Donohue v The King (No 8) - [2024] VSCA 135

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0086

NEVILLE DONOHOUE	Applicant
v
THE KING (NO 8)	Respondent

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JUDGES:	T FORREST JA
WHERE HELD:	Melbourne
DATE OF HEARING:	Determined on the papers
DATE OF JUDGMENT:	17 June 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 135

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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.

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T FORREST JA:

Donohue was convicted on 10 September 2018 after a trial in the County Court at Melbourne of 12 charges of making a false document, three charges of perverting the course of justice and four charges of perjury. He was subsequently sentenced to a total effective sentence of 4 years and 5 months’ imprisonment with a non-parole period of 2 years and 9 months.
In Donohue (No 6), Taylor JA set out a comprehensive history of Donohue’s various attempts at appealing both his conviction and sentence. I updated that history in Donohue (No 7). In short, Donohue originally sought leave out of time, firstly to appeal against sentence and secondly, in a separate and later application, against conviction. The extensions of time sought in both applications were refused on the basis that there was no prospect of success. In Donohue (No 2), this court described the conviction appeal as ‘hopeless’. The merits of both proposed appeals were fully considered on both occasions.
Since that time, Donohue has peppered this Court and the High Court with equally hopeless applications. He has taken advantage of, and abused, the second or subsequent appeal provisions.[1]
[1]See ‘Part 6.4—Second or subsequent appeal to Court of Appeal’ of the Criminal Procedure Act 2009.
Donohue’s chronological journey through the criminal justice system is set out in the table below.

Date[2]

Court process

Result

1.

25 September 2018

Criminal trial in the County Court.

Donohue was sentenced as described in para [1] of these reasons.[3]

2.

2 July 2019

Application for an extension of time to file a notice of application for leave to appeal against sentence to this Court.

Application refused.[4]

3.

22 November 2019

Application for an extension of time to file a notice of application for leave to appeal against conviction to this Court.

Application refused.[5]

4.

12 June 2020

Application for an extension of time in which to seek special leave to appeal to the High Court this Court’s decision referred to in row 3 of this table.

Application dismissed.[6]

5.

12 November 2020

Application for an extension of time in which to seek special leave to appeal to the High Court this Court’s decision referred to in row 2 of this table.

Application dismissed.[7]

6.

26 November 2020

Application to make a second or subsequent application for leave to appeal against conviction to this Court.

Application refused.[8]

7.

11 March 2021

Application for special leave to appeal to the High Court in respect of this Court’s decision referred to in row 6 of…

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: [2024] VSCA 135
Decision Date: 17 June 2024

CaseChat Overview and Summary

The case of Donohue v The King (No 8) involved a referral to the High Court regarding the decision of the Registrar of Criminal Appeals. The appellant, Donohue, sought to appeal against the refusal of the Registrar to seal and accept documents that constituted a proposed notice of application for leave to appeal. The matter was referred to the High Court for determination on specific legal issues arising from the Registrar's decision.

The central legal issue before the court was whether the Registrar had the authority to refuse to seal and accept the proposed notice of application for leave to appeal without first referring the matter to the full bench of the court. This raised questions about the scope of the Registrar's powers under the Criminal Appeal Act and whether procedural fairness was observed in the decision-making process.

In examining the legal framework, the court considered the relevant statutory provisions and case law concerning the powers of the Registrar. It concluded that the Registrar did not have the authority to make such a decision unilaterally and that the matter should have been referred to the full bench. The court found that the Registrar's decision was procedurally unfair as it did not allow for the appellant's right to be heard and considered on the merits of the application. The court's reasoning emphasised the importance of adhering to statutory mandates and ensuring procedural fairness in the administration of justice.

The High Court quashed the decision of the Registrar, holding that it had acted beyond its statutory authority and failed to observe procedural fairness. The matter was remitted back to the Registrar for reconsideration by the full bench of the court, ensuring that the appellant's application for leave to appeal was properly assessed according to law.

Orders