1. The background to the proposed application is complex. Given this background has been recently set out in the decision of Kaye JA,[1] a brief background suffices for present purposes.
2. On 10 September 2018, the applicant was convicted in the County Court of 12 charges of making a false document, four charges of perjury and three charges of attempting to pervert the course of justice. On 25 September 2018, he was sentenced to a total effective sentence of 4 years and 5 months' imprisonment, with a non-parole period of 2 years and 9 months.
3. As well as an unsuccessful attempt to challenge his sentence,[2] the applicant has unsuccessfully sought to challenge his conviction on numerous occasions:
   • On 12 July 2019, the applicant filed an application seeking an extension of time within which to bring an application for leave to appeal against his conviction (the 'first conviction appeal') which was refused by this Court on 25 November 2019.[3] The Court recorded that each of the two proposed grounds of appeal were 'devoid of merit'.[4]
   • A subsequent application to the High Court for an extension of time to seek special leave to appeal the decision of the Court on the first conviction appeal was refused.[5]
   • On 6 October 2020, the applicant again sought leave to appeal to the Court of Appeal against his conviction, and also against the decision of Priest and Beach JJA in the first conviction appeal (the 'second conviction appeal'). On 26 November 2020, the Court refused the application for leave to appeal.[6] The Court concluded that the application before it sought to re-agitate the same issues that had been finally determined by dismissal of the application for special leave to appeal to the High Court.[7]
   • An application for special leave to appeal to the High Court in respect of the second conviction appeal was subsequently refused for the following reasons:

This application for special leave to appeal is an abuse of process, seeking as it does to reagitate issues that have been finally determined. The application for special leave should therefore be refused.[8]

• On 5 September 2022 the applicant sought to file documents in order to again seek leave to appeal his conviction. The Registrar refused to seal the documents and Kaye JA found this decision to be correct.[9] Kaye JA explained that, in order to be granted leave to appeal, the applicant needed to establish, under s 326C of the Act, that there was 'fresh and compelling evidence that should, in the interests of justice, be considered on an appeal'.[10] He conducted a comparison of the grounds of appeal sought therein with the grounds of appeal identified in the second conviction appeal, and concluded:

Thus, none of the matters, raised in the proposed grounds of appeal or in the written case, identify any aspect of the proposed application, which could form the basis of a contention that there is fresh and compelling evidence, which, in the interests of justice, should be considered by way of a third appeal to the Court of Appeal. Rather, quite plainly, the proposed grounds of appeal, and the written case, seek to re-agitate, matters which were put to the Court in the first conviction appeal, and in the second conviction appeal.[11]

1. For the sake of completeness, by documents submitted for filing on 14 September 2022 the applicant sought to again apply for leave to appeal against conviction, which documents were also rejected by the Registrar. However, the applicant did not make any application for the Court to direct the Registrar to seal these documents and accept them for filing.

Notice of application for leave to appeal against conviction

1. The notice of application for leave to appeal against conviction which is now under consideration is dated 26 September 2022. The notice states that the application for leave to appeal is in respect of the applicant's 'Conviction of the County Court, Melbourne, given on 10 Sep 2018'.
2. The notice indicates that the applicant applies for leave to appeal 'on the following grounds'. The notice then complains about the treatment of evidence which is said to be 'fresh' until it is 'acknowledged and fully dealt with in a court of appeal', and until the applicant could 'speak to that evidence'. The applicant complains that he has been denied the right to present evidence to the Court of Appeal as well as his right to speak.
3. The notice goes on to state:

The following fresh and compelling evidence was NOT adduced for the jury in THE DPP v DONOHUE CR16-00261/THE DPP v DONOHUE [2018] VCC1578:

(i) the fresh & compelling and critical evidence regarding my military and paramilitary service; medical and psychiatric history; and other crucial evidence, contained in my 2 laptop computers that were seized by Victoria Police (VicPol). The prosecution case relied on proving that I had NOT served with the Australian Special Forces and/or Australia's Paramilitary Intelligence Services. This evidence would have completely destroyed the prosecution case.

(ii) the fresh & compelling and critical evidence of the attempt to pervert the course of justice by VicPol by manipulating and withholding crucial evidence about my military and paramilitary service; medical and psychiatric history; and other crucial evidence, on my 2 seized laptop computers. Judge Carmody ordered me NOT to disclose this manipulation and withholding of evidence, to the jury. This evidence would have given the jury reasonable doubt.

(iii) the fresh & compelling and critical evidence of Judge Carmody's apparent attempt to pervert the course of justice by knowingly blocking the jury from hearing and/or seeing the defence evidence from my 2 seized laptop computers. Judge Carmody allowed and condoned the manipulation and withholding of this evidence by VicPol, and then ordered me NOT to disclose this withholding and manipulation of evidence, or Judge Carmody's condoning of it, to the jury. This evidence would have given the jury reasonable doubt.

(iv) the fresh & compelling and critical evidence of my service in the Australian Special Forces, which was kept from the jury. This evidence would have given the jury reasonable doubt.

(v) the fresh & compelling and critical evidence of the defective and contradictory testimony given by the Crown's federal government witnesses, which was withheld from the jury. This evidence would have completely destroyed the prosecution case.

(vi) the fresh & compelling and critical evidence given by the Australian Government Solicitor (AGS) which was withheld from the jury by Judge Carmody. This evidence would have completely destroyed the prosecution case.

(vii) the fresh & compelling and critical evidence of Judge Carmody's apparent attempt to pervert the course of justice by knowingly blocking the jury from hearing the evidence from the AGS, or even allowing the jury to know that the evidence was given. This evidence would have given the jury reasonable doubt.

(viii) the fresh & compelling and critical evidence of my mental illness and my cancer treatments. The prosecution contended that my psychiatric illness and brain tumours did not exist. This evidence would have given the jury reasonable doubt.

(ix) the fresh & compelling and critical evidence of Judge Carmody's apparent attempt to pervert the course of justice when he knowingly, and therefore deliberately, gave an unbalanced and misleading "charge to the jury". This evidence would have given the jury reasonable doubt.

1. The written case then repeats the nine categories of alleged 'fresh and compelling' evidence. It further purports to contain three 'detailed grounds of appeal'. Although unclear, these grounds appear to allege that first, evidence regarding the applicant's mental health was not adduced before the jury; secondly, that evidence from two laptop computers was not adduced before the jury, and certain witnesses were not re-examined; and finally, that the charge to the jury was flawed and misrepresented the evidence.

1. The terms of the proposed grounds do not identify any fresh and compelling evidence within the meaning of s 326C.[12] Although the word 'acknowledge' is not expressly included (as was the case in the application sought to be filed on 5 September 2022), it appears to be implicit in the materials that the evidence complained about is not 'fresh', but rather, that the Court of Appeal wrongly dealt with evidence that was available before it.
2. The 26 September 2022 application documents are also, in substance, the same as those submitted on 5 September 2022. Whilst they may be slightly reworded in parts, they continue to seek to re-agitate matters relied on by the applicant in previous applications to the Court of Appeal for leave to appeal against conviction. Thus, a comparison of the grounds of appeal raised in the 5 September 2022 notice of application for leave to appeal and the grounds now sought to be relied on in the 26 September 2022 notice of application for leave to appeal reveals the following:
   • Ground (i) in the 26 September 2022 application is, in substance, the same as ground (i) in the 5 September 2022 application.
   • Ground (ii) in the 26 September 2022 application is, in substance, the same as ground (ii) in the 5 September 2022 application.
   • Ground (iii) in the 26 September 2022 application is, in substance, the same as grounds (i) and (ii) in the 5 September 2022 application.
   • Ground (iv) in the 26 September 2022 application is, in substance, the same as ground (iii) in the 5 September 2022 application.
   • Ground (v) in the 26 September 2022 application is, in substance, the same as ground (iv) in the 5 September 2022 application.
   • Ground (vi) in the 26 September 2022 application is, in substance, the same as ground (v) in the 5 September 2022 application.
   • Ground (vii) in the 26 September 2022 application is, in substance, the same as ground (vi) in the 5 September 2022 application.
   • Ground (viii) in the 26 September 2022 application is, in substance, the same as ground (vii) in the 5 September 2022 application.
   • Ground (ix) in the 26 September 2022 application is, in substance, the same as ground (xii) in the 5 September 2022 application.
3. The written case dated 26 September 2022 is similarly comparable to the written case dated 5 September 2022, as follows:
   • Paragraph 1 of the 'Detailed Grounds of Appeal' in the 26 September 2022 written case (regarding the allegation that evidence relating to applicant's mental health was not adduced before the jury) is, in substance, the same as paragraphs 4 and 5 (at pages 6-7) of the 5 September 2022 written case.
   • Paragraph 2 of the 'Detailed Grounds of Appeal' in the 26 September 2022 written case (regarding the allegation that evidence from two laptop computers was not adduced before the jury and certain witnesses were not re-examined) is, in substance, the same as paragraph 6 (at pages 7-8), items 31 and 32 (at page 9), item 22 (at pages 8-9), page 14 under 'Paramilitary Intelligence Service', page 16 from 'Thirdly...', and paragraph (e) (at pages 13-15) of the 5 September 2022 written case.
   • Paragraph 3 of the 'Detailed Grounds of Appeal' in the 26 September 2022 written case (regarding the allegation that the charge to the jury was flawed and misrepresented the evidence) is, in substance, the same as paragraphs (a) and (b) (at pages 15-16), and paragraph (b) (at page 12) of the 5 September 2022 written case.
4. The applicant's assertion that he has been denied the 'right to speak' on the issues raised in his application and written case is also without merit. There was an oral hearing on 25 November 2019 in respect of the first conviction appeal, and there was also an oral hearing on 19 November 2020 in respect of the second conviction appeal.
5. The applicant has thereby not adduced any fresh and compelling evidence which should be considered by way of a third appeal. Rather, he has sought to apply for leave to appeal against conviction on the basis of matters that have already been put to the Court of Appeal in support of his previous applications. These matters have been argued in support of applications that have been determined by the Court of Appeal and the High Court of Australia. To accept the notice of application for leave to appeal in such circumstances would be highly irregular and would constitute an abuse of process.
6. For the reasons given, the Registrar was correct to refuse to seal the document, and to reject the document pursuant to r 1A.04(1) and (2) of the Rules.

[1] Donohue v The King [2022] VSCA 206, [1]-[12].

[2] The applicant sought to challenge his sentence in both the Court of Appeal and the High Court. See Donohue v The Queen [2019] VSCA 160; Donohue v The Queen [2020] HCASL 242.

[3] Donohue v The Queen [No 2] [2019] VSCA 274.

[4] Ibid [14], [23] (Priest and Beach JJA).

[5] Donohue v The Queen [2020] HCASL 130.

[6] Donohue v The Queen [No 3] [2020] VSCA 302.

[7] Ibid [10], [13] (Priest, Niall and T Forrest JJA).

[8] Donohue v The Queen [2021] HCASL 45.

[9] Donohue v The King [2022] VSCA 206, [30] (Kaye JA).

[12] Evidence relating to an offence is 'fresh' under s 326C(3)(a) of the Act if it was not adduced at the trial of the offence and it could not, even with the exercise of reasonable diligence, have been adduced at the trial.