ‑ ‑ ‑

BELL J:    One can hardly tailor a direction that is to cover all these things.

MR JAMES:   No, of course not.

BELL J:   So the issue that you raise is specific to the facts of this case.

MR JAMES:   With respect no, your Honour, because again and again that scenario arises where a person is giving evidence against a co‑accused and the co‑accused is saying, “This man has deliberately tailored his evidence to diminish his liability and to shift the blame onto me”.  Indeed, that is exactly one of the things to which the standard direction speaks and the judge gave that in this case about shifting blame, but only in general terms. 

It would have been perfectly all right if it had been left at that but to add in this addition to that in effect denigrated from that general direction and the general direction of course has to be adapted to the circumstances of each case.  This situation is not specific in the sense of unique.  Indeed, what is necessary is a direction that is sufficient to the circumstances of the case, we accept, but not one that is given by the judge of his own motion, without being put to counsel, and which could have the effect that we submit this direction could have.  They are the submissions, if your Honours please.

KIEFEL CJ:   We need not trouble you, Ms Shead.  We consider that there is no reason to doubt the correctness of the decision of the Court of Appeal.  The application for special leave is refused.

AT 9.54 AM THE MATTER WAS CONCLUDED