Donohue v The Queen

1 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).

2 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.

3 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 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 that was heard, I was then also entitled to apply for leave to appeal against conviction.
2. I sincerely chose the option to appeal against sentence, first, in order to avoid the inconvenience, to all parties concerned, of possibly requiring a re-trial for the appeal against conviction.
3. The application re appeal against sentence was heard in the Court of Appeal 2 Jul 19 [sic], and I now apply for the appeal against conviction within 28 days of that hearing.

5 In an affidavit in support of the application, affirmed by the applicant on 9 July 2019, the applicant asserts:

I was of the sincere belief that I was entitled to apply for leave to appeal against sentence in the first instance, and, once that was heard, I was then also entitled to apply for leave to appeal against conviction.

6 We need not repeat the principles that govern an application for extension of time, save to say that such an application invites attention to the reasons for the delay and the merits of the proposed appeal.[6]

7 In our view, the putative appeal against conviction is hopeless. It would thus be futile to grant an extension of time. Accordingly, although we are sceptical about the accuracy of the applicant's proffered explanation for failing to seek leave to appeal within the prescribed time, we need not determine its veracity (or lack thereof).

8 It is necessary to say something about the applicant's offending. In broad terms, it may be divided into three main episodes:

• The first episode involved the making of five false documents (charges 1 to 5), provided in order to avoid the ultimate resolution of charges that the applicant faced at Ringwood Magistrates' Court (charge 6). Thus, between July 2010 and December 2013 the applicant prepared and provided to the court five demonstrably false letters purportedly authored by Dr Bill Davis of the Alfred Hospital's William Buckland Radiotherapy Centre ('WBRC') and Dr Rodney Farnbach, consultant psychiatrist.

• The second episode involved the making of seven false documents (charges 7 to 11, and 13 to 14), provided in order to avoid the ultimate resolution of charges that the applicant faced (charges 12 and 15). Hence, between February 2011 and March 2012, the applicant created and sent to the court seven demonstrably false letters purporting to be from Dr Davis at the WRBC, initially indicating that the applicant was an inpatient and would be required to be an inpatient for some weeks, and later indicating that the applicant's condition was terminal and that he was entering palliative care.

• The third episode relates to four charges of perjury (charges 16 to 19). After being interviewed by police on 20 August 2014 in relation to attempting to pervert the course of justice and other charges, the applicant signed statutory declarations on 26 September 2014 (charge 16), 24 October 2014 (charge 17), 21 May 2015 (charge 18) and 12 November 2015 (charge 19), falsely swearing that he was required either for urgent or special military duty, or on federal government duty.

9 When refusing the application concerning sentence, we described the circumstances of the offending in greater detail as follows:[7]

[4] In April 2010, the applicant was charged by an informant, Mr Bronstein, with dishonesty offences ('the Bronstein charges'). In July 2010, these charges were listed at the Ringwood Magistrates' Court. On the day of the listing the charges were adjourned for a plea of guilty on 27 August 2010.

Charges 1 to 5: making false documents

[5] On 8 July 2010, the applicant prepared a false document dated 8 July 2010, addressed to the presiding magistrate at the Ringwood Magistrates' Court purporting to be a letter from Dr Bill Davis of the Alfred Hospital's William Buckland Radiotherapy Centre ('the WBRC'). The letter stated that the applicant had been a patient since 2004, that he was being treated for an inoperable malignant brain tumour, and that it was anticipated that he would need to be treated for several more years.

[6] On 12 July 2010, the applicant prepared a false document dated 12 July 2010 addressed to the presiding magistrate at Ringwood Magistrates' Court purporting to be a letter from Dr Rodney Farnbach, a consultant psychiatrist who had treated the applicant. The letter stated that the applicant suffered from ongoing psychiatric issues including post-traumatic stress disorder over the last 24 years. It also stated that the prognosis was that the applicant was unlikely to recover, and would require regular treatment for the rest of his life.

[7] On 27 August 2010, the applicant's case was adjourned until 13 September 2010 to obtain reports in respect of his sentencing. On 10 September 2010, the Bronstein charges were further adjourned to 4 October 2010 for sentence.

[8] On 6 September 2010, the applicant prepared a false document dated 6 September 2010 addressed to the presiding magistrate at Ringwood Magistrates' Court purporting to be, again, from Dr Farnbach. The letter referred to the earlier letter of 12 July, and stated that the applicant was suffering from ongoing psychiatric issues including post-traumatic stress disorder. The letter contained an opinion that a custodial environment would be extremely counteractive to the applicant's treatment and would pose a severe risk of suicide. It also stated that it was extremely unlikely that the applicant would re-offend.

[9] On 1 October 2010, the applicant prepared a false document addressed 'To whom it may concern'. The document purported to be, again, from Dr Davis of the WBRC. The letter stated that the applicant was admitted to hospital on 4 October 2010, and that he was required to stay in hospital for about a week and would be unable to resume his normal activities for some four weeks.

[10] On 4 October 2010, the applicant did not appear at court and a warrant was issued. The warrant was executed on 28 October 2010, and a new hearing date of 20 December 2010 was fixed.

[11] On 15 December 2010, the applicant prepared a false document addressed to the coordinator's office at Ringwood Magistrates' Court purporting to be, again, from Dr Davis. The letter referred to the hearing for 20 December 2010, and stated that the applicant was required to be admitted to hospital for surgery on 19 December 2010 and would be unable to resume his normal activities for a period of six weeks.

Charge 6: attempting to pervert the course of justice

[12] The letters from Dr Davis and from Dr Farnbach were false. Their contents in relation to the applicant's health were also false. The applicant sent the letters to the Ringwood Magistrates' Court for the purpose of misleading the court as to the true status of his health and to avoid the final resolution of the Bronstein charges.

Charges 7 to 11: making false documents

[13] The Bronstein charges were adjourned from 20 December 2010 until 7 February 2011. The applicant then embarked upon a second phase of making false documents to avoid the finalisation of the Bronstein charges.

[14] On 3 February 2011, the applicant prepared a false document (incorrectly dated 3 February 2010, it was supposed to be 2011) addressed to the presiding magistrate at the Ringwood Magistrates' Court purporting again to be from Dr Davis. The letter stated that the applicant was admitted to hospital on 2 February 2011 and, after surgery performed on 4 February 2011, would have to stay in hospital for an indefinite period.

[15] The charges were adjourned from 7 February 2011 to 7 April 2011. On 7 April 2011, the applicant did not appear. A warrant was issued and then executed and a new date of 6 June 2011 was fixed for the hearing.

[16] On 31 May 2011, the applicant prepared a false document dated 31 May 2011, addressed to the Ringwood Magistrates' Court purporting, again, to be from Dr Davis. The letter stated that the applicant was currently an inpatient, would remain in hospital for two weeks, and would be unable to make his court appearance on 6 June 2011.

[17] On 6 June 2011, the case was adjourned until 8 August 2011.

[18] On 5 August 2011, the applicant prepared a false document dated 5 August 2011, addressed to the Ringwood Magistrates' Court purporting to be, again, from Dr Davis. The letter stated that the applicant was currently an inpatient, would remain in hospital for two to three weeks, and would be unable to make his court appearance on 8 August 2011. The letter also stated that the applicant's condition was terminal, that his cancer treatments were directed at improving his quality of life rather than a cure, and that the hospital would send the court a death certificate when that occurred.

[19] On 8 August 2011, the case was adjourned to 22 November 2011.

[20] On 25 October 2011, the applicant prepared a false document dated 25 October 2011, addressed to the Ringwood Magistrates' Court again purporting to be from Dr Davis. The letter stated that the applicant had entered palliative care and would be in that care until his death. The letter again stated that the hospital would send the court a death certificate when this occurred.

[21] On 22 November 2011, the case was adjourned until 2 March 2012.

[22] On 27 February 2012, the applicant prepared a false document dated 27 February 2012, addressed to the Ringwood Magistrates' Court purporting to be, again, from Dr Bill Davis of the WBRC. The letter again stated that the applicant had entered palliative care, would be there until his death, and consequently that he was unable to attend the court hearing. On 2 March 2012, the letter was provided to the Ringwood Magistrates' Court. The applicant was not present and the hearing was adjourned sine die.

Charge 12: attempting to pervert the course of justice

[23] The five letters relating to charges 7 to 11 were provided to the court for the purpose of misleading the court as to the applicant's current health, and so as to avoid the resolution of the Bronstein charges.

Charges 13 and 14: making false documents

[24] As at March 2012, the Bronstein charges were adjourned indefinitely. The applicant, however, came to the attention of another police officer, Mr Phillips, in relation to further offending. As a result of Mr Phillips' enquiries about the applicant, he discovered the status of the Bronstein matters. Mr Phillips then contacted Mr Bronstein. On 11 May 2013, the applicant was served with a notice of intention to proceed, and the Bronstein charges were again listed for hearing - this time, on 3 June 2013.

[25] As the [sentencing] judge put, the applicant then 'returned to [his] practice of preparing documents in the name of Dr Bill Davis'.

[26] On 30 May 2013, the applicant prepared a false document dated 30 May 2013, addressed to the Ringwood Magistrates' Court purporting to be from Dr Davis. The letter stated that the applicant was currently, and would be for the next three or four weeks, an inpatient and as a consequence would not be able to attend his court hearing on 3 June 2013. It also stated that the applicant's condition was terminal. On 3 June 2011, this letter was presented to the Ringwood Magistrates' Court, and the hearing was adjourned.

[27] On 30 December 2013, the applicant prepared a document dated 30 December 2013, purporting to be from Dr Davis. The letter stated that the applicant was a long term patient and would be required to stay in hospital for the next three to four weeks. Consequently he could not attend his court hearing then fixed on 15 January 2014. The letter also stated that the applicant was in palliative care, would be in that care until his death, and that a death certificate would be forwarded to the court when that occurred. On 6 January 2014, this letter was provided to the court, and the case was adjourned until 17 February 2014 for the police to make enquiries.

Charge 15: attempting to pervert the course of justice

[28] The two letters which were the basis of charges 13 and 14 were provided to the court for the purpose of misleading the court as to the applicant's then state of health, and to avoid the resolution of the charges then before the court.

Charges 16 to 19: perjury

[29] On 20 August 2014, the applicant was interviewed about the false medical documents. He denied having seen them, and stated that they would have been obtained and sent by the Defence Signals Directorate. The applicant said that he had the medical conditions referred to in the document, but that he had been treated under another name because of his 'security work with the Defence Signals Directorate'.

[30] The applicant's computer was seized by police and examined. Copies of the various false documents were located on his computer. The applicant admitted that he prepared each of the false documents. His evidence at trial, however, was that the conditions and treatment set out in the letters were true, but he could not reveal the names of his treating doctors or the name he was treated under for 'national security reasons'. Plainly, by their verdicts, the jury rejected this evidence.

[31] After the police interviewed the applicant, he changed approach to the avoidance of the finalisation of the charges then outstanding against him. The facts constituting the perjury charges were as follows.

[32] On 26 September 2014, the applicant attended at the Ringwood Magistrates' Court and signed a statutory declaration in which he knowingly and falsely swore that he was required for urgent military duty, and consequently he would be unable to attend a court hearing on 29 September 2014.

[33] On 24 October 2014, the applicant again attended at the Ringwood Magistrates' Court and signed a statutory declaration in which he knowingly and falsely swore that he was required for urgent military duty, and consequently he would be unable to attend a court hearing on 27 October 2014.

[34] On 21 May 2015, the applicant again attended at the Ringwood Magistrates' Court and signed a statutory declaration in which he knowingly and falsely swore that he was required for special military duty and consequently he would be unable to attend a court hearing on 25 May 2015.

[35] The final charge of perjury was on 12 November 2015. On that day, the applicant attended at the Knox police station and signed a statutory declaration in which he knowingly and falsely stated that he was required to go on 'interstate federal government duty' and consequently he would be unable to attend his court hearing on 16 November 2015.

[36] Extensive and detailed inquiries (including the searching of security data bases) revealed the falsity of the matters sworn to and relied upon by the applicant in his statutory declarations. The applicant had not been involved in any military duty, special military duty or federal government duty as alleged by him. As the judge put it, the applicant's evidence at trial, that he was acting on behalf of the federal government in secret special military or intelligence duty, was a fiction created by him so that the Bronstein and Phillips matters would not be finalised.

Applicant's submissions relating to conviction

10 With respect to conviction, the applicant made the following submissions in his written case:[8]

Outline of offending: False documents were presented to the Magistrates Court to adjourn the matters before the Court. Making of the documents was admitted, but 'attempting to pervert the court of justice' was defended on the basis that the information in the document was basically correct. Statutory declarations were also presented to the court to adjourn the same matters, but 'perjury' was defended on the basis that the sworn information was true. The matters before the Magistrates Court were finalised in 2016.

Reasons for appeal against conviction: False and/or misleading evidence was given to the court by prosecution witnesses and the Crown prosecutor; and also full information about my mental illness was not presented to the jury. These factors prevented the jury from being able to find reasonable doubt, resulting in a wrongful conviction.

GROUNDS OF APPEAL

1. In the matter of the perjury charges

(i) False and/or misleading evidence was knowingly given to the court by prosecution witnesses: Michael Porter, Mark Zorzi, Haitham Elgohary and Denise Brennan. Each of the witnesses gave evidence that they had searched all appropriate federal government databases to find records of my federal government service after my military service was completed in 1976 (full-time service). Porter, Elgohary and Brennan asserted that as they had not found records in their searches, then I must not have served with the federal government after 1976. This was both false and misleading as each of them knew that they did not have access to all government data bases - particularly those of the intelligence organisations in question, namely A.S.D (Australian Signals Directorate) and A.S.I.S (Australian Secret Intelligence Service). Elgohary partly confirmed this by stating that he had access to 'all but a few' government databases.

(ii) Zorzi had access to more classified information than the other witnesses as he was from A.S.D. He reported that he did find a file in my name on the A.S.D. database but did not have access to the information in my file. He also gave misleading evidence that any officers working with A.S.D. need induction and de-induction, and he had no record of those for me, but he failed to say that he knew that he did not have full access to such information - particularly if those officers were involved in A.S.I.S operations.

(iii) An officer from A.G.S. (Australian Government Solicitor) came to court to speak on behalf of A.S.I.S, and to confirm that nobody outside A.S.I.S has access to A.S.I.S files, and that no information about any persons' involvement in A.S.I.S operations is ever released. This information was not given to the jury.

(iv) The Crown prosecutor presented misleading information to the court regarding crucial aspects of my military service, despite having a full copy of my military service record. He knowingly presented a false image of my service by withholding crucial information, about my service with Special Forces Intelligence, in conjunction with A.S.D and A.S.I.S. The Crown prosecutor mislead the jury by describing my Army service as simply 6 years in the Army Signals Corps. The accurate description is: 6 years in the Australian Special Forces; Regiment was the 1st Commando Regiment; Unit was 126 Signal Squadron (Special Forces), aka Z Special Force. 126 Signal Squadron is the covert operations unit of the 1st Commando Regiment, and was also the military wing of A.S.I.S - sharing the A.S.I.S facility at Swan Island, Victoria. I was a fully trained covert operative having completed all qualifications from parachuting through to the Recondo[[9]] course at the Special Air Service Regiment - this training (Recondo) is only available to personnel required for active covert operations service.

(v) These errors prevented the jury from being able to find reasonable doubt - resulting in a wrongful conviction.

1. In the matters of make false document and attempt to pervert justice

(i) Full information about my mental health history, and how my mental health impacted on my offending was available in evidence, but not allowed to be considered by the jury. This included the 4 reports listed in 'material replied upon', and evidence of prosecution witness Dr William Longworth who has supervised my mental health treatment for over 40 years.

(ii) A current Forensicare report should have been ordered by the court. The Forensicare report date 7 March 18 was ordered for a different case, before a different judge, and with a completely different focus. It was also conducted prior to my 2 months imprisonment in 2018, and thus could not review the effect on my mental health caused by that 2 months in prison, especially with 2 of my 4 regular psychiatric medications being denied in the prison system.

(iii) These errors prevented the jury from potentially being guided about application of the Verdins[10] principle and/or my mental health during my offending, or during the trial, thus preventing the jury from being able to find reasonable doubt - resulting in a wrongful conviction.

11 Doing the best we can to distil their essence, we think that the applicant's written submissions advance the following contentions under cover of his first proposed ground of appeal:

• first, although the applicant concedes that false documents (in the form of letters) were presented to the Magistrates' Court, there was no attempt to pervert the course of justice (charges 6, 12 and 15) because the information in the documents was 'basically correct';

• secondly, the applicant did not commit perjury (charges 16 to 19), because 'the sworn information was true';

• thirdly, false and misleading evidence was given by prosecution witnesses Michael Porter, Mark Zorzi, Haitham Elgohary and Denise Brennan, principally because they did not have access to all relevant databases and information; and

• fourthly, the prosecutor presented misleading information in the applicant's trial, by withholding crucial information about the applicant's service record.

12 With respect to his second proposed ground, we think the following contentions can be distilled from the applicant's written submissions:

• first, information about the applicant's mental health, and how it had an impact on his offending, was 'not allowed to be considered by the jury' (though available);

• secondly, the judge should of his own motion have sought a current psychiatric report from Forensicare; and

• thirdly, the verdict is unsafe and unsatisfactory, because the jury were not properly apprised of the applicant's mental health during his offending.

13 Much of what was said in the applicant's written case was fleshed out in a further document styled, 'Reply to the Prosecution Response to the Applicant's Written Case' - the contents of which it is unnecessary to set out - and in the applicant's oral submissions on the hearing in this Court.

Proposed ground 1: Alleged false and misleading evidence

14 Turning first to proposed ground 1, we consider it to be bereft of any substance.

15 The applicant's essential 'defence' to the charges against him was that he was a covert operative within the Australian Signals Directorate, carrying out secret military activities, and that the contents of the various documents he produced for the purposes of the Magistrates' Court proceedings were in substance true.

16 Thus, the applicant's counsel commenced his final address to the jury as follows:

When Mr Donohue gave evidence before you ... what he said to you was that the things that he swore to be true in those four statutory declarations were in fact true. He was telling the truth when he signed those four stat decs [sic]. And on those four occasions over 2014 and 2015 he was doing government military activities that he just can't tell you much about.

You also heard him say that the medical and psychiatric documents provided to the court between 2010 and 2014 were false documents, but that the real substance of them was true. That is he was suffering from cancer, he did have PTSD, he was being treated for those things, but he couldn't obtain the proper documents again for reasons that he just can't tell you very much about. That's what this trial is all about: was he being truthful when he did the things alleged or rather can the Crown prove that he wasn't being truthful?

Can the Crown prove that he was lying or being dishonest when he did the things that are alleged in this trial? ...

17 The applicant's case that he had a secret role in the Australian Signals Directorate plainly was rejected by the jury. That is not surprising, given the strength and quality of the evidence given by a number of witnesses bearing on the subject.

18 Michael Porter, an investigator employed by the Fraud Control and Investigations Branch of the Department of Defence, gave evidence that his role was to investigate allegations of fraud. His evidence was that he searched the Defence Corporate Directory, which lists current defence personnel, and could not find the applicant's name. He also contacted the Australian Government Security Vetting Agency ('AGSVA'), part of the Department of Defence. Mr Porter also obtained a copy of the applicant's Defence Archive Record which indicated that the applicant had a total period of service in the Army of six years, having enlisted on 7 January 1970 and discharged on 6 January 1976. The applicant had not served with the Australian Defence Force after 6 January 1976. Under cross-examination, Mr Porter said that he was unaware of aliases being used in the PMKeyS [Personnel Management Key Solution] database, which is both the current and historical database of Defence personnel. Mr Porter said that

given that the defence policy gives people in my branch unrestricted access to the records and the people and the basis etc. relating to matters subject to our investigations I would find it closer to impossible that there would be these other databases out there that I would not either have direct access to or be able to reach into an organisation that may have a record, for example, AGSVA or what was the Defence Signals Directorate et cetera.

And he gave evidence that it was 'near impossible' that the applicant 'was involved in a secret intelligence role involving the military, between 1976 and 2015 on behalf of the Australian Government'.

19 Mark Zorzi, who had been Director of Security at the Australian Signals Directorate, gave evidence that 'the Australian Signals Directorate is an intelligence agency that specialises in foreign signals collections and analysis'. He had 'interrogated' the Australian Signals Directorate 'indoctrination database' and found no records that the applicant had ever been 'indoctrinated or de-indoctrinated'. It was 'not possible' for someone to be posted to the Australian Signals Directorate without there being 'an indoctrination or de-indoctrination record'. In cross-examination, Mr Zorzi emphatically stated that the applicant did not work for the Australian Signals Directorate between 1976 and 2015.

20 Haitham Elgohary, an Appeals and Review Officer with AGSVA, which is responsible for the security vetting of people from both within government and the private sector, gave evidence that he undertook a search of the personal security assessment management system and came up with the no results for the applicant. Security vetting 'looks at the suitability of people to access classified material'. AGSVA is responsible for security clearances for Defence Department 'employees, contractors of ADF [Australian Defence Force] personnel'. In cross-examination, when it was put to him that the applicant 'was involved in a secret intelligence role associated with and at times working for [Australian Signals Directorate] in a period 1976 to 2015', Mr Elgohary said, 'If that is the case, there would be a record within the system to show his security clearance'. There was no such record.

21 Denise Brennan, an investigator with the Department of Veteran Affairs, gave evidence that the applicant first made a claim for benefits to the Department in June 1977, but withdrew that claim in April 1977. Later, in August 2001, the applicant made a claim based on PTSD and other disabilities based on his war service in Vietnam. That claim was rejected in April 2002 because the Department could find no record that the applicant had served in Vietnam.

22 We consider that the evidence given by Michael Porter, Mark Zorzi, Haitham Elgohary and Denise Brennan,[11] compels the conclusion, first, that the applicant did not, as he claimed, ever carry out any secret military service; and, secondly, that there is no additional database (or other record) in existence which might demonstrate that the applicant had been some sort of covert operative. Moreover, there is no evidence supporting the assertion made by the applicant that any evidence given at his trial was false or misleading in any respect. So much sounds the death knell for proposed ground 1.

Proposed ground 2: The applicant's mental health

23 Proposed ground 2 is also utterly devoid of merit.

24 The applicant was represented by counsel. Generally speaking, those in the applicant's position are bound by their counsel's conduct of the trial.[12] In this case, counsel at no stage endeavoured to mount a defence based on the applicant's mental impairment (or, indeed, any aspect of the applicant's mental health), or otherwise suggest that the applicant's mental condition had any relevance to his criminal liability. Certainly, counsel did not - except by a side wind - seek to introduce any evidence bearing on the applicant's mental health and its possible impact on the applicant's alleged offending. Ordinarily - and putting aside any issue of incompetence of counsel - that would be determinative of this ground.[13]

25 Since the applicant seems to suggest, however, that the judge should himself have investigated the applicant's mental health by obtaining a current psychiatric report - and bearing in mind that the applicant did not have the assistance of counsel in this Court - there is one further aspect which, out of an abundance of caution, we think should be considered. It relates to the applicant's fitness to be tried, a matter which in some circumstances a trial judge is required to explore notwithstanding the position adopted by counsel. Thus, in Madafferi it was observed:[14]

So far as fitness to be tried is concerned, s 9(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 ('the CMI Act') requires a trial judge to reserve the question of 'the fitness of the accused to stand trial' for investigation under the CMI Act if at any time after an indictment has been filed, 'it appears to the court before which the accused is to be tried that there is a real and substantial question as to the fitness of the accused to stand trial'. Therefore, if an issue had been raised by either party in the applicant's trial as to his fitness to be tried, and the judge had considered that there was a real and substantial question as to the fitness of the applicant to stand trial, the trial judge would have erred if he had failed to take the steps contemplated by the CMI Act. And if, neither defence nor prosecution having raised the issue, it appeared to the judge that there was a real and substantial issue as to the applicant's fitness to be tried,[15] but the judge failed to reserve the question for investigation under the CMI Act, the judge would have erred.

26 As far as we can see, there was nothing that occurred in the trial - we do not ignore the applicant's bizarre 'defence' to the charges - which should have alerted the trial judge to the fact that there was a 'real and substantial question' as to the applicant's fitness to stand trial. In so saying we do not ignore the fact that, in the course of drawing out the applicant's explanation for the contents of false documents, the applicant's counsel incidentally elicited evidence concerning the applicant's mental condition. The applicant's evidence was, however, so unworthy of belief, that no reasonable judge could have concluded in the circumstances that the contents of the documents raised any real issue as to the applicant's fitness to be tried.

27 To illustrate that there was nothing substantial before the trial judge that should have alerted him to a need to explore the applicant's mental condition, it is instructive to set out the following passage of the applicant's evidence-in-chief. The evidence relates first, to a letter, Exhibit B, purportedly under the hand of Dr Bill Davis, Chief of Staff at WBRC, dated 8 July 2010, which was the foundation of charge 1; and, secondly, to a letter, Exhibit C, purportedly under the hand of Dr Rodney Farnbach, Psychiatrist, dated 12 July 2010, which was the foundation of charge 2:[16]

[DEFENCE COUNSEL]: Exhibit B, yes. Now you've got that before you?---Yes.

You can see that that appears to be a letter from the Alfred Hospital dated 8 July 2010?---Yes.

Do you recognise that letter?---Yes.

Who wrote that letter?---I did.

Do you know a Dr Bill Davis?---No.

Were you being treated at the William Buckland Radiotherapy Centre in July 2010?---I believe so.

The letter in the second paragraph says - I'm sorry, the first paragraph which is really just a line, "Mr Donohue has been a patient of our facility since August of 2004"?---Yes.

What do you have to say about that line?---Yeah. I started treatment for cancer at that time. Um I was treated at the Alfred and at other times at other institutions. That's why I'm not exactly sure of the date but I was particularly at the Alfred.

The next line of the letter refers to an inoperable malignant brain tumour?---Correct.

What do you say to that part of the letter?---That was the diagnosis I was given.

Were you given that diagnosis at the Alfred Hospital?---No, that was first given at, I think it was the Epworth was the first hospital.

The letter makes reference to a longstanding psychiatric condition in the next paragraph?---Yes.

What do you have to say about that?---Yeah, that's true.

What was the condition?---PTSD.

I'm sorry?---PTSD, post-traumatic stress disorder.

That paragraph goes on to say that, "The chemical treatment does not interact well with many of his tumour treatments"?---Correct.

What do you have to say about that part of the letter?---That's what I was advised by the treating doctors.

The letter goes on to say that the condition, "Required him to end his military career"?---Yes.

What do you have to say about that?---Yes, that - that is the case.

The final paragraph of that letter says, "Side effects of Mr Donohue's condition and/or treatment include periods of memory loss, periods of concentration loss, periods of erratic behaviour", and it goes on?---Yes.

What can you tell the jury about that part of the letter?---That was also the conditions that I was told by the treating physicians.

All right. Now you said a few moments ago that you wrote that letter?---Correct.

Why did you write that letter?---Ah at the time I was being treated under another name and so therefore I couldn't produce a letter stating the other name to the court where I was known as Neville McBride Donohue.

You said that you were receiving treatment - - -?---Yes.

- - - of the type outlined in that document. Why did you not obtain a letter from your actual doctors?---Same reason. Because they couldn't identify me as Neville McBride Donohue.

Who were your actual doctors at that time?---Oh I can't say.

Where were your actual doctors at that time?---At the appropriate hospitals. There was one at the Alfred. There was one at Epworth and at one stage I had some treatment at St Vincent's Hospital as well.

Under what name were you being treated at the time that you wrote that letter in July 2010?---I'm not able to disclose that.

And why is that?---Because of the requirements of national security.

I ask if the witness could be shown Exhibit C which the jury will find behind tab No.2. You have that letter before you?---I do.

Does that appear to be a letter from a Dr Farnbach 12 July 2010?---Correct.

Do you recognise that letter?---I do.

Who wrote that letter?---I did.

...

[DEFENCE COUNSEL]: Yes. Now, turning to the specifics of that document that you've just told us you wrote?---Yes.

This is the letter purportedly signed by Dr Farnbach on 12 July 2010. The second paragraph of the body of that letter says that, "Over these 24 years Neville has been treated for severe post-traumatic stress disorder." What can you say about that paragraph?---That's correct.

The next paragraph says that that treatment included regular counselling, hospitalisation and permanent drug treatment?---Correct.

What can you say about that paragraph?---That's also correct.

The next paragraph refers to, "The effects of Neville's condition include loss of concentration and/or memory, unpredictable and uncharacteristic erratic behaviour" and it goes on. What can you say about that comment in the letter?---That's also correct, that's what I was advised by my treating psychiatrist.

The next paragraph of the letter has the following words. "I have been working closely with Neville's cancer treatment centre, William Buckland Radiotherapy Centre, to coordinate the treatments for his conditions in order to minimise the effects of interfering drugs and other treatments. What can you say about that part of the letter?---That's correct. The - my actual treating psychiatrist was making those arrangements.

With the William Buckland Radiotherapy Centre or with some other establishment?---With the other establishment where I was having my cancer treatment.

The last paragraph of that letter says, "Neville's prognosis is that he will be unlikely to completely recover from his PTSD." What can you say about that?---That's what I've been advised. It's still advised by my treating psychiatrist.

Why did you write that letter?---I wrote once again because I was being treated by another name and my treating psychiatrist couldn't obviously put something forward in the name of Neville McBride Donohue.

Who was your treating psychiatrist?---I'm unable to say.

Where was your treating psychiatrist?---At the Epworth Hospital.

Now, you said that they couldn't provide a letter, why, so far as you understand, couldn't that be done?---For security reasons once again, they could only identify me under the name which I was being treated, not under the name required by the court.

28 It will be appreciated from this evidence that the applicant admitted to having made the letters attributed to Dr Davis and Dr Farnbach, which (among other things) asserted that the applicant suffered from severe PTSD, and that the effects of his condition included loss of concentration and memory, and unpredictable and uncharacteristic erratic behaviour. His claims that the contents of the letters were true; that he was not treated under his real name; and that he could not reveal the identity of his treating doctors for reasons of national security, are, however, utterly preposterous.

29 For these reasons, there is thus no substance in the contention that the judge should himself have obtained a psychiatric report concerning the applicant's condition.

30 Before leaving this ground, there are two further matters that we should mention.

31 First, in his written case, the applicant contended that the 'full information about [his] mental health history, and how [his] mental health impacted on [his] offending' which was 'not allowed to be considered by the jury' included the 'evidence of prosecution witness Dr William Longworth who [had] supervised [his] mental health treatment for over 40 years'. The applicant also repeated the substance of these submission orally. In our view, however, Dr Longworth's evidence could not have had any relevance to the applicant's mental capacity at the time of the offending. His evidence was that he had treated the applicant under his own name until 2012. He had referred him to a psychiatrist - perhaps 'Dr Dowd' - for treatment for PTSD in 'the 1980s', and to Dr Farnbach in about 2002. The applicant had also consulted Dr Longworth's clinic in relation to a lipoma (a benign growth) in 2000; but, so far as Dr Longworth was aware, the applicant had never been treated for 'any form of cancer'. Plainly, there was nothing in Dr Longworth's evidence that could have had any bearing on the applicant's mental condition at the time of the offending.

32 Allied to Dr Longworth's evidence, Dr Rodney Farnbach gave evidence that he had treated the applicant - under the applicant's own name - approximately 20 years previously for PTSD (apparently arising from his Vietnam service). He had not authored the various letters in his name that had been produced by the applicant to the Magistrates' Court. Dr Farnbach's evidence was that the applicant 'had a classical history of post-traumatic stress disorder', but that 'his condition responded to treatment very quickly'. Once more, there was nothing in Dr Farnbach's evidence that could have had any bearing on the applicant's mental condition at the time of the offending.

33 Secondly, it is plain that the applicant's initial reliance on Verdins was misplaced. When this was pointed out in the respondent's written submissions, in his document in reply the applicant asserted that, 'While Verdins does not apply to the determination of guilt, the jury's understanding of the impact of mental health on the accused's behaviour would be relevant to their deliberations'; and that, 'This ground has full merit, and could have led to a different opinion from the jury, and allowed them to find a reasonable doubt'. As we have said, the applicant was represented at trial by counsel, who advanced no defence to the prosecution case based on the applicant's mental state. That is enough to finally dispose of this ground.

34 For the foregoing reasons, the application for an extension of time within which to seek leave to appeal against conviction is refused.

[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.

[4] See Donohue v The Queen [2019] VSCA 160.

[5] The applicant also made an application for bail.

[6] Jopar v The Queen [2013] VSCA 83; (2013) 44 VR 695, 707 [59] (Priest JA); Madafferi v The Queen [2017] VSCA 302, [11] ('Madafferi'); Chen v The Queen [2017] VSCA 335, [22].

[7] Donohue v The Queen [2019] VSCA 160, [4]-[36] (footnotes omitted).

[8] The handwritten submissions are reproduced (as near as possible) with the original spelling, grammar and syntax preserved.

[9] Presumably, RECON[naissance and comman]DO.

[10] Presumably, R v Verdins [2007] VSCA 102; (2007) 16 VR 269.

[11] These witnesses, it should be noted, had given evidence before a jury empanelled in the applicant's second trial in August 2017, which did not proceed to verdict. (A jury in the applicant's first trial had also been discharged without verdict on 18 July 2017.) Their evidence - evidence in chief, cross-examination and re-examination - was presented to the jury by way of video and audio recording, no application having been made by the applicant's counsel that they be recalled to give further evidence in person.

[12] See, for example, R v Birks (1990) 19 NSWLR 677, 683-5 (Gleeson CJ); TKWJ v R [2002] HCA 46; (2002) 212 CLR 124, 134 [31] (Gaudron J), 147-8 [74], 148 [76]-[77], 149-50 [79]-[81] (McHugh J); Ali v R [2005] HCA 8; (2005) 79 ALJR 662, 666 [23], 666-7 [25]-[26] (Hayne J), 677 [99]-[100] (Callinan and Heydon JJ); Nudd v R [2006] HCA 9; (2006) 80 ALJR 614, 618-9 [7]-[9], 622 [20] (Gleeson CJ), 622 [24] (Gummow and Hayne JJ), 635 [100] (Kirby J), 645 [162] (Callinan and Heydon JJ).

[13] In the course of his oral submissions in this Court, the applicant advanced for the first time that his counsel had failed in a number of respects to follow his instructions. He had not, however, advanced that serious allegation in any ground of appeal or in his written case. Having read the transcript in detail, it is plain to us that counsel was astute to put the applicant's case - both in cross-examination and submissions - no matter how far-fetched that case appears to have been.

[15] For example, in Kesavarajah v The Queen (1994) 181 CLR 230, during his charge to the jury, various matters came to the trial judge's attention which again raised the question of the applicant's fitness to be tried, including a note of the applicant's to the effect that he was receiving instructions from aliens, was the incarnation of Lord Vishnu and had just returned to Earth.