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Donai v The Queen

Donai v The Queen

Case [2016] NSWCCA 212 5 October 2016

Conviction Appeal

Murder

Judicial Review

Natural Justice & Procedural Fairness

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Donai v R [2016] NSWCCA 212
Hearing dates: 23 June 2016
Decision date: 05 October 2016
Before: Ward JA at [1]
Price J at [184]
McCallum J at [185]
Decision:
1. Extend time for the filing of the notice of appeal/application for leave to appeal to 28 January 2016.
2. Dismiss the appeal.

Catchwords: CRIMINAL LAW – conviction appeal – murder – whether trial judge failed to give appropriate directions where jury informed of co-offender’s plea of guilty to murder and where Crown submitted in closing address that appellant downplayed his involvement in admissions to undercover police – whether conduct of Crown prosecutor in making sotto voce comments and smiling during defence counsel’s closing submissions prejudiced jury – whether verdict unreasonable and unsupported by evidence – appeal dismissed
Legislation Cited: Criminal Appeal Act 1912 (NSW), s 6(1)
Cases Cited: Causevic v R (2008) 190 A Crim R 416; [2008] NSWCCA 238
Donai v R [2011] NSWCCA 173
Doyle v R; R v Doyle [2014] NSWCCA 4
Humphries v R [2015] NSWCCA 319
King v The Queen (1986) 161 CLR 423; [1986] HCA 59
Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30
Livermore v R (2006) 67 NSWLR 659; [2006] NSWCCA 334
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
McCullough v R (1982) 6 A Crim R 274
McKinney v The Queen (1991) 171 CLR 468; [1991] HCA 6
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
MG v R (2007) 69 NSWLR 20; [2007] NSWCCA 57
Mraz v The Queen (1995) 93 CLR 493; [1955] HCA 59
Pemble v The Queen (1971) 124 CLR 107; [1971] HCA 20
R v Lowe (1997) 98 A Crim R 300
R v R [1998] 3 VR 580
R v Roulston [1976] 2 NZLR 644
Robinson v R (2006) 162 A Crim R 88; [2006] NSWCCA 192
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46
Tofilau v The Queen (2007) 231 CLR 396; [2007] HCA 39
Turner v Victorian Arts Centre Trust [2009] VSCA 224
Whitehorn v The Queen (1983) 152 CLR 657; [1983] HCA 42
Category: Principal judgment
Parties: Terry Mark Donai (Applicant)
Crown (Respondent)
Representation:
Counsel:
G James AM QC with P Lange and C Parkin (Applicant)
H Baker (Respondent)
Solicitors:
Murphy’s Lawyers Inc (Applicant)
Crown Prosecutor’s Chambers (Crown)

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

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law - Criminal

Citation:

[2012] NSWSC 1102

Date of Decision:

14 September 2012

Before:

Hidden J

File Number(s):

2007/1450

Judgment

WARD JA: On 3 April 2012, following a trial in the Supreme Court before Hidden J and a jury of twelve, the applicant (Mr Terry Donai) was convicted of the…

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 The Queen

Details

AGLC: Donai v The Queen [2016] NSWCCA 212
Case: [2016] NSWCCA 212
Decision Date: 05 October 2016

CaseChat Overview and Summary

In the case of Donai v The Queen, the appellant was convicted of murder and sought to appeal the conviction. The appellant was charged alongside co-offenders in relation to a shooting incident. The jury was informed that one co-offender had pleaded guilty to the murder, and the Crown argued in its closing address that the appellant had minimised his involvement in statements to undercover police. The appellant contended that the trial judge had failed to give appropriate directions to the jury, particularly in light of the co-offender’s plea and the Crown’s submissions. Additionally, the appellant claimed that the conduct of the Crown prosecutor, including sotto voce comments and smiling during the defence counsel’s closing submissions, prejudiced the jury. The appeal centred on whether the trial judge’s directions were adequate, whether the prosecutor’s conduct was prejudicial, and whether the verdict was unreasonable or unsupported by the evidence.

The court examined whether the trial judge had correctly guided the jury on the weight to be given to the co-offender’s guilty plea and the Crown’s assertions about the appellant’s admissions. The court assessed whether the judge’s directions were sufficient to ensure the jury considered the evidence impartially. Further, the court scrutinised the prosecutor’s conduct to determine if it amounted to prejudicial behaviour that could have influenced the jury’s decision. Finally, the court evaluated the overall reliability and reasonableness of the jury’s verdict in light of the evidence presented.

The court found that the trial judge had provided adequate directions to the jury, taking into account the co-offender’s plea and the Crown’s arguments. The court held that the prosecutor’s conduct, while perhaps unprofessional, did not prejudice the jury to the extent that it rendered the trial unfair. The court also determined that the verdict was not unreasonable and was adequately supported by the evidence. Consequently, the appeal was dismissed, upholding the conviction of the appellant.

Orders