Donohue v The King (No 6)
[2023] VSCA 224
•15 September 2023
| 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 special military duty or required to go on interstate federal government duty.
At trial the applicant claimed that he was a covert operative within the Australian Signals Directorate and that the various documents produced to the Ringwood Magistrates’ Court were, in substance, true.
On 9 December 2018 the applicant filed an application for an extension of time to file a notice of application for leave to appeal against sentence pursuant to s 278 of the CPA. That application was refused.[3] Priest and Beach JJA found, pursuant to s 280(1)(b) of the CPA, that even if the applicant could establish some error in his sentence, there was no prospect that this Court would impose a less severe sentence than the sentence first imposed.
[3]Donohue v The Queen [2019] VSCA 160 (Priest and Beach JJA) (‘Donohue’).
On 8 July 2018 the applicant filed an application for an extension of time to file a notice of application for leave to appeal against his conviction pursuant to s 274 of the CPA. That application was refused.[4] Priest and Beach JJA determined that the putative appeal against conviction was ‘hopeless’.[5] Their Honours reproduced the applicant’s handwritten submissions[6] and then said:
[4]Donohue v The Queen (No. 2) [2019] VSCA 274 (Priest and Beach JJA) (‘Donohue (No. 2)’)
[5]Ibid [7].
[6]Ibid [10].
Doing the best we can to distil their essence, we think that the applicant’s written submissions advance the following contentions under cover of his first proposed ground of appeal:
·first, although the applicant concedes that false documents (in the form of letters) were presented to the Magistrates’ Court, there was no attempt to pervert the course of justice (charges 6, 12 and 15) because the information in the documents was ‘basically correct’;
·secondly, the applicant did not commit perjury (charges 16 to 19), because ‘the sworn information was true’;
·thirdly, false and misleading evidence was given by prosecution witnesses Michael Porter, Mark Zorzi, Haitham Elgohary and Denise Brennan, principally because they did not have access to all relevant databases and information; and
·fourthly, the prosecutor presented misleading information in the applicant’s trial, by withholding crucial information about the applicant’s service record.
With respect to his second proposed ground, we think the following contentions can be distilled from the applicant’s written submissions:
·first, information about the applicant’s mental health, and how it had an impact on his offending, was ‘not allowed to be considered by the jury’ (though available);
·secondly, the judge should of his own motion have sought a current psychiatric report from Forensicare; and
·thirdly, the verdict is unsafe and unsatisfactory, because the jury were not properly apprised of the applicant’s mental health during his offending.[7]
[7]Ibid [11]–[12].
In respect of ground 1, Priest and Beach JJA held that the prosecution evidence at trial (and particularly of the witnesses named in that proposed ground of appeal) compelled the conclusion that the applicant had never carried out any secret military service and that there was no database or record demonstrating that he had ever been a covert operative.[8] In respect of ground 2, their Honours noted that the applicant had been represented by counsel at trial and that counsel did not attempt to mount a defence based on any aspect of the applicant’s mental health.[9] Further, there was nothing that occurred in the trial — including the applicant’s ‘bizarre defence’ — which should have alerted the trial judge to any real and substantial question as to the applicant’s fitness to stand trial.[10] Further, there was nothing in the mental health evidence, which was not put before the jury, that could have had any bearing on the applicant’s mental condition at the time of the offending.[11]
[8]Ibid [22].
[9]Ibid [24], [33].
[10]Ibid [26]–[29].
[11]Ibid [31]–[32].
Following Donohue (No. 2), the applicant sought an extension of time in which to seek special leave to appeal that decision to the High Court. On 12 June 2020 that application was dismissed. The High Court found that the applicant had identified no question of principle which it would be in the interests of justice for that Court to consider and no reason to doubt the correctness of this Court’s decision.[12] A similar application in respect of Donohue was refused by the High Court on 12 November 2020.[13]
[12]Donohue v The Queen [2020] HCASL 130 (Nettle and Gordon JJ).
[13]Donohue v The Queen [2020] HCASL 242 (Bell and Gageler JJ).
On 6 October 2020 the applicant filed a notice of application for leave to appeal against conviction, purportedly pursuant to s 362A of the CPA. That application was refused.[14] The Court observed:
When the terms of the Application for Special Leave are compared with the terms of the Written Case filed in support of the applicant’s most recent application in this Court, it becomes abundantly clear that the present application seeks simply to re-agitate issues that were finally determined by the dismissal of the application in the High Court.[15]
Those issues were the alleged false and misleading evidence concerning the applicant’s secret military service and his mental health.
The Court concluded as follows:
Since it is plain that by this third application the applicant simply seeks once more to litigate issues that had been determined against him both in this Court and in the High Court, it is equally plain that the present application cannot be viewed as other than an abuse of process. Putting to one side the power to entertain a second or subsequent appeal in the case of fresh and compelling evidence provided for in Part 6.4 of the [CPA], when an application for leave to appeal or an appeal has once been fully heard and disposed of on the merits, there simply is no jurisdiction to re-open it.
In the course of the hearing of this third application, in which the applicant was unrepresented, this Court explained to him the meanings of fresh and compelling as used in s 326C of the CPA. When he was then asked by the Court to outline the fresh and compelling evidence upon which he sought to rely, the applicant merely repeated several matters already set out in his Written Case which were not fresh, and were far from compelling.[16]
[14]Donohue v The Queen (No. 3) [2020] VSCA 302 (Priest, Niall and T Forrest JJA) (‘Donohue (No. 3)’).
[15]Ibid [10].
[16]Ibid [13]–[14] (citations omitted).
The applicant sought special leave to appeal to the High Court in respect of the above decision. On 11 March 2021 that application was dismissed. The High Court stated that the application was an abuse of process as it sought to re-agitate issues that had been finally determined.[17]
[17]Donohue v The Queen [2021] HCASL 45.
On 5 September 2022 the applicant submitted three documents for filing in this Court via RedCrest. They were:
(a)a notice of application for leave to appeal against conviction (Form 6-2A) dated 5 September 2022;
(b)a written case dated 5 September 2022; and
(c)an image of a Department of Veterans’ Affairs card.
By submitting the above documents, the applicant sought to make a second or subsequent application for leave to appeal pursuant to s 326A of the CPA. The Registrar refused to seal the documents and rejected them. The reasons for that rejection were communicated to the applicant on 12 September 2022.
The applicant sought a referral of the Registrar’s decision to a judge of this Court. On 21 September 2022 Kaye JA held that that decision was correct.[18]
[18]Donohue v The King [2022] VSCA 206 (Kaye JA) (‘Donohue (No. 4)’).
His Honour noted that both the applicant’s notice of application for leave to appeal and written case purported to seek leave to appeal against the verdicts of the jury in the County Court (purportedly under s 326A of the CPA) and also against the decisions of this Court in Donohue (No. 2) and Donohue (No. 3). His Honour held that insofar as the proposed notice sought leave to appeal those decisions of this Court, it was misconceived and an abuse of process.[19]
[19]Ibid [18].
With respect to the further s 326A CPA application, Kaye JA found that neither the intended grounds of appeal nor the written case pointed to, or were based on, any fresh and compelling evidence.[20] Each proposed ground stated that this Court in Donohue (No. 3) failed to ‘acknowledge’ evidence asserted to be ‘compelling and critical’, ‘fresh and compelling’ or ‘compelling’. That is, the complaint was that such evidence was before this Court, but it was not ‘acknowledged’.[21] The proposed grounds were, in substance, a re-agitation of the grounds upon which the application in Donohue (No. 3) was dismissed.[22]
[20]Ibid [22].
[21]Ibid [23].
[22]Ibid [24]. See also [26] comparing the proposed grounds of appeal as between Donohue (No. 3) and Donohue (No. 4).
Prior to the delivery of reasons in Donohue (No. 4) and two days after the communication of the Registrar’s decision to reject the 5 September 2022 documents, the applicant, on 14 September 2022, submitted a further three documents for filing via RedCrest. They were:
(a)a notice of application for leave to appeal against conviction (Form 6-2A) dated 14 September 2022;
(b)a written case dated 14 September 2022; and
(c)an image of a Department of Veterans’ Affairs card.
The first two documents were substantially similar to the first two documents submitted on 5 September 2022. The third was identical to the image previously submitted.
On 21 September 2022 the Registrar rejected the 14 September 2022 documents ‘for the same reasons as set out in’ Donohue (No. 4).
On 26 September 2022 the applicant again submitted three documents for filing in this Court via RedCrest. They were:
(a)a notice of application for leave to appeal against conviction (Form 6-2A) dated 26 September 2022;
(b)a written case dated 26 September 2022; and
(c)an image of Department of Veterans’ Affairs card.
The Registrar refused to seal the documents and rejected them. The reasons for that rejection were communicated to the applicant on 6 October 2022. That communication included the following:
Your 26 September 2022 documents are, in substance, the same as those submitted on 5 and 14 September 2022. Although slightly reworded in parts, they continue to seek to re-agitate maters you relied upon in your previous applications to the Court of Appeal for leave to appeal against conviction. By way of example only, the following table identifies, for each ground of appeal in your 26 September 2022 notice of application for leave to appeal, the corresponding ground of appeal in your 5 September 2022 notice of application for leave to appeal.
Ground in notice of application for leave to appeal against conviction dated 26 September 2022 Corresponding ground in notice of application for leave to appeal against conviction dated 5 September 2022 Ground (i) Ground (i) Ground (ii) Ground (ii) Ground (iii) Grounds (i) and (ii) Ground (iv) Ground (iv) Ground (v) Ground (v) Ground (vi) Ground (vi) Ground (vii) Ground (vii) Ground (viii) Ground (vii) Ground (ix) Ground (xii) A similar comparison can be made between the 26 September 2022 written case with the 5 September 2022 written case.
It is noted that your 26 September 2022 notice of application for leave to appeal against conviction includes statements such as:
‘Evidence that was not present to the jury for their consideration during the trial is fresh evidence, and remains fresh until it is acknowledged and fully dealt with in a court of appeal, including the right of the appellant to speak to that evidence in a court of appeal.’
and
‘… my previous applications for leave to appeal were denied, which means that I have been denied the right to present this evidence to a court of appeal, along with my right to speak to the fresh & compelling evidence in a court of appeal, and therefore the fresh & compelling evidence remains outstanding.’
By your 26 September 2022 documents you seek to apply for leave to appeal against conviction on the basis of matters that you put to the Court of Appeal in support of your previous applications. To be clear, the fact that the previous applications were refused does not mean you are at liberty to pursue the same matters again in support of a new application. On the contrary, having already argued them in support of applications that have been determined by the Court of Appeal and High Court, it would be irregular and an abuse of process to accept an application for filing in which you seek to do so again.
At the applicant’s request, the Registrar’s decision was referred to a judge of this Court. On 25 October 2022 Kennedy JA held that the Registrar’s decision was correct.[23]
[23]Donohue v The King (No. 5) [2022] VSCA 232 (Kennedy JA) (‘Donohue (No. 5)’).
Her Honour held that the proposed grounds did not identify any fresh and compelling evidence within the meaning of s 326C of the CPA. While the applicant avoided express use of the word ‘acknowledge’, his complaint was in substance that the Court of Appeal had wrongly dealt with evidence already before it.[24] Further, the slightly re-worded 26 September 2022 documents were in substance the same as those submitted on 5 September and sought to re-agitate matters previously determined.[25] The applicant’s assertion that he had been denied ‘the right to speak’ was without merit. The findings in Donohue (No. 2) and Donohue (No. 3) were preceded by oral hearings.[26]
[24]Ibid [13].
[25]Ibid [14]–[15].
[26]Ibid [16].
On 16 November 2022 the applicant sought special leave to appeal to the High Court the decision of Kennedy JA in Donohue (No. 5). On 9 March 2023 special leave was refused on the basis that the application sought to re-agitate issues that had been finally determined and was, therefore, an abuse of process.[27]
[27]Donohue v The King [2023] HCASL 28 (Steward and Gleeson JJ).
Analysis
This much is plain from the above procedural history. Following the dismissal of his application for an extension of time to file a notice of leave to appeal against conviction in Donohue (No. 2) — in which the (lack of) merit of the proposed grounds was analysed — the applicant has on five occasions submitted documents to this Court seeking leave to bring a ‘second or subsequent appeal’ pursuant to s 326A of the CPA. On the first of those five occasions the documents were sealed and accepted. In Donohue (No. 3) the application for leave was refused. On each of the four subsequent occasions, the Registrar refused to seal the documents and rejected them under the Rules. Of those four occasions, this is the third time the applicant has sought review of the Registrar’s decision by a judge of this Court. Further, the applicant has three times sought special leave to appeal against a decision of this Court concerning his conviction to the High Court. On each occasion he has been unsuccessful.
What is also plain is that the documents submitted by the applicant, since Donohue (No. 3), by which he seeks leave under s 326A, vary somewhat in the language used but vary very little in substance. Further, they are identical in form. That is, on each occasion the applicant has submitted a notice of application for leave to appeal against conviction (Form 6-2A), a written case and an image of his Department of Veterans’ Affairs card. Kaye JA in Donohue (No. 4) and Kennedy JA in Donohue (No. 5), respectively, identified the commonality of substance. The Registrar’s communication to the applicant on 6 October 2022, reproduced at paragraph 26 above, did no less.
The 29 July 2023 documents rejected by the Registrar do not vary in substance at all from the 26 September 2022 documents. Indeed the only difference in them is that the notice of application for leave to appeal against conviction and written case are dated 29 July 2023 rather than 26 September 2022, although the notice of application for leave to appeal bears both dates.
Therefore I find, as Kennedy JA did in Donohue (No. 5), with respect to the identical 26 September 2022 documents, that the applicant has not adduced any fresh and compelling evidence within the meaning of s 326C of the CPA which should be considered by way of a third appeal. He has yet again sought leave to appeal against conviction on the basis of matters that have already been argued in support of applications that have been finally determined by this Court and the High Court.
To accept the notice of application for leave to appeal in such circumstances would be substantially irregular and would constitute an abuse of process.
It follows that the Registrar’s decision to refuse to seal the documents and to reject them was correct.
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