Donohue v Tasmania

Case [2016] TASCCA 17

[2016] TASCCA 17

COURT:        SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

CITATION:                 Donohue v Tasmania [2016] TASCCA 17

PARTIES:  DONOHUE, Darryl Scott
  v
  STATE OF TASMANIA

FILE NO:  CCA 142/2015
DELIVERED ON:  5 October 2016
DELIVERED AT:  Hobart
HEARING DATE:  29 September 2016
JUDGMENT OF:  Blow CJ, Estcourt and Brett JJ

CATCHWORDS:

Criminal Law – Evidence – Propensity, tendency and coincidence – Admissibility and relevancy – Tendency and coincidence evidence under uniform evidence law – Other cases – Inciting to commit murder – Tendency of appellant to offer men he did not know money in return for killing his estranged wife for reasons related to access to his children.

Evidence Act 2001 (Tas), ss 97(1), 101(2).
IMM v The Queen [2016] HCA 14, 98 ALJR 529; R v Matonwal [2016] NSWCCA 174, referred to.
Aust Dig Criminal Law [2782]

REPRESENTATION:

Counsel:
             Appellant:  E G Hughes
             Respondent:  L Mason
Solicitors:
             Appellant:  Rae & Partners
             Respondent:  Director of Public Prosecutions

Judgment Number:  [2016] TASCCA 17
Number of paragraphs:  42

Serial No 17/2016
File No CCA 142/2015

DARRYL SCOTT DONOHUE v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

BLOW CJ
ESTCOURT J
BRETT J
5 October 2016

Order of the Court (29 September 2016)

Appeal dismissed.

Serial No 17/2016
File No CCA 142/2015

DARRYL SCOTT DONOHUE v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

BLOW CJ
5 October 2016

  1. On 2 December 2014 the appellant, Darryl Scott Donohue, was found guilty by a jury of two charges of inciting to commit murder, contrary to s 298 of the Criminal Code.  He appealed against his convictions, contending that the learned trial judge, Pearce J, erred in a ruling as to the admissibility of tendency evidence, and in refusing to order separate trials of the two charges.  On 29 September 2016 this Court heard the appeal and dismissed it, deferring the publication of the reasons for dismissing it.  The Court is now publishing those reasons.

  2. I have read the reasons of Estcourt J in draft form. They accord with my reasons for dismissing the appeal.  There is nothing that I wish to add.

File No 142/2015

DARRYL SCOTT DONOHUE v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

ESTCOURT J
5 October 2016

The appeal

  1. On 2 December 2014 the appellant, Darryl Scott Donohue, was found guilty by a jury of two charges of inciting to commit murder contrary to s 298 of the Criminal Code.

  2. He was sentenced by Pearce J to seven years' imprisonment with a non-parole period of four years.

  3. The appellant has appealed to this Court against his conviction on the grounds that the learned trial judge erred in refusing the appellant's application to sever the two counts on the indictment, and in admitting as tendency evidence, cross-admissible on both counts, the evidence of approaches by the appellant to witnesses Adrian Hayes and Mark Lopes, and to witnesses Scott…

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Donohue v Tasmania [2016] TASCCA 17
Case
[2016] TASCCA 17
Decision Date

CaseChat Overview and Summary

The appeal concerned the admissibility of tendency evidence in a criminal trial. The appellant, Donohue, was charged with inciting others to murder his estranged wife. The Crown sought to adduce evidence of prior occasions where the appellant allegedly made similar propositions to different individuals.

The legal issues before the court were whether the evidence of the appellant's prior conduct towards Mr Hayes, Mr Etchell, and Mr Saxelby constituted admissible tendency evidence under the Uniform Evidence Law. Specifically, the court had to determine if this evidence possessed significant probative value and if its probative value substantially outweighed any prejudicial effect, as required by sections 97(1)(b) and 101(2) of the Evidence Act. The court also considered the cross-admissibility of evidence relating to the alleged approaches to Mr Etchell and Mr Saxelby.

The court reasoned that tendency evidence is admissible if it can rationally affect the assessment of the probability of a fact in issue and has significant probative value. The court noted that when assessing probative value for the purposes of admissibility, the reliability and credibility of the evidence are generally not considered, and it must be assumed that the evidence will be accepted. The court found that the conduct on each occasion relied upon by the Crown was highly similar: the appellant approached individuals he did not know, offered money to kill his estranged wife, and did so for reasons related to gaining custody of his children. This similarity, the court held, gave the evidence significant probative value, supporting an inference that the appellant acted with a similar intention on each occasion. The court also considered that the evidence was necessary to exclude the possibility that the appellant was merely boasting.

The appeal was dismissed.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

The learned trial judge set out the background facts derived from the Crown papers at [5]-[11] of his reasons for ruling as follows:"The background facts 5 There is material in the papers which, if proved, is capable of establishing at least the following. For about six years prior to 2012 the accused was in a relationship with Angie Donohue. They were married for four years. They lived at 112 View Bank Road in Newnham. They had one son together, born in 2009. Mrs Donohue had another son, from a previous relationship, born in 2003. Mrs Donohue owned a silver 1996 Toyota Camry registered number DN 3258 until it was sold in August 2013. Mrs Donohue had a heart condition and a pacemaker was implanted in August 2011. Her parents lived at 120 Goons Road Blackwood Creek. In April 2012 Mr and Mrs Donohue separated. A family violence order was made imposing conditions on Mr Donohue. He moved out of the View Bank Road home. Between April and October 2012 Mr Donohue made various approaches to Mrs Donohue which formed the basis of a charge of stalking for which he was also sentenced by Crawford CJ on 23 February 2013. 6 On 23 September 2012 the accused was at a barbecue at the home of Adrian Hayes in Exeter. Before this the accused and Mr Hayes were not known to each another. The accused approached Mr Hayes and introduced himself. He said that he understood that Mr Hayes had 'certain capabilities' and 'I've got ten grand cash and I want my ex missus topped off and taken out of the picture'. The accused did not say how payment was to be made or where the money was coming from. After some further discussion Mr Hayes left. The next day Mr Hayes received a phone message from the accused wanting to talk about 'the problem with his ex-wife'. The following day he received a text message from 'Daz' apparently seeking contact for the same purpose. Mr Hayes approached the police. On 26 September 2012 the accused was approached by two police officers who put to him that he was attempting to have someone kill his estranged wife. He denied this, saying 'Who would look after the children?'7 Through a third party the accused was introduced to an undercover police officer, Mark Lopes (using a different name) posing as a hit man and, after a series of phone calls, a meeting was arranged. At least two such calls were from a mobile phone number listed in the accused's name. The meeting took place in room 253 of the Penny Royal Hotel in Launceston on Wednesday 24 October 2012. The accused told Mr Lopes that he would pay him $10,000 to have his estranged wife killed. He gave him a photograph and personal details, including about her car and her and the children's routine. There was discussion that their son went to Taekwondo on Monday night. He referred to her pacemaker, suggesting that interfering with it electronically may be a way of killing her.8 The accused was arrested and taken into custody on 24 October 2012. He was sentenced on 22 February 2013. It was the contact between Mr Lopes and the accused which formed the basis of the conviction and sentence for incitement to murder. The evidence of the contact between Mr Hayes and the accused was background material given to the Court.9 In May 2013, John Etchell was an inmate at Risdon Prison. He did not know the accused but they were both housed in the medium security section. He was approached in the yard by the accused. The accused offered him $20,000 to kill 'his missus'. Mr Etchell later told the police that the accused 'didn't care how he wanted me to do it, just that he wanted her dead'. The accused told him that his estranged wife's name was 'Angie' (not Angela) and that he wanted her killed 'before he gets out on parole in 2014 so that he can get custody of the youngest boy'. He gave her address, details of her routine including that she took one of the boys to Taekwondo one night a week. He offered a special code for obtaining keno payouts as a means of getting the money but, if that did not work, he would get the money 'after he got out on parole'. He also said that he had arranged a loan of $60,000. 10 Mr Etchell told the authorities of the approach and the police were informed. On Friday 28 June 2013, Mr Etchell was put on a prison bus with the accused on a trip from Hobart to Launceston. The conversation was recorded by the police. The approaches to Mr Etchell constitute the basis of the first count on the indictment.11 Scott Saxelby was in Risdon prison between early May and late July 2013, during which time he was housed in the same section as the accused. They had not met before but quickly came to know one another. After Mr Saxelby had been in prison for a week or two the accused told him that he was in prison for trying to have his estranged wife, Angie Donohue, killed. He then offered Mr Saxelby $25,000 to have his estranged wife and her parents 'knocked off' so the accused could have custody of his children. Over the following six weeks or so there were frequent conversations between the accused and Mr Saxelby. The accused gave Mr Saxelby a hand-drawn map of the home of his estranged wife's parents and told him details about it. On another occasion, he gave him a note of the registration number of his estranged wife's car. The accused also told Mr Saxelby about some aspects of his estranged wife's routine, the layout of her home and suggested ways he may kill her and her parents. The conduct just described constitutes the basis of the second count on the indictment."

Evidence

Evidence Before The Court

In his Honour's reasons for ruling in the present case the learned trial judge discussed the evidence sought to be led by the State as tendency evidence as follows at [15]-[20]:"Tendency evidence15 Two of the questions for determination concern the admissibility of evidence on a tendency basis. The first question concerns the evidence concerning prior conduct – Mr Donohue's approaches to Mr Hayes and Mr Lopes. The second question concerns the cross-admissibility of evidence for each count on the indictment – the alleged approaches to Mr Etchell and Mr Saxelby. Much the same issue arises in each case.16 Tendency evidence is evidence of the character, reputation or conduct of a person, or a tendency of a person which can be admissible to prove that the person had that tendency: Evidence Act, ss 3 and 97(1). Evidence that a person has or had a particular tendency supports an inference that it is more probable that, on a particular occasion relevant to the proceedings, the person acted in a particular way or had a particular state of mind: R v Cittadini (2008) 189 A Crim R 492 per Simpson J (with whom McClellan CJ at CL agreed) at 495 [23]. Tendency evidence is not admissible unless the party seeking to adduce the evidence has given reasonable notice in writing to each other party of the party's intention to adduce the evidence. In this case notice has been given of an intention to lead evidence of tendency from Mr Lopes, Mr Hayes, Mr Saxelby and Mr Etchell, of the recorded conversation between Mr Etchell and the accused as well as evidence of the court proceedings leading to the conviction of the accused in February 2013. The tendency specified in the notice given by the State in this case is that the accused has a tendency:(a) to approach people and request them to kill his estranged wife with the promise of financial reward;(b) to provide suggestions of the ways that the person could kill her;(c) to provide personal information about his estranged wife and/or provide information about her routine for that purpose;(d) to approach people previously not known or connected to him to kill his estranged wife.17 Tendency evidence is admissible only if the court thinks that the evidence, either by itself or having regard to other evidence, will have 'significant probative value', s 97(1)(b), and cannot be used unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused: s 101(2).18 'Probative value' is defined in the Evidence Act, s 3(1), to mean 'the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue'. The accused admitted the conduct towards Mr Lopes which formed the basis of his plea of guilty. The facts concerning his conduct towards Mr Hayes were not disputed by the accused at the sentencing hearing and were taken into account by the sentencing judge. Nevertheless, in this case, it was submitted on behalf of the accused that the evidence of Mr Saxelby and Mr Etchell is of little probative value because it is not credible or reliable. The submission was based on the assertion that each is a prison informant with a motive to lie. However the submission overlooks that, in assessing the probative value of the evidence, it must be assumed that the evidence will be accepted, and that any inference open to the jury and favourable to the prosecution will be drawn: Tasmania v L (above) at [42]; Tasmania v Finnegan (No 2) [2012] TASSC 1; Tasmania v W (No 2) [2012] TASSC 48; R v Shamouil (2006) 66 NSWLR 228; KMJ v Tasmania (2011) 20 Tas R 425; R v Sood [2007] NSWCCA 214. The lead judgment in KMJ was that of Evans J, with whom Blow J (as he then was) and Tennent J agreed. His Honour reviewed the authorities including Shamouil and Sood and said at [30]:'These authorities show that, subject to the qualification referred to in Shamouil, par[63], counsel for the respondent is correct in submitting that recent authorities which have addressed the issue of the propriety of considering the reliability and credibility of evidence when determining its probative value for the purposes of ss135 or 137 (as well as ss97(1)(b), 98(1)(b), and 101(2)), have concluded that these considerations are irrelevant to that assessment.'19 Tendency evidence has 'significant probative value' if it has more than 'mere relevance', or if it is 'important' or 'of consequence', though it need not have a 'substantial' degree of relevance: Tasmania v W (No 2) (above); R v Lockyer (1996) 89 A Crim R 457, per Hunt CJ at CL at 459; L v Tasmania (2006) 15 Tas R 381 at [31]. A significant factor in assessment of the strength of tendency evidence is the degree of similarity between the conduct on the occasions relied on. See FB v The Queen (above) at [28]-[30]; BP v The Queen; R v BP [2010] NSWCCA 303 at [108] and R v Fletcher (2005) 156 A Crim R 308 at [57]–[60].20 Assuming that it is accepted, the evidence sought to be adduced by the Crown from Mr Hayes, Mr Lopes, Mr Etchell and Mr Saxelby and the evidence relevant to the accused's approach to each man, is highly probative. The conduct on each occasion relied on is highly similar. Every case involves evidence of an approach by the accused to a person he did not know with an offer of money in return for killing his estranged wife for reasons related to access to his children. The crime of inciting to commit murder requires, in this case, proof by the State that the accused proposed or encouraged another to kill his estranged wife, intending that his proposal or encouragement be acted upon: Massie v R [1998] 1 VR 542; (1998) 103 A Crim R 551. It will be necessary for the Crown to exclude the prospect that the accused, if he acted as the Crown alleges, did not do so from bravado or in an effort to 'big-note' himself. Evidence of having acted in a certain way on the other occasions relied on by the Crown supports an inference that the accused acted in a similar way with a similar intention on another occasion."

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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