Donohue v The Queen

2 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.

3 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]

4 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]

5 The applicant next brought two applications in the High Court, seeking separately to challenge both results in this Court. By those applications the applicant sought extensions of time within which to seek special leave to appeal against this Court's decisions. Ultimately, the High Court refused each application.

6 As to the sentence application, Bell and Gageler JJ refused an extension of time on 12 November 2020, observing:[3]

An appeal to this Court would enjoy insufficient prospects of success to warrant a grant of special leave. Accordingly, it would be futile to grant the extension of time sought by the applicant. Special leave should be refused.

7 With respect to the conviction application, Nettle and Gordon JJ had earlier refused an extension of time on 12 June 2020, stating:[4]

It would be futile to grant the extension of time which is sought. The applicant identifies no question of principle which it would be in the interests of justice for this Court to consider and no reason to doubt the correctness of the Court of Appeal's judgment. An appeal to this Court would enjoy no prospect of success.

8 Importantly, when one compares the contents of the Written Case in this Court, filed in support of this third application, with the contents of the Application for Special Leave, filed in the High Court with respect to the applicant's conviction application, it is clear that they cover the same terrain. So as to appreciate that this is so, it is convenient to set both out in full.

9 Omitting formalities, the applicant's Application for Special Leave in relation to the conviction application was in the following terms:[5]

Part I:

The proposed grounds of appeal are that Judges Priest & Beach failed to:

(i) acknowledge the evidence of the Australian Government Solicitor

(ii) acknowledge the applicant's service in the Australian Special Forces

(iii) acknowledge the defective and contradictory evidence of the Crown's federal witnesses

(iv) acknowledge the clear evidence of the applicant's mental illness

(v) acknowledge the impact of the 13 month gap in the trial from 2017 to 2018

The orders that will be sought:

That the applicant be granted leave to appeal against Judgement [2019]VSCA 274 of 25 Nov 2019; and Conviction [2018]VCC1578 of 10 Sep 2018; and that Bail pending appeal against conviction, be granted.

Part II:

Questions:

(i) Jurisdiction: as much of the testimony from the defendant was heavily restricted due to his inability to fully answer questions involving federal government intelligence agencies (confirmed by the Australian Government Solicitor), was the County Court the correct jurisdiction?

(ii) Mental illness: Given the amount of evidence that was put forward, during the trial, about Mr Donohue's mental illness (including 4 professional reports, and details of his Psychiatric Disability Pension), and his obvious unstable behaviour in Court (which was commented on several times by Judge Carmody and the Crown prosecutor) why wasn't "the CMI Act" engaged?

Part III:

(i) No acknowledgement of the evidence from the Australian Government Solicitor (AGS) which dispelled the evidence of Porter, Zorzi, Elgohary, and Brennan

(ii) No acknowledgement that all of Mr Donohue's Army service was with the Special Forces, in a covert operations unit attached to the Australian Secret Intelligence (ASIS). This information is contained in Mr Donohue's Army Service Record that was presented as Crown evidence.

(iii) No acknowledgement of the defective and/or contradictory, evidence that was shown to be given by all of the Crown's Federal Government witnesses.

(iv) Given the amount of evidence that was put forward, during the trial, about Mr Donohue's mental illness (including 4 professional reports, and details of his Psychiatric Disability Pension), and his obvious unstable behaviour in Court (which was commented on several times by Judge Carmody and the Crown prosecutor), and from Judges Priest & Beach's own observations, then either Mr Donohue's covert intelligence service is true, or he is suffering serious mental illness. Judges Priest & Beach cannot have it both ways.

(v) No acknowledgement of the impact of the 13 month gap in the trial from 2017 to 2018. The gap occurred when Judge Carmody ordered VicPol to provide, to the defence, copies of all data from 2 1aptop computers that had been seized from Mr Donohue. The was to enable critical evidence to be presented to the court/jury. VicPol firstly failed to provide the data by the due date. After being given extra time VicPol then to deliver the data in a readable form. The VicPol Forensics expert agreed, before Judge Carmody, that the data format provided could only be read on VicPol computers using restricted, proprietary, software. VicPol were instructed to make the data available in readable form, but, Judge also directed that the trial would commence on 3 Sep 18 with or without the evidence from the laptops. VicPol did not supply the data in a readable form, and, against Mr Donohue's directions, his counsel (Mr Simon Kenny) did not insist on this critical evidence being made available. Therefore, the court/jury were not presented with this evidence - severely prejudicing Mr Donohue's trial. The delay in the trial from 2017 to 2018 also prompted the use of video evidence, recorded in 2017, being put before the new jury in 2018. This was despite Mr Donohue's instruction to counsel, and did not allow re-examination of witnesses.

RESPONSES TO JUDGES PRIEST & BEACH'S APPLICATION REFUSAL of 25 NOV 2019:

Item 13: It is necessary set out the contents, as many of the issues, critical to the application, have been ignored by Judges Priest & Beach. Please see copy attached.

Item 14 & 15: Judges Priest & Beach have erred. It was not stated that Mr Donohue was ever employed by the Australian Signals Directorate (ASD), or worked within the ASD, and this was never stated in any of the statutory declarations in question.

Item 16: Judges Priest & Beach have erred. The crown did not prove that Mr Donohue was lying. They simply proved that their own witnesses were unqualified and/or untruthful.

Item 17: Judges Priest & Beach have erred. The jury only rejected Mr Donohue's covert service because of false and/or misleading evidence from Porter, Zorzi, Elgohary, and Brennan, and the fact that they were not given the evidence from the AGS which completely discredits their evidence. Their evidence was proven to have no strength and no quality.

Item 18: Judges Priest & Beach have omitted reference to the evidence that Porter admitted that he did not have access to all data bases, including ASD, and certainly not ASIS - confirmed by AGS. Given his very limited access to relevant information, his comment about the use of aliases, and his "opinion" about what was, or wasn't, possible, are ludicrous.

Item 19: Judges Priest & Beach have omitted reference to the evidence that Zorzi that his ASD database search did find a file for Mr Donohue, thereby proving Mr Donohue's involvement with ASD. Mr Zorzi was unable give details of Mr Donohue's ASD related activities as he did not have access to the contents of the file.

Item 20: Judges Priest & Beach have completely ignored the AGS evidence which negates Elgohary testimony, and renders it void.

Item 21: Judges Priest & Beach have completely ignored the evidence that, once Mr Donohue's covert service was, subsequently, acknowledged by the Department of Veterans Affairs (DVA), his claim was approved and a DVA Card issued covering all necessary psychiatric and psychological treatment for life. A copy of this card was included with the application. Please see attached.

Item 22: This statement is completely devoid of merit. It has been clearly shown that Mr Donohue did carry out covert service with the Australian Special Forces, and on behalf of ASD and ASIS. There is also clear evidence that additional, relevant, databases do exist - this was confirmed by the AGS.

Items 23/24: Judges Priest & Beach state - "generally speaking, those in applicant's position are bound by their counsel's conduct of the trial". But, in reality, when counsel does not follow the directions of the applicant, that does not change the facts of the case. Counsel was instructed also to include mental illness in the defence case, but failed to do so. This was one of several failures of counsel to follow directions of the applicant. Please see list end of this document.

Items 25/26/27: Judges Priest & Beach have ignored the fact that Judge Carmody failed in his responsibility to adhere to "the CMT Act". Given the amount of evidence that was put forward, during the trial, about Mr Donohue's mental illness (including 4 professional reports, and details of his Psychiatric Disability Pension), and his obvious unstable behaviour in Court (which was commented on several times by Judge Carmody and the Crown prosecutor), and if he considered Mr Donohue's evidence of covert intelligence service to be delusional, Judge Carmody should have concluded that Mr Donohue was suffering from serious mental illness, and adhered to "the CMT Act".

Item 28: If Judges Priest & Beach found this "utterly preposterous", then they should have found that Judge Carmody erred in relation to "the CMI Act".

Item 29: Judges Priest & Beach have erred. Judge Carmody should have dealt with this issue under "the CMI Act", or, at absolute minimum, ordered a current, comprehensive psychiatric report on Mr Donohue for the court's consideration.

Item 31: Judges Priest & Beach have erred. Dr Longworth's evidence had full relevance. He testified that he has been Mr Donohue's GP for almost 40 years, and has been supervising Mr Donohue's treatment for mental illness for of that time. As well as referring Mr Donohue Dr Dowd, and Dr Farnbach for psychiatric treatment, he has also referred Mr Donohue to Consulting Psychologists, Psychotherapists, and Forensic Psychologists. Dr Longworth also managed Mr Donohue's permanent, daily, psychiatric medications over that time. Judges Priest & Beach have also misrepresented Dr Longworth's evidence about cancer treatment. Dr Longworth arranged the removal of Mr Donohue's tumour at the Waverley Private Hospital (which was, fortunately, found to be benign), and in later years treated Mr Donohue for suspected brain cancer - arranging various tests, including an MRI. In evidence, Dr Longworth also stated "it was possible Mr Donohue could have been treated by other doctors without my knowledge".

Item 32: Judges Priest & Beach have ignored the fact that Dr Farnbach was clearly an unreliable witness. Now very aged, he struggled to understand and answer questions on the stand, could not recall full details of Mr Donohue's treatment, and stated that he had "destroyed" all of Mr Donohue's files. He did confirm Mr Donohue's "classic" Post Traumatic Stress Disorder (PTSD) stemming from military service in Vietnam, and believed that Mr Donohue had responded well to treatment. This treatment is fully funded by the DVA.

Item 33: As stated in Items 23/24, when counsel does not follow the directions of the applicant, that does not change the facts of the case. Mr Donohue's counsel was fully aware of Mr Donohue's mental illness (including their own first hand observations) and were instructed to include mental illness as part of the case, but failed to do so.

FAILURES OF COUNSEL TO FOLLOW DIRECTIONS OF THE APPLICANT:

1. Counsel failed to object to Judge Carmody's instruction that the psychological reports of Lechner & Tomlinson were to be ignored because they were "simply what Mr Donohue told them". On this basis, no psychologists' reports would ever be able to be used, in any court! This is ridiculous, and should have been challenged, as requested by Mr Donohue.
2. Counsel failed to request a new Forensicare report and/or raise "the CMI Act". This is a serious failure by counsel.
3. Counsel failed to highlight Dr Longworth's evidence regarding mental illness and tumour treatment.
4. Counsel failed to ensure that the AGS evidence was put before the jury. This a very serious failure by counsel.
5. Counsel failed to request full re-examination of the witnesses in front of the new jury 2018, not just allow recorded video evidence from 2017 to be used. This would have allowed the defence to highlight the false and/or misleading testimony, particularly in conjunction with the AGS evidence.
6. Counsel failed to highlight Mr Donohue's covert service with the Australian Special Forces, the direct connection to ASIS, which was contained in crown's evidence
7. Counsel failed to insist on access laptop data from VicPol. This is a major failure by counsel.

10 As we have indicated, when the terms of the Application for Special Leave are compared with the terms of the Written Case filed in support of the applicant's most recent application in this Court, it becomes abundantly clear that the present application seeks simply to re-agitate issues that were finally determined by the dismissal of the application in the High Court. Hence, so far as relevant, the Written Case is in the following terms:[6]

WRITTEN CASE FOR THE APPLICANT

Summary of relevant facts:

Outline of offending: false documents were presented to the Magistrates Court on multiple occasions which resulted in the adjournment of the matters before the court. Making of the documents was admitted but "attempting to pervert the course of justice" was defended as the information in the documents was correct. Statutory declarations were also presented to the Magistrates Court on multiple occasions to adjourn the same matters. Making of the documents was admitted but "perjury" was defended as the information in the declarations was correct. The matters before the Magistrates Court were subsequently finalised in 2016.

Reasons for appeal:

(i) the critical evidence of the AGS (Australian Government Solicitor)

(ii) the critical evidence of the applicant's service in the Australian Special Forces

(iii) that the critical evidence from Mr Donohue's laptop computers was not supplied by VicPol forensics as directed by the court, and therefore wasn't available for the jury's consideration

(iv) evidence raised by Justices Priest & Beach re: "the CMI Act", Madaferri, and Kesavarajah

1. Fresh evidence not put before the Court of Appeal:

(i) the critical evidence of the AGS (Australian Government Solicitor)

(ii) withholding of Judge Carmody's flawed & prejudiced "charge to the jury"

1. That Judge Carmody and/or Judges Priest & Beach failed to:

(i) acknowledge that the critical evidence of the AGS (Australian Government Solicitor) was withheld from the jury by Judge Carmody

(ii) acknowledge the applicant's service in the Australian Special Forces

(iii) acknowledge the defective/contradictory evidence of the Crown's federal government witnesses

(iv) acknowledge the impact of the 13 month gap in the trial from 2017 to 2018

(v) acknowledge the omission of Judge Carmody's "charge to the jury" which was flawed and prejudiced (and which he has refused to release - avoiding scrutiny by a higher court)

(vi) acknowledge that the critical evidence from Mr Donohue's laptop computers was not supplied by VicPol forensics as directed by the court, and that it wasn't made available to the jury

(vii) properly address the clear evidence of the applicant's mental illness

(viii) properly address the improper direction of Judge Carmody to "ignore" most of the psychological evidence and/or order a current Forensicare report

(ix) properly address Judge Carmody's failure to invoke "the CMI Act".

GROUNDS OF APPEAL (Neville Donohue v The Queen)

The following grounds should be considered on the basis of the compelling, substantial or probative matters raised, in the interest of justice. The grounds include non-disclosure of key evidence ordered by Judge Carmody; and allegations of police misconduct and manipulation or withholding of evidence; raising a serious question as to the fairness of the trial (see Jason Joseph Roberts v The Queen [2020]VSCA58, in particular items 34 to 51); and Judge Carmody's failure to invoke the CMI Act, despite clear evidence and legal requirements for him to do so, which also raises a serious question as to the fairness of the trial.

1. The evidence from the Australian Government Solicitor (AGS) dispelled the evidence of Porter, Zorzi, Elgohary, and Brennan. (see 7.)

If the AGS evidence had been put to the jury, it would have led to "reasonable doubt" on all of the perjury charges. Judge Carmody also failed to mention this in his "charge to the jury".

This would have led to a "not guilty" verdict on all the perjury charges.

1. The evidence that Mr Donohue's Army service was with the Special Forces, in a covert operations unit attached to the Australian Secret Intelligence Service (ASIS) was withheld from the jury. This information is contained in evidence that was held by the Crown, and given by the AGS. E.g:

Military Service: 313847 Donohue N.M.

Branch: Australian Special Forces (Special Operations Command)

Regiment: 1st Commando Regt

Unit: 126 Signal Squadron Special Forces (aka Z Special Unit)

Functions of 126 Sig Sqn:

- Covert Operations unit of the 1st Commando Regt

- Inter-op unit of 152 Sig Sqn (Special Air Service Regt)

- Military wing of ASIS (Australian Secret Intelligence Service), sharing the ASIS facility at Swan Island, and conducting covert ops with, or for, ASIS.

Training: Fully trained covert operative - having completed all training from Parachuting through to RECONDO at Special Air Service (SAS) Regt (available only to Special Forces personnel required for active, overseas covert operations).

Also: Marksman & Advanced Weapons Specialist, Electronic & Cipher Specialist (for communication systems' sabotage), and Language Specialist.

If this evidence had been put to the jury, it would have led to "reasonable doubt" on all of the perjury charges. Judge Carmody also failed to mention this in his "charge to the jury ".

This would have led to a "not guilty" verdict on all the perjury charges.

1. The AGS evidence exposed defective, and/or contradictory, evidence that was given by all of the key Crown witnesses from Federal Government departments. (see 7.)

If the AGS evidence had been put to the jury, it would have led to "reasonable doubt" on all of the perjury charges. Judge Carmody also failed to mention this in his "charge to the jury".

This would have led to a "not guilty" verdict on all the perjury charges.

1. Judge Carmody's prejudiced instruction that the psychological reports of Lechner & Tomlinson were to be ignored because they were "simply what Mr Donohue told them". On this basis, no psychologists' reports would ever be able to be used, in any court. Judge Carmody then went on to quote that "Mr Donohue coped well in prison" from the Forensicare report which had been ordered by a different judge, for a different matter, and was written prior to Mr Donohue's months of imprisonment. It was written after a short period on remand and was based on the idea that if Mr Donohue had not attempted suicide then he "coped well in prison". That could not be more incorrect - it was a mental health struggle during remand, which then became a mental health nightmare during his 4 months imprisonment, particularly without access to his normal mental health treatment, and access to 2 of his 4 regular psychiatric medications. His mental health has continuously deteriorated further during the last 24 months in prison. If "coping well in prison", or not, figured in Judge Carmody's deliberations, then he should have ordered a new Forensicare report to ascertain the effect of the months in prison since the first report.

This overwhelming evidence should have led Judge Carmody to acknowledge more than just the PTSD and one other very selective reference from one outdated report, and then should have led him to invoke the CMI Act; and/or led Justices Priest & Beach to acknowledge Judge Carmody's error rather than try to justify it.

(i) Given the amount of evidence that was put forward, during the trial, about Mr Donohue's mental illness (including 4 professional reports, and details of his Psychiatric Disability Pension), and his obvious unstable behaviour in Court (which was commented on several times by Judge Carmody and the Crown prosecutor), and from Judges Priest & Beach's own observations, then either Mr Donohue's covert intelligence service is true, or he is suffering serious mental illness, or both. Judges Priest & Beach cannot have it both ways. Also, the evidence of mental illness should have led Judge Carmody to invoke the CMI Act. At last review by the prison psychiatrist Mr Donohue's mental health history and status is:

- Developed severe, chronic PTSD during my military service in the 1970"s, treated by daily medication for the last 40 years, plus extensive, ongoing, psychotherapy.

- Developed bi-polar and delusional disorders in the 1990's.

- Developed epileptic symptoms from the bi-polar disorder in the 2000's, leading to the inability to drive, and the need for permanent, daily, seizure medication.

- His GP has supervised his psychiatric medications for 40 years, but only 2 of his 4 prescribed daily medications are available in prison (the other 2 banned as they are considered trafficable).

- The lack of these daily medications has led to the continuous deterioration of his mental health over the last 24 months

- When outside prison, his mental health treatment is fully funded by the DVA (Department of Veterans Affairs), and is fully comprehensive. This includes regular sessions with his psychologist, special sessions with a forensic psychologist, and supervision from his psychiatrist. This level of care is not available in the prison system, where the focus is on suicide prevention rather than overall treatment.

- Dr Longworth gave evidence about Mr Donohue's mental health, and his continuous involvement in his care for 40 years, and this is not disputed by the prosecution.

- Mr Donohue has a permanent Psychiatric Disability pension from Centrelink, for the above reasons, which is suspended during his incarceration.

This overwhelming evidence should have led Judge Carmody to invoke the CMI Act.

This would have changed the conduct of the trial, and the outcome, completely. It should also have led Justices Priest & Beach to acknowledge Judge Carmody's error rather than try to justify it.

(ii) Remorse: Given the amount of evidence that was put forward, during the trial, about Mr Donohue's mental illness (including 4 professional reports, and details of his Psychiatric Disability Pension), and his obvious unstable behaviour in Court (which was commented on several times by Judge Carmody and the Crown prosecutor), and from Judges Priest & Beach's own observations, then either Mr Donohue's covert intelligence service is true, or he is suffering serious mental illness, or both. Before incarceration, Mr Donohue was undergoing extensive psychotherapy (funded by the DVA) with a Forensic Psychologist to deal with each of his mental health disorders, and to "put together the jigsaw puzzle" of his afflictions. One of the aims of this treatment was for Mr Donohue to be able to fully recognise what had occurred, and to be able to have full remorse.

This overwhelming evidence should have led Judge Carmody to invoke the "CMI Act".

This would have changed the conduct of the trial, and the outcome, completely. It should also have led Justices Priest & Beach to acknowledge Judge Carmody's error rather than try to justify it.

(iii) The CMI Act not only applies to the time of offending, but most importantly in this case it also applies to the mental state of the accused at the time of the trial. In Madaferri it was observed:

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 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, but the judge failed to reserve the question for investigation under the CMI Act, the judge would have erred. Apart from the extensive evidence about Mr Donohue' history of mental illness, Judges Carmody observed first hand Mr Donohue's obvious mental illness during the trial, and both he and the prosecution referred to it several times throughout the trial, even suggesting that Mr Donohue was having "Jason Bourne" delusions, amongst other comments. Justices Priest & Beach also referred to Mr Donohue's actions as being "bizarre", "far-fetched", "utterly preposterous" and "delusional".

It was absolutely clear that there was a "real and substantial issue as to the applicant's fitness to be tried" and that Judge Carmody erred by failing to invoke the CMI Act.

This would have changed the conduct of the trial, and the outcome, completely. It should also have led Justices Priest & Beach to acknowledge Judge Carmody's error rather than try to justify it.

1. Impact of the 13 month gap in the trial from 2017 to 2018. The gap occurred when Judge Carmody ordered VicPol to provide, to the defence, copies of all data from 2 laptop computers that had been seized from Mr Donohue. This was to enable critical evidence to be presented to the court/jury. VicPol firstly failed to provide the data by the due date. After being given extra time VicPol then failed to deliver the data in a readable form. The VicPol Forensics expert and the defence computer expert agreed, before Judge Carmody, that the data format provided could only be read on VicPol computers using restricted, proprietary, software. VicPol were instructed to make the data available in a readable form, but, Judge Carmody also directed that the trial would commence on 3 Sep 18 with or without the evidence from the laptops. VicPol did not supply the data in a readable form, and, against Mr Donohue's directions, his counsel (Mr Simon Kenny) did not insist on this critical evidence being made available. When Mr Donohue raised this issue whilst on the stand, Judge Carmody removed the jury and ordered Mr Donohue not to mention this matter again. Therefore the court/jury were not presented with this evidence - severely prejudicing Mr Donohue's trial. The delay in the trial from 2017 to 2018 also prompted the use of video evidence, recorded in 2017, being put before the new jury in 2018. This was despite Mr Donohue's instruction to counsel, and did not allow for re-examination of witnesses - especially Porter, Zorzi, Elgohary, and Brennan, who would have been re-examined in light of the evidence from the AGS. If this new evidence had been put to the jury, or if the jury was aware that Vic Pol had failed to provide evidence when ordered to do so, it would have led to "reasonable doubt" on many of the charges. Judge Carmody also failed to mention this in his "charge to the jury".

These issues were not acknowledged by Justices Priest & Beach.

This would have led to a "not guilty" verdict on many of the charges, and/or led Justices Priest & Beach to acknowledge Judge Carmody's serious errors.

1. SERIOUS ERRORS IN JUDGES PRIEST & BEACH'S JUDGEMENT RE CONVICTION [SAPCR 2019 0140,25 NOV 2019] WHICH ARE RELEVANT IN THIS MATTER:

Items 14 & 15: Judges Priest & Beach have erred. It was not stated that Mr Donohue was ever employed by the Australian Signals Directorate (ASD), or worked within the ASD, and this was never stated in any of the statutory declarations in question.

If this had been put to the jury, it would have led to "reasonable doubt" on all of the perjury charges.

Judge Carmody also failed to mention this in his "charge to the jury".

This would have led to a "not guilty" verdict on all the perjury charges, and/or led Justices Priest & Beach to acknowledge Judge Carmody's error.

Item 16: Judges Priest & Beach have erred. The crown did not prove that Mr Donohue was lying. They simply proved that their own witnesses were unqualified and/or untruthful, by their own contradictory evidence, and also confirmed by the evidence from the AGS (that was not given to the jury).

If the AGS evidence had been put to the jury, it would have led to "reasonable doubt" on all of the perjury charges. Judge Carmody also failed to mention any of this in his "charge to the jury".

This would have led to a "not guilty" verdict on all the perjury charges, and/or led Justices Priest & Beach to acknowledge Judge Carmody's error.

Item 17: Judges Priest & Beach have erred. The jury only rejected Mr Donohue's covert service because of false and/or misleading evidence from Porter, Zorzi, Elgohary, and Brennan, and the fact that the jury were not given the evidence from the AGS which completely discredits their evidence. Their evidence was proven to have no strength and no quality.

If the AGS evidence had been put to the jury, it would have led to "reasonable doubt" on all of the perjury charges. Judge Carmody also failed to mention this in his "charge to the jury".

This would have led to a "not guilty" verdict on all the perjury charges, and/or led Justices Priest & Beach to acknowledge Judge Carmody's error.

Item 18: Judges Priest & Beach have omitted reference to the evidence that Porter admitted that he did not have access to all data bases, including ASD, and certainly not ASIS - as confirmed by the AGS. Given his very limited access to relevant information, his comment about the use of aliases, and his "opinion" about what was, or wasn't, possible, have no credibility. The AGS evidence was not given to the jury.

If the AGS evidence had been put to the jury, it would have led to "reasonable doubt" on all of the perjury charges. Judge Carmody also failed to mention this in his "charge to the jury".

This would have led to a "not guilty" verdict on all the perjury charges, and/or led Justices Priest & Beach to acknowledge Judge Carmody's error rather than try to justify it.

Item 19: Judges Priest & Beach have omitted reference to the evidence that Zorzi stated that his ASD database search did find a file for Mr Donohue, thereby proving Mr Donohue's involvement with ASD. Mr Zorzi was unable to give details of Mr Donohue's ASD related activities as he did not have access to the contents of the file. This was confirmed by the AGS.

If the AGS evidence had been put to the jury, it would have led to "reasonable doubt" on all of the perjury charges. Judge Carmody also failed to mention this in his "charge to the jury".

This would have led to a "not guilty" verdict on all the perjury charges, and/or led Justices Priest & Beach to acknowledge Judge Carmody's error rather than try to justify it.

Item 20: Judges Priest & Beach have completely ignored the AGS evidence which negates the Elgohary testimony, and renders it void. If this evidence had been put to the jury, it would have led to "reasonable doubt" on all of the perjury charges. Judge Carmody also failed to mention this in his "charge to the jury".

This would have led to a "not guilty" verdict on all the perjury charges, and/or led Justices Priest & Beach to acknowledge Judge Carmody's error.

Item 21: Judges Priest & Beach have completely ignored the evidence that, once Mr Donohue's covert service was, subsequently, acknowledged by the Department of Veterans Affairs (DVA), his claim was approved and a DVA Card issued covering all necessary psychiatric and psychological treatment for life.

A copy of this card was included with the application. Please see attached.

If this evidence had been put to the jury, it would have led to "reasonable doubt" on all of the perjury charges. Judge Carmody also failed to mention this in his "charge to the jury".

This would have led to a "not guilty" verdict on all the perjury charges, and/or led Justices Priest & Beach to acknowledge Judge Carmody's error rather than try to justify it.

Item 22: This statement is completely devoid of merit. It has been clearly shown that Mr Donohue did carry out covert service with the Australian Special Forces, and on behalf of ASD and ASIS. There is also clear evidence that additional, relevant, databases do exist - this was confirmed by the AGS.

If this evidence had been put to the jury, it would have led to "reasonable doubt" on all of the perjury charges. Judge Carmody also failed to mention this in his "charge to the jury".

This would have led to a "not guilty" verdict on all the perjury charges, and/or led Justices Priest & Beach to acknowledge Judge Carmody's error rather than try to justify it.

Items 23/24: Judges Priest & Beach state "generally speaking, those in the applicant's position are bound by their counsel's conduct of the trial". But, in reality, when counsel does not follow the directions of the applicant, that does not change the facts of the case. Counsel was instructed to also include mental illness in the defence case, but failed to do so. This was one of several failures of counsel to follow directions of the applicant. Please see list later in this document.

This should have led to invoking the CMI Act. This would have changed the conduct of the trial, and the outcome, completely. Justices Priest & Beach should have acknowledged this error.

Items 25/26/27: Judges Priest & Beach have ignored the fact that Judge Carmody failed in his responsibility to adhere to "the CMI Act" [see 5. (iii)]. Given the amount of evidence that was put forward, during the trial, about Mr Donohue's mental illness (including 4 professional reports, and details of his Psychiatric Disability Pension), and his obvious unstable behaviour in Court (which was commented on several times by Judge Carmody and the Crown prosecutor), and if he considered Mr Donohue's evidence of covert intelligence service to be "delusional", Judge Carmody should have concluded that Mr Donohue was suffering from serious mental illness, and adhered to "the CMI Act". In Item 25 Justices Priest & Beach assert that defence counsel was "astute". It is hard to see how counsel that does not follow a client's instructions and/or does not use his own observations about his client's mental illness to raise the issue of the CMI Act, can be in any way viewed as astute. "Negligent" would be a better description. Also, in Item 27, Justices Priest & Beach quote extracts from the trial which highlight Mr Donohue's mental illness, and yet they try to use that evidence to excuse Judge Carmody's failure to adhere to "the CMI Act".

This would have changed the conduct of the trial, and the outcome, completely. Justices Priest & Beach should have acknowledged Judge Carmody's error rather than try to justify it.

Item 28: After quoting Madaferri, and Kesavarajah v The Queen, if Judges Priest & Beach found this "utterly preposterous", then they should have found that Judge Carmody erred by not invoking "the CMI Act" when "there is real and substantial question as to the fitness of the accused to stand trial".

This would have changed the conduct of the trial, and the outcome, completely. Justices Priest & Beach should have acknowledged Judge Carmody's error rather than try to justify it.

Item 29: Judges Priest & Beach have erred. Judge Carmody should have dealt with this issue under "the CMI Act" [See 5. (iii)], or, at absolute minimum, ordered a current, comprehensive psychiatric report on Mr Donohue for consideration by the court and the jury.

This would have changed the conduct of the trial, and the outcome, completely.

Item 31: Judges Priest & Beach have erred. Dr Longworth's evidence had full relevance. He testified that he has been Mr Donohue's GP for almost 40 years, and has been supervising Mr Donohue's treatment for mental illness for all of that time. As well as referring Mr Donohue to Dr Dowd, and Dr Farnbach for psychiatric treatment, he has also referred Mr Donohue to Consulting Psychologists, Psychotherapists, and Forensic Psychologists. Dr Longworth has also managed Mr Donohue's permanent, daily, psychiatric medications over that time. Judges Priest & Beach have also misrepresented Dr Longworth's evidence about cancer treatment. Dr Longworth arranged the removal of Mr Donohue's brain tumour at the Waverley Private Hospital in 2001, and in later years treated Mr Donohue for another suspected brain cancer - arranging various tests, including an MRI. In evidence, Dr Longworth also stated that "it was possible that Mr Donohue could also have been treated by other doctors without my knowledge".

This evidence should have led Judge Carmody to engage "the CMI Act". This would have changed the conduct of the trial, and the outcome, completely.

Item 32: Judges Priest & Beach have ignored the fact that Dr Farnbach was clearly an unreliable witness. Now very aged, he struggled to understand and answer questions on the stand, could not recall important details of Mr Donohue's treatment, and stated that he had "destroyed" all of Mr Donohue's files. He did confirm Mr Donohue's "classic" Post Traumatic Stress Disorder (PTSD) stemming from his military service in Vietnam, and believed that Mr Donohue responded well to treatment. This indicates why regular, ongoing, psychiatric and psychological treatment, coupled with ongoing drug treatment, is required for Mr Donohue's mental health. Outside prison this treatment is fully funded by the DVA.

This evidence should have led Judge Carmody to engage "the CMI Act". This would have changed the conduct of the trial, and the outcome, completely. Justices Priest & Beach should have acknowledged Judge Carmody's error rather than try to justify it.

Item 33: As stated in response to Items 23/24, when counsel does not follow the directions of the applicant, that does not change the facts of the case. Mr Donohue's counsel was fully aware of Mr Donohue's mental illness (including their own first hand observations) and were instructed to include mental illness as part of the defence case, but failed to do so.

This would have changed the conduct of the trial, and the outcome, completely.

8. FAlLURES OF COUNSEL TO FOLLOW DIRECTIONS OF THE APPLICANT:

(i) Counsel failed to object to Judge Carmody's instruction that the psychological reports of Lechner & Tomlinson were to be ignored because they were "simply what Mr Donohue told them". On this basis, no psychologists' reports would ever be able to be used, in court. This should have been challenged, as requested by Mr Donohue, OR their contents should have led to the "CMI Act".

(ii) Counsel failed to request a new Forensicare report and/or raise "the CMI Act". The Forensicare report that was quoted by Judge Carmody (i.e. that Mr Donohue had coped well in prison - as he had not attempted suicide) was written after only a short period on remand, and had no possibility of examining the effects of the months of imprisonment that Mr Donohue had endured between that report and the trial. This is a serious failure by counsel.

(iii) Counsel failed to highlight Dr Longworth's evidence re: mental illness and tumour treatment.

(iv) Counsel failed to ensure that the AGS evidence was put before the jury. A very serious failure.

(v) Counsel failed to request full re-examination of the witnesses in front of the new jury 2018, not just allow recorded video evidence from 2017 to be used. This would have allowed the defence to highlight the false and/or misleading testimony, particularly in conjunction with the AGS evidence.

(vi) Counsel failed to highlight Mr Donohue's covert service with the Australian Special Forces, and the direct connection to ASD & ASIS, which was contained in the AGS and Crown evidence.

(vii) Counsel failed to insist on access to the laptop data from VicPol. This is a major failure.

(viii) Sentencing: counsel failed to highlight the overwhelming evidence re the care needs of Mrs Donohue (74 years old, spinal disorder, epilepsy, asthma & diabetes) and our disabled son (Down Syndrome and underlying medical disorders) - particularly medical evidence from a prosecution witness, and counsel did not challenge Judge Carmody when he very inappropriately said of Mrs Donohue: that it would "be tough for her, but she'll manage. She comes from a certain generation that know how to manage". Being of a "certain generation" does not enable one to do the impossible. The clear evidence of exceptional hardship (inc financial) and the care needs of multiple invalid/disabled dependents (Markovic v R [2010} VSCA105; and Victorian Sentencing Manual 11. 7.1 0. 8) should have led to non-custodial sentence.

These failures by counsel should have been highlighted by Justices Priest & Beach to acknowledge their impact on the conduct and outcome of the trial. Far from being "astute", it is clear from their obvious failures that defence counsel was negligent and unprofessional.

Justices Priest & Beach also failed to note the lack of a copy of Judge Carmody's "charge to the jury" which was flawed and prejudiced, and which Judge Carmody has refused to release -avoiding scrutiny by a higher court. (see attached letter from VGRS).

11 It will have been noticed that, in both the Application for Special Leave and in the Written Case set out above, the applicant addresses arguments in relation to various numbered 'Items'. These 'Item' numbers correspond to the paragraph numbers of this Court's reasons for judgment touching conviction, under the headings, Proposed ground 1: Alleged false and misleading evidence,[7] and Proposed ground 2: The applicant's mental health.[8] It is unnecessary to recapitulate the contents of those paragraphs. The submissions advanced with respect to each 'Item' amount to an argument why the contents of the correspondingly numbered paragraph of the Court's reasons for judgment are attended by error.

12 It is also unnecessary to here repeat the circumstances of the applicant's offending. Once more, it is set out in the Court's reasons for judgment with respect to the applicant's conviction application.[9]

13 Since it is plain that by this third application the applicant simply seeks once more to litigate issues that had been determined against him both in this Court and in the High Court, it is equally plain that the present application cannot be viewed as other than an abuse of process. Putting to one side the power to entertain a second or subsequent appeal in the case of fresh and compelling evidence provided for in Part 6.4 of the Criminal Procedure Act 2009 ('CPA'), when an application for leave to appeal or an appeal has once been fully heard and disposed of on the merits, there simply is no jurisdiction to re-open it.[10]

14 In the course of the hearing of this third application, in which the applicant was unrepresented, this Court explained to him the meanings of fresh and compelling as used in s 326C of the CPA. When he was then asked by the Court to outline the fresh and compelling evidence upon which he sought to rely, the applicant merely repeated several matters already set out in his Written Case which were not fresh, and were far from compelling.

15 Unhappily, precious judicial time has once more been expended dealing with another entirely hopeless proceeding brought by this applicant.

16 This application for leave to appeal against conviction - purportedly brought pursuant to s 326A of the CPA - must be refused.

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

[2] Donohue v The Queen (No 2) [2019] VSCA 274 ('Donohue (No 2)').

[3] See Donohue v The Queen [2020] HCASL 242.

[4] See Donohue v The Queen [2020] HCASL 130.

[5] Spelling, punctuation, syntax, grammar and formatting as in original.

[6] Spelling, punctuation, syntax, grammar and formatting as in original.

[7] See Donohue (No 2), [14]-[22].

[10] Grierson v The King [1938] HCA 45; (1938) 60 CLR 431; Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295; R v McNamara (No 2) [1997] 1 VR 257; R v GAM (No 2) [2004] VSCA 117; (2004) 9 VR 640.