The appeal
51Ground 1 states that the trial miscarried. This was advanced in the nature of an assertion of the consequences of success on other grounds of appeal.
52Ground 2 is concerned with the contents of a recording of a conversation between the appellant and the police. There was also a tape recording of material obtained from a listening device tendered at the trial which was not the subject of objection and is not the subject of complaint in the appeal. That tape contained the conversation with the undercover police officer which occurred in a room at Coogee on 16 June 2006 when the appellant admitted being an accessory after the fact to the murders in that he assisted Weightman to dispose of the bodies. It was at the end of this conversation that other police officers entered the room and arrested the appellant. Realising that he had been speaking with a police officer the appellant immediately said "No, everything I have told you is not true."
53The controversy in this appeal relates to the earlier occasions on which the appellant spoke with police officers. Although it is accepted that part of those conversations were properly admitted it is asserted in the appeal that other portions were not. No objection was taken to the tender of any part of the recording at the trial and accordingly leave under Rule 4 is required to raise this ground. For reasons which emerge below I would grant that leave and uphold this ground of appeal.
54I have previously referred to the controversial evidence but greater detail is appropriate.
55Exhibit V recorded the conversation between UC3 and the appellant in a park at Cooma. UC3 told the appellant that Weightman, who was in gaol, wanted to see him. UC3 told the appellant that he "did a bit of this and that" and that Weightman had worked for him. UC3 told the appellant that he had taken the trouble to track him down because "keeping him (Weightman) happy inside is somethin' that would ah, you know, be in my best interest as well. So while he's happy, you know - and if that means comin down here and askin you to go and see him, then that's what I'm willin to do." During the course of the conversation the appellant said: "Mate, the last thing I want is any fucken hit men after me ... I've got guns at home. I wont hesitate to use them ... you know, if someone fucken comes to my house and threatens me or my family I'll use them."
56There is another passage in the transcript where there is a reference to "someone's been done for fucken' drugs." There is also a passage where the appellant told UC3 "like, I've got a family. I've got kids and shit. I'm not going to get involved in any shit too. Like, I do shit years ago mate. I used to do some bad stuff."
57Perhaps the most damning admission made by the appellant are the passages where the appellant made reference to his willingness to undertake a contract killing and said that he had murdered two people in the past and organised for them to be disposed in vats of hot iron. It is unnecessary to set out the transcript of the complete conversation. The following extract is sufficient:
"Is there anything that you wouldn't be prepared to do with us? Like, where would you draw the line?"
Appellant:I'd never kill a child.. that's about as far as I'd draw the line.
Yeah? No dramas with adults, and stuff like that? Cause you know from time to time that sort of stuff comes up?
Appellant:Mmmm
Tell me what you think it's about
Appellant:Oh. Could be numbers of things. It could be invading other people's privacy, I guess. It could be knocking people off. It could be a very sticky situation.
Well, you're on the line, mate. We're talking about knocking people off.
Appellant:Yeah. Yeah.
Contract killing
Appellant:Yeah
You know
Appellant:Contract killing
Um, Or either contract killing, or um, if, if something in our way. If somethings in our way and it, and there is no alternative.
Appellant:Eliminate it
Yeah
Appellant:Yeah
Take them out of the picture
Do you have any problem with that?
Appellant:No, its part of the parcel
You sure?
Appellant:Yes
Appellant:I can hunt down an animal, kill an animal. Its no different to a human.. No I wouldn't find it hard Jack. I wouldn't find it hard to kill someone. As long as it wasn't someone too close .. I mean, like brother, fuckin auntie, all this type of shit.. Look, look it comes down to it, yes I can do it.
You mentioned to me, um a while back that you'd knocked a couple of blokes over, over a deal of grass. What was that about?
Appellant:He broke in me house and stole cash and grass off me.. a pound
And what did you do with him?
Appellant:Fixed him up.
What do you mean, you, you knocked him?
Appellant:Mm
Yeah? Well did you just leave the body there, or did you get rid of it?
Appellant:No, I had a friend that worked for the SRA.
Yeah
Appellant:He's a blacksmith
Yeah?
Appellant:And they have these big vats full of hot iron. He went straight in.
And you hit him with a .357 you said?
Appellant:Mmm."
58The appellant advances a number of submissions with respect to this evidence. Senior counsel on his behalf emphasised that evidence disclosing bad character is generally not admissible against an accused person. His admission of having committed other crimes and his willingness to commit crimes was not relevant to his prosecution for the present offences. The evidence was not led as tendency evidence, was not admissible as context evidence and was in any event wholly prejudicial to the appellant.
59The appellant submitted that the admissibility of the evidence was never addressed at the trial and that, furthermore, her Honour failed to give appropriate directions in relation to it, either at the time of the admission of the evidence or in her subsequent directions.
60The Crown responded to the appellant's submissions by submitting that merely because evidence which is otherwise admissible reveals another criminal offence it must not necessarily be rejected. I considered the issue in Steer v R (2008) NSWCCA 295 at [33]. I need not repeat my earlier remarks. The appellant does not take issue with the view I expressed in Steer but rather submitted that in the circumstances of this case the evidence was of little if any evidentiary value and was overwhelmingly prejudicial.
61Counsel who appeared for the appellant at the trial gave evidence to this Court. He explained that he made a deliberate decision not to object to the evidence. He said that he believed the position was covered by the decision in Tofilau but was not aware of the decision of the Victorian Court of Appeal in R v Hill [2006] VSCA 41.
62Tofilau was concerned with whether admissions made to undercover police officers who were posing as criminal gang leaders were voluntary. The High Court determined that they were voluntary and furthermore that there was no reason of public policy to reject their admission into evidence.
63The issue was also considered In Hill where the police used similar methodology to that used in Tofilau and the present case. Although the evidence was admitted in Hill Buchanan JA at [113] recognised "the collateral prejudice" that could be occasioned where the jury came to believe that an accused person was actively involved with criminals.
64Whether or not the jury believed everything the appellant said to the police to be true the evidence irretrievably prejudiced the appellant when the jury came to assess his denial of any involvement in the killings or disposition of the bodies as against the evidence that he was involved. Weightman's evidence in relation to the appellant made his conviction likely. The picture of the appellant reflected in his conversations with police made his conviction inevitable.
65Ground 12 of the grounds of appeal complains that the appellant's counsel at trial did not competently represent him. As I have indicated no objection was taken to the evidence of the appellant's propensity for serious criminal acts. I am satisfied that it should have been and that the failure to do so has occasioned a miscarriage of justice. Although an appellate court will be slow to intervene when difficulties have arisen because of a deliberate tactical decision by defence counsel TKWJ v The Queen 212 CLR 124 it would have been possible to allow parts of the conversation into evidence to support a submission that the appellant was big noting himself without the material which overwhelmingly blackened his character. This is one case where the injustice occasioned to the appellant should be remedied and a new trial ordered.
66Ground 2 is sufficient to dispose of the appeal. However there are a number of further grounds of appeal.
67Ground 3 complains that the trial judge erred in failing to give appropriate directions at the time of the admission of the prejudicial evidence. Ground 4 complains that the trial judge failed when summing up to properly or adequately direct the jury as to how they could use the evidence of the statements made by the accused.
68These grounds assume that the evidence was properly admitted. Because I am of the opinion that the evidence should not have been admitted these grounds have little significance. In my opinion there was nothing which the trial judge could effectively have done to redress the difficulties created by the admission of the evidence.
69Under ground 5 the appellant submitted that the jury should have been directed that they could not use the statement of the appellant that he had assisted Weightman in the disposal of the bodies as in any way corroborating Weightman, in the sense of giving weight or adding support to Weightman's evidence that the appellant had committed the murders. The appellant complains that the jury was not directed that they could not use this evidence to corroborate or add weight to Weightman's evidence that the appellant was the murderer, but that they were very likely to reason in this manner.
70In the alternative it was submitted that the trial judge erred in failing to direct the jury as to what parts of the appellant's statement could be used as corroboration or support and how. It was submitted that a full Murray ((1987) 11 NSWLR 12) direction was required.
71I do not believe there is substance in this ground. It was reasonably open to the jury to take the view that the appellant's admitted course of conduct to the undercover police officers was more consistent with Weightman's evidence that the appellant had participated in the murders than not. Accordingly, the evidence would tend to confirm the truth of Weightman's evidence.
72With respect to the issue of a Murray direction I am not persuaded that her Honour did not direct the jury as she was required to do. She told the jury on repeated occasions that acceptance of the truth and reliability of David Weightman's evidence was essential to prove the Crown case of murder against the appellant. Her Honour instructed the jury to "examine and scrutinise David Weightman's evidence with great care and emphasised that it was only through Weightman that they were told of the appellant's planning and participation in the murders. Her Honour told the jury to carefully consider David Weightman's honesty and reliability and reminded the jury that when assessing his evidence they should be mindful of lies which he had told to psychiatrists and an insurance company.
73Ground 6 relates to a question and answer given by UC2 in evidence at the trial. The exchange was as follows:
"Q:Why was it your expectation that, at the meeting that occurred on 16 June 2006, Mr Donai would perhaps confess in his part of the murder of the Weightmans.
A:I got to know Terry, as you are aware, in about November, I think it was from memory 2005. I spent a considerable amount of time with Terry, over which time we spoke about all sorts of things. Given the background of the case and getting to know - sorry, the defendant at the level at which I was purporting to operate, it became my belief, my firm belief, that on the day that the defendant was arrested that it was in fact he who had murdered the Weightmans."
74The appellant submitted that the answer was not responsive to the question, was highly prejudicial and should have been struck out and the jury told to ignore it.
75It was submitted that the question asked was unusual and invited a response which was inadmissible. The response which was given should not have been admitted.
76However, it would have been no surprise to the jury to be told by a police officer who had been involved in the investigation that he or she believed that the appellant had been involved in the murders. The evidence was addressed by her Honour who told the jury in clear terms to ignore any view which a police officer had about the guilt or innocence of the appellant. That direction was sufficient to deal with any problems.
77Ground 7 is concerned with the following questions and responses in the evidence in chief of David Weightman:
"Q:Having had the initial conversation with Terry Donai in relation to your parents, did you say anything to any other of your friends before your parents died about what might happen in the near future?
FLYNN:I object to this, your Honour.
CROWN PROSECUTOR:If I confine it to a 'yes' or 'no' answer and a who rather than the substance, your Honour?
HER HONOUR:What is the objection, Mr Flynn? The question is - is this the import of the question: If anyone else was told before the killing and the accused's intention to kill the Weightmans?
CROWN PROSECUTOR:That's right.
HER HONOUR:What is the objection?
FLYNN:I withdraw the objection, your Honour. I am just concerned about the witness volunteering information.
HER HONOUR:Just 'yes' or 'no', Mr Weightman.
WITNESS:Yes, ma'am.
HER HONOUR:Q:Was anyone else told?
CROWN PROSECUTOR:Q:Who was that person
A:That was Stephen Sullivan."
78The appellant complained that the trial judge should not have reformatted the question in a leading form. However, this was clearly done with the consent of both counsel and the complaint is unjustified.
79It was further submitted that because Stephen Sullivan was not asked questions about this issue when he gave evidence the trial judge should have directed the jury to ignore it. No such direction was sought. It was a minor matter and of little moment during the trial and if there be a difficulty it has not contributed to any miscarriage of justice.
80In relation to ground 8 it was the Crown case that there was no loan from the appellant to David Weightman and that accordingly the money that he sought from Weightman following the killings was his reward for his involvement in the enterprise. The appellant gave differing accounts for the money, including that it was repayment of a loan to facilitate Weightman acquiring a motorbike.
81The Crown Prosecutor did not submit to the jury that the appellant's account contained lies told out of a consciousness of guilt. However, the Crown Prosecutor did tell the jury on more than one occasion that given the inconsistencies in the appellant's evidence he lacked credibility. There being no submission that lies were told out of a consciousness of guilt an Edwards direction was not required (Edwards v The Queen (1993) 178 CLR 193).
82Presumably the appellant was submitting that a direction of the type contemplated in Zoneff v The Queen [2000] 200 CLR 234 was required. The appellant emphasised the fact that her Honour said in the course of her summing-up:
"It is the Crown case that the accused has never been known to give a consistent reason for the money owed to him or a consistent claim in a dollar amount for the money owed him because he has been unable, for obvious reasons, to reveal the real reason for the debt."
83The appellant submitted that this summation to the jury of the Crown case made it clear that the Crown was suggesting that the appellant had deliberately lied and that his lies reflected knowledge on his part that telling the truth would implicate him in the offence. It was submitted that such an approach required a Zoneff direction even if the Crown did not rely upon the evidence as consciousness of guilt.
84The line of reasoning suggested by the appellant would involve the jury in drawing inferences. Before the passage complained of her Honour had reminded the jury that the money could have been for a motorbike or possibly money to spend on drugs. The risk of the line of reasoning complained about in the appeal did not present itself to her Honour or either counsel. No direction was sought. James J in Rend v R (2006) NSWCCA 41 at [69] said:
"In R v Douglas [2005] NSWCCA 419 this Court referred with approval to what was said by Hunt CJ at CL, with the concurrence of the other members of the Court, in R v Tange (1997) 92 A Crim R 545:
'In my view, even in cases where the lie is relied upon by the Crown only in relation to the credit of the accused, it is best for the judge to direct the jury that they should not find him guilty simply because he has told a lie, but it is not an error where that has not been done, and it is even less meritorious as an appeal point when the trial judge (as here) has not been requested to do so.'"
85To my mind this ground of appeal lacks merit.
86Ground 9 is concerned with a note passed by the appellant to his girlfriend on 17 June 2006 at Parramatta court. The note was admitted into evidence. The note both proclaimed the appellant's innocence and said David Weightman asked him to provide a false alibi.
87I am not sure what complaint is now made about the matter. The note did not support the appellant being involved in the murder and it was not suggested to the jury that it was prejudicial to the appellant. The trial judge referred to it in passing. I can identify no prejudice to the appellant from the admission of the note or the manner in which it was dealt with in the course of the trial.
88In relation to ground 10, during the trial it became apparent that Weightman had sought to resile from his pleas and contest his convictions in this Court. Trial counsel sought to have him recalled but the judge rejected the application. These events occurred during the course of defence counsel's address. The appeal documents were examined and in the words of her Honour reveal that "because Weightman didn't physically handle his mother in the same way he physically participated in handling his father in the course of him being killed, Weightman's got it in his thinking that he should not have been convicted of that murder. I also infer that, on any view of the principles of common purpose, he was, on his own admission, unquestionably guilty of the murder of his mother notwithstanding the fact that he did not in any way physically manipulate her or handle her in the course of her being asphyxiated."
89Defence counsel did not seek to put any other interpretation on Weightman's appeal. Her Honour proceeded to decline the application which was effectively abandoned. There was no reasonable basis for a belief that further cross-examination of this topic would have been of assistance to the appellant.
90Under ground 11 of the appeal the appellant makes two complaints. During the course of her summing-up the trial judge said:
"The Crown asks you to ask yourselves what reaction the accused may have had to being challenged as to the professionalism of the job or the charge involved. The Crown says whilst the accused has been in pains to tell people, including Ms Byron, Ms Stoyles and the police, how wonderful Mr and Mrs Weightman were as people and parents, that David Weightman gives quite a different picture of the relationship between Mr Donai and his father as the contract work was being done at the family home.
You would be perhaps assisted by being reminded by me of the evidence of Mrs Margaret Urwin and her husband Alan. Each of those two people gave evidence that Mr William Weightman had reported to them that he was not happy with the job."
91The first complaint is that this last paragraph is factually incorrect. There is no substance to this. Evidence was adduced from Margaret Urwin (the sister of the deceased Mrs Weightman) in cross-examination that Weightman had told her that the appellant had had an argument with her sister and brother-in-law about the stencilling. She also said the deceased's friends, Chris and Alan Williams, 'knew something about it' (the argument). Asked what she knew about the specifics of the argument, Mrs Urwin said: '... I took it to be that Bill wasn't happy and, you know, I wasn't really interested. You know, I didn't really know anything about it, but I think Bill just wasn't happy with the job. I can't extend any more on that, Mr Flynn, because I really don't recall.'
92When asked about the stencilling, in his evidence in chief, Mr Urwin said: '...I do remember I mentioned about the stencilcreting. I actually said it looked quite nice and Bill said he wasn't happy with it.'
93The second complaint, which also has no substance at all, is that her Honour's summing up incorrectly referred to the deceased having been administered Serepax.
94The matter was dealt with correctly by her Honour in the trial when she said:
"There was no Serepax detected on analysis of the body of either of the deceased, Mr and Mrs Weightman."
95On sentence, however, her Honour mistakenly referred to David Weightman administering Serepax tablets. This factual error in the sentencing remarks was immaterial to the sentence ultimately imposed. The point was that temazepam was found in the system of both Mr and Mrs Weightman. There was evidence that temazepam has the same qualities as Serapax (otherwise known as oxazepam). Both are benzodiazepine drugs having sedative effects used for the short-term management of insomnia in adults. Dr Gall gave evidence that there was at least twice the concentration of temazepam found in Mr Weightman's system during the post-mortem than in Mrs Weightman's system. The concentration of temazepam in Mr Weightman's blood system was 0.20 milligrams per litre "so", according to Dr Gall, "it may cause a degree of sedation, so drowsiness." On the other hand, Mrs Weightman had much less - less than 0.10 milligrams per litre and too low to quantify and too little to have an effect upon her wakefulness.
96Many complaints are made under ground 12. Some of them concern issues arising in relation to grounds of appeal which I have already considered. Because I am satisfied that the appellant must succeed on ground 2 and a new trial ordered it is unnecessary to consider this ground further. However, as I have indicated I am persuaded that a serious miscarriage of justice arose from the evidence of the conversation with the appellant. Competent counsel should have objected to this evidence which has occasioned a miscarriage of justice.
97Ground 13 is concerned with the unreliability of the evidence of Weightman. His credibility was in issue. The extent to which his evidence could be accepted was a matter for the jury who were given significant warnings about his reliability by the trial judge.
98Apart from the evidence of Weightman there was significant evidence to which I have referred pointing to the appellant's guilt. However, notwithstanding this evidence I am satisfied that a substantial miscarriage of justice has occurred. The appellant is entitled to a trial according to law upon evidence properly admitted at his trial.
99Although the appellant included ground 13 in his notice of appeal his counsel accepted that if a substantive ground of the appeal succeeded the appropriate order would be that there be a new trial.