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Court of Criminal Appeal 5 October 2016

Donai v R

[2016] NSWCCA 212

Homicide
CRIMINAL LAW CONVICTION APPEAL MURDER APPEAL DISMISSED

Citation: Donai v R [2016] NSWCCA 212
Court: Court of Criminal Appeal, NSW
Date: 5 October 2016
Judge(s): Ward JA (primary judgment); Price J and McCallum J (agreeing)

Background

The appellant was convicted in April 2012, at his second trial, of the murders of a couple whose bodies were found in their car at the bottom of an embankment in the Royal National Park in January 2000. The deceased couple's adopted son had pleaded guilty to the murders in 2005 and gave evidence against the appellant, who was a friend or acquaintance of the son and had performed concreting work at the family home around the time of the deaths.

The appellant's first conviction in 2007 had been quashed on appeal because his trial counsel failed to object to prejudicial propensity evidence obtained through an undercover police operation. At the second trial, redacted versions of those recordings were admitted. The jury again returned guilty verdicts on both counts of murder.

The appellant sought leave to appeal out of time, filing his notice of appeal in January 2016, nearly four years after his 2012 conviction. The Crown opposed the extension but the Court granted it, noting the seriousness of the charges, the lengthy sentence imposed, and the presence of arguable grounds.

  • Whether the trial judge failed to give adequate directions after the jury was informed of the co-offender's guilty plea to murder
  • Whether the Crown prosecutor's closing address improperly invited the jury to draw adverse inferences from the appellant's admissions to undercover police
  • Whether the Crown prosecutor's conduct during defence counsel's closing address (described as sotto voce comments and smiling) prejudiced the jury and caused a miscarriage of justice
  • Whether the guilty verdicts were unreasonable or unsupported by the evidence

Decision

Directions about the co-offender's plea (Ground 1 and 2): The Court found the trial judge's directions adequately protected the appellant. The jury had been told clearly that the co-offender's plea of guilty could not be used as evidence against the appellant, and that the appellant was to be assessed on the evidence in his own trial. No failure of adequate direction was established.

Crown's closing address (Ground 3): The appellant argued that the Crown invited the jury to draw an impermissible inference, namely that the appellant's minimising of his involvement during the undercover conversations indicated consciousness of guilt. The Court found that this submission was a legitimate forensic point available on the evidence. The trial judge's directions adequately explained how the undercover admissions were to be used, and no error was established.

Prosecutor's conduct during defence address (Ground 4): The appellant complained that the Crown prosecutor made audible comments and smiled or smirked while defence counsel addressed the jury. The trial judge addressed the complaint at the time by directing the jury to disregard anything they may have observed and to focus on the evidence. The Court declined to find that a miscarriage of justice had occurred, noting the trial judge was best placed to assess the atmosphere in the courtroom and had intervened appropriately. McCallum J added a pointed observation that the conduct was not condoned, describing the prosecutor's apparent flippancy in response to a serious complaint as troubling, and stating that the occasion for such conduct should never arise.

Unreasonable verdict (Ground 5): The Court conducted its own review of the evidence and was not persuaded that the jury must have been left with a reasonable doubt. The co-offender's evidence, while challenged on grounds of drug use, inconsistency, and a history of lying, was capable of being accepted as candid and compelling. The appellant's own statements to undercover police were also significant. McCallum J noted that the jury's advantage in seeing and hearing the co-offender give evidence was considerable.

Orders Made

  • Time for filing the notice of appeal extended to 28 January 2016
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a trial judge's direction to the jury to disregard a co-offender's guilty plea as evidence of the accused's guilt can be sufficient to cure any prejudice, provided the direction is clear and appropriately framed.
  • A Crown prosecutor's closing submission that an accused downplayed involvement during undercover conversations does not constitute an improper use of those admissions where the submission is grounded in the evidence and the jury has been properly directed on how to use that material.
  • Where a Crown prosecutor behaves inappropriately during defence counsel's closing address, the primary remedy is the trial judge's immediate direction to the jury; absent evidence that the direction failed to cure any prejudice, this will ordinarily be sufficient to defeat a miscarriage of justice ground.
  • McCallum J's separate observations signal that such conduct by a prosecutor remains unacceptable even where it does not ultimately vitiate a conviction.
  • On an unreasonable verdict ground, the Court applies the test from M v The Queen and SKA v The Queen: the appellate court must itself assess whether the jury, acting reasonably, was compelled to have a reasonable doubt. Here, the evidence including the co-offender's direct account and the appellant's own statements to undercover police cleared that bar.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 6(1)

Cases:
- Donai v R [2011] NSWCCA 173
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
- Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30
- MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
- TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46
- McKinney v The Queen (1991) 171 CLR 468; [1991] HCA 6
- King v The Queen (1986) 161 CLR 423; [1986] HCA 59
- Pemble v The Queen (1971) 124 CLR 107; [1971] HCA 20
- Livermore v R (2006) 67 NSWLR 659; [2006] NSWCCA 334
- MG v R (2007) 69 NSWLR 20; [2007] NSWCCA 57
- Humphries v R [2015] NSWCCA 319
- Causevic v R (2008) 190 A Crim R 416; [2008] NSWCCA 238
- Doyle v R; R v Doyle [2014] NSWCCA 4
- Robinson v R (2006) 162 A Crim R 88; [2006] NSWCCA 192
- Mraz v The Queen (1955) 93 CLR 493; [1955] HCA 59
- McCullough v R (1982) 6 A Crim R 274
- R v Lowe (1997) 98 A Crim R 300