Donohue v Sergeant Paul Phillips of Victoria Police

[2022] VSC 558

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
JUDICAL REVIEW AND APPEALS LIST
PRACTICE COURT

S ECI 2022 02991

NEVILLE DONOHUE	Plaintiff
v
SERGEANT PAUL PHILLIPS OF VICTORIA POLICE	First Defendant
and
THE COUNTY COURT OF VICTORIA	Second Defendant

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JUDGE:	O’Meara J
WHERE HELD:	Melbourne
DATES OF HEARING:	On the papers
DATE OF JUDGMENT:	19 September 2022
CASE MAY BE CITED AS:	Donohue v Sergeant Paul Phillips of Victoria Police & Anor
MEDIUM NEUTRAL CITATION:	[2022] VSC 558

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PRACTICE AND PROCEDURE – Refusal by Prothonotary to accept documents for filing on the basis that the proposed originating motion for judicial review would constitute an abuse of process – Previous applications for appeal from sentence and conviction – Whether abuse of process – No direction made to accept the documents for filing.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	No appearance (Application referred by the Prothonotary at the request of the plaintiff to be determined on the papers.)

HIS HONOUR:

1. The plaintiff has sought to commence a judicial review proceeding by originating motion dated 20 July 2022. 

1. The proceeding was sought to be commenced out of time.  In that respect, the plaintiff’s proposed originating motion purports to identify ‘special circumstances’.  Such claimed circumstances are not deposed to nor further explained in the plaintiff’s affidavit accompanying the proposed originating motion.

1. There are a few further documents that seem to have accompanied the proposed originating motion, including remarks made by his Honour Judge Carmody on 25 September 2018 upon sentencing the plaintiff following his trial and conviction on 12 charges of making a false document, three charges of attempting to pervert the course of justice and four charges of perjury.[1]  The plaintiff was sentenced to a period of imprisonment of 53 months with a non-parole period of 33 months.

   [1][2018] VCC 1578.

1. The presently proposed defendants are the presiding judge and informant at the trial in 2018.

1. The proposed originating motion states grounds in the following terms –

The defendants represented Victoria Police and The County Court of Victoria in the trial THE DPP v DONOHUE CR 16-00261 leading to the judgement of THE DPP v DONOHUE [2018] VCC 1578. During the conduct of the trial the defendants made several critical, inappropriate, and possibly illegal, DECISIONS and ORDERS. The defendants knowingly made the decision to allow Victoria Police Forensic Services Department to manipulate and withhold evidence from the plaintiff’s seized laptop computers, and ordered that the trial would proceed without that evidence. This evidence was critical to the defence as it contained key information about the plaintiff’s medical and psychiatric history; paramilitary service; and the official use of aliases. The presiding judge also ordered that the plaintiff not inform the jury that this illegal manipulation and withholding of evidence by Victoria Police had occurred.

The defendants also made the decision to knowingly allow the Director of Public Prosecutions (DPP) prosecutor to present false and/or misleading evidence from several federal government witnesses. The defendants were fully aware that all but one of these witnesses were unqualified to give evidence regarding the plaintiff’s paramilitary intelligence service as they did not have access to the extremely high security level clearance required to search for the plaintiff’s records. This fact was confirmed by Mr Mark Zorzi – the most senior prosecution witness, who was the one witness that did have high enough security clearance, and who DID find the plaintiff’s records in his search of the Australian Signals Directorate (ASD) database.

The presiding judge also made the decision to hear critical defence evidence regarding the plaintiff’s paramilitary service, given by the Australian Government Solicitor (AGS), without the jury present, and then made the decision to block the jury from having any knowledge of that evidence.  The presiding judge also made the decision to give an unbalanced and misleading “charge to the jury” by highlighting all of the key points of prosecution evidence (including the testimony of the unqualified witnesses as if it was reliable evidence) whilst failing to highlight the key points of the defence evidence, or the contradictory points of the prosecution evidence; or take the opportunity to inform the jury of the illegal manipulation and withholding of evidence by Victoria Police; or that the AGS had provided evidence for the defence.  The judge’s “charge to the jury” is probably the most important information that the jury relies upon in making their deliberations. The tainted “charge to the jury” undoubtedly led to an improper guilty verdict on all of the charges against the plaintiff.

1. The supporting affidavit provides further elaboration, albeit that the essential substance of the plaintiff’s complaints remains the same.

1. It is plain from the form of the proposed originating motion and accompanying affidavit that the plaintiff seeks to impugn ‘decisions and orders’ made during his trial in 2018.  In that connection, the plaintiff deposes as follows –

These improper DECISIONS and ORDERS, made by the defendants, resulting in the BREACHES, ERRORS and FAILURES, as described above; which led to the wrongful conviction and sentencing of the plaintiff in THE DPP v DONOHUE CR16-00261/THE DPP v DONOHUE [2018] VCC 1578, are the reasons for my request of a Judicial Review.

1. On or about 26 July 2022, the Prothonotary declined to accept the plaintiff’s documents for filing and stated –

Dear Sir, Thank you for your further proposed documentation which has been reviewed. The Prothonotary has refused to seal your proposed Form 5G judicial review now dated 20 July 2022 pursuant the Supreme Court (General Civil Procedure) Rules 2015 on the basis that it seeks to re agitate the appeal of the 25 September 2018 County Court orders where there has been full and final adjudication by the Court of Appeal. There is no outcome or relief from a judicial review that could vary or overturn the decision at the Court of Appeal. If you seek to have the decision of the Prothonotary to refuse to seal your proposed Form 5G referred to a Judge please advise. It is recommended that you seek to access legal advice. Justice Connect have a service that may be able to assist. The phone number is 1800 727 550.

1. The plaintiff has sought that the Court direct that the originating process be sealed or accepted for filing pursuant to r 27.06(3) of the Supreme Court (General Civil Procedure) Rules 2015.  The application has come to me sitting in the Practice Court for determination on the papers.

1. Pursuant to r 27.06(1), the Prothonotary may refuse to seal an originating process where the Prothonotary considers that the formal contents of the document ‘would be irregular or an abuse of process of the Court’. 

1. In the present instance, the issue is one of abuse of process arising from an endeavour to re-litigate. 

1. Cognate authority suggests that the question should presently be approached on a ‘gatekeeper’ basis.[2]  That said, such a conclusion may be formed if, upon due consideration of the process to be issued, there is no demonstrable prospect of success.[3]

   [2]LG (a pseudonym) v Public Advocate [2021] VSC 583, [23].

   [3]Little v State of Victoria (Supreme Court of Victoria, Gillard J, 17 June 1997).

1. In that connection, it is evident from the material in and before the Court that –

(a)   on 19 September 2018, a jury of 12 found the plaintiff guilty of 19 charges;

(b)  on 25 September 2018, the plaintiff was sentenced by the presiding judge to a period of imprisonment;

(c)   his Honour’s sentencing remarks referred to the plaintiff’s criminal history of dishonesty over some 30 years;

(d)  the plaintiff made an application for leave to appeal to the Court of Appeal in respect of his sentence (in connection with which an application for an extension of time was necessary) – which application was refused;[4]

[4][2019] VSCA 160.

(e)   in respect of that determination, the plaintiff sought special leave to appeal to the High Court of Australia (in respect of which he also required an extension of time) – which application was refused;[5]

[5][2020] HCASL 130.

(f)    the plaintiff subsequently made an application for leave to appeal to the Court of Appeal in respect of his conviction (in connection with which he also required an extension of time) – which application was refused;[6]

[6][2019] VSCA 274.

(g)  the plaintiff again made an application for special leave to appeal to the High Court of Australia (in respect of which he again required an extension of time) – which application was refused;[7]

(h)  the plaintiff then made a further application to the Court of Appeal in respect of his conviction, in the course of which he contended that he had ‘fresh and compelling evidence’, which was rejected by the Court of Appeal as ‘utterly devoid of substance’;[8] and

(i)     from that determination, the plaintiff made an application for special leave to appeal to the High Court of Australia which application was refused as an abuse of process in that it was seeking ‘to re-agitate issues that had been finally determined’.[9]

[7][2020] HCASL 242.

[8][2020] VSCA 302, [1].

[9][2021] HCASL 45.

1. As I have noted, the plaintiff’s present material seeks to impugn decisions alleged to have been made by the informant in relation to the trial in 2018 as well as decisions made by the presiding judge during the running of that trial, including the manner in which his Honour came to charge the jury.  The ultimate objective is evidently to impugn the plaintiff’s 2018 conviction and sentencing as ‘wrongful’.  In his proposed originating motion, the plaintiff claims that the present issues have not previously been addressed.  He says that ‘a judicial review will be the first time that these matters can be dealt with by the Victorian justice system’.

1. I have earlier referred to the plaintiff’s stated grounds and the elaboration upon those grounds in his accompanying affidavit.  In connection with the essential arguments there identified –

(a)   the contention that ‘false and/or misleading evidence’ was led and received at trial was advanced in the first of the plaintiff’s applications for leave to appeal to the Court of Appeal against conviction;[10]

[10][2019] VSCA 274, [10].

(b)  that application was refused – as was the subsequent application for special leave to appeal to the High Court of Australia;

(c)   contentions concerning the ‘manipulation or withholding of evidence’ from a ‘seized laptop’ and the presiding judge’s ‘charge to the jury’ were advanced in the second of the plaintiff’s applications for leave to appeal to the Court of Appeal against conviction;[11]

(d)  that application was refused as an abuse of process – as was the subsequent application for special leave to appeal to the High Court of Australia.

[11][2020] VSCA 302, [10].

1. The proper place for the plaintiff to seek redress in respect of his claimed wrongful conviction and sentencing was by making application for leave to appeal to the Court of Appeal.  He has taken those steps, unsuccessfully.

1. The essential arguments presently sought to be advanced are either replicas or relatives of arguments previously advanced and rejected by multiple rounds of appellate determination.  Indeed, in the final such round, the highest Court in this State, and then this country, each described the endeavour as an abuse of process.  In each instance, it was plainly an abuse of process arising from an endeavour to re-litigate.

1. Even approaching the present case on a ‘gatekeeper’ basis, it is quite evident that the Prothonotary correctly considered the proposed originating motion to be seeking to re-agitate the plaintiff’s appeals from his conviction and sentence in 2018.

1. Further, if it be relevant, it is not evident that the material to which I have referred should be accepted to demonstrate ‘special circumstances’ by reference to which any extension of time could be granted.

1. In the circumstances, the Court must decline to direct the Prothonotary to seal the proposed originating motion or to accept any of the associated documents for filing.