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:

1. 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.

2. 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.

3. 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.

4. 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 this table.	Application dismissed.[9]
8.	12 September 2022	Application to make a second or subsequent application for leave to appeal against conviction to this Court.	The Registrar refused to seal the documents and rejected them.
9.	21 September 2022	Application for a review of the Registrar’s decision referred to in row 8 of this table.	Application refused.[10]
10.	21 September 2022	Application to make a second or subsequent application for leave to appeal against conviction to this Court.	The Registrar refused to seal the documents and rejected them.
11.	6 October 2022	Application to make a second or subsequent application for leave to appeal against conviction to this Court.	The Registrar refused to seal the documents and rejected them.
12.	25 October 2022	Application for a review of the Registrar’s decision referred to in row 11 of this table.	Application refused.[11]
13.	9 March 2023	Application for special leave to appeal to the High Court in respect of this Court’s decision referred to in row 12 of this table.	Application refused.[12]
14.	10 August 2023	Application to make a second or subsequent application for leave to appeal against conviction to this Court.	The Registrar refused to seal the documents and rejected them.
15.	15 September 2023	Application for a review of the Registrar’s decision referred to in row 14 of this table.	Application refused.[13]
16.	4 March 2024	Application to make a second or subsequent application for leave to appeal against conviction to this Court.	The Registrar refused to seal the documents and rejected them.
17.	10 May 2024	Application for a review of the Registrar’s decision referred to in row 16 of this table.	Application refused.[14]

[2]The dates in this column refer to when a decision was made about one of Donohue’s applications.

[3]DPP v Donohue [2018] VCC 1578 (Carmody J).

[4]Donohue v The Queen [2019] VSCA 160 (Priest and Beach JJA) (‘Donohue’).  

[5]Donohue v The Queen (No 2) [2019] VSCA 274 (Priest and Beach JJA) (‘Donohue (No 2)’)  

[6]Donohue v The Queen [2020] HCASL 130 (Nettle and Gordon JJ).

[7]Donohue v The Queen [2020] HCASL 242 (Bell and Gageler JJ).

[8]Donohue v The Queen (No 3) [2020] VSCA 302 (Priest, Niall and T Forrest JJA) (‘

[9]Donohue v The Queen [2021] HCASL 45 (Keane and Edelman JJ).

[10]Donohue v The King [2022] VSCA 206 (Kaye JA) (‘Donohue (No 4)’).  

[11]Donohue v The King (No 5) [2022] VSCA 232 (Kennedy JA) (‘Donohue (No 5)’).  

[12]Donohue v The King [2023] HCASL 28 (Steward and Gleeson JJ).

[13]Donohue v The King (No 6) [2023] VSCA 224 (Taylor JA) (‘Donohue (No 6)’).

[14]Donohue v The King (No 7) [2024] VSCA 91 (T Forrest JA) (‘Donohue (No 7)’).

1. Four days after I refused to seal various documents submitted by Donohue via RedCrest including a copy of the notice of application for leave to appeal against conviction and written case stated, Donohue again submitted essentially the same documents for filing. Once again these documents were rejected for filing. The Deputy Registrar notified Donohue by email of the reasons for this decision at 9:32 am on 17 May 2024. Twenty-one minutes later Donohue applied for a review of the rejection.

2. This rejection was entirely appropriate. To seal the documents would perpetuate the abuse of process identified on several occasions by this Court and the High Court. The application is refused.

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Donohue
(No 3)’).