Donai v R

Court of Criminal Appeal (NSW)|2016-06-23|Before: Ward JA, Price J, McCallum J, James AM, Hidden J

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 murder on 8 January 2000 of Pamela and William Weightman. On each of the counts of murder, there had been an alternative count on the indictment of accessory after the fact to murder. Mr Donai pleaded not guilty to each of the charges, including the charges of being an accessory after the fact. He did not give evidence at the trial. Ultimately, it was the defence case that, while it was open to the jury to find him guilty of being an accessory after the fact (in having assisted in the disposing of the bodies), Mr Donai had nothing to do with the murders of Mr and Mrs Weightman. The jury returned verdicts of guilty on each of the murder charges.
On 14 September 2012, Mr Donai was sentenced in relation to the two counts of murder to a total term of imprisonment of 43 years with an effective non-parole period of 33 years. He will be eligible for release on parole on 15 June 2039. His aggregate sentence will expire on 15 June 2049.
This was not the first time that Mr Donai had been tried for the murder of Mr and Mrs Weightman. He was convicted of the same charges in 2007 but successfully appealed that conviction (Donai v R [2011] NSWCCA 173). The basis on which that appeal was upheld related to the admission of prejudicial evidence of Mr Donai's propensity for serious criminal acts obtained in the course of an undercover police operation. This Court (McClellan CJ at CL, with whom Blanch and Hislop JJ agreed) considered that there should have been an objection to the evidence (though the Court considered that parts of the evidence would have been admissible) and that the failure of his counsel to do so had occasioned a miscarriage of justice. Mr Donai's 2007 conviction was quashed and a new trial was ordered. At the second trial, in 2012, redacted versions of the undercover police recordings were admitted in evidence, from which the material that had been held inadmissible was excised.
By notice filed on 28 January 2016, Mr Donai now seeks to appeal against his 2012 conviction for the Weightman murders. He requires an extension of time to do so due to his delay in commencing these proceedings. In support of his application for an extension of time, Mr Donai's solicitor has sworn an affidavit on 25 January 2016 deposing that, since becoming instructed in this matter (on a date not made clear in the affidavit but which the Crown accepts was around 10 April 2013), both the solicitor's office and counsel had been required to provide advice on the merits of an appeal which required voluminous material to be canvassed, comprising approximately 52 volumes of evidence, and the preparation of transcript of the proceedings in respect of the relevant summing up and remarks on evidence. Mr Donai's solicitor deposed that, between the receipt of instructions and the commencement of these proceedings, an investigation was undertaken regarding possible fresh evidence; an examination was made of material not relied on at trial; and explanation was sought of the differences between the first and second trials, in consideration of any prospective appeal. The solicitor also deposed to personal difficulties on the part of junior counsel briefed in the matter during that period.
The delay was, on any view of things, a lengthy delay even after solicitors had been instructed in the matter. The Crown opposed the grant of leave.
While the affidavit of the applicant's solicitor was unsatisfactory, insofar as there was no attempt to provide the Court with relevant information so as to assess the proffered reasons for the lengthy delay (such as the date on which instructions were received; the time in fact taken to review the voluminous material to which reference was made in his affidavit; or the time involved in the delays due to the personal difficulties of junior counsel), in circumstances where Mr Donai has been convicted of a serious crime for which he has been sentenced to a very lengthy term of imprisonment and there are arguable grounds of appeal, leave should be granted to extend the time for filing of the notice of appeal to 28 January 2016.

Background

The bodies of Mr and Mrs Weightman were discovered in the Royal National Park at Heathcote on Sunday morning, 9 January 2000. A park ranger saw their green coloured Mitsubishi Magna sedan about 20 metres below an embankment, wedged against a tree. Inside the car, Mr Weightman's body was slumped in the footwell of the driver's seat; Mrs Weightman's body was in the front passenger seat secured by a seatbelt.
Police attended the scene and in due course a post-mortem examination was conducted. The forensic pathologist who initially conducted the autopsies on 10 January 2000 (Dr Cala) considered there to be no positive evidence to indicate foul play, though his reports indicated certain puzzling features (bruising that would not be expected from vehicular trauma). Dr Cala concluded that Mrs Weightman had died as a result of the combined effects of blunt force head injury and the aspiration of gastric contents; Mr Weightman as a result of the combined effects of positional asphyxia and the inhalation of gastric contents.
Subsequently, in June 2001, after concerns were raised about the matter, Dr Cala was asked to review the autopsy reports. He realised that there had been an error in Mrs Weightman's initial autopsy report and concluded that (contrary to that report) there was nothing to suggest that she had any brain injury at the time of her death. He issued amended reports to the coroner in respect of each of the deceased, in which he found that the cause of both deaths was undetermined. Dr Cala gave evidence at the second trial as to his opinion that the deaths had not resulted from injuries sustained as a result of vehicular trauma. He thought that it was a reasonable possibility that both Mr and Mrs Weightman had been asphyxiated rather than the cause of their deaths being vehicular trauma, explaining that belief by reference to the fracture to Mr Weightman's larynx and the bruising on both bodies.
David Weightman was the adopted son of the Weightmans and the sole beneficiary of their estate, which included the family home at Glen Alpine and a pre-school conducted from the property. Mr Donai was a friend or acquaintance of David Weightman. Mr Donai had carried out some stencil concreting work at the Weightmans' home at around the time of their deaths.
On 2 February 2004, Margaret Urwin (Pamela Weightman's sister) confronted her nephew about the deaths of his parents. David Weightman then confessed to the murders. Mrs Urwin's evidence was that "he firstly said that Terry did it"; that he had said at least two times that "I killed them"; and that not only did he say "I did it" but also that beforehand he said that "Terry did it".
David Weightman was taken into police custody and interviewed. He admitted involvement in his parents' murders and he implicated Mr Donai in those murders. He was charged with two counts of murder and, in October 2005, he pleaded guilty to the murders. In December 2005, he was sentenced to imprisonment for 28 years with a non-parole period of 22 years. He received a 30% discount on sentence based upon his guilty plea and his assistance to the authorities. That assistance included David Weightman admitting his own involvement in the deaths and agreeing to give evidence against Mr Donai.
Between 13 December 2005 and 16 June 2006, an undercover police operation (of the type considered in Tofilau v The Queen (2007) 231 CLR 396; [2007] HCA 39) was conducted in which police, posing as members of an organised criminal gang, had a number of conversations with Mr Donai.
In one of those taped conversations, Mr Donai was asked by an undercover police operative ("Jack") if there was anything in his past that might come back to haunt him. Mr Donai told Jack about David Weightman's parents and said "I finished his parents' concrete, his parents died... They were killed in a car accident... off a cliff. This guy, three years later has been pinged for it, and tried to frame me. And that only haunted me a little bit, I had the coppers up only once to Cooma". Mr Donai also told Jack that David Weightman was "tryin' to get an alibi out of me" for the murder of his parents and that he was not with David Weightman. It was clear from the conversation that Mr Donai knew that David Weightman was in gaol ("inside").
In the last of the undercover conversations, on 16 June 2006, which was videotaped, Mr Donai was introduced to the purported head of the gang ("John"). In that conversation, John told Mr Donai that "the Weightman thing hasn't gone away"; that David Weightman had spoken to the police and "put you in the frame"; and that the police thought that Mr Donai's alibi (i.e., that he was with his mother) had been "blown". Asked what had happened, Mr Donai said "Well, he's knocked his parents off, he's tried to frame me for it… Saying I was involved". When it was put to Mr Donai that he was involved, Mr Donai said "Well, I was to a point, um" and said that David Weightman "knocked his parents and he asked me to, he asked me how to get rid of them, and I said, Put 'em over a cliff" and that that was what David Weightman did.
Mr Donai went on to tell John that David Weightman had first asked one of Mr Donai's friends and had then asked him if he would be "in on helping him kill his parents"; that he was not there; that he was with his mother; that he had had a really bad break up with his ex-partner and gone from reasonably wealthy to poor overnight; that he had had nothing to do with "the job"; that he had done a concreting job for David Weightman's parents and that a few days after he finished the job David Weightman had "knocked them off"; and that "He killed his parents, I helped him get rid of them, and that was it". He denied that he was there when David Weightman killed his parents. He said that David Weightman had called him and asked him to help get rid of them and said he was going to get "15 grand" for his assistance. He said that he had been in the car with David Weightman's parents and David Weightman followed in another car; that David Weightman drove them off the cliff and that David Weightman took him back to his place and he, Mr Donai, then drove home to his mother's house.
At one stage in the conversation, John told Mr Donai that David Weightman was adamant that he was in the room "when he's done mum upstairs and then dad downstairs". Later in the conversation, Mr Donai said that when he got there the Weightmans were on the garage floor; that David Weightman had suffocated them with a pillow; and that he did not know what David Weightman did with the pillow but that he had had a bag and they had dropped it off at a waste bin or charity bin in Campbelltown. He said that he thought David Weightman "did his mum in the bed. … And his father downstairs. … [and then] dragged them out the garage on his own". He agreed that he helped David Weightman put the bodies in the car and that they were heavy; that he drove them out (to Heathcote Road); and that he got out of the car and told David Weightman to stick the car in gear and let it go over (the cliff).
Mr Donai told John that he had rung David Weightman several times about the money and that he had also lent David Weightman money so he could get a motorbike and get on with his life and that David Weightman had promised to repay that as well as the 15 grand. (Earlier in the conversation he had said the money he had lent was to help David Weightman "in his sorrow".)
At the conclusion of this conversation, Mr Donai was placed under arrest and taken into custody. Mr Donai protested at the time of his arrest that everything he had said was not true and said that he did not murder the Weightmans.
On 16 June 2006, when at the Parramatta Bail Court, Mr Donai attempted to pass a handwritten note to a woman in the public gallery. The note stated that he had no involvement with the murders; that halfway through 2000 he went to "get the money he [David Weightman] owed me" and that David Weightman "told me that the police had been investigating him. He asked me if I could alibi him for the day he killed his parents. He then told me everything that he had planned and told me what he had done. I told him to fuck of [sic] and then I left" and that he had not seen him since. The note also said that he had "said a fue [sic] things to Jack and his Boss because I was scared shitles [sic] of being knocked off. He basically had me petrified". The note set out certain matters which he wanted to be confirmed, including that he had earned money at the time that he said he lent David Weightman money (presumably to rebut any suggestion that he was not financially in a position to lend David Weightman any money at the time).

The second trial

The Crown case was that both of the deceased had suffered considerable bruising to their torsos and limbs immediately prior to their deaths and that, David Weightman having only a slight build, it was not plausible that he had committed both murders without assistance.
There was forensic evidence at the trial from the initial forensic pathologist (Dr Cala) and from Dr Gall, a forensic physician who had reviewed the autopsy reports. Dr Gall noted that Mr Weightman had bilateral fractures of the thyroid cartilage. His evidence was that the most common cause of such fractures was pressure around the neck either from strangulation or hands around the neck. Toxicological analysis of the blood of each of the deceased showed the presence of temazepam, a sedative drug. Mr Weightman also had traces of citalopram (a sedative anti-depressant, which could cause a level of sedation but not in someone who was used to it) in his blood. Evidence from another forensic scientist, Dr Allender, towards the end of the trial was, however, that the level of sedative in the deceaseds' blood was below the therapeutic level and would not have been pharmacologically active. Dr Allender considered that the effects of the drugs detected in Mr Weightman's blood would be quite minimal and that Mr Weightman would have been still alert at the relevant time.
Dr Gall noted bruising on the arms and legs of both Mr and Mrs Weightman, which was not consistent with trauma from a road accident. A series of bruises could be seen to the arm of Mr Weightman, suggestive of grip marks. Mr Weightman also had two rib fractures. Mrs Weightman had a large number of bruises to her lower arms and legs. The bruises to her arms were suggestive of grip marks and defensive injuries. Dr Gall considered that the extent and severity of the bruising were suggestive of some form of restraint or assault.
The opinion of a crash reconstruction expert, Sergeant Kelly, was that the car was travelling at between 26 and 35.9km per hour upon impact. He was of the view that it was very unlikely that the driver of the vehicle lost control on Heathcote Road and ended up in the position in which the car had been found.
There was also evidence from a motorist, Mr Lynch, who at around 11pm on Saturday 8 January 2000 had seen a green Mitsubishi Magna waiting at traffic lights on the opposite side of the road. He could see the driver and a passenger in the front seat. He had accelerated to get in front of the Magna and had not seen any other cars apart from himself and the Magna behind him. He saw the Magna turn into Heathcote Road at an intersection 1.7km from where the Mitsubishi went over the embankment. He said a small red model hatchback had later overtaken him "at a rate of knots" heading towards Liverpool when he was about 200m from the Woronora Bridge.
Mrs Urwin gave evidence of David Weightman's confession to her in February 2004 and also that about a month after the deaths she had received a call from Mr Donai claiming that David Weightman owed him $17,000, which he said he had lent him for a motor bike. Mrs Urwin found that puzzling since she and her husband had themselves lent money to David Weightman to purchase a motorbike after his parents' deaths.
Mrs Urwin's husband, Mr Allen Urwin, also gave evidence. He agreed in cross-examination that David Weightman was keen on martial arts and wanted to surround himself with martial arts weapons, but did not think that David Weightman had the ability or inclination to practise martial arts and said that David Weightman was a heavy smoker and drank a lot. He gave evidence as to a loan he had made to David Weightman, about four months after the death of the Weightmans, of about $15,000 to buy a motor bike. He said that motor bike was bought for about $25,000.
The principal witness for the Crown, whose evidence the Crown prosecutor told the jury in opening submissions was critical, was David Weightman.
In summary, his evidence was that he had met Mr Donai maybe three or four months before the murders; that Mr Donai had done some stencil concreting work on his parents' driveway about a week before they were killed and that he had pushed for Mr Donai to get the job because he thought he needed the work; that he was aware that he was the sole beneficiary under his parents' will; and that before his parents' death he had been invited to Mr Donai's house at Jindabyne and had had a conversation with Mr Donai about his parents' property, to the effect that when his parents died he would get the house and the pre-school. He said that on a drive back to Campbelltown from Jindabyne (which he said occurred before Mr Donai did the stencil concreting), he and Mr Donai had talked about killing his parents. He said he thought he had started the conversation. He said that at the time Mr Donai wanted a brand new Suzuki motorbike and that Mr Donai had said he would kill the Weightmans and that David Weightman could get him the bike.
David Weightman's evidence was that he had said to Mr Donai that he did not want his parents to feel any pain and that he did not want to be involved because he did not want to have nightmares about it. He said that he had thought he would be haunted by it.
David Weightman's recollection was that the stencil concreting work was completed on a Friday and that the murders happened that night. He said that he was coming back from another friend's house in Mr Donai's car and Mr Donai told him how they were going to do it: Well, he said, "this is how we will do it, I will give you these tablets and you put them in their tea and coffee, and they will be drugged and I will go in and asphyxiation [sic] with a pillow and we will go and drive the car off the edge and make it look like an accident". But that is when he said "but I am going to need your help because I am going to need you after I, after we push it over the edge, I am going to need you to drive back because it takes two" …
David Weightman gave evidence that Mr Donai gave him about four tablets in a silver packet and told him they were called Serepax; that he, David Weightman, went inside and asked his parents if they wanted a cup of tea or coffee; and that he made them a cup of tea and put the tablets in the tea while Mr Donai was waiting outside. He said his mother went upstairs to her bedroom and his father was "sort of laid back on the couch". He walked outside through the front door and told Mr Donai "Terry, I gave them the drugs". He said he thought he lit up a cigarette and he told Mr Donai that his mother was upstairs. He said he was standing outside near the window when he heard one fairly big scream from his mother. He said that Mr Donai came downstairs; that he was perspiring a lot, and that Mr Donai said to him "that took a lot out of me, I am going to need a hand with your dad". He was sure that Mr Donai had a pillow with him when he came downstairs.
He said that he went in the house with Mr Donai and went up to his father (who was "sort of a little bit drowsy, like sort of half-asleep watching the TV") and "sort of held him around the waist" and that Mr Donai "went for the face"; that his father kept moving his head and then yelled out "you bastards"; and the struggle went from the chair (or couch) onto the floor and his father ended up on the ground "because he put up a decent struggle". David Weightman said that during the struggle he was "just sort of holding his, trying to hold his arms and putting my chest weight around his sort of chest weight to secure the body" while Mr Donai asphyxiated him with the pillow. He thought this probably took about five minutes.
David Weightman said that he walked upstairs with Mr Donai to get his mother's body from the bedroom and that he remembered her being cold and that they picked her up and moved her down the stairs and then took the bodies and put them in the Magna. He said that one body was in the front seat and the other was "stretched out, just sort of thrown in the back". He could not remember which body was where in the car. He said that Mr Donai drove the Magna and that he followed in his mother's Hyundai. He said that when they got to Heathcote Road, there was "sort of an embankment" and that Mr Donai put his father in the driver's seat and he and Mr Donai pushed the car from the back until it went over the embankment.
David Weightman's evidence was that he was about the same height and build at the trial as he was when his parents died, maybe a little smaller. He said that he had worked out a bit more back when he was 20 or 21 (at which age his parents were killed). In the course of the trial he was permitted to walk out in front of the jury and took his jacket off, so that the jury were in a position to observe his build. His father had formerly worked as a foreman at Hawker de Havilland supervising the production of sheet metal used in the aviation industry. David Weightman said that his father had been quite wide in the chest and was about his height or maybe a bit taller.
David Weightman said that after the car was pushed over the embankment, he and Mr Donai went back to David's house, smoked a bit of pot, drank some beer and played some pool and that Mr Donai stayed for about half an hour or maybe an hour. He gave evidence that he never gave Mr Donai the money for his motorbike and said that Mr Donai had asked him for the money a few times.
Towards the conclusion of his evidence in chief, David Weightman agreed that he had pleaded guilty to the charges against him in relation to the murder of his parents and that he was serving a sentence. He agreed that he had received a deduction for pleading guilty and thought he had received a 30% discount rather than a 25% discount. He agreed that the discount was for a number of reasons, including pleading guilty and offering to give evidence; and that he had undertaken to give truthful evidence.
David Weightman also agreed that he had seen a number of psychiatrists before being dealt with in relation to the murder of his parents and said that he had been "a bit deceptive" with them. He said he had told them he was hearing voices and seeing blood and hearing things like "get blood, stab them" but that he was not actually hearing those voices or seeing blood.
In cross-examination, David Weightman agreed he had lied (and kept on lying) to a number of psychiatrists but disagreed that he was continuing to lie to the gaol psychiatrists. He said that he was now on medication and had started telling the truth. He agreed that he had continued to say from time to time that he had external voices tormenting him. He disagreed that that was a lie and said "No, I have been hearing voices".
He did not remember being interviewed by police in November 2002 and did not remember exactly what he told police in his statement to police on 11 January 2000. He agreed that in his 2000 statement and 2002 interview he had lied to the police and had denied the fact that "I done it". He agreed that he had told a whole series of lies and that it was hard to keep track of what he had said.
Cross-examined about some of the evidence he had given in Mr Donai's first trial (in September/October 2007), David Weightman could not remember then having been asked if he found it very easy to tell lies and having answered "to some extent, yes"; nor could he remember agreeing to a proposition that he was an accomplished liar. He said that back when he gave evidence at the last trial in 2007 it was correct that he was an accomplished or believable liar "in regards to the psychiatrists" but he disagreed that that was still true and said that he had been told what to say by other inmates.
He was cross-examined at some length as to accounts he had given to various psychiatrists about his drug use (both before and after his parents' deaths) and about experiencing auditory hallucinations and persecutory delusions. David Weightman's explanation as to the accounts he had given of hearing voices and seeing blood was that at the time he had thought he could go to hospital instead of gaol and he was telling the psychiatrists things that other inmates had suggested.
He did not remember telling a psychiatrist, Dr Carne, on 18 December 2007 that he had experienced auditory hallucinations for a month or two before the death of his parents and disagreed that he had gone on to invent the quantity of drugs he was taking. He maintained he was taking quite a lot of drugs at the time of his parents' deaths and afterwards. He said that leading up to his parents' deaths he was taking some amphetamines and LSD and smoking a lot of pot. He said that the first time he took ice was in America (which was after his parents' death). He denied that it produced violent rages in him.
He did not remember saying (in an interview with Dr Carne in December 2004) that, at the time his parents died, he was taking two lines of amphetamines every second or third day and one to two tabs of hallucinogens every weekend but thought that was a fair description of his drug intake at the time. He did not remember saying to Dr Carne (in about October 2005) that prior to the events in question he was taking that amount of drugs and smoking about 20 "cones" of marijuana every day, but said it sounded like something he had said and said that he was doing a lot of drugs at the time. He said his drug usage increased after his parents' deaths and thought it "sounded right" that he had told Dr Carne that he had been smoking marijuana since the age of 16, increasing to 20 "cones" of marijuana every day and that it made him paranoid.
David Weightman agreed that when he first went to gaol he practised kung fu; that he used to be a "purple belt" in that sport and that in gaol he had shown beginners kung fu. He accepted that part of his kung fu training was to learn how to break a hold similar to a choke hold (where a person's breathing is constricted) but denied that when he did kung fu before he went to gaol "we" did a choke hold. In re-examination, he said that the eight months of kung fu training he had done was about four years after his parents had died.
David Weightman did not recall that he had agreed at his first trial that he was concerned his surviving family would think he was a psychopath if he admitted that he alone had killed his parents. He denied (as it appears he also did at the first trial) that he had given evidence (at the second trial) that somebody else killed his parents so that people did not think he was a psychopath. When challenged as to the inconsistency between the answers to those two questions, David Weightman's response was: "I'm guilty of killing my mum and dad but it was also Terry".
David Weightman was also cross-examined about an insurance fraud in which he had claimed insurance, sometime after his parents' death, after his mother's white Hyundai car was pushed over a ledge and set on fire. David Weightman had falsely implicated another friend in that matter. He said that he had done so because he was angry with him. (That person, Mr Sullivan, also gave evidence at the trial. His evidence was that he was not aware that David Weightman had ever said that he, Mr Sullivan, was involved in the burning out of the Hyundai vehicle. He also said that he and David Weightman had stopped talking after David Weightman told him that he had killed his parents.)
As to other evidence, Ms Paula Harrison gave evidence as to a conversation she had overheard between Mr Donai and David Weightman at a café in Berridale, shortly after the killings, in which reference was made to David Weightman giving Mr Donai his mother's car (i.e., the white Hyundai). Ms Harrison recalled one of the two saying "that his parents were drugged, and then when I walked in again, I overheard that they were in a car accident". (The trial judge's comment to the jury in summing up was that little weight could be placed on this, given the uncertainty on Ms Harrison's part as to who said what.)
Ms Kaye Byron, who had formerly been in a relationship with Mr Donai, gave evidence that David Weightman had offered Mr Donai the white Hyundai but she said he did not want it and had suggested that she buy it. She said that Mr Donai had told her David Weightman did not want to see the car being driven around where he lived; and said that she and Mr Donai had taken the car to have it valued but she did not buy it.
There was also evidence going to the issue whether Mr Donai had the funds he said he had in order to make the loan he claimed to have made to David Weightman. Someone with whom he had been in a relationship from May until August 2000 (Ms Merilyne Collins) gave evidence that Mr Donai was not employed during this time and that, apart from a little bit of spray concreting work, he was reliant on the single parent pension. She said that he did not contribute to household expenses, lived off her, and borrowed a lot of money from her which he had not paid back.
Ms Collins also said that Mr Donai told her that David Weightman was his best friend and he was concerned about him because his parents had died. He told her he had lent him money after his parents had died to help pay for funeral expenses. She said that Mr Donai was "constantly" trying to contact David Weightman because he wanted to get some of the money he was owed. She was told by Mr Donai this had been something like $12,000 or $20,000 but she could not remember exactly. Ms Collins gave evidence that Mr Donai made numerous telephone calls to David Weightman asking for money.
Another friend of David Weightman's (Richard Rehfeldt) gave evidence that David Weightman had told him Mr Donai was trying to borrow money and that Mr Donai had asked David Weightman for sums of $2,000, then $10,000 and then $15,000.
Police enquires revealed that Mr Donai's Commonwealth Bank account for the period September 1999 to June 2000 indicated his only source of income to be social security payments (except for a deposit of $4,000 on 27 October 1999 and $2,000 on 22 February 2000). On 5 November 1999, Mr Donai had borrowed $12,000 from the Westpac Bank by extending his home loan. That loan was taken out in the joint names of Mr Donai and Ms Byron.
As he was entitled to do, Mr Donai chose not to give evidence at the trial. The defence argued that David Weightman's evidence as to Mr Donai killing the deceased should not be accepted; that David Weightman was an unreliable historian, a liar and someone who would say anything at all; that David Weightman was a drug-affected person and had been drug-affected on the night, and that David Weightman was perfectly capable of killing his parents himself.
The defence argued that there was no evidence that the deceased were in fact drugged (referring to the evidence given by the expert pharmacologist, Dr Allender, to the effect that the level of temazepam in the deceased's blood was lower than the therapeutic level and therefore not pharmacologically active) and that the lack of such evidence could have clearly grounded an inference that it was more likely that David Weightman would have been able to make the necessary approach to be able to smother them with pillows.
The defence argued that Mr Donai had lent David Weightman money in early 2000 (when it was submitted that Mr Donai was not without funds) and that after the Weightmans' deaths he was legitimately pursuing the repayment of that loan.
The defence argued that David Weightman had repeatedly lied about this matter (to police, family, courts and medical professionals); had given many different versions of the same evidence; had a substantial drug habit; and was mentally ill. The defence pointed to the fact that, while in prison, David Weightman had been diagnosed with schizophrenia and suffered from psychotic episodes and delusions. The defence argued that it was David Weightman who stood to gain financially from the Weightmans' death (by way of a substantial inheritance); pointed to evidence David Weightman had done kung fu training and knew how to use a choke hold; and that David Weightman had used the drug "ice", which was said to be notorious for producing violent and often paradoxical rage reactions. The defence argued that David Weightman could have committed the murders on his own without the assistance of a second person.

Summing up

Towards the beginning of the summing up on 29 March 2012, after telling the jury that murder means doing an act which causes someone's death intending to kill that person, and that this is what was alleged in the present case, the trial judge said the following: The Crown case is that the accused intended to kill Mr and Mrs Weightman and did so by suffocating them with a pillow. If you are satisfied of that beyond a reasonable doubt, he is guilty of the murder of each of them. What's alleged here is nothing less than pre-meditated murder. Now you've heard that David Weightman pleaded guilty to the murder of his parents even though he says he didn't actually kill either of them. He did indeed plead guilty to their murder and was sentenced for those offences. You might ask yourselves how could that be if he didn't kill either of them? That's because on the Crown case he and the accused were involved in a joint criminal enterprise to murder his parents. The Crown case is that he and the accused planned together to kill them and that that plan was carried out. If that is so, then David Weightman is criminally responsible for the accused's acts, and he is as guilty of murder as the accused would be. Moreover, on David Weightman's account, he helped the accused by restraining his father while the accused suffocated him. It is probably necessary for you to understand that David Weightman pleaded guilty to murder on the basis that he was a party to the plan to kill his parents and it did not have to be shown that he personally had killed either of them. (my emphasis)
His Honour then went on to explain the alternative charges in each case of accessory after the fact.
Also in the course of the summing up (p 10), his Honour noted that, on the charges of accessory after the fact, David Weightman's evidence about the disposal of the body gained support from what Mr Donai apparently admitted to the undercover officer in the last recorded conversation but that, on the charges of murder, David Weightman's evidence stood alone. His Honour said that, for that reason alone, the jury would have to scrutinise his evidence very carefully before acting upon it and would have to be satisfied beyond reasonable doubt that his evidence of the killings was truthful. His Honour then gave a further reason why David Weightman's evidence needed to be looked at "very carefully indeed", that being that, on David Weightman's own evidence, "he was a party to these murders even though he says he didn't actually commit them" because he said the two of them planned the murders and hence on his own admission he was involved in the offences.
His Honour gave a standard direction under s 165(1)(d) of the Evidence Act 1995 (NSW), in accordance with the direction suggested in the Bench Book, saying: … it is the experience of the courts that sometimes people charged with offences try to shift the blame onto someone else, wholly or partially, and maybe on occasions, try to implicate a person who is entirely innocent. giving as examples a situation where someone giving a false account of someone else's involvement to police may feel "locked into that account" and unable to withdraw it at some later stage; and where a person seeks a benefit on sentence for themselves by implicating another in criminal activity.
His Honour pointed out that it was a matter of record that, when David Weightman stood for sentence for the murders, he received a reduction of sentence for his pleas of guilty and for the information that he gave about Mr Donai "and in particular for his undertaking to give evidence against the accused when the accused came to trial". His Honour said that, unquestionably, David Weightman had received a benefit on sentence himself for his undertaking to give evidence against Mr Donai and for the information he supplied to the police about him. His Honour also noted that if David Weightman did not give evidence against Mr Donai as he had promised, he faced the possibility of his sentence being increased by this Court because he did not honour his undertaking to give evidence.
His Honour also told the jury that there were other matters to which the jury would have regard in assessing David Weightman's evidence: namely, that David Weightman was an admitted liar; that for several years after the deaths of his parents he falsely denied any involvement in their deaths; that it was not until 2004 that he admitted his involvement in the killings; and it was then that he also implicated Mr Donai. His Honour noted that David Weightman had admitted to having lied to a number of psychiatrists about his symptoms and that he had said it was in hope of being transferred to a hospital and out of the main gaol but also in preparation for his own court appearance. His Honour noted David Weightman's evidence that at one stage he was contemplating raising a mental illness defence in respect of the charges against him and that David Weightman had acknowledged that much of what he told the psychiatrist was simply untrue.
His Honour referred to the evidence David Weightman had given about the disposal of the Hyundai car being an insurance fraud and said that this was a matter bearing upon his credibility. His Honour also emphasised (by the introductory words "more importantly perhaps") that David Weightman acknowledged that he had falsely implicated another person in that insurance fraud simply because he was angry with him.
His Honour went on to refer to inconsistencies in David Weightman's account of events and to his current treatment for mental illness, saying that: Clearly enough, there are inconsistencies in his account of what occurred on this fateful night between the admissions he made to the police in 2004, the evidence he gave in the previous trial and his evidence in this trial. While he said that much of what he told psychiatrists was false, he did say that he experienced psychotic symptoms generally, visual hallucinations, hearing voices. You know from evidence elicited in cross-examination of him that he has been under treatment right up to now for schizophrenia or a mental illness of that kind, and has been receiving treatment for it by way of medication.
His Honour referred to the acknowledgment by David Weightman that he had been using illicit drugs, and a variety of them, in the period prior to the death of his parents. His Honour warned the jury that those were matters that emphasised the need for the jury to scrutinise his evidence very carefully.
His Honour emphasised that on the charges of murder the Crown case was dependent upon the evidence of David Weightman and that the jury could not find Mr Donai guilty of either murder unless satisfied beyond reasonable doubt that David Weightman's evidence about the matter was truthful.
Before proceeding then to summarise the evidence in the case, there was the morning tea adjournment. During that adjournment, in the absence of the jury, an application by defence counsel was made for the trial judge to discharge the jury from giving a verdict on the basis that: … you have told the jury of something that is not before them. You have told the jury that the basis upon which David Weightman pleaded guilty was, the basis that he was effectively - you told the jury that on the basis that he had not killed his parents, was part of a plot - in other words he was part of a sort of enterprise. Now that is not before the jury, it matters not what in fact - the relevant matter is that David Weightman pleaded guilty to the murder of his parents. … … The problem though that really arises is you have now told the jury that the basis on which this man admitted to his aunt that he had killed his parents was in fact not on that basis at all, it was on the extended legal definition in effect of how you cut to - which eliminates the whole proposition … that we say that it is equally likely that David Weightman killed his parents himself … … That is not before the jury your Honour and in my respectful submission, put like that, it is completely misleading because it was based on a totally different set of facts. All the jury needed to know and all they did know until your Honour told the jury this … was that he had in fact pleaded guilty to murder.
His Honour's response to this was that the jury might be asking themselves why David Weightman had pleaded guilty, having regard to the account he had given in evidence in this matter. The complaint to that by defence counsel was that: You have really put before the jury the, I suppose, evidence, facts in effect of what the basis of the plea was advanced there by saying he has pleaded guilty, by indicating he has pleaded guilty on the basis of a plot rather than having done anything.
His Honour responded that: "I was talking about, I hope I made it clear I was talking about the legal basis. That is as a party to a joint criminal enterprise but not admitting he had killed either". His Honour considered that he had made it clear that he was talking about the legal basis of the plea, that is as a party to a joint criminal enterprise but not admitting he had killed either. His Honour considered that it needed to be explained to the jury how he might have pleaded guilty to murder having regard to his account of what had happened. His Honour thought that the jury might have speculated quite wrongly about why he pleaded guilty to murder and might have taken it as an admission by David Weightman that he personally killed his parents. That led to the following submissions by defence counsel: That was a matter that appropriately, if the Crown was concerned about that, it was appropriate it would be dealt with by way of evidence. It is not a matter your Honour, at the heel of the hunt, with respect, should put it in that fashion because were that to be explored it would have been appropriate to explore the basis on which that pleading was entered which was apparently accepting that he was entirely sane. … … What I am saying is that by going into the basis on which the plea was entered, which was on totally different facts by the way, in terms of the background and everything involving Mr Weightman, you have embarked upon something not before the jury in my respectful submission and not appropriately put before the jury.
His Honour refused the application for dismissal, concluding that: … my intention was and I trust I explained no more, [to] explain the basis in law upon which David Weightman had pleaded guilty to murder. Not to have done so could well have left the jury with the impression he killed his parents himself, admitted to killing his parents himself. I don't believe I went beyond that. I certainly made no comment about the particular facts in the sentence matter before me and certainly no comment about the subjective case that was put up on his behalf. I deliberately steered well clear of that.
When the jury returned, his Honour summarised the evidence and the submissions, including the unsatisfactory aspects of David Weightman's evidence concerning the killings to which counsel for Mr Donai had pointed. Mr Donai submitted that David Weightman was capable of killing both parents alone; postulated the possibility of the use of the choke hold which, if it were efficiently done, would be expected to have induced unconsciousness; and raised the possibility that David Weightman had killed his parents as a planned exercise to gain the benefit of their wealth. An alternative hypothesis was that the killing could have been a spontaneous act, an outburst of rage perhaps fuelled by psychotic symptoms and the ingestion of drugs which David Weightman had taken on the occasion. Reference was made to the evidence of a witness that David Weightman had told him on one occasion he did not like his parents.
His Honour mentioned some inconsistencies pointed out by counsel for Mr Donai, including evidence about whether his mother was in day clothes or night clothes and, if she had been in night clothes, how she got into day clothes from the night clothes; and evidence of how the bodies were put into the Magna and transported to Heathcote Road and as to how David Weightman followed in the white Hyundai, whereas in a 2004 police interview, David Weightman had said he had had access to the Hyundai by arrangement with his mother early in the day and that it had been driven to someone else's house.
His Honour again emphasised to the jury that, on the counts of murder, the evidence of David Weightman was vital and they could not find the accused guilty of the murders unless satisfied beyond a reasonable doubt that his evidence about those matters was true.
As to the alternative counts, his Honour reminded the jury that Mr Donai had pleaded not guilty and had put the Crown to proof of them. His Honour noted there was the evidence in the conversation with the undercover operative that Mr Doani effectively admitted that he came to the house after the killings and did help dispose of the bodies and that counsel for the accused had fairly acknowledged that, in light of that evidence, it would be open to find Mr Donai guilty of those alternative counts of being an accessory after the fact but that, to find him guilty of those counts, the jury needed to be satisfied beyond a reasonable doubt that he did indeed help dispose of the bodies knowing that David Weightman had murdered his parents.
After the jury retired to consider its verdict, counsel for Mr Donai submitted that the jury should have been told that the very last thing that was said when he was told he was under arrest was "I didn't murder them". His Honour considered that the jury had been reminded of that, and noted that the jury had the exhibit of the recorded conversation (in which that had been said). There was then a further submission by the defence, rejected by the trial judge, that: My other submission is that your Honour has inadequately warned them under section 165. You have given them a warning in respect of really an accomplice-type warning but you have failed to adequately warn them, the jury, of the dangers of convicting on the evidence of a person who has told lies, and in my respectful submission you should have pointed out the numeral inconsistencies, the numerous lies, whether they be accepted as direct lies or lies because when he's faced with the proposition that he's told something earlier he says "I don't recall" or "I don't remember". The effect of what your Honour is saying is really a truncated one which is limited to finding in many ways that he's actually been party to an accomplice situation.
In submissions on the present appeal, it was accepted for Mr Donai that the warnings that had been given to the jury and the directions that had been made in all other respects (than the complaint as to the basis on which David Weightman had pleaded guilty) had been adequate. It was conceded that a warning of the kind required under s 165 of the Evidence Act would not require account to be given of the numerous inconsistencies along the lines that had been suggested by Mr Donai's counsel at the trial.

Appeal grounds

Mr Donai raises the following grounds of appeal: 1. The trial judge erred by failing to discharge the jury or give appropriate directions in consequence of the jury having being informed of the fact of David Weightman's plea of guilty as an accessory to the murders charged against the Applicant and of the basis upon which David Weightman pleaded guilty, when the jury were informed of such matters in a manner which was susceptible to mislead or confuse the jury enabling it to consider that plea as incriminating of the Applicant and likely negativing that David Weightman was the actual murderer; 2. The manner in which the trial judge informed the jury of the basis of David Weightman's earlier guilty plea while summing up occasioned a miscarriage of justice; 3. The trial judge erred in not directing the jury to disregard submissions made by the Crown in closing address to the effect that the circumstances in which admissions were made by the Applicant to undercover police were such that the Applicant was likely downplaying the extent of his involvement; 4. The conduct of the Crown Prosecutor throughout the trial prejudiced the jury against the Applicant and distracted them from a proper consideration of the Crown and defence cases, thereby causing the trial to miscarry. Particulars (a) Making misleading submissions which were directly contrary to the fact; (b) Making 'sotto voce' comments about the Applicant's counsel preventing the truth coming out; (c) Making improper statements in the presence of the jury; (d) Seeking to ask questions which had been ruled impermissible and then suggesting that the Court was seeking to withhold evidence from the jury when objection was taken; (e) Smirking at the jury during the Applicant's counsel's closing address; and (f) Smiling during the Applicant's counsel's closing address. 5. The verdict of the jury was unreasonable or cannot be supported having regard to the evidence. Particulars (a) The only direct evidence called which was suggestive of the Applicant being the actual murderer was the evidence of a co-accused, David Weightman; (b) David Weightman had mental health problems (including hearing voices); (c) David Weightman was engaging in substance abuse at the time of the murders; (d) David Weightman was an acknowledged and determined liar; (e) David Weightman received a reduction in his own sentence in exchange for his assistance in prosecuting the Applicant.

Grounds 1 and 2

Grounds 1 and 2 relate to the statements made by the trial judge during the course of summing up as to the basis on which David Weightman had pleaded guilty (as extracted above at [58]). These grounds were dealt with together in Mr Donai's submissions and will be dealt with in the same fashion in these reasons.
Reference is made by Mr Donai to what was said in Humphries v R [2015] NSWCCA 319, a case in which (unlike the present) the plea was entered during the course of the trial. There, Bellew J (with whom Gleeson JA and RS Hulme AJ agreed) said at [112]: … the circumstances in which a jury may become aware of the plea of guilty by a co-offender can vary. The ultimate question is whether or not such circumstances have caused a miscarriage of justice. Central to the question of whether such a miscarriage has been caused will be the nature of any direction given by the trial judge. The trial judge is under an obligation to direct the jury that the plea of guilty entered by one co-accused is not to be taken into account, in any way, in determining whether the Crown has proved its case against any remaining co-accused.
While complaint is implicitly made in the written submissions filed for Mr Donai (see [25]) that, in the present case, no ameliorating direction of the kind suggested in Humphries was given, in oral argument it was submitted that it would be impossible to think of anything that could have been done to ameliorate the effect of what the trial judge had said.
The essence of Mr Donai's complaint is that the practical effect (of the confusion that he contends was likely to result from the trial judge's remarks) was to negative the alternative defence case (namely, that David Weightman was himself the actual murderer) thereby incriminating Mr Donai. This seems largely to turn on what is to be read into the remark by the trial judge that: … It is probably necessary for you to understand that David Weightman pleaded guilty to murder on the basis that he was a party to the plan to kill his parents and it did not have to be shown that he personally had killed either of them.
For Mr Donai, it is submitted that the trial judge was in effect informing or directing the jury as to the factual basis on which David Weightman's guilty plea was entered (namely that it involved an acceptance by the Crown and/or by the Court that he had not personally committed the murders but had been party to the plan to do so). Mr Donai submits (and it is not disputed) that the factual basis on which David Weightman entered a plea of guilty was not in evidence before the jury. Mr Donai emphasises that the Crown prosecutor did not raise the factual basis of the guilty plea in opening, simply referring to David Weightman's admission that he had participated in the murders of his parents and that it was common ground that he had pleaded guilty to having murdered his parents and had been dealt with and sentenced in the Supreme Court.
Mr Donai accepts that the Crown prosecutor, when addressing the jury on the alternative counts, did explain that it was possible for two people to participate together to bring about the death of someone and that, in those circumstances, when both are participating together to bring about that end, both will be guilty of murder. Similarly, Mr Donai accepts that in opening to the jury the Crown foreshadowed that David Weightman would give evidence; that he was "present throughout and participating"; and that in closing the Crown referred to David Weightman's admission that he had given tablets that he thought were Serepax to his parents; that he had waited, knowing that, on his approval or say-so, his mother was being asphyxiated; and that he had given assistance in the killing of Mr Weightman.
Mr Donai accepts that the Crown had relied on there being a joint criminal enterprise but submits that the trial judge's comments made explicit matters that the Crown prosecutor had not sought to make explicit in opening, in evidence or in closing. He argues that what his Honour was attempting impermissibly to do was to fill gaps which had not been addressed by the Crown case in order to prevent the jury from speculating about a possibility that the Crown had not sought to exclude by evidence or submissions.
Mr Donai argues that the issue of joint criminal enterprise did not assume any significance until the trial judge's summing up. It is submitted that in taking on the role of informing the jury as to the basis upon which the Crown had accepted that plea, the trial judge impermissibly descended into the litigious arena, involving the court in the contest. Referring to what was said in Whitehorn v The Queen (1983) 152 CLR 657; [1983] HCA 42 (at 682), Mr Donai submits that it was inappropriate for the trial judge to put an argument in summing up that was not relied upon by counsel in closing submissions. Reference is made in this regard to what was said by Johnson J in Robinson v R (2006) 162 A Crim R 88; [2006] NSWCCA 192 at [140]; [144]-[145]; [148], including as to the consideration of instructions to a jury as to a basis for conviction not relied upon by the Crown.
There are two bases on which Mr Donai submits that the trial judge's remarks were confusing or susceptible to mislead the jury. First, he says the explanation was inadequate in circumstances where the jury had insufficient context about the question of joint criminal enterprise. Second, he says the manner in which the remarks were expressed suggested that the trial judge was explaining a proposition of law that the jury was bound to accept.
As to the first, it is submitted that a "fuller and more nuanced" direction was required; one which clearly articulated what matters were material to the jury in its deliberations and what were not. In particular, complaint is made that there was no warning to the jury that the basis of David Weightman's plea was not determinative or binding on them in their task, the fact of a plea of guilty as an accessory before the fact being of no significance to the case against his co-accused (see King v The Queen (1986) 161 CLR 423; [1986] HCA 59 at 433-434 per Dawson J, with whom Gibbs CJ, Wilson and Brennan JJ agreed).
Mr Donai submits that a jury could not be expected to be aware that: the facts upon which a person pleaded guilty were not, and could not be, proof of the truth of those facts; the fact that someone has been convicted following a guilty plea does not bind other courts in determining questions that arise in relation to other persons said to be involved in the same events; and that a person may plead guilty for reasons which extend beyond their belief in their guilt.
Thus, it is submitted that since this issue related directly to a factual proposition or possibility put by the trial judge which was directly contrary to the suggestion that David Weightman was the actual murderer, the trial judge was obliged to give further directions about the proper use which could be made of the matters his Honour had raised or else to discharge the jury.
As to the second, it is submitted that his Honour's attempt to reconcile David Weightman's culpability with the potential culpability of Mr Donai came across as an explanation of a proposition of law which the jury was required to accept. This is said to be because his Honour explained, first, the nature of joint criminal enterprise (a legal issue about which Mr Donai accepts his Honour was entitled to direct the jury and about which the jury was required to accept) and, second, an explanation as to the basis on which David Weightman pleaded guilty (which is said to have involved a proposition of both fact and law). Complaint is made that nothing in the summing up distinguished between those matters in a way that would permit the jury to understand how they were to be used in their reasoning process. In particular, complaint is made that it was not explained to the jury that the factual basis of David Weightman's guilty plea (to the extent that it could be relevant to the jury's assessment of the facts) was not a matter that the jury was required to accept or was otherwise bound by.
It is submitted that a proper explanation should have indicated that joint criminal enterprise accommodated the Crown case in such a way that it was possible for David Weightman to be guilty of murdering his parents as well as Mr Donai. It is submitted that, insofar as his Honour indicated that David Weightman did in fact plead guilty on the basis of his involvement in a joint criminal enterprise, then his Honour was also obliged to indicate that: there was no proposition of law that required the jury to accept the basis of David Weightman's plea as fact; ultimately, David Weightman's plea was of no legal significance for their purposes; the only reason it was being raised was to stop them from thinking that David Weightman may have pleaded guilty to something for which Mr Donai was being tried; the only question for the jury was whether or not Mr Donai was guilty; and the jury were to make up their own minds as to whether or not the evidence before them satisfied them beyond reasonable doubt of Mr Donai's guilt.
It is further submitted that the trial judge's intervention was significant given the strength of the potential inference that David Weightman had murdered his parents rather than Mr Donai, and having regard to the strong likelihood that such an inference could be drawn in light of the available evidence. Mr Donai submits that this irregularity in the trial deprived him of a chance of acquittal which was reasonably open to him (TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 at [26]).

Crown submissions

The Crown points out that, contrary to the terms in which ground 1 is framed, David Weightman pleaded guilty as a principal to the murders, not as an accessory. The Crown notes that a trial judge must give a direction both as to the law and the possible use of relevant facts upon any matter on which a jury could, in the circumstances of the case upon the material before them, find or base a verdict (referring to Pemble v The Queen (1971) 124 CLR 107; [1971] HCA 20 at 117-118; Doyle v R; R v Doyle [2014] NSWCCA 4 at [409]).
The Crown argues that the jury were already aware that David Weightman had pleaded guilty to murder and maintains that the explanation given by his Honour as to the different bases on which murder could be proved (in effect to dispel speculation as to inconsistency between a plea of guilty and later evidence denying a principal role in the commission of the offences) was neither misleading nor unfair to Mr Donai. The Crown points out that a fair trial involves, as a matter of law, fairness to the Crown as well as to the accused (referring to McKinney v The Queen (1991) 171 CLR 468; [1991] HCA 6 at 488, and R v Lowe (1997) 98 A Crim R 300 at 318-319).
The Crown submits that the trial judge's explanation was not expressed in a way that would cause the jury to consider that they were "bound to accept" his evidence, nor did it distract them from a proper appraisal of the Crown case; rather, it correctly framed the Crown case while leaving entirely open the defence criticisms of it; and it in no way robbed Mr Donai of a chance of acquittal reasonably open to him.

Determination

The statement by the trial judge (in the second paragraph of the passage extracted at [58]) as to a joint criminal enterprise was clearly identified as being what the Crown case alleged. His Honour made that clear when he went on to say that the Crown case was that the two had planned together to kill David Weightman's parents and that plan was carried out. Given my view that the manner in which the trial judge summarised the Crown case as to the joint criminal enterprise was accurate, any complaint as to this passage of the summing up can only potentially be founded on the words italicised at [58] above, namely that David Weightman had pleaded guilty "on the basis that he was a party to the plan to kill his parents". The fact that his Honour went on to say that it did not have to be shown that he personally had killed either of them does no more than amplify the legal proposition that involvement in a joint criminal enterprise to murder his parents, without him personally killing them, would still be sufficient to ground a charge of murder.
It is correct to say that the evidence did not make clear the basis on which David Weightman had pleaded guilty to the murder charges. (Nor does the evidence indicate the basis on which the Crown prosecutor and the Court had accepted that plea - but the trial judge's comments do not go that far.) However, read in context, what the trial judge's explanation in this passage was clearly directed to was the removal of any speculation as to what might have been seen by the jury as inconsistency between a person pleading guilty to a charge of murder and then giving sworn evidence that he or she did not commit the act of killing.
Read with the very clear warnings that were given throughout the summing up as to the need to scrutinise very carefully David Weightman's evidence (due to matters such as his unreliability, inconsistent evidence, drug use, mental health and the like, and the benefit he obtained by giving that evidence), this part of his Honour's summing up cannot fairly be seen as an instruction to the jury that they were bound to accept David Weightman's guilty plea as determinative of his claim in the witness box at the trial that he personally had not killed his parents.
The whole tenor of the summing up made it clear that it was for the jury to be satisfied beyond reasonable doubt of Mr Donai's guilt and that this required them to be satisfied beyond reasonable doubt of David Weightman's evidence that it was Mr Donai who had suffocated his parents (albeit in his father's case, with his assistance). This is not a case where the trial judge has descended into the arena and adopted the mantle of advocate. Rather, the trial judge was properly concerned to ensure that the jury did not engage in speculation as to an inconsistency that, from a legal perspective, did not arise between the fact of the guilty plea and evidence at a later date by David Weightman that he did not kill his parents.
In my opinion, grounds 1 and 2 are not made good.

Ground 3

Ground 3 relates to what are said to have been misleading Crown submissions regarding the undercover police recordings. Mr Donai contends that the trial judge erred in not directing the jury to disregard submissions made by the Crown prosecutor in closing addresses to the effect that the circumstances in which admissions were made by Mr Donai to the undercover police were such that Mr Donai was likely downplaying the extent of his involvement. It is submitted that, in making those submissions, the Crown prosecutor misinformed the jury in a way that would materially alter the inferences which may have been drawn from those admissions.
To understand this ground, it is necessary to summarise what the Crown prosecutor said about those conversations and to put in context the difference between the edited and unedited versions of the conversations.
In summary, the Crown prosecutor submitted that Mr Donai's conversations with the undercover police were in the nature of conversations between a prospective employer and a prospective employee and suggested that Mr Donai was seeking to downplay his involvement in criminal activity in those conversations (by referring only to assistance in disposing of the bodies and not referring to the killing of the two persons). The unedited versions (not before the jury) would have made clear both that the type of employment being contemplated was in relation to a criminal organisation and that Mr Donai was apparently willing to divulge criminal activity or criminal propensity on his part (which is the basis for the defence complaint that it was misleading to suggest that Mr Donai was instead seeking to downplay his involvement in criminal activity).
The Crown prosecutor suggested to the jury that what had occurred in the course of the undercover conversations was a process of gradual disclosure and suggested that the inconsistency in Mr Donai's accounts in the various conversations bore close scrutiny. That there was a process of gradual disclosure was not misleading on review of the conversations - for example, Mr Donai did not disclose at the outset that he had any involvement at all in the disposal of the bodies.
The Crown prosecutor started her analysis of the conversations by pointing to the fact that there was a video of the last (16 June 2006) conversation and said: ... It is fortunate we have a video of the last conversation when the accused is meeting with boss of the undercover - the so-called boss of the job, the undercover policeman who says he is the boss. He is trying to impress him. He is not scared shitless or petrified, if I may use those expressions. He is trying to impress. He is calling him boss, being quite obsequious really.
Clearly there the Crown prosecutor is contrasting what the jury might have observed on the video as to Mr Donai's demeanour in his conversation with the purported boss with the description Mr Donai's note had sought to portray of his state of mind when explaining what he had said to the undercover operative (see [142] below).
The Crown prosecutor then said: There are certain exchanges that scare the accused of coming out and saying "look it is not just a little problem, I am a double murderer, can you fix that too". He doesn't want to, and that ladies and gentlemen is why he persists with the business about the loan because he doesn't want those people, those people who he thinks are going to offer him work in their organisation, to think that he has been chasing what is in effect a blood debt, not just a debt for helping some poor bereaved young man out to help him get his life back together. That is shameful to him. He doesn't want them to think that. He wants them to think he was wealthy, had Porsches, anything, he doesn't want them to think he is a double murderer. He doesn't want them to think that, but his real state of knowledge comes out on those occasions when he says the only problem is David Weightman, the only other person alive who knows what happened in that house.
The Crown prosecutor then went through in some detail the conversations of May 2006 and June 2006.
As to the 9 May 2006 conversation with "Jack", the Crown prosecutor noted passages in which Mr Donai said he was broke in 2000, living in a caravan, and hungry for work, and then turned to what was said in that conversation by Mr Donai as to the Weightmans' deaths. He had been asked if anything haunted him. Mr Donai said in the course of that part of the conversation: … 31, that's the only thing that has really ever come across my path. For a while … though I was a bit worried I had two strong alibis … and then he is asked "how did he do his parents in", "I don't know how he killed them, I think it was". "Did you say car accident". "I think it was asphyxiation, something was what probably killed him". That is an important word ladies and gentlemen. David Weightman uses the same word "asphyxiation". … He is asked, "what did he do, made it look like a car accident"? Listen to the answer, "yeah", then there is a pause. Then he goes, "as far as I know, he did. It was, what is the name of the road, Heathcote Road". He says "yeah", at first, but there is a pause and then he realises he has to distance himself because at that time, he is trying to convince this chap that he had nothing to do with it. … Page 36, he says to this undercover man, "my situation with money at the moment is pretty poor, pretty poor". That is not relevant to him having a pretty poor situation in 2000. The Crown doesn't say it is. What it is relevant to is he is desperate to get this job, he doesn't really want to have these undercover people thinking that he is really such a bad person. They might be able to fix up a few little things, deaths here and there, a few little things here and there, but really, does he want these people who are going to offer him employment to know he is a double murderer? That is why he never tells them. He was never going to do that because that is the one thing he can tough out because it is only him and David Weightman who know different because they were both there. "I really want to make money". Some pages on ladies and gentlemen, the undercover police officer says to him, "I respect the boss' opinion and he will look at this Whitfield fellow or whatever his name is, you know, and he will sort that out, you know. He will know about it obviously". And the accused says "David, David Weightman". "Weightman". So still, the accused is thinking, the Crown submits to you, "I can't tell the boss, we don't want to upset the boss by saying I am a double murderer". He doesn't want to wreck his chances with this job. There is talk, "we will clean your shoes, it is not a problem". "You should maybe do your apprenticeship a bit longer or something, if shoes have to be cleaned", but this is where the accused starts to make sure he doesn't reveal too much. He will admit to what he has to, but no more. Quite natural. Quite believable, ladies and gentlemen, that is on page 37. He will only admit, the Crown says to you, to what can possibly be pinned upon him.
In relation to the conversation on 16 June 2006, with the purported criminal boss "John", the Crown prosecutor made submissions including: The boss, John, starts bringing up the subject about having to have a chat with him, there's somewhat of an issue which is not - I don't think it is a major thing but it is something I need to sort out. I need to have a chat to Terry and explain why he wanted to meet with him. The boss, is telling him - and really you might think maybe it was not a very well planned conversation with this undercover policeman but he is saying, we have something I need to sort out, there's somewhat of an issue not a major thing. So the accused thinks to himself, you might think, we better not have a major thing. I'll only admit to what I have to, only admit to anything that can be proved other than with David Weightman. If there are no major issues then we can move on. … Terry Donai is compliant, he doesn't want too much to fix so he only goes as far as he has to and he is not really assisted by the undercover man who says, "Right we don't need to go overboard, right, if we don't have to". That may have been an unwise thing to say because it sounds like, you may think, don't give us the absolute truth, don't give us everything, don't need to go overboard, just do what you have to do. Which is ultimately why the accused only said what he had to, that is only said things that may be able to be corroborated by people other than Weightman. "He knocked his parents" - page 15 - "and he asked me, he asked me to, how to get rid of them and I said put them over the cliff". … "Did you get nothing?" "Not a cent". And then, "I am sorry if I wasn't a hundred per cent up front" - page 20 - "boss, but it's just that". See what he is saying there, sorry, boss, I'm a liar. I have told you lies. And, ladies and gentlemen, he keeps telling lies because he doesn't really want them to know how bad he is, he is only eking it out little by little because he feels he has to say something."
It is submitted for Mr Donai that the nature of the operation which led to the recorded conversations was an attempt by the undercover operative to convince Mr Donai that he was being initiated into a criminal organisation on the promise that any criminal conduct he had engaged in in the past could be "sorted out" as long as he was upfront about what it was. It is submitted that it is apparent from the excised parts of the recordings (which, ex hypothesi, were not before the jury) that Mr Donai was not seeking to downplay his involvement in criminal activity but, rather, was seeking to boast and sell it as a positive attribute that the organisation would find useful; i.e., to present his involvement in (and willingness to be involved in) criminal conduct as a positive, rather than a negative, attribute.
Part of the artificiality of the debate on this ground (as the trial judge recognised) is that the jury was not privy to the unedited version of the recordings (from which it was apparent that Mr Donai had been prepared to divulge more serious criminal conduct, whether by way of bravado or otherwise, though still said nothing about having committed the Weightman murders).
In written submissions filed for Mr Donai on this appeal, reference is made to parts of the unedited conversation such as: Boss: So you're telling me, and this is against what I'm being told, but you're telling me that you were in Wollongong that weekend and had nothing to do with the job? Donai: Nup. No. Absolutely not. Boss: Because - mate don't get me wrong here - if you were involved in it that's fuckin' good. That's the top stuff I need. I have to be sure about the people I have around - working around me. But I don't want bullshit. and: Boss: Is there anything that you wouldn't be prepared to do with us? Like, where would you draw the line? Donai: I'd never kill a child... that's about as far as I'd draw the line. Boss: Yeah? No dramas with adults, and stuff like that? Cause know from time to time that sort of stuff comes up. Donai: Mmmm. Boss: Tell me what you think it's about. Donai: 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. Boss: Well, you're on the line mate. We're talking about knocking people off. Donai: Yeah. Yeah. Boss: Contract killing. Donai: Yeah. Boss: You know. Donai: Contract killing. Boss: Um, Or either contract killing, or um, if something in our way. If somethings in our way and it, and there is no alternative. Donai. Eliminate it. Boss: Yeah. Donai: Yeah. Boss: Take them out of the picture. Do you have any problems with that? Donai: No, it's part of the parcel. Boss: You sure? Donai: Yes. I can hunt down an animal, kill an animal. It's 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.
However, that material was not before the jury.
For Mr Donai, it is submitted that the danger in the Crown's submissions is that there was a clear invitation to infer that Mr Donai was engaged in criminal conduct beyond that to which he was prepared to admit (which only extended so far as to admit to assisting with the disposal of Mr and Mrs Weightman's bodies). It is submitted that such an invitation ran contrary to the truth of the circumstances which were known to the Crown; and that the Crown overtly misled the jury about inferences it could draw from those recordings. Mr Donai argues that there is a real question about whether the Crown complied with its duty to act with fairness and detachment (referring to Whitehorn v The Queen at 663-664; Livermore v R (2006) 67 NSWLR 659; [2006] NSWCCA 334 at [48]).
Mr Donai argues that the jury could not have found him guilty of two counts of murder without concluding that he had been downplaying his involvement in the 16 June 2006 conversation (and hence the failure to direct the jury to disregard the Crown's submissions as to Mr Donai downplaying his involvement in the murder occasioned a substantial miscarriage of justice).

Crown submissions

The Crown points to the context in which, at trial, submissions during closing address were made in relation to the way in which the jury could view the admissions made by Mr Donai in the recorded conversations and notes that, in her later address to the jury, the Crown prosecutor said: But later, this is very important, ladies and gentlemen, later he says that when he got there they were on the garage floor and he helped to put them in the seat. You see, this is where you will see that people telling lies about things have to have good memories and the accused is lying about this all the way along. He is only giving what he has to give. He knows that the more problem there is, the more he's involved in the killing of Mr and Mrs Weightman, the bigger risk he is to this organisation. He doesn't want the boss to think he's a risk to the organisation to that extent, he wants him to think it's a more peripheral problem and that's why he is steadfast about not saying that he actually killed them but, ladies and gentlemen, the Crown submits to you he did kill them both.
The Crown maintains that at trial the Crown prosecutor was initially simply seeking to confine her submission to the circumstances surrounding the deaths of the Weightmans and to explain why Mr Donai was only prepared to admit a measure of involvement in those two deaths. That included a submission that he had initially denied any involvement in those murders and was desperate to get a job with the organisation. The Crown prosecutor also referred to the approach taken by "John" that there was "no need to go overboard", "Don't give us everything", as being relevant to explain Mr Donai's reluctance to admit his part in the murders.
It is noted by the Crown that the defence case in the first trial was opened and conducted on the basis that Mr Donai's claim of previous criminal conduct was untruthful or mere "bravado". It is submitted that in those circumstances it was properly available to the Crown prosecutor to point out that Mr Donai's minimisation of his role in the Weightman murders may be attributable to his desire to not "wanting to wreck his chances with this job" and "he will only admit what can possibly be pinned upon him" or "only admit to anything that can be proved other than with David Weightman". The Crown argues that such a submission was not inconsistent with the approach previously taken and then later accepted by the defence and hence it cannot be said that the Crown prosecutor in her characterisation of this issue overtly misled the jury.
The Crown also points out that no further comment was made by Mr Donai's trial counsel when the Crown prosecutor went on to amend her submission.

Determination

There was some disconnect between the complaint made at the trial, in the absence of the jury, as to this issue (which was that the material conveyed a totally false impression because, as the Crown knew, the undercover operatives were in fact encouraging Mr Donai to make admissions "probably way beyond that which he would otherwise ever sought to" because they were encouraging him to indicate they were a violent organisation engaged in killing) and the complaint made on appeal, which was that there was a circularity in reasoning from what was not in the redacted transcripts that Mr Donai had killed the Weightmans.
When the complaint was raised in the course of the closing submissions at trial, his Honour observed that the inferences about which defence counsel had complained (that Mr Donai did not want to upset the "boss" or for the "boss" to think he was a really bad person or that he was a double murderer) was available on the evidence before the jury; i.e., that such an inference could be drawn from the fact that he was prepared to admit to a measure of involvement in the deaths but not more.
The Crown prosecutor submitted that what was available from the evidence was that Mr Donai wanted to impress the people but to distance himself from the parts of the crime about which he knew no other evidence could be forthcoming. The trial judge then said: I will reflect upon it but I am not minded to require the Crown to withdraw that submission. The fact is we have a very sanitised piece of evidence here for this jury, it appears Mr Donai was seeking and then offered legitimate employment, of what nature does not emerge, but that is what these tapes are meant to convey to the jury. Certainly though there was no suggestion he was recruited there some criminal organisation. … … Perhaps, Ms Crown, maybe what you said could have been perhaps more precisely put but I don't believe the jury would think that he is not prepared to admit to killing Mr And Mrs Weightman. That, of course, is entirely a legitimate submission.
It is submitted on appeal that the only way in which Mr Donai could have responded to this would have been himself to identify the context of the recordings, which was not the subject of evidence because it was unfairly prejudicial to him, or to invite the jury to infer what that true context might be, which itself would be unfairly prejudicial.
The oral submissions on this issue emphasised that it would be unsafe to reason, from what was not in the redacted transcripts (i.e., an admission as to the two killings), that there was support for the Crown case that Mr Donai had killed the Weightmans because that would involve circularity of reasoning. That may be accepted but what the Crown was submitting was in effect not an invitation to circular reasoning but that the absence of reference to any greater involvement in the deaths was explicable on the basis that Mr Donai had a reason to downplay his involvement.
Ultimately, it was conceded on this aspect of the appeal that if the passages that were in evidence, taken on their own, supported the submission that Mr Donai was down-playing his role, then there was no substance in this ground of appeal. However, Mr Donai maintained that one could only say Mr Donai had been down-playing his role by implicitly referring to the other (inadmissible) evidence.
That, it seems to me, is the end of this complaint. There was no reference in the Crown prosecutor's submissions to the excised evidence. What was left to the jury did support the construction placed upon it - namely, that Mr Donai had, for whatever reason, down-played his involvement in the Weightman crimes - by first denying he was there at all, and only later admitting that he was there; by expressing uncertainty as to matters such as how they had died ("probably" asphyxiation) or as to the disposal of the bodies ("as far as I know [David Weightman made it look like a car accident]); and by suggesting some unfamiliarity with where the bodies were disposed of ("what is the name of the road"), compared with his later statements as to the use and disposal of the pillow and how he had assisted to get rid of the bodies; and then minimising any suggestion that this would cause the organisation a problem by referring to a reason for any of his DNA to be at the house and referring to his strong alibis.
In essence, the Crown was suggesting to the jury that the inconsistency between David Weightman's evidence and Mr Donai's admissions to the undercover operatives could be explained by Mr Donai seeking to minimise his role. That was open on the edited versions of the transcript without the need to draw any inference from material in the unedited versions. Nor is the down-playing submission as to the Weightman deaths inconsistent with Mr Donai (unbeknownst to the jury) also having displayed (in the unedited parts of the transcript) general bravado or boastfulness as to other crimes or his asserted willingness to kill people other than children or relatives.
Certainly, on the unedited versions there might be said to have been an incentive for Mr Donai to "talk up" his criminal propensities, whereas it was being submitted that on the edited versions there was an incentive for him not to want to cause a problem for his potential employer, but the two are not necessarily inconsistent. Even on the former, it can be noted that there was no admission as to the killings of the Weightmans.
Ground 3 is not made good.

Ground 4

The fourth ground of appeal relates to the conduct of the Crown prosecutor during the trial. It is submitted that this conduct inappropriately prejudiced the jury against Mr Donai and distracted them from a proper consideration of the Crown and defence cases, thereby causing the trial to miscarry. In oral submissions, the issue was approached on the basis that this ground alone would not be sufficient for the applicant to succeed but that, coupled with the other grounds of appeal, it did give rise to a miscarriage of justice.
The applicant refers to a number of occasions in the course of the trial in which complaint was made by the defence or conduct of the Crown prosecutor was admonished by the trial judge. It is submitted that the cumulative effect of this conduct was to cause the jury to believe that relevant matters were being withheld from them or that defence counsel was trying to obscure the truth. It is submitted that this caused the trial to miscarry.
Reference is made to MG v R (2007) 69 NSWLR 20; [2007] NSWCCA 57, where this Court said (at [83]; [87]-[88]): ... because of the special role of Crown Prosecutors in the criminal justice system they are subject to obligations beyond the court room, both before and after any trial. The relevant Bar Rules and Prosecution Guidelines have been made with the object of ensuring that Crown Prosecutors conduct themselves in a manner which will ensure the integrity of the criminal justice system. A breach of them may diminish public confidence in that system. In an exceptional case it may be necessary for the Courts to intervene to ensure that public confidence is maintained. … ... As we have outlined, a Crown Prosecutor is afforded a unique role in a criminal trial. He or she has the carriage of the Crown case and has the responsibility of making decisions as to the evidence which is placed before the court. Unlike some other jurisdictions, and in particular the inquisitorial system, a judge has little if any role to play in the evidence produced at the trial... That responsibility must be approached with fairness and detachment with the objective of establishing the truth. If, by reason of their prior conduct, a Crown Prosecutor has demonstrated that in a particular case they may not be able to discharge their obligations in that manner the legitimacy of the prospective trial will be compromised. ...
Four instances of conduct are relied upon by Mr Donai in support of this ground.
The first two instances are clearly related. First, reference is made to a complaint made by defence counsel in the absence of the jury at the commencement of the seventh day of the trial as to the making the previous Friday (presumably this is a reference to the previous Thursday since there is no record of the court sitting on the Friday) of sotto voce comments by the Crown prosecutor "about preventing the truth coming out". That seems to be a reference to the second instance relied upon for this ground, namely that during the first re-examination of David Weightman there were (as recorded on the transcript) a number of asides made by the Crown prosecutor.
The transcript records that two "asides" were made by the Crown prosecutor and on each occasion defence counsel (in the presence of the jury) objected to the making of the statement. There is nothing in the transcript to indicate the content of the statements (although from the objection made the following Monday in the presence of the jury it might be assumed that they were to the effect that the defence was seeking to prevent the truth coming out). It is clear from the transcript that the trial judge had not heard what was said. On the first occasion the Crown prosecutor immediately withdrew whatever statement it was that had been made; on the second there was an argument between the Crown prosecutor and defence counsel as to what in fact had been said.
This all arose in the context that the Crown prosecutor was re-examining David Weightman as to the evidence he had given about choke holds at kung fu; David Weightman denied that he had learnt "anything like a choker hold at kung fu", just how to get out of them and had then volunteered that this was four years after the killings. The defence had objected to that last answer. After the stoush as to the asides, the Crown prosecutor clarified with David Weightman when he had done his eight months' training in kung fu and he had answered that this was four years after the killings of his parents.
The complaint made as to this, in the absence of the jury, was that the comments were about preventing the truth coming out. Defence counsel made clear that a discharge was not being sought but pointed out that the Crown prosecutor was right next to the jury and should not make such comments.
The Crown prosecutor denied saying anything about preventing the truth coming out but accepted that she had referred to the truth and said she thought she had been talking to her solicitor. She apologised unreservedly, withdrew the comments (whatever they may in fact have been), and said she would ensure not to say anything like that again. The trial judge emphasised the importance for everyone to avoid any sotto voce comments as the evidence proceeded. The matter was left there.
Assuming the comments could be taken (contrary to the explanation given by the Crown prosecutor) as being about "preventing" the truth coming out, and that one or more members of the jury had heard those comments (when the trial judge had not), they nevertheless could only have related to the answer volunteered by David Weightman as to which objection had been given - namely, as to the stage at which kung fu training had been undertaken. That question was put and answered. It is difficult to draw any conclusion as to the jury having been led to believe from any such aside that defence counsel was trying to obscure the truth (particularly when it must have been obvious to the jury from the objection having been raised in the first place to the answer that the defence considered something as to the question or answer was properly the subject of objection and was seeking to have it not in evidence).
The third instance occurred when David Weightman was recalled at a late stage in the Crown's case (day 11). After he was recalled, evidence was taken on the voir dire in the absence of the jury as to whether there was a reason that he did not pay Mr Donai any money for his assistance in relation to the deaths of his parents. That line of questioning was precipitated by a note from the jury raising the issue that there was no information as to the reason that David Weightman did not pay Mr Donai: Your Honour, how do we deal with situations where we believe we are missing important pieces of information that have not been addressed with witnesses, such as why didn't David pay Terry or provide the bike as apparently agreed. Was there two separate interviews and or statements with police by Paula Harrison.
In answer to the question on the voir dire, David Weightman said that it was just out of anger, because he had painted a picture of how good life would be and it was not that way after they were killed, so he was upset and angry towards Mr Donai. There was an objection by the defence to that evidence being led before the jury.
In the absence of David Weightman, the trial judge indicated that he was not inclined to allow the evidence. His Honour did not allow the question on the basis that it was quite prejudicial and did not bear on any issue in the case. The subject of the present complaint is that, once the hearing before the jury resumed, the Crown prosecutor asked the trial judge to inform the members of the jury that he had ruled against her asking a question designed to answer the jury's question; the defence objected; his Honour referred to a question having been rejected in the course of the re-examination of Mr Sullivan; and the matter was then debated in the absence of the jury.
The Crown prosecutor explained, in the absence of the jury, that she had raised this lest the jury thought she had forgotten the jury's query and his Honour indicated that he was going to explain to the jury that sometimes the answers to juries' questions were inadmissible. Defence counsel then put on the record a complaint that throughout the trial he had had to take objections on numerous occasions which he considered had placed the defence in the situation of appearing they are slowing down the trial or being forced to take objections which are unreasonable, even though they are subsequently upheld. His Honour responded as follows: HIS HONOUR: Mr Ramage you are exercising your function as defence counsel, and certainly Ms Crown, I made the comment before that if you are going to ask something that is clearly going to be contentious, I would rather you ask the jury to leave first, before the matter is raised.
The fourth instance relied upon by Mr Donai took place in the presence of the jury during the defence's closing submissions, when defence counsel accused the Crown prosecutor of "turning around and smirking at the jury". That followed the remark by defence counsel that suggested that the jury might think that the Crown prosecutor had sought "in a last minute endeavour to, in many ways, bluff" the jury about the medical evidence. The Crown prosecutor sought to be heard about this and, in the absence of the jury, the following exchange occurred: HIS HONOUR: Ms Crown, you have occasionally been smiling in the course of the address. CROWN PROSECUTOR: Not at the jury, your Honour. HIS HONOUR: Not at the jury. I would appreciate a poker face. CROWN PROSECUTOR: It was only on the occasion when Mr Ramage said he was too weak to hold an axe, if I may say so your Honour, and that simply made me laugh. HIS HONOUR: Did you say an axe? RAMAGE: I probably did. HIS HONOUR: There were other occasions. I appreciate it wasn't at the jury but I would be happy if you'd remain expressionless. CROWN PROSECUTOR: I will try your Honour. HIS HONOUR: Don't try, do it. SHORT ADJOURNMENT HIS HONOUR: I did suggest the jury take a cup of tea, would you mind asking the jury if they are ready to come on now, if they need a little more time they can have it. Madam Crown, what I said earlier was directed - inevitably from time to time you will have communication which I consider as, and we all did that, and the layout of this court is such that it is fairly difficult to conceal a facial expression to the jury, so just be careful. CROWN PROSECUTOR: Unfortunately your Honour, I happen to have a smiling visage as much as I can, so for me to effect a stern face is quite unnatural for me. HIS HONOUR: I am not asking for stern, just expressionless. CROWN PROSECUTOR: It is very difficult. Mr Ramage is quite amusing. He just can't help himself and sometimes it does bring a smile automatically to my face.
Mr Donai refers to what was said in Turner v Victorian Arts Centre Trust [2009] VSCA 224 at [46]: There can be no doubt that a litigant is entitled to have his or her case fairly tried, free from intrusion of any extraneous matter calculated to influence the jury. As was said by Kaye J in Smout v Smout, when circumstances such as the present arise, the trial judge ought to direct his or her mind to the degree of prejudice which has been created by the extraneous matter, and then consider whether any direction given by him or her concerning the extraneous matter was capable of overcoming the mischief. If a trial judge concludes that an appropriate instruction or direction to the jury could overcome the mischief, then the judge ought to give 'a clear, full and authoritative direction to the jury instanter'. (footnotes omitted)
It is noted that no such direction was given in this case, notwithstanding the objections taken by defence counsel at the trial.
Emphasis is also placed on what was said in McCullough v R (1982) 6 A Crim R 274 at 286, where the Tasmanian Court of Criminal Appeal quoted with approval the decision of the New Zealand Court of Appeal in R v Roulston [1976] 2 NZLR 644 at 654: [It is] quite impermissible [for a Crown Prosecutor] to embark upon a course of conduct calculated to persuade a jury to a point of view by the introduction of factors of prejudice or emotion. If such a situation should develop and there is a real risk that the conduct complained of may have tipped the balance against the accused then an appellate court will not hesitate to follow the safe course and order a new trial.
Mr Donai points to the duty of the Crown to avoid unnecessary prejudice against an accused (R v R [1998] 3 VR 580 at 593).
The submission for Mr Donai on this ground of appeal is that, considered together, the conduct of the Crown prosecutor in "smirking" or smiling at the jury, making sotto voce comments about withholding the truth, and alleging that the trial judge was seeking to withhold information from the jury, was capable of prejudicing the jury; and that the prejudicial effect of such conduct was amplified in circumstances where the jury was already aware that there was information that had not been made available to them (by reference to the redacted undercover police operative recordings and its earlier question as to the reason why David Weightman did not pay Mr Donai).

Crown submissions

As to the first two instances, the Crown submits that this was nothing more than a transient interchange at the bar table of the kind that can occur during the course of a trial and notes that neither defence counsel nor the trial judge saw anything further necessary to be said on this matter.
As to the third instance, the Crown notes that the trial judge had explained to the jury at the time the note was read onto the transcript that: As to the first matter, "why didn't David pay Terry or provide the bike as agreed", ladies and gentlemen, there may or may not be evidence about that. You have to understand that evidence in trials, such as these, is in the hands of counsel for the prosecution and the defence. To an extent, what evidence can be lead is limited by rules of evidence determining what is relevant and also rules of policy governing the admissibility of evidence. Long standing rules. I can understand that questions may occur to you as the trial unfolds which you might like answered, but whether they can be answered or will be answered depends on how the case is presented and whether evidence on that issue will be admissible in any event. So as to the first matter, the short answer is I don't know, you may or may not hear evidence about it. What you must do, of course, is ultimately decide the case on the evidence you have without speculating about matters that are left unanswered by the evidence. That is the way you must approach this case. That is how our trial system works."
The Crown points out that, following the subsequent exchange in relation to this matter, defence counsel did not raise this matter again and made no application. The Crown submits that the trial judge's direction, both at the time the jury note was received and after the matter was raised by the Crown prosecutor, appropriately dealt with the issue and that it cannot be said that this exchange gave rise to the loss of a chance which was fairly open to the applicant of being acquitted (referring to Mraz v The Queen (1995) 93 CLR 493; [1955] HCA 59 at 514).
As to the fourth instance, the Crown points out that this arose in the context that, at the start of his closing address, defence counsel asserted that the Crown prosecutor was misusing "rhetorical flourishes" and that this was something he would not be doing during his address. The Crown submits that, from the exchange recorded on the transcript, it is clear that rather than "smirking" at the jury in a way that would "prejudice the jury", the Crown prosecutor was "perhaps grimacing with surprise by the inappropriate suggestion defence counsel had made that she was seeking to "'bluff' the jury". As to the later instance when the trial judge raised with the Crown prosecutor that she had been smiling (not at the jury) at different times during the defence counsel's address, the Crown submits that it was accepted that this was in response to the defence counsel's use of colloquial phrases such as "strong enough to swing an axe"; and submits that this was clearly an innocuous incident.
The Crown points out that whether or not a prosecutor has acted with the relevant degree of fairness and detachment may also depend upon the atmosphere of a particular trial (McCullough v R at 286). It is submitted that, taking into account the atmosphere of this trial, the instances relied upon by the defence (whether considered individually or collectively) did not prejudice or distract the jury and that the absence of any direction being given in this regard was plainly due to the very experienced trial judge considering it unnecessary.

Determination

The question for this Court is whether the conduct complained of was such as to distract the jury from a rational consideration of the respective cases of the Crown and of the defence (Causevic v R (2008) 190 A Crim R 416; [2008] NSWCCA 238 at [4]).
An obvious difficulty in addressing this ground of appeal is that the content of the sotto voce comments and the demeanour of the Crown prosecutor are not matters that can be discerned from the transcript. The most that can be gleaned as to the former is that defence counsel asserted that the Crown prosecutor had made comments about preventing the truth coming out and the Crown prosecutor accepted that the word "truth" may have been used. As to the latter, the Crown prosecutor denied smirking but seems to have accepted that she was smiling (and the trial judge himself referred to her having been smiling - though not at the jury).
What is, however, clear is that the trial judge (an experienced criminal trial judge) cannot have felt that the conduct of the Crown prosecutor was such as to have prejudiced or been in danger of prejudicing or distracting the jury. Had his Honour been of that opinion, it cannot be doubted that he would have raised this issue more strongly than he did and would either have given an appropriate direction to the jury or discharged it.
Nothing can be drawn from the first and second instances for the reasons the Crown submits. The third instance does not seem likely to have prejudiced the jury - the judge gave an entirely adequate direction to the jury. As to the issue of "smirking", as already noted, the Crown prosecutor conceded she had smiled. She did not expressly concede that she had turned to the jury when so doing.
It should go without saying that the appropriate conduct for the Crown is to adopt a professional and unemotional approach. Nevertheless, the trial judge, having admonished the Crown prosecutor for smiling, clearly felt that nothing further was required. I do not see any basis to cavil with that judgment, it being made with the benefit of the trial judge having absorbed the atmosphere in which the trial had been conducted by the respective legal counsel.
Mr Donai concedes that this ground of appeal does not stand on its own. It is not made good. Even coupled with the other complaints made it is not sufficient to establish that a miscarriage of justice has occurred.

Ground 5

Ground 5 contends that the verdict was unreasonable and unsupported by the evidence. This is based on a submission that David Weightman's evidence was the only direct evidence which suggested Mr Donai was involved in the murders of Mr and Mrs Weightman (as opposed to being an accessory after the fact to the murders) and that it was inherently unreliable.
The submission as to the unreliability of David Weightman's evidence is based on five matters. First, that David Weightman was an admitted and practised liar, who had taken acting classes. Second, that his reliability as an historian was seriously to be doubted, given that it was open to conclude that David Weightman had experienced auditory hallucinations. Third, that David Weightman's evidence was given in exchange for a reduction in his own sentence. Fourth, that David Weightman was a heavy user of drugs, including around the time of the deaths of his parents. Fifth, that David Weightman gave evidence admitting that he had previously falsely implicated another friend in an insurance fraud involving the pushing of a car off a cliff. All of those matters were dealt with by the trial judge in his summing up.
Mr Donai says that the only other direct evidence led by the Crown (his admissions in the undercover police recordings) was liable to be misused by the jury due to the Crown's misleading submissions (the matter already considered in relation to ground 3 above).
It is submitted that, although the trial judge gave directions informing the jury about the dangers of reliance on David Weightman's evidence, no direction would have been sufficient adequately to warn the jury about the risks associated with accepting his evidence given its "patent and irremediable lack of reliability"; and that this Court should therefore feel a reasonable doubt as to the applicant's guilt and that the jury's advantage in seeing David Weightman give evidence is not a matter which would resolve that doubt.

Crown submissions

The Crown notes that the trial judge made clear to the jury that David Weightman's evidence was vital to the Crown case and that his credibility was an obvious issue at trial. The Crown (quite correctly in my opinion) submits that the matters now raised were the subject of detailed submissions to the jury in the defence closing address and were addressed fully in the summing up. The Crown notes that Mr Donai makes no complaint about the directions that were given as to the care that needed to be taken in assessing the reliability of David Weightman's evidence.
The Crown argues further that its case comprised not only the evidence of David Weightman but also a substantial body of evidence that it contends established that the murder was a "two-man job". In particular, the Crown refers to the following matters.
First, that there were no abrasive injuries indicating that the bodies were dragged along (rather than having been carried). Second, that Mr Weightman was a thick-set and healthy man with injuries on the trunk of his body, which it is submitted would have required more than two hands to restrain him whilst suffocating him with a pillow. Third, that there were different injuries and bruising to Mrs Weightman's body. It is submitted that it would have been extremely difficult, if not impossible, for one person to have carried both Mr and Mrs Weightman. Further, the Crown points to the remote location where the bodies were dumped, which required return transport for the driver. (Of those matters, those relating to the carrying and transportation of the bodies are, of course, not matters that point necessarily to Mr Donai's involvement in the actual murders, as distinct from his assistance in disposing of the bodies after the deaths; nevertheless, the second and third matters do provide support for a conclusion that Mr Donai was involved at least in the murder of Mr Weightman.)
The Crown points out that its case was also supported by the presence of traces of the drug Citalopram (an antidepressant drug) found in Mr Weightman's blood, noting that this was a drug that had been prescribed to Mr Donai just two days before the killings, that being a drug capable of causing sedation (though Dr Allender submitted the traces were below therapeutic level).
In addition, the Crown points to matters that it submits did not assist Mr Donai's credibility, namely that he initially denied any involvement to investigating police and that he pleaded not guilty not only to the murders but also to being an accessory after the fact to the murders. The Crown notes that Mr Donai admitted to the undercover operative that he had disposed of the bodies and says that, although he stated that David Weightman called him to come to the home and assist him, the call charge records relating to both the land line at the Weightman home and David Weightman's mobile phone showed no record of an outgoing call being made.
The Crown also points to the evidence that Mr Donai was keenly interested in recovering payment of a large sum of money from David Weightman owed to him shortly after the killings and submits that the reasons which might account for such a debt were unsatisfactory.
The Crown notes that Mr Donai revealed to the undercover operatives that he had intimate details of how the Weightmans had been killed and their bodies disposed of: namely that suffocation had occurred; that a pillow was used; that Mrs Weightman was in bed and Mr Weightman was "downstairs"; and that Mr Donai had also referred to the possibility that his DNA could be in the house (though explaining he had stayed there before the killings).
It is submitted that the evidence supported the jury's finding that Mr Donai not only assisted in the disposal of Mr and Mrs Weightmans' bodies but also participated in their murders and hence that the jury verdicts were not unsafe, unsound or unreasonable.

Determination

On an unreasonable verdict appeal, the test set out in M v The Queen (1994) 181 CLR 487; [1994] HCA 63 at 493 is as to whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. In MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [58] the High Court restated the application of that test in the context of s 6(1) of the Criminal Appeal Act 1912 (NSW).
In SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, the High Court (French CJ, Gummow and Kiefel JJ; Heydon and Crennan JJ dissenting) confirmed that what is required in such a case, applying the test set down in M and restated in MFA, is that the Court make an independent assessment of the evidence both as to its sufficiency and quality ([14]) in order to determine "whether the evidence was such that it was open to a jury to conclude beyond reasonable doubt that the applicant was guilty of the offences with which he was charged" ([21]).
In Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30, Hayne J (with whom Gleeson CJ and Heydon J agreed) emphasised (at [113]) that it is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard; rather the question is whether the jury must, as distinct from might, have entertained reasonable a doubt about the applicant's guilt.
There can be no doubt that David Weightman's evidence needed to be scrutinised with great care for all the reasons elaborated by the trial judge. However, insofar as ground 5 is premised on his evidence being so patently unreliable as to be irremediable, the difficulty is not only did the jury have the benefit of assessing his evidence but also that there was support for aspects of his evidence from the admissions made by Mr Donai himself (in the undercover police recordings). Therefore, it cannot be said that David Weightman's evidence was wholly unreliable. Moreover, as the Crown points out, that evidence was not the sole available foundation for a conclusion as to Mr Donai's guilt.
The evidence, as a whole, was in my opinion sufficient to make it open for the jury to conclude beyond reasonable doubt that Mr Donai was guilty of the murders. Relevantly, it was implausible that David Weightman (whose build the jury were able to asses for themselves) would have been in a position to carry out the murders alone - particularly given that his parents had not (as he thought) been sedated beforehand. His father was of heavy-set build and the medical evidence was consistent with there being a considerable struggle to subdue and kill him. Mr Donai's admissions to the undercover police placed him at the house at the relevant time. There was no evidentiary support for his claim to the undercover police that a phone call had been made to him to come and dispose of the bodies.
As to the attempts made by him to recover a debt from David Weightman, the evidence did not support a conclusion that he was "flush" with funds so as to be able to lend moneys to David Weightman (and the suggestion that he had lent him money for a motorbike to get over his "sorrow" at the deaths is nonsensical in light of what he said to the undercover police operatives as to David Weightman wanting to get rid of his parents and he having helped dispose of the bodies). In those circumstances it was well open to the jury to conclude that Mr Donai was chasing David Weightman for money that had been promised to him (as David Weightman said) for his assistance in the deaths; not for a loan that he had made to David Weightman around that time out of funds he did not have.
The jury were also able to read the transcript of the undercover operation and view the video recording of the last conversation in order to form a view as to the weight to be placed on the assertion in Mr Donai's handwritten note that he was petrified (as an explanation for having said those things) and to reject such a suggestion. The jury were in a position to assess David Weightman's reliability as a witness knowing, as they did, of his drug use, inconsistent evidence and history of lying to the police and to psychiatrists and others, his acting lessons, interest in martial arts and the like.
I am not persuaded that on the whole of the evidence the jury must have been left with a reasonable doubt as to Mr Donai's guilt on the murder charge. Ground 5 is therefore not made good.

Conclusion

For the reasons above, I propose the following orders: 1. Extend the time for the filing of the notice of appeal/application for leave to appeal to 28 January 2016. 2. Dismiss the appeal.
PRICE J: I agree with the orders proposed by Ward JA and her Honour's reasons.
McCALLUM J: I agree with Ward JA, for the reasons her Honour has stated. As to ground 5 (that the verdict is unreasonable, or cannot be supported, having regard to the evidence), I have undertaken my own assessment of the evidence. This is a case in which the jury's advantage in seeing and hearing the evidence, particularly that of David Weightman, was considerable. So far as the transcript reveals, he appears to have given an account of the relevant events which could well have been accepted as being "candid and compelling", as submitted by the Crown.
I wish only to make a short additional observation concerning ground 4. I agree, for the reasons stated by Ward JA, that this ground is not made out. However, in joining in that conclusion, I would not wish to be understood to condone the conduct relied upon to support it. I am particularly troubled by the apparent flippancy of the remarks of the Crown prosecutor (at the conclusion of the exchange set out at [146] of the judgment of Ward JA) in response to what was plainly a serious complaint made by counsel for Mr Donai at the trial. It is difficult, if not impossible, for this Court to judge the atmosphere in which the remarks were made but, if the transcript is anything to go by, it does not appear to have been "clearly an innocuous incident", as submitted by the Crown in this Court.
Ultimately, in the absence of evidence in the appeal from counsel who appeared at the trial, I agree with Ward JA that the issue is one best judged by reference to the response of the trial judge. But it is a complaint the occasion for which should never arise.

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