Donohue v The Queen

[2020] HCATrans 139

[2020] HCATrans 139

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M64 of 2020

B e t w e e n -

NEVILLE DONOHUE

Applicant

and

THE QUEEN

Respondent

KEANE J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 10 SEPTEMBER 2020, AT 9.29 AM

Copyright in the High Court of Australia

HIS HONOUR:   On 5 August 2020, the applicant filed an application for bail pending an application for special leave to appeal to this Court in respect of his sentence.  For the reasons that I now publish I would refuse the application.  I direct that those reasons be incorporated into the transcript.

The order is:

The application is refused.

I publish that order.

On 24 September 2018, the applicant was sentenced to a total of four years and five months’ imprisonment, with a non‑parole period of two years and nine months, for offences of making a false document, attempting to pervert the course of justice and perjury[1].

[1]Director of Public Prosecutions v Neville Donohue [2018] VCC 1578.

By an application dated 9 December 2018, the applicant sought from the Court of Appeal of the Supreme Court of Victoria an extension of time within which to seek leave to appeal against his sentence.  That application was refused on 2 July 2019, the Court of Appeal (Priest and Beach JJA) having concluded that the proposed appeal enjoyed no prospects of success[2].

[2]Donohue v The Queen [2019] VSCA 160 at [54].

By application dated 8 July 2019, the applicant sought from the Court of Appeal an extension of time to enable him to appeal against his conviction.  He also made an application for bail.  These applications were refused[3].

[3]Donohue v The Queen [2019] VSCA 274 at [34].

By application filed on 16 July 2020 and amended on 21 July 2020 the applicant now seeks special leave to appeal to this Court against his sentence.  On 5 August 2020, he filed an application for bail “pending an appeal” to this Court in respect of his sentence.  It is the application for bail with which these reasons are concerned.  It should be said immediately that this application is to be treated as an application for bail pending the resolution of his application for special leave to appeal, and, in the event that special leave is granted, the determination of the appeal.  In support of his application for bail, the applicant relies upon an affidavit also filed on 5 August 2020.

On 31 August 2020, in accordance with r 13.03.1 of the High Court Rules 2004 (Cth), I directed that the application for bail be determined without listing it for hearing.

The applicant states in his affidavit that, due to medical and financial reasons, his wife and son require his assistance at home and are suffering hardship by his absence.  But to say this is merely to argue that his sentence was excessive; it is not to argue why the sentence imposed upon him should be treated as if it were in some way provisional only pending the resolution of his application for special leave and, if granted, his appeal.

The applicant also states in his affidavit that his ability to prepare his application for special leave is impeded by his remaining in custody.  It is difficult to give this assertion any weight as nothing indicates that any difficulty the applicant might suffer in preparing his application will be any more severe than that which might ordinarily be suffered by any other person in custody.

The applicant also states that he requires medical attention which would be facilitated by his release on bail.  But the applicant’s affidavit does not disclose any reason to think that any necessary medical treatment cannot be arranged satisfactorily while he is in custody.

Most importantly, however, the application for bail seeks to negate the effect of the applicant’s conviction and sentence.  To take such a course involves an interruption to the orderly administration of criminal justice.  It may be accepted for the purposes of this application that in exceptional circumstances, “where, for example, the grant of special leave is irresistible and the appeal is bound to succeed”, there is jurisdiction to grant bail before special leave to appeal has been granted[4].  But the present case is not one where it can be said that the application for special leave is irresistible or that the proposed appeal is bound to succeed.

[4]Zoeller v Federal Republic of Germany (1989) 64 ALJR 137 at 138. See also Pelechowski v Registrar (1998) 72 ALJR 711 at 712.

The application for special leave advances two principal issues as warranting the grant of special leave to appeal.  The first is a question as to whether the County Court of Victoria had jurisdiction to deal with the charge against the applicant.  Secondly, there is a question as to the application of laws relating to the sentencing of people suffering mental illness, to which the applicant refers as “the CMI Act”.

Without seeking to prejudge the fate of the application for special leave to appeal, it must be said that the vagueness of these grounds tends against granting the application.  Further, the applicant did not seek to agitate either of the questions said to warrant the grant of special leave, either at first instance or in the Court of Appeal.  It can be said that to the extent that the applicant seeks to agitate arguments that were not put to the Court of Appeal, that itself is a ground on which leave may be, and often is, refused.  The circumstance that an applicant seeks to agitate on appeal before this Court questions which have not been raised in the lower courts means that this Court will not have the benefit of their consideration of those grounds.

In addition, the Court of Appeal concluded that the sentence imposed on the applicant was at the very bottom of the range so that the applicant would be at risk on an appeal of an increase in his sentence[5].  That circumstance tends to suggest that it cannot be said that an appeal would be bound to succeed to the extent that the applicant would be entitled to immediate release.

[5]Donohue v The Queen [2019] VSCA 160 at [50], [53] citing Criminal Procedure Act 2009 (Vic), ss 280 and 281(3).

Moreover, an extension of time is necessary to enable the application for special leave to appeal to proceed.  There has been a delay of more than a year since the applicant’s attempt to appeal against his sentence was refused by the Court of Appeal.  There is no satisfactory explanation for this delay.  That is a consideration that tends against the grant of the necessary extension of time and, in turn, a further matter tending against the prospects of the underlying special leave application.

This application for bail is not the occasion to determine the application for special leave, much less to decide the putative appeal.  However, the applicant’s prospects of success are not so strong as to tip the scales of justice in his favour on the bail application, bearing in mind the exceptional nature of the intervention in the orderly administration of criminal justice sought by the applicant and the lengthy and unexplained delay attending the making of this application and its consequential effect upon the likelihood of the grant of the extension of time required for the application for special leave to proceed.  The application for bail is therefore refused.

AT 9.30 AM THE MATTER WAS CONCLUDED