SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0209
| NEVILLE DONOHUE | Applicant |
| v | |
| THE QUEEN (No 3) | Respondent |
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| JUDGES: | PRIEST, NIALL and T FORREST JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 19 November 2020 |
| DATE OF JUDGMENT: | 26 November 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 302 |
| JUDGMENT APPEALED FROM: | DPP v Donohue (Unreported, County Court, Judge Carmody, 10 September 2018) (conviction); [2018] VCC 1578 (sentence) |
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CRIMINAL LAW — Appeal — Conviction — Second or subsequent application for leave to appeal in relation to matters previously disposed of on the merits — Abuse of process — Absence of fresh or compelling evidence.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | In person | |
| For the Respondent | Ms D Piekusis QC | Ms A Hogan, Solicitor for Public Prosecutions |
PRIEST JA
NIALL JA
T FORREST JA:
This application represents the third occasion that the applicant has approached this Court to seek relief arising out of the same criminal proceeding (‘third application’). As we will explain, the application is an abuse of process, and must be refused. The applicant’s contention that he had fresh and compelling evidence upon which to rely was utterly devoid of substance.
By way of background, on 10 September 2018, following a trial in the County Court, a jury found the applicant guilty of making a false document (12 charges — charges 1 to 5, 7 to 11, 13 and 14); attempting to pervert the course of justice (three charges — charges 6, 12 and 15); and perjury (four charges — charges 16 to 19). On 25 September 2018, after a plea conducted by counsel on the applicant’s behalf, 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.
Initially, the applicant sought to challenge only the sentence imposed on him. Thus, on 9 December 2018, the applicant filed an application for an extension of time within which to seek leave to appeal against his sentence (‘first application’ or ‘sentence application’). Since the proposed appeal against sentence enjoyed no prospects of success, and it would thus have been futile to extend time, the Court (Priest and Beach JJA) refused that first application on 2 July 2019.[1]
Next, by an application dated 8 July 2019, the applicant sought an extension of time within which to bring an application for leave to appeal against his conviction (‘the second application’ or ‘conviction application’), notwithstanding that his sentence application had not been met with success. Given that the Court (also Priest and Beach JJA) was of the view that the putative appeal against conviction was hopeless, and it would thus be futile to grant an extension of time, the second application was refused.[2]
[2]Donohue v The Queen (No 2) [2019] VSCA 274 (‘Donohue (No 2)’).
The applicant next brought two applications in the High Court, seeking separately to challenge both results in…
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- AGLC
- Neville Donohue v The Queen (No 3) [2020] VSCA 302
- Case
- [2020] VSCA 302
- Decision Date
CaseChat Overview and Summary
The Court examined the principles governing applications for leave to appeal, particularly in cases where the applicant has already had an opportunity to argue their case on the merits. It noted that the appellant's previous application had been dismissed due to a lack of merit, and the current application did not present any new evidence or arguments that had not already been considered. The Court found that the appellant's persistence in seeking leave to appeal, without any new or compelling evidence, amounted to an abuse of process. Consequently, the Court held that the application for leave to appeal should be dismissed.
The reasoning of the Court was grounded in the need to prevent the abuse of judicial process and to ensure that the legal system is not unduly burdened by repetitive or frivolous appeals. By refusing leave to appeal, the Court emphasised the importance of finality in legal proceedings and the need to maintain the integrity of the judicial process. The Court concluded that the appellant's application did not meet the stringent criteria required for leave to appeal, particularly in the absence of any fresh or compelling evidence.
As a result, the Court dismissed the application for leave to appeal and affirmed the original conviction and sentence. The appellant was not granted permission to appeal, and the decision of the lower court stood.
Orders
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Background to the litigation
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Evidence
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