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

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…

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.

Continue reading Donohue v The Queen

Details

AGLC: Donohue v The Queen [2020] HCATrans 139
Case: [2020] HCATrans 139
Decision Date

CaseChat Overview and Summary

In *Donohue v The Queen*, the appellant, Donohue, appealed to the High Court of Australia against his conviction for murder. The central dispute concerned the admissibility of certain evidence obtained during a police interview and the subsequent legal consequences of its admission.

The High Court was required to determine whether the admission of evidence obtained from Donohue during a police interview, conducted after he had been arrested and cautioned, was an error that rendered his conviction unsafe or unsatisfactory. This involved considering the application of the exclusionary rule in relation to evidence obtained in breach of a suspect's rights.

Keane J, in his judgment, applied the principles established in *R v Swaffield* and *Loki v The Queen*. His Honour reasoned that the admission of the evidence, which was obtained in circumstances where the appellant's right to silence had been infringed, constituted a miscarriage of justice. The judge found that the jury's verdict was likely to have been influenced by this improperly admitted evidence, rendering the conviction unsafe.

Consequently, Keane J ordered that the appeal be allowed, the conviction be quashed, and a new trial be ordered.

Orders