Donohue v The King (No 5) - [2022] VSCA 232

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0148

NEVILLE DONOHUE	Applicant
v
THE KING [NO 5]	Respondent

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JUDGES:	KENNEDY JA
WHERE HELD:	Melbourne
DATE OF HEARING:	Determined on the papers
DATE OF JUDGMENT:	25 October 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 232

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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.

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

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KENNEDY JA:

The applicant has sought to file three documents by which he seeks to make a second or subsequent application for leave to appeal under s 326A of the Criminal Procedure Act 2009 (the ‘Act’).
The documents he has sought to submit are:
(a)notice of application for leave to appeal against conviction (Form 6-2A) dated 26 September 2022;
(b)written case dated 26 September 2022; and
(c)Department of Veterans’ Affairs card.
On 6 October 2022, the Registrar of Criminal Appeals of the Court of Appeal, exercising his powers under r 1A.04(1) and (2) of the Supreme Court (Criminal Procedure) Rules 2017 (the ‘Rules’), refused to seal the documents. He considered that if they were sealed, the documents would constitute an abuse of process.
Following the request of the applicant dated 10 October 2022, the decision of the Registrar has been referred to me pursuant to r 1A.04(4) and (5) of the Rules.

Background

The background to the proposed application is complex. Given this background has been recently set out in the decision of Kaye JA,[1] a brief background suffices for present purposes.
[1]Donohue v The King [2022] VSCA 206, [1]–[12].
On 10 September 2018, the applicant was convicted in the County Court of 12 charges of making a false document, four charges of perjury and three charges of attempting to pervert the course of justice. 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.
As well as an unsuccessful attempt to challenge his sentence,[2] the applicant has unsuccessfully sought to challenge his conviction on numerous occasions:
•On 12 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 (the ‘first conviction appeal’) which was refused by this Court on 25 November 2019.[3] The Court recorded that each of the two proposed grounds of appeal were ‘devoid of merit’.[4]
•A subsequent application to the High Court for an extension of time to seek special leave to appeal the decision of the Court on the first conviction appeal was refused.[5]
•On 6 October 2020, the applicant again 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 (the ‘second conviction appeal’). On 26 November 2020, the Court refused the application…

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.

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Details

Case: [2022] VSCA 232
Decision Date: 25 October 2022

CaseChat Overview and Summary

The case of Donohue v The King (No 5) involved the appellant, Donohue, who sought to appeal against his conviction. The Registrar of Criminal Appeals had previously declined to seal and rejected documents that constituted a proposed notice of application for leave to appeal. The matter was brought before the court to challenge the Registrar's decision.

The primary legal issue for the court to address was whether the Registrar had the authority to reject the documents as they pertained to the application for leave to appeal. The court also needed to consider whether the Registrar's decision was in accordance with the relevant provisions of the Supreme Court (Criminal Procedure) Rules 2017, specifically sections 1A.04(1), (2), (4), and (5).

In examining the matter, the court found that the Registrar had exercised their discretion under the relevant rules appropriately. The court held that the Registrar's decision to refuse to seal and reject the documents was consistent with the statutory framework governing criminal appeals. The court noted that the appellant had failed to provide sufficient grounds to warrant the court intervening in the Registrar's decision. The appeal was ultimately dismissed as the court found no merit in the appellant's arguments.

No additional orders were made by the court beyond the dismissal of the appeal.

Orders