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Court of Criminal Appeal 5 August 2011

Donai v R

[2011] NSWCCA 173

Homicide
CRIMINAL CONVICTION APPEAL MURDER EVIDENCE WHOLLY PREJUDICIAL APPEAL UPHELD

Citation: Donai v R [2011] NSWCCA 173
Court: NSW Court of Criminal Appeal
Date: 5 August 2011
Judge(s): McClellan CJ at CL, Blanch J, Hislop J

Background

The appellant was convicted by jury of the murders of a married couple whose bodies were discovered in the Royal National Park in January 2000. The deaths were initially treated as accidental, but a subsequent forensic re-investigation revealed both victims had been strangled and their bodies staged to simulate a car accident. The deceased's adopted son, who stood to inherit the entirety of their estate, later confessed to his aunt that he had committed the murders with the appellant's involvement.

Police suspected the appellant's participation and deployed an undercover operative posing as the boss of an organised criminal gang to befriend him. Their conversations were covertly recorded. During those conversations, the appellant admitted he had helped transport the bodies from the family home to the National Park after the killings. The appellant was charged with two counts of murder, with an alternative charge of accessory after the fact to murder.

The trial took place in 2007, more than seven years after the murders. The appellant was sentenced in May 2008 to two concurrent terms of life imprisonment. He appealed against both conviction and sentence.

  • Whether the tape-recorded conversations between the appellant and the undercover operative were properly admitted into evidence at trial
  • Whether defence counsel's failure to challenge the admissibility of that evidence amounted to incompetent representation resulting in a miscarriage of justice
  • Whether the trial judge gave adequate jury directions regarding the use of the recorded statements, corroboration, lies, and other disputed evidence
  • Whether the verdicts were unsafe and unreasonable given the reliability issues with the principal Crown witness
  • Whether errors in the handling of hearsay evidence and unresponsive witness answers caused further prejudice to the appellant

Decision

The Court of Criminal Appeal upheld the appeal on Ground 2, finding that the tape-recorded conversations with the undercover operative constituted evidence that was wholly prejudicial to the appellant and that defence counsel had failed to raise any objection to its admissibility at trial. McClellan CJ at CL concluded that competent counsel should have challenged the evidence, and that the failure to do so occasioned a serious miscarriage of justice.

Because that ground was decisive, the Court did not need to resolve all thirteen grounds in detail. The Court acknowledged that, apart from the evidence of the deceased's son (whose credibility was seriously in issue and who had been given significant warnings by the trial judge), there was other substantial evidence pointing to the appellant's guilt. Nevertheless, the Court held that the appellant was entitled to a trial conducted according to law upon properly admitted evidence, and that the miscarriage of justice was sufficient to quash the conviction regardless of that other material.

The Court also noted that the appellant's own counsel on appeal accepted that if a substantive ground succeeded, the appropriate remedy was a new trial rather than an acquittal. The sentence appeal was not addressed, as it became unnecessary once a new trial was ordered.

Orders Made

  • Appeal against conviction upheld and conviction quashed
  • New trial ordered

Key Takeaways

  • The Court of Criminal Appeal confirmed that defence counsel's failure to object to the admissibility of covertly recorded conversations with an undercover operative, where those recordings were wholly prejudicial to the accused, can constitute a miscarriage of justice sufficient to quash a conviction.
  • A conviction obtained partly through improperly admitted evidence will not be preserved merely because other substantial evidence of guilt exists; an accused is entitled to a trial at which only properly admitted evidence is placed before the jury.
  • Where a substantive ground of conviction appeal succeeds, the appropriate remedy is ordinarily a new trial rather than an acquittal, particularly where the sufficiency of remaining evidence has not been separately established as insufficient.
  • Incompetent representation is capable of founding a conviction appeal, but the Court found it unnecessary to resolve that ground separately once the evidentiary miscarriage was established.
  • Significant delays between the offence, trial, and sentencing do not preclude a successful conviction appeal, though they may require the appellant to obtain an extension of time to seek leave to appeal.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 5(1)

Cases
- 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 (2002) 212 CLR 124
- Tofilau v The Queen [2007] HCA 39; (2007) 231 CLR 396
- Zoneff v The Queen (2000) 200 CLR 234