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Donohue v The Queen (No 3)

Donohue v The Queen (No 3)

Case [2020] VSCA 302 26 November 2020

Appeal

Abuse of Process

Criminal Law

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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]
[1]Donohue v The Queen [2019] VSCA 160.

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…

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 3)

Details

AGLC: Neville Donohue v The Queen (No 3) [2020] VSCA 302
Case: [2020] VSCA 302
Decision Date: 26 November 2020

CaseChat Overview and Summary

In the case of Donohue v The Queen (No 3), the appellant, Donohue, sought leave to appeal against his conviction and sentence. This was his second or subsequent application for leave to appeal, following a previous application that had been dismissed on the merits. The High Court was tasked with determining whether it should grant leave to appeal and, if so, whether the appeal should succeed. The central issue before the Court was whether the appellant's application for leave to appeal constituted an abuse of process due to the absence of fresh or compelling evidence that was not previously considered.

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