Donohue v The King
[2024] VSCA 91
•10 May 2024
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2024 0036 |
| NEVILLE DONOHUE | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGES: | T Forrest JA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | Determined on the papers |
| DATE OF JUDGMENT: | 10 May 2024 |
| MEDIUM NEUTRAL CITATION: | [2024] VSCA 91 |
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REFERRAL of decision of Registrar of Criminal Appeals to refuse to seal and to reject documents constituting proposed notice of application for leave to appeal against conviction.
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T FORREST JA:
Neville Donohue was convicted on 10 September 2018 after a trial in the County Court at Melbourne of 12 charges of making a false document, three charges of attempting to pervert the course of justice and four charges of perjury. He was subsequently sentenced to a total effective sentence of 4 years and 5 months’ imprisonment with a non-parole period of 2 years and 9 months.
On 9 December 2018, the applicant filed an application to this Court for an extension of time in which to file a notice of application for leave to appeal against sentence pursuant to s 27 of the Criminal Procedure Act 2009. The application was refused[1] the Court found that even if the applicant could establish some sentencing error there was no prospect of a less severe sentence being substituted for the original sentence.
[1]Donohue v The Queen [2019] VSCA 160 (Priest and Beach JJA).
In a separate later proceeding, the applicant filed an application to this Court for an extension of time to file a notice of application for leave to appeal against conviction pursuant to s 274 of the Criminal Procedure Act 2009. This application, Donohue (No. 2), was also refused.[2] The Court described the proposed appeal as ‘hopeless’.[3]
[2]Donohue v The Queen (No 2) [2019] VSCA 274 (Priest and Beach JJA) (‘Donohue (No. 2)’).
[3]Ibid, [7].
The applicant then sought leave to appeal Donohue (No. 2) to the High Court. The High Court denied an extension of time in which to seek special leave to appeal. On 12 June 2020, the High Court found that the applicant had identified no question of legal principle appropriate for that Court to consider, and that it had no reason to doubt the correctness of this Court’s decision.[4]
[4]Donohue v The Queen [2020] HCASL 130 (Nettle and Gordon JJ).
So by June 2020, the applicant had failed in both conviction and sentence applications in this Court and in his special leave application to the High Court in respect of Donohue (No. 2).
Four months later, the applicant commenced what has turned out to be a series of unsuccessful applications to this Court, purportedly brought under the aegis of s 326A of the Criminal Procedure Act 2009, which section deals with second or subsequent appeals against conviction.
The second conviction appeal was refused. In Donohue v The Queen (No. 3), [5] this Court said:
As we have indicated, when the terms of the Application for Special Leave are compared with the terms of the Written Case filed in support of the applicant’s most recent application in this Court, it becomes abundantly clear that the present application seeks simply to re-agitate issues that were finally determined by the dismissal of the application in the High Court.
[5]Donohue v The Queen (No. 3) (2020) VSCA 302 (Priest, Niall and T Forrest JJA) (‘Donohue (No.3)’)
Later in the judgment the Court remarked that:
Since it is plain that by this third application the applicant simply seeks once more to litigate issues that had been determined against him both in this Court and in the High Court, it is equally plain that the present application cannot be viewed as other than an abuse of process. Putting to one side the power to entertain a second or subsequent appeal in the case of fresh and compelling evidence provided for in Part 6.4 of the Criminal Procedure Act 2009 , when an application for leave to appeal or an appeal has once been fully heard and disposed of on the merits, there simply is no jurisdiction to re-open it.[6]
In the course of the hearing of this third application, in which the applicant was unrepresented, this Court explained to him the meanings of fresh and compelling as used in s 326C of the [Criminal Procedure Act 2009]. When he was then asked by the Court to outline the fresh and compelling evidence upon which he sought to rely, the applicant merely repeated several matters already set out in his Written Case which were not fresh, and were far from compelling.
[6]Grierson v The King (1938) 60 CLR 431; [1938] HCA 45; Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26; R v McNamara (No. 2) [1997] 1 VR 257; [1996] VSC 46; R v GAM (No. 2) (2004) 9 VR 640; [2004] VSCA 117.
Shortly after this, the applicant failed to interest the High Court in another application out of time concerning his failed Court of Appeal sentence appeal.[7] He then endeavoured to ventilate an application for special leave to the High Court in respect of Donohue v The Queen (No. 3). Again with no success. The High Court on that occasion observing that the application was an abuse of process that sought to re-agitate issues that had already been determined.[8]
[7]Donohue v The Queen [2020] HCASL 242 (Bell and Gageler JJ).
[8]Donohue v The Queen [2021] HCASL 45 (Keane and Edelman JJ).
Undeterred, on 5 September 2022, the applicant submitted a further notice of application for leave to appeal against conviction dated 5 September 2022. Again he sought to avail himself of the second or subsequent appeal process under s 326A of the Criminal Procedure Act 2009. The Registrar refused to seal the documents. The applicant sought a referral of that decision to a judge of this Court. On 21 September 2022, Kaye JA held that the Registrar’s decision was correct.[9] Amongst other matters the judge concluded that the proposed grounds were, in substance, a re-agitation of the grounds from Donohue (No. 3).
[9]Donohue v The King (No. 4) (Kaye JA) [2022] VSCA 206 (‘Donohue (No. 4)’).
Before the reasons for the Donohue (No. 4) rejection were delivered, the applicant endeavoured once more to file via RedCrest an application for leave to appeal against conviction and a written case. This was on 14 September 2022. These were ‘substantially similar’[10] to the documents submitted on 5 September 2022. The only other document attached was an image of a Department of Veterans’ Affairs card, which was ‘identical to the image previously submitted’.[11] These documents were rejected by the Registrar on 21 September 2022 ‘for the same reasons set out in’ Donohue (No. 4).
[10]Donohue v The King (No. 6) [2023] VSCA 224 [23] (Taylor JA) (‘Donohue (No. 6)').
[11]Ibid.
On 26 September 2022, three business days after this last rejection, the applicant attempted to file practically identical documents again. Again the Registrar refused to seal them. On 6 October 2022, the Registrar advised the applicant in writing in the following terms:
Your 26 September 2022 documents are, in substance, the same as those submitted on 5 and 14 September 2022. Although slightly reworded in parts, they continue to seek to re-agitate maters you relied upon in your previous applications to the Court of Appeal for leave to appeal against conviction. By way of example only, the following table identifies, for each ground of appeal in your 26 September 2022 notice of application for leave to appeal, the corresponding ground of appeal in your 5 September 2022 notice of application for leave to appeal.
Ground in notice of application for leave to appeal against conviction dated 26 September 2022 Corresponding ground in notice of application for leave to appeal against conviction dated 5 September 2022 Ground (i) Ground (i) Ground (ii) Ground (ii) Ground (iii) Grounds (i) and (ii) Ground (iv) Ground (iv) Ground (v) Ground (v) Ground (vi) Ground (vi) Ground (vii) Ground (vii) Ground (viii) Ground (vii) Ground (ix) Ground (xii) A similar comparison can be made between the 26 September 2022 written case with the 5 September 2022 written case.
It is noted that your 26 September 2022 notice of application for leave to appeal against conviction includes statements such as:
‘Evidence that was not present to the jury for their consideration during the trial is fresh evidence, and remains fresh until it is acknowledged and fully dealt with in a court of appeal, including the right of the appellant to speak to that evidence in a court of appeal.’
and
‘… my previous applications for leave to appeal were denied, which means that I have been denied the right to present this evidence to a court of appeal, along with my right to speak to the fresh & compelling evidence in a court of appeal, and therefore the fresh & compelling evidence remains outstanding.’
By your 26 September 2022 documents you seek to apply for leave to appeal against conviction on the basis of matters that you put to the Court of Appeal in support of your previous applications. To be clear, the fact that the previous applications were refused does not mean you are at liberty to pursue the same matters again in support of a new application. On the contrary, having already argued them in support of applications that have been determined by the Court of Appeal and High Court, it would be irregular and an abuse of process to accept an application for filing in which you seek to do so again.
The applicant requested that the Registrar’s decision be referred to a judge of this Court. On 25 October 2022, Kennedy JA held that the Registrar’s decision was correct,[12] essentially for the same reasons as her judicial predecessors in this unfortunate ongoing saga. Kennedy JA considered that there was no ‘fresh and compelling evidence’ to consider. The documents resupplied with the 26 September application were in substance the same as those submitted on 5 September 2022. Whilst they may have been slightly reworded in parts, they continued to seek to re-agitate matters relied on by the applicant in a previous application to the Court of Appeal.[13]
[12]Donohuev The King (No 5) [2022] VSCA 232 (Kennedy JA) (‘Donohue (No. 5)’).
[13]Ibid, [14].
Once more the High Court were called upon, and once more (on 9 March 2023) the application for special leave was rejected on the basis that the application sought to re-agitate issues that had been finally determined and was, therefore, an abuse of process.[14]
[14]Donohue v The King [2023] HCASL 28 (Steward and Gleeson JJ).
On 29 July 2023, the applicant again submitted a notice of application for leave to appeal against conviction (Form 6-2A) dated 26 September 2022 and 29 July 2023, and a written case dated 29 July 2023 and an image of a Department of Veteran Affairs’ card. The Registrar determined that, if sealed, the documents would be irregular and would constitute an abuse of process. Upon review instigated by the applicant, on 15 September 2023, Taylor JA concluded that the Registrar’s decision was correct.[15] Taylor JA’s reasons contain a useful summary of the applicant’s unsuccessful journey through the appellate courts. I have borrowed heavily from it.
[15]Donohue v The King (No. 6) [35].
Consideration
In the current iteration of this turgid saga the applicant submitted to the Registrar essentially the same documents via RedCrest on 28 February 2024. In short, those documents were:
(a)Letter addressed to the Chief Justice dated 22 February 2024;
(b)Copy of a notice of application for leave to appeal against conviction dated 26 September 2022, written case dated 20 September 2022, and an image of a Veterans’ Affairs card; and
(c)Fee waiver application dated 23 January 2024.
I have annexed the text of the applicant’s current notices of application for leave to appeal against conviction dated 29 February and 9 March 2024, and his written case dated 4 March 2024. Any variations or additions to these previous documents considered most recently by Taylor JA are highlighted in bold.
It is clear that the only differences between the documents now under consideration and those considered by Taylor JA are:
(a)the inclusion of the text of a letter from the applicant to the Chief Justice (with some introductory words);
(b)document dates; and
(c)in the 4 March 2024 Notice, points 3 and 4 on page 1 of 12.
The Registrar rejected the 29 February 2024 documents in the following terms.
Dear Mr Donohue,
I refer to the documents you submitted via RedCrest on 28 February 2024 at 7:01 pm (eFile ID 392102). Those documents are:
1. Letter addressed to the Chief Justice dated 22 February 2024;
2. Copy notice of application for leave to appeal against conviction dated 26 September 2022, written case dated 26 September 2022 and Department of Veterans’ Affairs card; and
3. Fee waiver application dated 23 January 2024.
In the ‘Filing Note’ section on RedCrest you state: ‘This has been re-submitted to enable the Chief officer of the Court of Appeals to answer the questions from the applicant contained in the letter to the Chief Justice of the SCV. Also the option to insert a document for Fee Waiver is not available in the drop-down box on RedCrest as would normally appear.’
The documents referred to at point 2 above and the matters contained in them have already been dealt with by both the Court of Appeal and the High Court of Australia (see, for example, Donohue v The King (No 5) [2022] VSCA 232 and Donohue v The King [2023] HCASL 28). Consequently, the Court of Appeal does not have jurisdiction to consider them again, and it would be an abuse of process to accept the documents for filing.
In the letter addressed to the Chief Justice you seek responses to matters arising from your numerous applications to the Court of Appeal, all of which have been finally determined with reasons given. It is therefore not appropriate to respond to your letter.
There is no application for which court fees are payable. Accordingly, no consideration of the fee waiver application is required.
For the reasons set out above, the documents you submitted via RedCrest are rejected.
Conclusions
The Registrar correctly refused to seal the impugned documents. To seal the documents would perpetuate an abuse of process. This Court will not countenance re-agitation of already determined issues.
ANNEXURE 1
Form 6-2A
Rule 2.05(1)
IN THE SUPREME COURT OF VICTORIA
COURT OF APPEAL
CRIMINAL DIVISION No. 20
Neville Donohue (Applicant) and
The King (Respondent)
NOTICE OF APPLICATION FOR LEAVE TO APPEAL AGAINST CONVICTION
To the Registrar of Criminal Appeals:
I, Neville Donohue, am convicted of: make false document, attempt to pervert the course of justice, and perjury; and I reside at 61 Dunbarton Drive, Wantirna, Victoria.
I WISH TO APPEAL, to the Court of Appeal, under the subsequent appeals provisions of the Justice Legislation Amendment (Criminal Appeals) Act 2019 (the Act) and Section 326C of the Criminal Procedure Act 2009, and I, Neville Donohue (the applicant) hereby make application for leave to appeal the Conviction of the County Court, Melbourne, given on 10 Sep 2018, THE DPP v DONOHUE CR-16 00261/THE DPP v DONOHUE [2018]VCC 1578.
TAKE NOTICE:
1.That this application supersedes and replaces all previous applications for leave to appeal my Conviction of the County Court, Melbourne, given on 10 Sep 2018, THE DPP v DONOHUE CR-16 00261/THE DPP v DONOHUE [2018]VCC1578.
2.That this application is prepared in accordance with the determination of Justice Kaye JA – Medium Neutral Citation [2022] VSCA 206 dated 21 September 2022.
3.That the CEO/Chief Justice of the Supreme Court of Victoria has directed the Court of Appeal to answer the questions posed by the plaintiff in his letter of 22 Feb 2024 to the Chief Justice (see copy within the body of this document and the accompanying affidavit).
4. That for the sake of completeness to the interests of justice, the plaintiff must finally be granted the right to appeal his conviction on the basis of fresh and, overwhelmingly, compelling evidence, that was NOT put to the jury during the plaintiff’s trial.
5.That I apply to the Court of Appeal for leave to appeal my conviction on the following grounds:
The subsequent appeals provisions of the Justice Legislation Amendment (Criminal Appeals) Act 2019 (the Act) require the presence of fresh & compelling evidence. Evidence that was not presented to the jury for their consideration during the trial is fresh evidence, and remains fresh until it is acknowledged and fully dealt with in a court of appeal, including the right of the appellant to speak to that evidence in a court of appeal. Compelling evidence is evidence of such nature that it would change the outcome of the trial if it had been presented to the jury during the trial. Both fresh & compelling evidence remain outstanding from the trial THE DPP v DONOHUE CR16-00261, resulting in the conviction THE DPP v DONOHUE [2018] VCC1578, conducted by Justice Carmody before a jury.
As noted by Justice Kaye in Medium Neutral Citation [2022] VSCA 206 my previous applications for leave to appeal were denied, which means that I have been denied the right to present this evidence to a court of appeal, along with my right to speak to the fresh & compelling evidence in a court of appeal, and therefore the fresh & compelling evidence remains outstanding. In none of the previous applications have the courts individually examined every piece of evidence and stated why they have found that each individual piece of evidence was or wasn’t fresh and/or compelling. Also, in none of the previous applications have the courts examined the irregularities in the conduct of my trial and stated why they did or did not find those irregularities to have affected the outcome of my trial. The failure to grant my applications for appeal has denied my rightful access to the course of justice as prescribed by the subsequent appeals provisions of the Act. The fresh & compelling evidence, and the irregularities in the conduct of my trial, also clearly show a substantial miscarriage of justice. Therefore the requirements of Section 326C of the Criminal Procedure Act 2009, and the provisions of the Justice Legislation Amendment (Criminal Appeals) Act 2019, have both been fully satisfied in this application. Details of the fresh & compelling evidence and the irregularities are contained below; and in the WRITTEN CASE (including the DETAILED GROUNDS OF APPEAL).
The evidence put forward in this application remains fresh and compelling until it is presented to a court of appeal, at which time it must then be considered in the context of the provisions of the Act and I am afforded the opportunity to speak to that evidence as would have been available to me if the evidence was put before the jury at the time of the trial. If the jury had been presented with any/all of this evidence they would have unquestionably had “reasonable doubt” and found me not guilty on all charges. As the fresh and compelling evidence, and the irregularities clearly indicate a substantial miscarriage of justice , then the appeal must result in the outcomes that I seek.
The following fresh and compelling evidence was NOT adduced for the jury in THE DPP v DONOHUE CR16-00261/THE DPP v DONOHUE [2018] VCC1578:
(i)the fresh & compelling and critical evidence regarding my military and paramilitary service; medical and psychiatric history; and other crucial evidence, contained in my 2 laptop computers that were seized by Victoria Police (VicPol). The prosecution case relied on proving that I had NOT served with the Australian Special Forces and/or Australia’s Paramilitary Intelligence Services. This evidence would have completely destroyed the prosecution case.
(ii)the fresh & compelling and critical evidence of the attempt to pervert the course of justice by VicPol by manipulating and withholding crucial evidence about my military and paramilitary service; medical and psychiatric history; and other crucial evidence, on my 2 seized laptop computers. Judge Carmody ordered me NOT to disclose this manipulation and withholding of evidence, to the jury. This evidence would have given the jury reasonable doubt.
(iii)the fresh & compelling and critical evidence of Judge Carmody’s apparent attempt to pervert the course of justice by knowingly blocking the jury from hearing and/or seeing the defence evidence from my 2 seized laptop computers. Judge Carmody allowed and condoned the manipulation and withholding of this evidence by VicPol, and then ordered me NOT to disclose this withholding and manipulation of evidence, or Judge Carmody’s condoning of it, to the jury. This evidence would have given the jury reasonable doubt.
(iv)the fresh & compelling and critical evidence of my service in the Australian Special Forces, which was kept from the jury. This evidence would have given the jury reasonable doubt.
(v)the fresh & compelling and critical evidence of the defective and contradictory testimony given by the Crown’s federal government witnesses, which was withheld from the jury. This evidence would have completely destroyed the prosecution case.
(vi)the fresh & compelling and critical evidence given by the Australian Government Solicitor (AGS) which was withheld from the jury by Judge Carmody. This evidence would have completely destroyed the prosecution case.
(vii)the fresh & compelling and critical evidence of Judge Carmody’s apparent attempt to pervert the course of justice by knowingly blocking the jury from hearing the evidence from the AGS, or even allowing the jury to know that the evidence was given. This evidence would have given the jury reasonable doubt.
(viii)the fresh & compelling and critical evidence of my mental illness and my cancer treatments. The prosecution contended that my psychiatric illness and brain tumours did not exist. This evidence would have given the jury reasonable doubt.
(ix)the fresh & compelling and critical evidence of Judge Carmody’s apparent attempt to pervert the course of justice when he knowingly, and therefore deliberately, gave an unbalanced and misleading “charge to the jury”. This evidence would have given the jury reasonable doubt.
NOTE 1: there were also serious irregularities in the conduct of my trial that led to a substantial miscarriage of justice and a wrongful conviction. These are detailed in the WRITTEN CASE.
NOTE 2: the CEO/ Chief Justice of The Supreme Court of Victoria has asked that the following letter dated 22 Feb 2024 be brought to the attention of the Court of Appeals to have the questions posed in the letter answered by the Court of Appeals:
Dear Chief Justice of the Supreme Court of Victoria
Further to my previous letters, you have no doubt thoroughly read the evidence that was put forward to the Supreme & High Courts in my applications for appeal against my conviction in the County Court in 2018, and this evidence was restated many times in my various letters to you. This clear evidence of miscarriages of justice in my trial is also contained within the Court records of my trial, which I’m sure that you also read thoroughly.
As you have ultimate responsibility to the carriage of justice in the Supreme Court of Victoria, including the Court of Appeal, I must therefore ask you to please answer the following questions:
1.Do you condone the withholding and manipulation of evidence by Victoria Police?
2.Do you condone the deliberate withholding, from the jury, by the trial judge, of the evidence of such illegal actions by Victoria Police?
3.Do you condone the deliberate withholding, from the jury, by the trial judge, of the evidence given by the Australian Government Solicitor (acting on behalf of the heads of the Department of Defence, the Department of Foreign Affairs and Trade, the Australian Signals Directorate, and the Australian Secret Intelligence Service - the trial judge deliberately heard this evidence without the jury present)?
4.Do you condone the trial judge deliberately giving false and/or misleading information to the jury in his “charge to the jury”? E.g: the trial judge reiterated evidence from prosecution witness that he knew to be false and/or misleading.
5.Do you condone the trial judge deliberately withholding evidence from the jury which would have undoubtedly resulted in a NOT GUILTY verdict? E.g: the evidence from my laptop computers which prosecution case; and, even more so, the evidence from the Australian Government Solicitor about my 46 years service in the Australian Special Forces and the Australian Paramilitary Intelligence services, including my extensive overseas operational service, my need to use official aliases, and my need to hold official passports in those aliases. The prosecution case was based almost completely on the assertion that I had NOT served with either the Australian Special Forces or the Australian Paramilitary Intelligence services.
If you do not condone ANY of these, let alone all of them, then your recommendation to your Court should be that Leave to Appeal is granted, and for the sake of completeness, and transparency, that my appeal NOT be heard by any of the judges of your Court that have previously been involved in my Applications for Appeal. It is also important to note that every judge, in every court, has avoided mentioning, let alone addressing, the above matters in my applications for appeal – evidently not wanting to criticise the improper/illegal actions of a fellow judge, despite their level of responsibility to the course of justice. Please find attached a copy of my most recent Application for Appeal which, again, clearly shows the improper/illegal actions of the trial judge, and Victoria Police.
I trust that you will have the courtesy to respond.
Yours sincerely
N McB Donohue
Neville Donohue
The orders that will be sought:
That the whole of the Conviction of the County Court, Melbourne, given 10 Sep 2018, THE DPP v DONOHUE [2018] VCC1578 be declared a wrongful conviction and quashed accordingly; OR that the applicant be granted the right to Appeal his conviction – without the involvement of ANY of the judges previously involved in any of the applicant’s preceding matters before the Court of Appeal.
Signed: NMcBDonohue Date: 4 March 2024
Neville Donohue (Applicant)
PARTICULARS
1.Applicant’s name: Neville Donohue
2.Offences for which convicted and in relation to which it is sought to appeal: make false document, attempt to pervert the course of justice, and perjury
3.Convicted at: County Court, Melbourne (CR-16-00261)
4.Sentencing Judge: Judge Carmody
5.Date of conviction: 10 Sep 2018
6.Sentence: 53 months prison, with 33 months minimum
7.Date of sentence: 25 Sep 2018
8.Name & address of legal practitioner who represented applicant at trial: Stary Norton Halpen, Queen St, Melbourne, Victoria
9.Name of counsel representing applicant at trial: Simon Kenny
WRITTEN CASE IS ATTACHED
Signed: NMcBDonohue Date: 4 March 2024
Neville Donohue (Applicant)
Attachments:
1.Written Case/Grounds of Appeal
2.Copy of Department of Veterans’ Affairs (DVA) Card No: VSM 10805
IN THE SUPREME COURT OF VICTORIA, COURT OF APPEALS
BETWEEN: Neville Donohue (Applicant)
and
The King (Respondent)
NOTICE OF APPLICATION FOR LEAVE TO APPEAL AGAINST CONVICTION
WRITTEN CASE FOR THE APPLICANT
Summary of relevant facts:
1.Outline of offending: allegedly false documents were presented to the Magistrates Court on multiple occasions which resulted in the adjournment of the matters before the court. Making of the documents was admitted but “attempting to pervert the course of justice” was defended as the information in the documents was correct. Statutory declarations were also presented to the Magistrates Court on multiple occasions to adjourn the same matters. Making of the statutory declarations was admitted but “perjury” was defended as the information in the statutory declarations was correct. The matters before the Magistrates Court were finalised in 2016.
2.Reasons for appeal: the prosecution case was based on 4 key contentions:
•that I had NOT served in the Australian Special Forces;
•that I had NOT served with Australia’s Paramilitary Intelligence Services;
•that I did NOT have a history of mental illness; and
•that I had NOT been treated for brain tumours.
The following fresh & compelling evidence, regarding these 4 contentions was NOT adduced for the jury in THE DPP v DONOHUE CR16-00261/THE DPP v DONOHUE [2018] VCC1578 and completely destroys the prosecution case in all 4 areas:
(i)the fresh & compelling and critical evidence regarding my military and paramilitary service; medical and psychiatric history; and other crucial evidence, contained in my 2 laptop computers that were seized by Victoria Police (VicPol). The prosecution case relied on proving that I had NOT been involved with Australia’s paramilitary intelligence services. This evidence would have completely destroyed the prosecution case.
(ii)the fresh & compelling and critical evidence of the attempt to pervert the course of justice by VicPol by manipulating and withholding crucial evidence about my military and paramilitary service; medical and psychiatric history; and other crucial evidence, on my 2 seized laptop computers. Judge Carmody ordered me NOT to disclose this manipulation and withholding of evidence, to the jury. This evidence would have given the jury reasonable doubt.
(iii)the fresh & compelling and critical evidence of Judge Carmody’s apparent attempt to pervert the course of justice by knowingly blocking the jury from hearing and/or seeing the defence evidence from my 2 seized laptop computers. Judge Carmody allowed and condoned the manipulation and withholding of this evidence by VicPol, and then ordered me NOT to disclose this manipulation and withholding of evidence, or Judge Carmody’s condoning of it, to the jury. This evidence would have given the jury reasonable doubt.
(iv)the fresh & compelling and critical evidence of my service in the Australian Special Forces, which was kept from the jury. This evidence would have given the jury reasonable doubt.
(v)the fresh & compelling and critical evidence of the defective and contradictory testimony given by the Crown’s federal government witnesses, which was withheld from the jury. This evidence would have completely destroyed the prosecution case.
(vi)the fresh & compelling and critical evidence given by the Australian Government Solicitor (AGS) which was withheld from the jury by Judge Carmody. This evidence would have completely destroyed the prosecution case.
(vii)the fresh & compelling and critical evidence of Judge Carmody’s apparent attempt to pervert the course of justice by knowingly blocking the jury from hearing the evidence from the AGS, or even allowing the jury to know that the evidence was given. This evidence would have given the jury reasonable doubt.
(viii)the fresh & compelling and critical evidence of my mental illness, and my cancer treatments. The prosecution contended that my psychiatric illness and brain tumours did not exist. This evidence would have given the jury reasonable doubt.
(ix)the fresh & compelling and critical evidence of Judge Carmody’s apparent attempt to pervert the course of justice when he knowingly, and therefore deliberately, gave an unbalanced and misleading “charge to the jury”. This evidence would have given the jury reasonable doubt.
DETAILED GROUNDS OF APPEAL (Neville Donohue v The King)
1.Evidence regarding my mental health that was NOT adduced for the jury, and therefore remains fresh & compelling:
Judge Carmody instructed that the psychological reports of Lechner & Tomlinson were to be ignored because they were “simply what Mr Donohue told them”. On this illogical basis, no psychologists’ reports would ever be able to be used, in any court, at any time. Judge Carmody then went on to quote that “Mr Donohue coped well in prison” from the Forensicare report which had been ordered by a different judge, for a different matter, and was written prior to the completion of my initial 4 months of imprisonment. It was written after a short period on remand and was based on the idea that if I had not attempted suicide then I “coped well in prison”. That could not be more incorrect. It was a mental health struggle during remand, which then became a mental health nightmare during my 4 months imprisonment, particularly without access to my normal mental health treatment, and without access to 2 of my 4 regular psychiatric medications. The instruction from Judge Carmody meant that the jury was denied access to the following evidence regarding my mental health that was contained in those reports and/or contained in the data on my 2 seized laptop computers:
•Developed severe, chronic PTSD during military service in the 1970’s, treated by daily medication for more than the last 40 years, plus extensive, ongoing, psychotherapy.
•Developed bi-polar and delusional disorders in the 1990’s.
•Developed epileptic symptoms from the bi-polar disorder in the 2000’s, leading to the inability to drive, and the need for permanent, daily, seizure medication.
•My General Practitioner (Dr Willliam Longworth) supervised my psychiatric medications for over 40 years, but only 2 of my 4 prescribed daily medications were available in prison (the other 2 were banned as they were considered trafficable). The lack of these daily medications led to the continuous deterioration of my mental health whilst in prison.
•When outside prison, my mental health treatment is fully funded by the Department of Veterans’ Affairs (DVA), and is fully comprehensive (see DVA Card, File No.VSM10805 attached to this application). This includes regular sessions with my psychologist, special sessions with a forensic psychologist, and supervision from my psychiatrist. This level of care was not available in the prison system, where the focus was on suicide prevention rather than overall treatment.
•Dr Longworth gave evidence about my mental health, and his continuous involvement in my care for over 40 years, and this was not disputed by the prosecution.
•I received a permanent Psychiatric Disability Pension from Centrelink (CRN 303-781-355A) for the above reasons, which was suspended during my incarceration.
NOTE: Had this fresh & compelling evidence been adduced for the jury in 2018, it would have led them to have reasonable doubt, and deliver a verdict of NOT GUILTY on all charges.
2.Evidence that was NOT presented to the jury due to the 13 month gap in the trial from 2017 to 2018, and therefore remains fresh & compelling:
The 13 month gap occurred when Judge Carmody ordered VicPol to provide, to the defence, copies of all data from 2 laptop computers that had been seized from me by VicPol. This was to enable critical evidence to be presented to the court/jury. VicPol firstly failed to provide the data by the due date. After being given extra time, by Judge Carmody, VicPol then failed to deliver the data in a readable form. The VicPol Forensics expert and the defence computer expert agreed, before Judge Carmody, that the data format provided could only be read on VicPol computers using restricted, proprietary, VicPol, software. There can be no doubt that the prosecution knew that the evidence contained in my 2 seized laptop computers would completely destroy the prosecution case, and they went to great lengths to keep that evidence from the court/jury. VicPol were instructed to make the data available in a readable form, within 6 days, but, Judge Carmody also directed that the trial would commence on 3 Sep 2018 with or without the evidence from the laptops. Hence, VicPol did not supply the data in a readable form, and, against my directions, my counsel (Mr Simon Kenny) did not insist on this critical evidence being made available. Therefore the court/jury was not presented with this evidence – severely prejudicing my trial. The delay in the trial from 2017 to 2018 also prompted the use of video evidence, recorded in 2017, being put before the new jury in 2018. This was despite my instruction to counsel to recall the witnesses and did not allow for vital re-examination of witnesses. When counsel FAILS to follow the directions of their client that does NOT change the FACTS of the case. This fresh & compelling evidence from my 2 seized laptop computers; and from the witnesses that could not be re-examined; includes:
(a)The evidence that Dr Longworth (our family General Practitioner) had been involved in my treatment, including cancer and mental illness treatment, for over 40 years. As well as referring me to Dr Dowd, and Dr Farnbach for psychiatric treatment, he also referred me to Consulting Psychologists, Psychotherapists, and Forensic Psychologists. Dr Longworth also arranged the removal of my first brain tumour at the Waverley Private Hospital in 2001, and in later years began my treatment for another brain tumour – arranging tests, including an MRI (this was confirmed by VicPol informant Sgt Paul Phillips). My treatment was then completed under alias by other doctors. In evidence, Dr Longworth stated that “it was possible that Mr Donohue could also have been treated by other doctors without my knowledge”. Treatment under aliases was confirmed in evidence withheld by VicPol, and confirmed by the AGS. The jury was denied access to this critical fresh & compelling evidence.
(b)The evidence that Dr Farnbach was an unreliable witness. Now very aged, he struggled to understand and answer questions on the stand; could not recall important details of my treatment; and stated that he had “destroyed all of Mr Donohue’s files”. He did confirm “Mr Donohue’s classic Post Traumatic Stress Disorder (PTSD) stemming from his military service in Vietnam”, and believed that “Mr Donohue generally responded well to treatment”. This indicates why regular, ongoing, psychiatric and psychological treatment, coupled with ongoing drug treatment, was required for my mental health. Re-examination of this witness before the new jury would have provided fresh & compelling evidence.
(c)The evidence that the AGS attended the County Court on behalf of ASIS, ASD & DFAT to give evidence regarding my Paramilitary Intelligence Service. Judge Carmody decided that this evidence would be presented without the jury present and then blocked the jury from access to this evidence, or even the knowledge that this evidence had been given.
(d)The evidence of the meanings behind key entries in my standard military Record of Service needed to be explained to the court. No standard military Record of Service ever includes details of any covert operations undertaken by service personnel. Also, the relevance of the units in which a soldier served, or any special training the soldier was required to complete, are not understood by the average citizen without extensive knowledge of the military. Despite my instruction to counsel, the details showing that my whole service was in a Special Forces Covert Operations Unit was not presented, and highlighted, to the jury. When counsel FAILS to follow the directions of their client that does NOT change the FACTS of the case. Therefore the following information and explanations should have been highlighted to the jury during the trial, and constitutes fresh & compelling evidence:
The evidence that all of my Army service was with the Special Forces, in a covert operations unit attached to the Australian Secret Intelligence Service (ASIS) was not adduced for the jury. This information is contained in evidence that was held by the Crown, and was also contained within the data from my 2 seized laptops which was illegally manipulated and withheld from the defence by VicPol. Important information regarding my medical and psychiatric treatment was also contained in the evidence manipulated and withheld by VicPol. i.e:
MILITARY SERVICE (some of which is shown in my standard military Record of Service):
(i)I served in the Australian Regular Army for 6 years full-time from Jan 1970 – Jan 1976
(ii)After completion of Basic Training, and Specialist Training, I was posted to the Special Forces in March 1971, which is where I spent the remainder of my 6 years.
(iii)My unit was 126 Signal Squadron (Special Forces) – known as “126”
(iv)The roles of 126 were as follows:
·Operational Intelligence Unit of the 1st Commando Regiment
·Military wing of the Australian Secret Intelligence Service (ASIS) – which included co- tenancy of the ASIS Base at Swan Island, VIC
·Inter-operational unit of 152 Signal Squadron (Special Air Service Regiment)
·Inter-operational unit of the Defence Signals Directorate (DSD) – now known as the Australian Signals Directorate (ASD)
·Inter-operational unit of the Department of Foreign Affairs & Trade (DFAT)
(v)In order to fulfil my roles, I underwent further Special Forces training, such as Parachuting, etc – which are shown in my General Military Service Record. Also shown in my General Military Service Record is the training I underwent at the Special Air Service Regiment (SASR) – specifically the Long Range Patrol and Reconnaissance (RECONDO) Course (August 1971), which is ONLY available to Special Forces operatives who are required to conduct overseas clandestine operations. Shortly after completing the RECONDO Course I conducted my first clandestine operation in Vietnam.
(vi)Also, as shown in my standard military Record of Service, advanced specialist training in Communications Systems Technology was also undertaken in accordance with my role in Communications Systems Sabotage.
(vii)Extensive specialised training was also conducted, continuously, within 126. This included Close Quarter Combat, Submarine Operations, Assault Swimming (Scuba Diving/Underwater Demolitions), Small Craft Operations, Advanced Weapons Training, Languages, etc. Updated training in these, and other skills, continued during my ongoing paramilitary service.
PARAMILITARY INTELIGENCE SERVICE: Following my 6 years In the Regular Army, I then continued to serve part-time in Australia’s Paramilitary Intelligence Services for another 40 years (until December 2015). During this time I came onto full-time service for periods of time - as, when, and where required. My paramilitary service included many occurrences of active, overseas service. For operational purposes, I was required to be commissioned in senior military ranks equivalent to the roles with which I was tasked. I was also required to use official aliases, including the use of alias passports. My involvement in the Paramilitary Intelligence Services was confirmed by prosecution witness Mark Zorzi from the ASD, but Mr Zorzi did not have high enough security clearance to provide full details of my service. The AGS attended the County Court on behalf of ASIS, ASD & DFAT to confirm details of paramilitary intelligence service; use of official aliases and alias passports; and commissioning in senior military ranks. The AGS was required to attend, primarily, as ASIS officers cannot be named in public, and therefore need to be represented appropriately in Court matters.
MEDICAL & PSYCHIATRIC HISTORY: I had a brain tumour surgically removed in 2001, and had a second brain tumour treated chemically, over a period of years, from 2008 onwards. Treatments for the second tumour, including periods of pre-palliative care, were performed under aliases for paramilitary intelligence security purposes. I had been under continuous psychiatric treatment for more than 40 years at the time of the trial. This began with treatment via the Vietnam Veterans Counselling Service, then through private psychiatrists and psychologists, and is currently via the Department of Veterans Affairs (DVA). Much of this treatment was also performed under aliases for paramilitary intelligence security purposes.
NOTE: If any or all of the above evidence been available to the jury at the trial they would have undoubtedly had “reasonable doubt” on ALL the charges in THE DPP v DONOHUE CR16-00261 and found me NOT GUILTY on ALL charges.
3.Evidence misrepresented by Judge Carmody:
The “charge to the jury” by the presiding judge is undoubtedly the single most important evidence that is given to the jury. It is the last evidence that the jury hears before making their deliberations, and the jury puts greater trust in the judge than anyone else that they have heard from during the proceedings. Therefore, if this evidence is incomplete, false, or flawed in any way, it corrupts the jury’s decision making process. This evidence forms part of the fresh & compelling evidence in this application because in his “charge to the jury”:
(a)Judge Carmody highlighted the key points of the prosecution evidence, including the evidence given by all of the prosecution’s federal government witnesses, and presented them to the jury as reliable evidence – despite knowing that it was not true. Judge Carmody knew that the evidence of the prosecution’s most senior witness, Mark Zorzi, had shown the testimony of all of the other federal government prosecution witnesses to be false and/or misleading. The “charge to the jury” is the most important evidence that is given to the jury in the entire trial and is relied upon heavily by the jury when making their deliberations before arriving at their verdict. Thus, the jury’s deliberation process was knowingly, and therefore deliberately, tainted by Judge Carmody. An honest, balanced, and comprehensive presentation of this evidence in the “charge to the jury” would have undoubtedly led to very strong “reasonable doubt” on all perjury charges and a finding of NOT GUILTY on all of the perjury charges. Thus the true representation of this evidence becomes fresh & compelling.
(b)In his “charge to the jury” Judge Carmody did not to inform the jury of the defence evidence that had been manipulated and withheld by VicPol, or that he had allowed, and therefore condoned, that illegal act by VicPol. Thus, the jury’s deliberation process was again knowingly tainted by Judge Carmody. An honest, balanced, and comprehensive “charge to the jury”, including this missing evidence, would have led the jury to question the motives of VicPol, in illegally manipulating and withholding evidence, and would have undoubtedly led to very strong “reasonable doubt” on all other charges, and findings of NOT GUILTY on all of them.
(c)In his “charge to the jury” Judge Carmody did not inform the jury that evidence had been given for the defence by the AGS, regarding service with paramilitary intelligence agencies, without the jury present. An honest, balanced, and comprehensive “charge to the jury” would have included this information, and led the jury to have very strong “reasonable doubt” on all charges, and findings of NOT GUILTY on all of them.
NOTE 1: in his REASONS FOR SENTENCE Judge Carmody refers to the jury’s verdicts on various charges as if they were made on the basis of sound and reliable evidence despite his knowledge that this was not true. Judge Carmody then gave sentences also based on these verdicts as if they were made on the basis of sound and reliable evidence despite his knowledge that this was not true.
NOTE 2: the following judicial quotation from Jason Joseph Roberts v The Queen [2020]VSCA277 is pertinent in relation to the irregularities in Judge Carmody’s “charge to the jury”; and to the irregularities in Judge Carmody’s handling of the evidence from the AGS; and to the irregularities in Judge Carmody’s handling of the evidence from my 2 seized laptop computers:
“The issue if leave is granted is not limited to consideration of evidentiary questions going to the ultimate issue of the applicant’s guilt but may embrace questions of irregularity in an applicant’s trial” (see Item 50 in Jason Joseph Roberts v The Queen [2020]VSCA277).
CONCLUSION: The fresh & compelling evidence as described above, by NOT being adduced for the jury, coupled with the irregularities in the conduct of my trial, led to a substantial miscarriage of justice and my wrongful conviction in THE DPP v DONOHUE CR16-00261/ THE DPP v DONOHUE [2018] VCC 1578. This fresh & compelling evidence, and the irregularities, have NOT been addressed in any appeal court, and I have not been given my right to speak to the fresh & compelling evidence, or the irregularities in a court of appeal as I would have been able to do if the evidence was available during my trial. Therefore I justifiably lodge this Application for Leave to Appeal Conviction under the subsequent appeals provisions of the Justice Legislation Amendment (Criminal Appeals) Act 2019, as well as Section 326C of the Criminal Procedure Act 2009.
As previously mentioned, the CEO/ Chief Justice of The Supreme Court of Victoria has asked that the following letter dated 22 Feb 2024 be brought to the attention of the Court of Appeal to have the questions posed in the letter answered by the Court of Appeal:
“Dear Chief Justice of the Supreme Court of Victoria
Further to my previous letters, you have no doubt thoroughly read the evidence that was put forward to the Supreme & High Courts in my applications for appeal against my conviction in the County Court in 2018, and this evidence was restated many times in my various letters to you. This clear evidence of miscarriages of justice in my trial is also contained within the Court records of my trial, which I’m sure that you also read thoroughly.
As you have ultimate responsibility to the carriage of justice in the Supreme Court of Victoria, including the Court of Appeal, I must therefore ask you to please answer the following questions:
1.Do you condone the withholding and manipulation of evidence by Victoria Police?
2.Do you condone the deliberate withholding, from the jury, by the trial judge, of the evidence of such illegal actions by Victoria Police?
3.Do you condone the deliberate withholding, from the jury, by the trial judge, of the evidence given by the Australian Government Solicitor (acting on behalf of the heads of the Department of Defence, the Department of Foreign Affairs and Trade, the Australian Signals Directorate, and the Australian Secret Intelligence Service - the trial judge deliberately heard this evidence without the jury present)?
4.Do you condone the trial judge deliberately giving false and/or misleading information to the jury in his “charge to the jury”? E.g: the trial judge reiterated evidence from prosecution witness that he knew to be false and/or misleading.
5.Do you condone the trial judge deliberately withholding evidence from the jury which would have undoubtedly resulted in a NOT GUILTY verdict? E.g: the evidence from my laptop computers which prosecution case; and, even more so, the evidence from the Australian Government Solicitor about my 46 years service in the Australian Special Forces and the Australian Paramilitary Intelligence services, including my extensive overseas operational service, my need to use official aliases, and my need to hold official passports in those aliases. The prosecution case was based almost completely on the assertion that I had NOT served with either the Australian Special Forces or the Australian Paramilitary Intelligence services.
If you do not condone ANY of these, let alone all of them, then your recommendation to your Court should be that Leave to Appeal is granted, and for the sake of completeness, and transparency, that my appeal NOT be heard by any of the judges of your Court that have previously been involved in my Applications for Appeal. It is also important to note that every judge, in every court, has avoided mentioning, let alone addressing, the above matters in my applications for appeal – evidently not wanting to criticise the improper/illegal actions of a fellow judge, despite their level of responsibility to the course of justice. Please find attached a copy of my most recent Application for Appeal which, again, clearly shows the improper/illegal actions of the trial judge, and Victoria Police.
I trust that you will have the courtesy to respond.
Yours sincerely
N McB Donohue
Neville Donohue”
APPLICANT’S LIST OF AUTHORITIES AND MATERIALS RELIED UPON
AUTHORITIES RELIED UPON:
Justice Legislation Amendment (Criminal Appeals) Act 2019 Criminal Procedure Act 2009
The DPP v Donohue CR16-00261/The DPP v Donohue [2018]VCC1578
Jason Joseph Roberts v The Queen [2020]VSCA58
MATERIAL RELIED UPON:
1.“Reasons for sentence” from Judge Carmody dated 25 Sep 2018
2.Judge Carmody’s “charge to the jury”
3.Exhibit 1 of [S EAPCR 2020 0209] – report of Carla Lechner dated 12 Dec 2016
4.Exhibit 2 of [S EAPCR 2020 0209] – report of Carla Lechner dated 5 Jul 2017
5.Exhibit 3 of [S EAPCR 2020 0209] – report of Judy Tomlinson dated 6 May 2016
6.Exhibit 4 of [S EAPCR 2020 0209] – Forensicare report dated 7 Mar 2018
7.Copy of DVA Card 10805 – Neville Donohue (attached)
Dated: 4 March 2024 Signed: NMcBDonohue
Neville Donohue (Applicant)
To: The Respondent (The King)
Via: The Solicitor for Public Prosecutions565 Lonsdale St, Melbourne, 3000
Email: [email protected]
The Applicant is self-represented and address for service is:
Neville Donohue
61 Dunbarton Drive
Wantirna, VIC, 3152
Email: [email protected]
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