Donohue v The King - [2022] VSCA 206

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…

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 [2022] VSCA 206
Case: [2022] VSCA 206
Decision Date: 21 September 2022

CaseChat Overview and Summary

The case of Donohue v The King involved the appellant, Donohue, seeking to appeal his conviction, which was initially rejected by the Registrar of the Criminal Division. The Registrar had both refused to seal the documents necessary for the appeal and rejected the proposed notice of application for leave to appeal. The High Court was tasked with determining whether the appeal could proceed under the circumstances presented.

The central legal issue was whether the Registrar's refusal to seal the documents and reject the notice of application for leave to appeal was justified. This required the Court to consider the procedural requirements for an appeal and the discretion vested in the Registrar. The appellant argued that the Registrar's decision was an abuse of power, given the lack of procedural fairness and the potential impact on his right to a fair appeal process.

The High Court found that the Registrar's decisions were not an abuse of power. The Court held that the Registrar had correctly exercised their discretion in refusing to seal the documents and rejecting the notice of application for leave to appeal. The Court determined that the appellant had not demonstrated any procedural unfairness or an error in the exercise of the Registrar's discretion. As a result, the Court dismissed the appeal, upholding the Registrar's decisions.

No additional orders were made by the Court beyond dismissing the appeal and affirming the Registrar's decisions.

Orders