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Donohue v The King

Donohue v The King

Case [2024] VSCA 91 10 May 2024

Appeal

Jurisdiction

Refusal to Seal Documents

Criminal Law

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Donohue v The King

Details

AGLC: Donohue v The King [2024] VSCA 91
Case: [2024] VSCA 91
Decision Date: 10 May 2024

CaseChat Overview and Summary

Donohue v The King concerns a referral made by the appellant, Donohue, regarding the Registrar of Criminal Appeals' decision to refuse to seal and reject certain documents that constituted a proposed notice of application for leave to appeal against his conviction. The case was heard by the High Court of Australia.

The central legal issue before the court was whether the decision of the Registrar of Criminal Appeals was subject to judicial review and, if so, whether the court should grant leave to appeal against the conviction. The court was required to determine the scope of judicial review in relation to decisions made by the Registrar of Criminal Appeals and the criteria for granting leave to appeal against a conviction.

In its reasoning, the court found that the Registrar of Criminal Appeals' decision was indeed subject to judicial review. It was determined that the Registrar had exercised a power that was subject to the common law rules of procedural fairness and the statutory framework governing the court's appellate jurisdiction. The court found that the Registrar's decision to reject the proposed notice of application for leave to appeal was flawed, as it failed to provide the appellant with an adequate opportunity to address the issues raised. Consequently, the court granted leave to appeal against the conviction.

The court's decision highlights the importance of procedural fairness in administrative decision-making and the need for courts to ensure that decisions made by the Registrar of Criminal Appeals comply with the relevant legal standards. The court's ruling ultimately allowed the appellant to pursue his appeal against the conviction, providing a remedy for the procedural shortcomings identified in the Registrar's decision.

Orders