Donohue v The King (No 6) - [2023] VSCA 224

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0142

NEVILLE DONOHUE	Applicant
v
THE KING	Respondent

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JUDGES:	TAYLOR JA
WHERE HELD:	Melbourne
DATE OF HEARING:	Determined on the papers
DATE OF JUDGMENT:	15 September 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 224

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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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TAYLOR JA:

Introduction and summary

On 29 July 2023 the applicant submitted three documents for filing in this Court via the e-filing system, RedCrest. They were:
(a)a notice of application for leave to appeal against conviction (Form 6-2A) dated 26 September 2022 and 29 July 2023;
(b)a written case dated 29 July 2023; and
(c)an image of a Department of Veterans’ Affairs card.
By submitting these documents, the applicant sought to make a second or subsequent application for leave to appeal pursuant to s 326A of the Criminal Procedure Act 2009 (‘CPA’) in relation to his 2018 conviction in the County Court.
The Registrar of Criminal Appeals (‘Registrar’) determined that, if sealed, the documents would be irregular and constitute an abuse of process. The Registrar further determined that the documents failed to comply with the Supreme Court (Criminal Procedure) Rules 2017 (‘Rules’) and Practice Notes SC CA 1 and SC CA 4. Accordingly, the Registrar refused to seal the documents and rejected them.[1]
[1]Rules, r 1A.04(1) and (2).
On 10 August 2023 the Registrar notified the applicant that the documents had not been accepted for filing and provided reasons for why they were not accepted.[2]
[2]Rules, r 1A.04(3).
On 14 August 2023 the applicant sought review of the Registrar’s decision. That review has been referred to me pursuant to r 1A.04(4) and (5) of the Rules.
For the reasons that follow, I find that the Registrar’s decision to refuse to seal the applicant’s documents and to reject them was correct.

Procedural history

This matter has a lengthy history.
On 10 September 2018 the applicant was convicted by a jury in the County Court of 12 charges of making a false document, three charges of attempting to pervert the course of justice and four charges of perjury. 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.
The false document and attempt to pervert the course of justice offending related to a series of false letters prepared by the applicant and submitted to the Ringwood Magistrates’ Court for the purpose of misleading that court as to the true status of his health and avoiding the finalisation of a number of dishonesty charges. The perjury charges related to a series of statutory declarations in which the applicant knowingly and falsely swore that he could not attend the Ringwood Magistrates’ Court because he was required for urgent or…

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: [2023] VSCA 224
Decision Date: 15 September 2023

CaseChat Overview and Summary

In the case of Donohue v The King, the appellant sought to appeal against a conviction, which was initially rejected by the Registrar of Criminal Appeals. The Registrar had refused to seal and rejected the documents that constituted the proposed notice of application for leave to appeal. The appellant then sought a review of the Registrar’s decision. The legal issues that arose from this case pertained to the interpretation and application of the Supreme Court (Criminal Procedure) Rules 2017, specifically rules 1A.04(1), (2), (4), and (5).

The court had to consider whether the Registrar's decision to refuse to seal and reject the documents was in accordance with the rules and whether the Registrar had exercised their discretion appropriately. The court examined the procedural fairness of the Registrar's decision and the adequacy of the reasons provided. It was necessary to determine whether the appellant had a legitimate expectation of being provided with the documents and whether the Registrar had followed the correct procedure as outlined in the rules.

The court found that the Registrar's decision was made in accordance with the rules and that there was no procedural unfairness. The Registrar had correctly exercised their discretion and provided adequate reasons for their decision. The court held that the appellant had not demonstrated that the Registrar had acted beyond their powers or in a manner that was unjust or unreasonable. Consequently, the appeal against the Registrar's decision was dismissed.

The final orders of the court were that the appeal against the Registrar's decision was dismissed, and the Registrar's decision to refuse to seal and reject the documents was upheld. The appellant was not granted leave to appeal against the conviction.

Orders