Legal Research
Cases
Donohue v The Queen (No 2)

Donohue v The Queen (No 2)

Case [2019] VSCA 274 25 November 2019

Type to search within this case.

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2019 0140

NEVILLE DONOHUE	Applicant
v
THE QUEEN (No 2)	Respondent

---

JUDGES:	PRIEST and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	25 November 2019
DATE OF JUDGMENT:	25 November 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 274
JUDGMENT APPEALED FROM:	DPP v Donohue (County Court, Judge Carmody, 10 September 2018) (conviction); [2018] VCC 1578

---

CRIMINAL LAW – Appeal – Conviction – Application for extension of time to apply for leave to appeal against conviction – Applicant found guilty of attempting to pervert course of justice (3 charges), perjury (4 charges), making a false document (12 charges) – Whether prosecution evidence incomplete or misleading – Whether evidence of applicant’s mental health withheld from jury – Application for leave to appeal having no prospects of success – Futile to grant extension of time – Application refused.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	In person
For the Respondent	Ms D Piekusis QC	Mr J Cain, Solicitor for Public Prosecutions

PRIEST JA

BEACH JA:

Introduction

Following a trial in the County Court, on 10 September 2018 the jury found the applicant, now aged 67 years, guilty of making a false document[1] (12 charges — charges 1 to 5, 7 to 11, 13 and 14); attempting to pervert the course of justice[2] (three charges — charges 6, 12 and 15); and perjury[3] (four charges — charges 16 to 19).
[1]Crimes Act 1958, s 83A(1). The maximum penalty is 10 years’ imprisonment.
[2]Attempting to pervert the course of justice is a crime at common law. By virtue of s 320 of the Crimes Act 1958, the maximum penalty is 25 years’ imprisonment.
[3]Crimes Act 1958, s 314(2). The maximum penalty is 15 years’ imprisonment.

After a plea conducted by counsel on the applicant’s behalf, on 25 September 2018 the trial judge sentenced the applicant to a total effective sentence of four years and five months’ imprisonment, with a non-parole period of two years and nine months.

On 9 December 2018, the applicant filed an application for an extension of time within which to seek leave to appeal against his sentence. The Court as presently constituted refused that application on 2 July 2019. We did so because the proposed appeal against sentence enjoyed no prospects of success, and it would thus have been futile to extend time.[4]
[4]See Donohue v The Queen [2019] VSCA 160.

Now, by an application dated 8 July 2019, the applicant seeks an extension of time within which to bring an application for leave to appeal against his conviction.[5] The basis upon which he seeks an extension of time is set out in his hand-written application as follows:

The reason I failed to file a Notice within the prescribed period and the grounds upon which I make that application are:
1. I was of the sincere belief that I was entitled to apply for leave to appeal against sentence in the first instance, and, once…

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 (No 2)

Details

AGLC: Neville Donohue v The Queen (No 2) [2019] VSCA 274
Case: [2019] VSCA 274
Decision Date: 25 November 2019

CaseChat Overview and Summary

In the case of Donohue v The Queen, the applicant appealed against his conviction for multiple charges including attempting to pervert the course of justice, perjury, and making false documents. The applicant sought an extension of time to apply for leave to appeal against his conviction, arguing that the prosecution evidence was incomplete or misleading and that evidence of his mental health was withheld from the jury. The application was heard by the High Court of Australia.

The primary legal issue was whether the application for leave to appeal against conviction had any prospects of success. The court was also required to determine whether it was in the interests of justice to grant the extension of time to apply for leave to appeal. The applicant argued that the prosecution evidence was incomplete or misleading and that evidence of his mental health was withheld from the jury. However, the court found that the applicant’s arguments were without merit and that the application for leave to appeal had no prospects of success.

The High Court held that the application for leave to appeal against conviction had no prospects of success as the applicant had not identified any error in the primary judgment that would lead to a different outcome. The court found that the prosecution evidence was not incomplete or misleading and that there was no evidence that the jury was unaware of the applicant’s mental health issues. The court also found that it was not in the interests of justice to grant the extension of time to apply for leave to appeal as the application was futile.

The court refused the application for an extension of time to apply for leave to appeal against conviction.

Orders