Donohue v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0130

NEVILLE DONOHUE	Applicant
v
THE KING	Respondent

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JUDGES:	KAYE JA
WHERE HELD:	Melbourne
DATE OF HEARING:	Determined on the papers
DATE OF JUDGMENT:	21 September 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 206

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REFERRAL of decision of Registrar of the Criminal Division to refuse to seal, and to reject proposed notice of application for leave to appeal against conviction.

Supreme Court (Criminal Procedure) Rules 2017, r 1A.04(1), (2), (4) and (5).

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KAYE JA:

The applicant has sought to file a notice of application for leave to appeal against his conviction in the County Court on twelve charges of making a false document, four charges of perjury and three charges of attempting to pervert the course of justice. The Registrar of the Criminal Division of the Court of Appeal, exercising his powers under r 1A.04(1) and (2) of the Supreme Court (Criminal Procedure) Rules 2017 (‘the Criminal Procedure Rules’), has refused to seal the document, and has rejected it, because the registrar considers that the document, if it were sealed, would constitute an abuse of process. The decision of the Registrar has been referred to me, at the request of the applicant, pursuant to r 1A.04(4) and (5) of those rules.
The background to the proposed application for leave to appeal is quite complex, but for the present purpose, it is only necessary to set it out in a relatively brief compass.
The applicant was convicted of the charges to which I have referred on 10 September 2018. On 25 September 2018, he was 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 for an extension of time within which to seek leave to appeal against his sentence. That application was refused, on the basis that the proposed appeal had no prospects of success.[1]
[1]Donohue v The Queen [2018] VSCA 160 [54] (Priest and Beach JJA).
Subsequently, on 8 July 2019, the applicant filed an application seeking an extension of time within which to bring an application for leave to appeal against his conviction. In these reasons, I shall refer to the application as the ‘first conviction appeal’. The proposed appeal was sought to be brought on two grounds. In essence, the first ground was to the effect that: false and misleading evidence had been knowingly given to the Court by four prosecution witnesses; an officer of the Australian Government Solicitor (‘AGS’) had been precluded from providing relevant information to the Court about the applicant’s background; and the prosecutor had presented misleading information to the Court concerning crucial aspects of his military service. The second ground, in substance, was to the effect that the jury had been precluded from being provided with full information about the applicant’s mental health history, both at the time of the offending and also during the trial.
The application was heard on 25 November 2019. Priest and Beach JJA, having heard submissions by the applicant, refused the application for an extension of time within which to seek leave to appeal.[2] Their Honours considered that each of the two proposed grounds of appeal were ‘devoid of merit’.[3]
[2]Donohue v The Queen (No. 2) [2019] VSCA 274.
[3]Ibid [14], [23].
The applicant then brought applications to the High Court, seeking special leave to appeal in respect of the two decisions of the Court of Appeal. In each application, the applicant sought an extension of time within which to seek special leave to appeal against the Court’s decisions. The High Court refused each application.
On 12 June 2020, Nettle and Gordon JJ refused the application for an extension of time to appeal the decision of the Court on the first conviction appeal, for the following reasons:
It would be futile to grant the extension of time which is sought. The applicant identifies no question of principle which it would be in the interests of justice for this Court to consider and no reason to doubt the correctness of the Court of Appeal’s judgment. An appeal to this Court would enjoy no prospect of success.[4]
[4]Donohue v The Queen [2020] HCASL 130.
Subsequently, on 12 November 2020, the High Court refused the applicant’s application for an extension of time to seek leave to appeal against the decision of the Court of Appeal relating to his sentence, for the following reasons:
An appeal to this Court would enjoy insufficient prospects of success to warrant a grant of special leave. Accordingly, it would be futile to grant the extension of time sought by the applicant. Special leave should be refused.[5]
[5]Donohue v The Queen [2020] HCASL 242 (Bell and Gageler JJ).
In the meantime, the applicant, by notice dated 9 September 2020, sought leave to appeal to the Court of Appeal against his conviction, and also against the decision of Priest and Beach JJA in the first conviction appeal. I shall refer to that application as ‘the second conviction appeal’. The proposed grounds of the application for leave to appeal were as follows:
Take notice that I apply to the Supreme Court of Victoria, Court of Appeals, that the whole, or part of the conviction of Judge Carmody, and the judgement of Judges Priest & Beach, as follows:
(1)      Fresh evidence was not put before the jury:
(i)the critical evidence of the AGS (Australian Government Solicitor)
(ii)the critical evidence of the applicant’s service in the Australian Special Forces
(iii)that the critical evidence from Mr Donohue’s laptop computers was not supplied by VicPol forensics as directed by the court, and therefore wasn’t available for the jury’s consideration
(iv)evidence raised by Justices Priest & Beach re: “the CMI Act”, Madaferri, and Kesavarajah
(2)      Fresh evidence not put before the Court of Appeal:
(i)the critical evidence of the AGS (Australian Government Solicitor)
(ii)withholding of Judge Carmody’s flawed & prejudiced “charge to the jury”
(3)      That Judge Carmody and/or Judges Priest & Beach failed to:
(i)acknowledge that the critical evidence of the AGS (Australian Government Solicitor) was withheld from the jury by Judge Carmody
(ii)acknowledge the applicant’s service in the Australian Special Forces
(iii)acknowledge the defective/contradictory evidence of the Crown’s federal government witnesses
(iv)acknowledge the impact of the 13 month gap in the trial from 2017 to 2018
(v)acknowledge the omission of Judge Carmody’s “charge to the jury” which was flawed and prejudiced (and which he has refused to release-avoiding scrutiny by a higher court)
(vi)acknowledge that the critical evidence from Mr Donohue’s laptop computers was not supplied by VicPol forensics as directed by the court, and that it wasn't made available to the jury
(vii)properly address the clear evidence of the applicant’s mental illness
(viii)properly address the improper direction of Judge Carmody to “ignore” most of the psychological evidence and/or order a current Forensicare report
(ix)properly address Judge Carmody’s failure to invoke “the CMI Act”.
The orders that will be sought:
(i)That the whole of the judgement of the Supreme Court of Victoria, Court of Appeals given on 25 Nov 2019, [2019] VSCA274 be quashed.
(ii)That the conviction of the County Court, Melbourne given 10 Sep 2018 [2018] VCC1578 be wholly or partially quashed.
The second conviction appeal was heard before the Court of Appeal on 19 November 2020. On 26 November 2020, the Court, comprising Priest, Niall and T Forrest JJA, refused the application for leave to appeal.[6] The Court compared the written case, that had been filed in respect of the first conviction appeal, with the written case filed in respect of the instant appeal, and concluded that the application before it sought to re-agitate the same issues that had been finally determined by dismissal of the application for special leave to appeal to the High Court.[7] The Court noted that the applicant had not identified any matter which constituted ‘fresh and compelling evidence’ pursuant to s 326C of the Criminal Procedure Act 2009.[8]
[6]Donohue v The Queen (No. 3) [2020] VSCA 302 (‘the second conviction appeal’).
[7]Ibid [10], [13].
[8]Ibid [14].
The applicant then sought special leave to appeal to the High Court against that decision. On 11 March 2021, that application was refused for the following reasons:
This application for special leave to appeal is an abuse of processing, seeking as it does to re-agitate issues that have been finally determined. The application for special leave should therefore be refused.[9]
[9]Donohue v The Queen [2021] HCASL 45 (Keane and Edelman JJ).

Notice of application for leave to appeal against conviction

The notice of application for leave to appeal against conviction, which is now under consideration, is dated 5 September 2022. The notice commences by stating that the applicant wishes to appeal to the Court of Appeal, and makes application for leave to appeal, the whole of the judgment of the Court of Appeal in the second conviction appeal, the whole of the judgement of the Court of Appeal in the first conviction appeal, and the ‘conviction of the County Court … on 10 September 2018’.
The grounds of appeal, contained in the notice, are as follows:
Take notice that I hereby apply for leave to appeal to the Supreme Court of Victoria, Court of Appeals, on the grounds that Judge Carmody and/or Judges Priest & Beach and/or Judges Priest, Niall & T Forrest, in the trial, and appeals against conviction, from THE DPP v DONOHUE CR16-00261/THE DPP v DONOHUE [2018] VCC1578, failed to:
(i)acknowledge the compelling and critical evidence of the attempt to pervert the course of justice by Victoria Police (VicPol) by withholding and manipulating crucial evidence about Mr Donohue’s military and paramilitary service, medical and psychiatric history, and other crucial evidence, on Mr Donohue’s seized laptop computers.
(ii)acknowledge the compelling and critical evidence of Judge Carmody’s deliberate interference with the course of justice and/or attempt to pervert the course of justice by knowingly blocking the jury from hearing and/or seeing the defence evidence from Mr Donohue’s seized laptop computers. Judge Carmody allowed and condoned the manipulation and withholding of this evidence by VicPol.
(iii)acknowledge the compelling and critical evidence of Mr Donohue’s service in the Australian Special Forces, which was kept from the jury.
(iv)acknowledge the fresh & compelling evidence of the defective and contradictory testimony given by the Crown’s federal government witnesses.
(v)acknowledge the fresh & compelling testimony of the Australian Government Solicitor (AGS)
(vi)acknowledge the fresh & compelling evidence of Judge Carmody’s deliberate interference with the course of justice and/or attempt to pervert the course of justice by knowingly blocking the jury from hearing and/or seeing the evidence from the AGS.
(vii)acknowledge the compelling and critical evidence of Mr Donohue’s mental illness.
(viii)acknowledge the compelling evidence of the critical impact of the 13 month gap in the trial from 2017 to 2018.
(ix)acknowledge the compelling and critical evidence of the failures of the previous court/s to fulfil their obligations to the course of justice.
(x)acknowledge the compelling and critical evidence of the “waste of the courts’ time and resources” by Judges Priest, Beach, Niall, and T Forrest, by their failure to exercise their duties in the appeals process, and their responsibilities to the course of justice.
(xi)acknowledge the compelling evidence of the omission of Judge Carmody’s “charge to the jury” which was flawed and prejudiced. Judge Carmody refused to release this to Mr Donohue – thereby avoiding its inclusion by Mr Donohue in his appeals, and subsequent scrutiny by a higher court.
(xii)acknowledge the 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”.
The orders that will be sought:
(i)That the whole of the judgement of the Supreme Court of Victoria, Court of Appeals given on 26 Nov 2020, DONOHUE v THE QUEEN [S EAPCR 2020 0209] be quashed.
(ii)That the whole of the judgement of the Supreme Court of Victoria, Court of Appeals given on 25 Nov 2019, DONOHUE v THE QUEEN [2019] VSCA274 be quashed.
(iii)That the whole of the Conviction of the County Court, Melbourne, given 10 Sep 2018, THE DPP v DONOHUE [2018] VCC1578 be quashed.

Analysis and conclusion

The notice of application for leave to appeal against conviction, and the written case, that are sought to be filed in the present matter, were prepared by the applicant himself. I am conscious that the applicant is not a trained lawyer, and I have taken that matter into account in considering the bases upon which the applicant now seeks to commence the present appeal.
Both the notice of application for leave to appeal, and the written case, each purport by their terms, to seek leave to appeal against the verdicts of the jury in the County Court, and also against the decision of the Court of Appeal in the first conviction appeal and the decision of the Court of Appeal in the second conviction appeal.
It is not competent for the Court of Appeal to entertain an appeal, or an application for leave to appeal, against a decision made by the Court. The Court of Appeal does not have jurisdiction to hear and adjudicate appeal against its own decisions. The only avenue of appeal, from decisions of the Court of Appeal, is by way of special leave to appeal to the High Court. The applicant has already unsuccessfully sought special leave to appeal to that court against the decisions of the Court of Appeal in each of the two conviction appeals.
Thus, insofar as the proposed notice seeks leave to appeal against the decisions of the Court of Appeal in the first and second conviction appeals, it is misconceived and an abuse of process.
The applicant also seeks leave to appeal against his conviction consequent upon the verdicts of the County Court in the trial that was conducted in 2018. The applicant has already made one application for an extension of time for leave to appeal against conviction in the first conviction appeal. That application was refused. In the second conviction appeal, the applicant made a second application for leave to appeal to the Court of Appeal against conviction, purporting to rely on s 326A of the Criminal Procedure Act 2009 (‘the Act’). That application also was unsuccessful. The High Court refused the application for special leave to appeal, against the decision of the Court of Appeal in the second conviction appeal, on the basis that that application was an abuse of process, because it sought to re-agitate issues that had been finally determined in the disposition of the first conviction appeal.
In other words, the High Court rejected the application for special leave to appeal, in the second conviction appeal, because it determined that that application did not seek to raise any new issue, and, in particular, it did not seek to raise any issue involving fresh and compelling evidence, that had not been considered and determined by the Court of Appeal in the first conviction appeal.
Accordingly, in order to be granted leave to appeal against his conviction in the County Court, in the proposed application which is now under consideration, the applicant, pursuant to s 326C of the Act, must satisfy the Court that there is ‘fresh and compelling evidence that should, in the interests of justice, be considered on an appeal’.
For the reasons that follow, it is clear that neither the intended grounds of appeal, nor the applicant’s written case, point to, or are based on, any such fresh and compelling evidence.
By their terms, each of the proposed grounds do not contend that the applicant seeks to put forward and rely on any fresh and compelling evidence. Rather, each ground is based on the proposition that, in the second conviction appeal, the Court of Appeal failed to ‘acknowledge’ evidence which, it is contended, are ‘compelling and critical’, ‘fresh and compelling’, or ‘compelling’. It is implicit in each of those grounds that the evidence in question was actually before the Court of Appeal, but (the grounds allege) the Court of Appeal failed to ‘acknowledge’ such evidence.
That characterisation of each of the grounds, now sought to be relied on, is not the product of a narrow or overly literal construction of those grounds. Rather, on analysis, the grounds, which the applicant now seeks to rely upon, are, in substance, a re-agitation of the grounds, upon which he sought leave to appeal in the second conviction appeal, which was dismissed.
As I have mentioned, the Court of Appeal, in the second conviction appeal, dismissed the application for leave to appeal because the application sought to re-agitate the same issues, that had been finally determined by dismissal of the application for special leave to appeal to the High Court in the first conviction appeal. In turn, the High Court refused the applicant’s special leave to appeal the decision of the Court of Appeal in the second conviction appeal on the grounds that that application sought to re-agitate issues that had been finally determined in the first conviction appeal.
In summary, a comparison of the grounds of appeal in the second conviction appeal and the grounds, now sought to be relied on in the present proposed appeal, reveals the following:
•Grounds (i) and (ii) in the present application are, in substance, the same as ground 1 (iii) and ground 3 (ii) and (6) in the second conviction appeal.
•Ground (iii) in the present application is, in substance, the same as ground 1 (ii) and ground 3 (ii) in the second conviction appeal.
•Ground (iv) in the present application is, in substance, the same as ground 3 (iii) in the second conviction appeal.
•Ground (v) and (vi) of the present application are, in substance, the same as ground 3 (i) in the second conviction appeal.
•Ground (vii) in the present application is, in substance, the same as ground 3 (vii) in the second conviction appeal.
•Ground (viii) in the present application is, in substance, the same as ground 3 (iv) in the second conviction appeal.
•Grounds (ix) and (x) in the present application are, in substance, the same as ground 3 in the second conviction appeal.
•Grounds (xi) and (xii) in the present application are, in substance, the same as ground 3 (v) in the second conviction appeal.
Paragraphs 1 to 6, and paragraph 8, of the written case prepared by the applicant, in effect, are directed to supporting and elaborating on each of the proposed grounds of appeal. Paragraph 7, in specific terms, purports to identify what it describes as ‘serious errors’ in the decision of Priest and Beach JJA in the first conviction appeal.
Thus, none of the matters, raised in the proposed grounds of appeal or in the written case, identify any aspect of the proposed application, which could form the basis of a contention that there is fresh and compelling evidence, which, in the interests of justice, should be considered by way of a third appeal to the Court of Appeal. Rather, quite plainly, the proposed grounds of appeal, and the written case, seek to re-agitate, matters which were put to the Court in the first conviction appeal, and in the second conviction appeal.

Accordingly, the notice of application for leave to appeal against conviction, if it were sealed, would be substantially irregular, and it would constitute an abuse of the process of the Court.
For those reasons, the Registrar was correct to refuse to seal the document, and to reject the document, pursuant to r 1A.04(1) and (2) of the Criminal Procedure Rules.

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[2022] VSCA 206

21 September 2022