R v Ogawa[2009] QCA 201

SUPREME COURT OF QUEENSLAND

Introduction

[1]  THE COURT:  The Commonwealth Director of Public Prosecutions appeals against an order of a judge of the Supreme Court on 18 June 2009 granting the respondent bail pending appeal.  This Court ordered on 9 July 2009 that the appeal be dismissed.  These are the reasons for that order.

[2] The respondent was convicted on 27 March 2009 after a trial in the District Court of:

1.Between 12 April 2006 and 15 April 2006 using a carriage service in a way that reasonable persons would regard as being harassing (count 1);

2.On 9 May 2006 using a carriage service to make to Christopher Young a threat to kill another person, intending Mr Young to fear that the threat would be carried out (count 2);

3.On 9 May 2006 using a carriage service to make to Mr Young a threat to kill another person, intending Mr Young to fear that the threat would be carried out (count 3); and

4.Between 13 April 2006 and 19 May 2006 using a carriage service in a way that reasonable persons would regard as being, in all the circumstances, harassing (count 4).

[3] A sentence of six months imprisonment commencing on 27 May 2009 was imposed for each count and it was ordered that the respondent be released after serving four months, upon giving security by recognisance in the sum of $1,000 conditioned on her being of good behaviour for a period of two years.

[4] Forty-four days spent in pre-sentence custody were declared to be imprisonment already served under the sentences.

[5] The respondent was also sentenced on 27 March 2009 to four months imprisonment for a charge of contempt of Court and 26 May 2009 was fixed as the parole release date.  In his sentencing remarks the learned trial judge observed that the respondent's behaviour in court had been "disgraceful", that she had not been legally represented and that her conduct had resulted in her exclusion from the Court for most of the proceedings.  Reference was also made in the sentencing remarks to Dr Kingswell, a psychiatrist, having diagnosed the respondent as having a personality disorder.

Grounds of Appeal

[6] The appellant's counsel contended in his written outline of submissions that the learned primary judge erred in:

1.Failing to apply the principle "that there should be strong grounds for holding that the appeal would be allowed"[1] before bail should be granted; and

2.Evaluating the relevance of the alleged shortness of the respondent's custodial term.

It was submitted also that the primary judge "may have disregarded other important factors such as her bail history."

Relevant principles

[7] The principles to be applied in determining whether bail should be allowed pending the hearing of an appeal after conviction of a criminal offence were stated in the reasons of the Court in United Mexican States v Cabal[2] as follows:

"In determining whether to stay an order of imprisonment and give bail to the applicant or appellant, the court must consider not only the position of the applicant or appellant but also the position of the Crown.  To stay an order of imprisonment before deciding the appeal is a serious interference with the due administration of criminal justice.  As Thomas J pointed out in Ex parte Maher,[3] to allow bail pending the hearing of an appeal after a person has been convicted and imprisoned:

• makes the conviction appear contingent until confirmed;
• places the court in the invidious position of having to return to prison a person whose circumstances may have changed dramatically during the period of liberty on bail;
• encourages unmeritorious appeals;
• undermines respect for the judicial system in having a 'recently sentenced man walking free';
• undermines the public interest in having convicted persons serve their sentences as soon as is practicable.

Consequently, the doctrine of this Court is that in a criminal case an order granting bail will only be made if there are exceptional circumstances[4]."

[8] Ordinarily, in order to establish "exceptional circumstances" it will be necessary to show that "there are strong grounds for concluding that the appeal will be allowed" and that the appellant may be required to serve an unacceptable portion of his or her sentence before the appeal can be heard.[5]  That statement of principle acknowledges that "exceptional circumstances" may be held to exist even though both of the above requirements are not satisfied.[6]  Prospects of success on appeal, however, will always be an important consideration.[7]  Of course, it is always necessary that the discretion to grant or withhold bail be exercised in the light of the principles stated earlier, with regard to all relevant circumstances, and in particular, those referred to in s 16 of the Bail Act 1980 (Qld).

[9] It is convenient to now consider the strength of the grounds relied on by the respondent.

The amended grounds of appeal

[10]  The respondent appealed against her convictions on the grounds that the verdicts were unsafe and unsatisfactory and against the sentences imposed on the grounds that the sentences were manifestly excessive.  An amended notice of appeal contained the following grounds of appeal against conviction:

"1.The charges set out in Counts 1 and 4 of the Indictment were bad for duplicity and were in breach of the mandatory requirement contained in s.567(3) of the Criminal Code (Qld).

2.Counts 2 and 3 in the Indictment disclose one episode of alleged proscribed behaviour and should not have been made the subject of two separate and distinct charges.

3.In relation to Count 4 there was no evidence concerning the content of the telephone calls and accordingly there was no evidence or there was insufficient evidence to prove that the calls were "harassing".

[11]  Amended grounds 4 to 8 inclusive alleged that certain evidence led by the prosecution was "irrelevant, highly prejudicial and ought to have been excluded".  The remaining amended grounds, 9, 10 and 11, alleged that the primary judge had misdirected or failed to direct the jury in certain respects.

Consideration of ground 1

[12]  For the proposition that counts 1 and 4 are bad for duplicity, counsel for the respondent relied on R v Morrow and Flynn.[8]  In that case the two appellants were tried on a one count indictment for unlawfully assaulting the complainant and doing him bodily harm.  The head note to the case reveals that the evidence established no less than seven separate incidents which could have been the subject of the count; that some of the incidents related to only one or the other of the appellants and that others related to both of them whilst in company with each other.

[13]  Connolly J, with whose reasons the other members of the Court agreed, said:[9]

"… when two persons are charged then, in strict accordance with s 567 [of the Criminal Code], they can only be charged in the one count if it is truly the one offence …"

[14]  His Honour went on to observe:

"The nature of the Crown case was never made clear, whether by particulars or otherwise.  By this I mean it was never made clear what precise offence was charged against the appellants or, if it was sought to have the indictment understood not in its natural sense but as charging several acts by each of them, what those acts were.  Even regarding the indictment as charging conjoint responsibility for the one offence, there was more than one such offence.  It follows that what really happened in this trial is that the jury was faced with evidence of some seven offences where one only was charged and that they were left to decide for themselves of which offence, if any, they were prepared to convict."

[15]  His Honour had earlier discussed the question of whether, in a case in which more than one blow was delivered, each blow must be the subject of a separate count.  His Honour, after referring to discussion on such a point in Director of Public Prosecutions v Merriman[10] concluded[11] that there was no objection to charging "a knifing attack by one man who delivers a number of blows" as one offence, even though the offender could be charged with separate offences for each wounding.  His Honour continued:[12]

"On an indictment for attempted murder it may be proved that the prisoner knifed the victim two or three times and then pursued him down the street knife in hand.  Technically the Crown could charge each knifing and the pursuit as separate offences of attempted murder.  There can however be no objection to charging the whole episode as an attempted murder and indeed one has known this to be done." 

[16] R v Morrow and Flynn thus provides no support for the respondent's argument.

[17]  In respect of count 1, the prosecution relied on the sending by the respondent of 83 emails in a period of less than 24 hours.  In relation to count 4, the prosecution relied on 176 telephone calls made by the respondent over a period of approximately five weeks. 

[18]  The offence the subject of each of these counts was not the making of individual telephone calls or the sending of individual emails which "reasonable persons would regard as being, in all the circumstances, harassing".  As counsel for the appellant pointed out in his submissions, the offence was constituted by a course of conduct engaged in by the respondent over the period alleged.  Offences involving harassment and other courses of conduct will often be based on a number of separate acts which, considered separately, might constitute separate offences.  That does not lead necessarily, however, to a conclusion that a count based on a number of such acts is bad for duplicity.[13]  There would thus appear to be little merit in ground 1.  Additionally, no objection in terms of these grounds was taken on behalf of the respondent at pre-trial hearings at which she had legal representation and no miscarriage of justice resulting from the alleged deficiencies has been identified.  Consequently, even if the respondent's argument were to succeed, it is doubtful that she would have an entitlement to have the verdicts set aside.[14]

Consideration of ground 2

[19]  It is submitted that the charges contained in counts 2 and 3 should have been charged as one count.  The argument is that "the gravamen of the charge" under s 474.15 of the Criminal Code Act 1995 (Cth) is "the use of the carriage service" and as there was only one use, there was therefore only one alleged offence.  Section 474.15(1) relevantly provides:

"A person (the first person) is guilty of an offence if:

(a)the first person uses a carriage service to make to another person (the second person) a threat to kill the second person or a third person; and

(b)the first person intends the second person to fear that the threat will be carried out."

[20]  Counsel for the appellant submitted that "the fact that the [respondent] threatened to kill two separate people in the same phone call produced two counts.  Had this been rolled into one count, it may have been open to an attack for duplicity."

[21]  Whether the latter contention is correct may be doubted in light of s 23 of the Acts Interpretation Act 1901 (Cth) but its correctness does not need to be decided.  On the case particularised and presented, the respondent, in a telephone call to Mr Young, told him, "I will kill [C].  I will kill [D]."  These persons were both Registrars of the Federal Court with whom the respondent had had dealings.  There was thus a use of "a carriage service" in which separate threats to kill "a third person" were made.  The discussion of principle in R v Morrow and Flynn strongly suggests that there was no difficulty with the course taken by the prosecution.

Consideration of ground 3

[22]  In relation to ground 3, counsel for the respondent asked rhetorically "in the absence of evidence of the content of the call or calls, how could a jury assess whether reasonable persons would regard (the manner of use of the carriage service) as being in all the circumstances, harassing?"  The response by counsel for the appellant was that "the conduct as particularised did not relate to the content, rather the quantity and frequency of the calls." 

[23]  A statement of facts placed before the primary judge as part of the appellant's submissions at first instance states:

"After her release on the above charge the applicant proceeded to telephone the registries and chambers of the Federal Court 176 times between the 14 April 2006 and the 14 May 2006.  This conduct was particularised by the Crown as being harassing in quantity and frequency."

[24]  Another document in the record lists 176 telephone calls between 14 April 2006 and 18 May 2006 to registries of the Federal Court in Victoria and Queensland and to chambers of judges and registrars of that Court in Sydney, Melbourne and Brisbane.  It would seem that a number of these calls did not proceed beyond the switchboard and that a number of others were made in close proximity to others; whether that was because of a failure on the part of the respondent to be connected to the judge or for some other reason was not explained.  The sheer volume of calls over the relevant period supports the jury's verdict.  However, having regard to the number of persons and bodies to whom the calls were made and the lack of evidence before this Court on the precise circumstances surrounding the calls, it is impossible to conclude that the respondent has no arguable case in this regard.

Consideration of grounds 4 to 9

[25]  The respondent appears to be in a much stronger position when it comes to grounds 4 to 9.  Grounds 6, 7 and 8 concern the leading of evidence from the two persons alleged to have been threatened in the telephone conversations the subject of counts 2 and 3 as to the impact of the threats.

[26]  In his summing up, the primary judge highlighted the evidence of the persons against whom the threats were made by informing the jury that they "will understand that counts 2, 3 and 4 focus to some extent on the evidence of "those witnesses and that of Mr Young.  The primary judge's directions as to the elements of the offences the subjects of counts 2 and 3 were thus, arguably, tainted by the judge's intimation that the evidence of the persons to whom the threats were directed was of relevance in determining whether the elements of the offence had been proved.

[27]  The summing up gave considerable emphasis to the evidence of Mr Young and the other two witnesses, including evidence of the states of mind and emotions of those persons.  That evidence, which included evidence of Mr Young that he found the contents of one of the respondent's emails "incredibly chilling" and in which he expressed his concern for the safety of residents of the university's accommodation in which the respondent was residing, was likely to have distracted the jury from focussing on the question of whether the respondent had the requisite intention at the relevant time.

[28]  The requirements of s 474.15(1) are that:

(a)[A] use a carriage service to make a threat to [B];

(b)The threat must be to kill [B] or [C]; and

(c)[A] must intend that [B] fear that the threat will be carried out.

[29]  It is difficult to understand how the evidence of [C] as to the effect of the threat on him, after being made aware of it by [B] or another person, can be of relevance to proof of any of the elements of the offence.

[30]  [B's] evidence about the circumstances in which the threat was made and, in particular, as to whether there was anything said or done which might suggest that the threat was or was not to be taken seriously, is of obvious relevance. If [B's] state of mind induced by the threat is relevant, its relevance is only marginal.  One would think that the obvious matters from which the respondent's intention was to be ascertained in the circumstances under consideration were:  the words spoken; the manner in which the words were spoken and the circumstances and context in which they were spoken, including the respondent's emotional and/or mental state and the prior dealings between the respondent and Mr Young.

[31]  Yet, the summing up focussed on the evidence of Mr Young and that of the persons threatened as to their responses and emotional state rather than on the matters just listed.  It is thus strongly arguable that inadmissible and potentially highly prejudicial evidence was admitted and that the summing up included material errors.

Consideration of ground 10

[32]  This ground also appears to have substance.  It is to the effect that the primary judge failed to direct the jury that the respondent's statement that she "had a panic attack" was relevant to the respondent's intention at the time of the alleged threats.

[33]  It appears from the summing up that one of the persons threatened gave evidence that in a conversation with the respondent "some weeks" after the phone call in which the alleged threats were made, he mentioned to the respondent that he didn't think it was appropriate for her to speak to him because she was the subject of a police investigation.  He was then asked by the prosecutor, "Did she say something to this effect:  Well, yes, I did leave some message with the court, sent some emails but that happened whilst I was having a panic attack and I'm not now in the same situation …".  He agreed that she said words to that effect.

[34]  It was submitted on behalf of the appellant that the "panic attack statement was not, in the circumstances, capable of supporting any meaningful direction by the trial judge … it was part of the evidence which the jury heard.  It was not the subject of any evidence from the [respondent] or any argument at the trial.  She was aware it would be led and never objected.  Without further explanation, this snippet of evidence was almost completely meaningless and not able to be made the subject of any specific direction."

[35]  The evidence of the respondent's emotional and mental state at the time the alleged offences were committed was potentially highly relevant to the jury's determination of the respondent's intention for the purposes of counts 2 and 3.  It was relevant also to counts 1 and 4, having regard to the fault elements of intention and recklessness referred to in the summing up. 

[36]  The respondent's conduct in court which led to her removal from the courtroom was such as to give rise to, at least, a suspicion that she was emotionally disturbed.  The evidence concerning the "panic attack", although of particular relevance to the count concerning harassment by the sending of emails, was also relevant to the respondent's general mental condition.  So, too, was the evidence of a witness referred to by the trial judge in his summing up, that some emails were "lucid" but that "others were not lucid at all".  Another witness, according to the summing up, referred to an "email that goes on for several pages with that same repetition" i.e. of the words "no more Judge" or "I do not want any more Judge".  That witness also mentioned an email which "referred to throwing a knife and pans to the wall and wanting to throw a Judge out of the window."  Asked if there were examples of emails in a bundle given to her which were "apparently reasonable in their terms?" she replied, "I think there were odd ones that were reasonable.  They seemed to deteriorate over time."

[37]  Putting aside the oddity of the giving of non-expert opinion evidence of the contents of documents, the evidence of these witnesses also supported a conclusion that the respondent was in an unstable, and possibly deteriorating, mental state.

[38]  In giving evidence of  the phone call in which the threats the subject of counts 2 and 3 were made Mr Young said, in effect, that the threats were an immediate response to his informing the respondent that a judge, other than her preferred choice, would be hearing her case.  The seeming spontaneity of the response, one would think, was relevant to the existence of the relevant intention, particularly when coupled with other evidence of the respondent's mental state.  Mr Young said that throughout the phone call and, particularly, "at this point" (i.e., after the threats were made and when Mr Young mentioned reporting the threats to the authorities) the respondent "said a number of words he couldn't make sense of at that time and were really unintelligible", that she was repeating the "words 'no, no, no, no, no' constantly" and that she didn't "respond directly to what he was saying..."  This evidence was also relevant to an assessment of the respondent's intention at the time she made the threats.

[39]  The summing up is silent on the relevance of the evidence just discussed to the assessment of the respondent's state of mind.  The way in which the primary judge treated the evidence in relation to "the panic attack" was to direct that it was potentially an admission by the respondent that she was the sender of the emails.  He did not suggest that the evidence may be relevant to the respondent's state of mind and her intention at relevant times and to the fault element of recklessness.  To the contrary, he directed that if the jury did not find that "the respondent's statement" was an admission as to her being the sender of the emails, the evidence was to be "put to one side" and not acted on.

[40]  There is thus an argument, particularly having regard to the lack of representation of the respondent and, indeed, her absence from the trial, that insufficient was done by the primary judge to maintain a proper balance in the summing up by directing the jury's attention to matters which may have been detrimental to the prosecution case but favourable to the accused's.  A summing up must be balanced and fair.[15]  It was said in B v The Queen[16] that while a trial judge has a "broad discretion in commenting on the facts … It must exhibit a judicial balance so that the jury is not deprived 'of an adequate opportunity of understanding and giving effect to the defence and the matters relied upon in support of the defence'."  On the material before this Court, it is arguable that there was procedural unfairness.

[41]  Of course, it is impossible, and also undesirable, to express any definitive views about this and most of the other grounds of appeal bearing in mind the nature of the appeal, the material before the Court and the limited extent of the argument.

Consideration of ground 11

[42]  Ground 11 complains about the alleged inadequacy of the directions given to the jury concerning the elements of counts 2 and 3.  This ground has substance for the reasons already discussed.

Consideration of the appeal against conviction for contempt of court and the respondent's bail history

[43]  The amended grounds of appeal contain no ground in respect of the conviction for contempt.  Included in the record are reasons given by the trial judge on 22 December 2008 after a pre-trial directions hearing.  The following facts emerge from those reasons.  In October 2008 the respondent's bail was revoked by the trial judge and she was remanded in custody for her own protection.  Dr Kingswell, a consultant psychiatrist retained by the Corrective Services Commission, prepared a report dated 20 October 2008 for the Court.  In consequence of this report and Dr Kingswell's evidence given at a bail application hearing on 10 November 2008, the respondent was readmitted to bail subject to terms "relating to treatment for a diagnosed psychiatric condition."  Such treatment was to be supervised by another psychiatrist.

[44]  Dr Kingswell gave a further report after again examining the respondent.  In his second report Dr Kingswell gave the opinion that the respondent was prone to anxiety and depression and "given to inappropriate flights of anger with a destruction of property and abuse."  He diagnosed the respondent as suffering from "borderline personality disorder".  He stated that:

"Her disturbance in large measure is due to her personality disorder rather than a mental illness.  Nonetheless, she needs ongoing psychiatric supervision.  She needs continued surveillance for worsening of her anxiety and depression.  Treatment for anxiety and depression is appropriate."

[45]  On the basis of the psychiatric evidence, particularly that of Dr Kingswell, the trial judge concluded that the respondent was fit to stand trial and had the capacity to represent herself.  He also concluded that the respondent's bail should be enlarged.

[46]  We mention the background and the psychiatric evidence because it seems that it sheds some light on the appeal against the conviction for contempt but, more particularly, because it does not appear from the trial judge's reasons of 22 December 2008 or from any other material placed before us, that it has been considered that the respondent poses a risk to the safety of any person if she remains on bail. 

[47]  She was released on bail on 18 June 2009.  Prior to that she had been granted bail on 13 November 2008 and arrested on or about 6 March 2009 shortly before commencement of her trial on 12 March 2009.  The warrant for her arrest was based, at least in part, on a mistaken belief concerning the respondent's failing to continue with treatment in accordance with the terms and conditions of bail.  The learned primary judge pointed out in his reasons, and it is undisputed, that the respondent was "seeking alternative treatment in lieu of performance of the [bail] condition."

Conclusion

[48]  This is a case in which the sentences are quite short.  Counsel for the appellant, whose submissions were cogent and helpful, calculated that 38 days remained to be served of the respondent's custodial sentence.  The primary judge rightly took into account the consideration that if bail was not granted the respondent would have served a significant portion of her sentence before the determination of her appeal.  The primary judge is not criticised for his approach in that regard.

[49]  The primary judge concluded that "it cannot be said that the appeal will inevitably fail" but said that he was "not in a position to form the view that it has good prospects of success."  His Honour then proceeded to consider other matters which bore on the exercise of his discretion. In oral submissions no complaint was made about the primary judge's statement of principle:  the thrust of the argument was that the overall circumstances, particularly having regard to the primary judge's assessment of the strength of the respondent's grounds of appeal, were not "exceptional".  It was submitted also that there had been no evidence before the primary judge as to the respondent's precise place of residence or means of support.  Counsel pointed to her residence out of the state and submitted that there was a risk of failure to appear.  He pointed also to the fact that the conduct the subject of counts 2, 3 and 4, had been engaged in when the respondent was on bail in respect of the offence the subject of count 1.

[50]  This Court has had the opportunity of being able to give more extended consideration to the grounds of appeal and their prospects of success than the primary judge.  Our conclusion, necessarily based on limited material assisted by relatively brief argument, is that the prospects of success of some of the grounds are considerably greater than the primary judge thought.  And it is of particular concern that the appellant may have been denied procedural fairness.

[51]  The primary judge correctly stated the relevant principles by reference to appropriate authority.  He considered that the risk of the respondent's failure to appear was adequately addressed by the provision of a surety.  He also considered the lack of an affidavit swearing to the respondent's address and means of support.  In his view, the proximity of the hearing of the appeal and the bail conditions imposed were sufficient in the circumstances to prevent these matters being an insuperable obstacle to the grant of bail.  He noted also that the matters which gave rise to the charges occurred more than three years ago and that there had been no suggestion of the commission of further offences.

[52]  The appellant has not established that the exercise of the primary judge's discretion miscarried.  If it had miscarried, it would have been appropriate for this Court to have granted bail, having regard to the strength and nature of the grounds of appeal, the proximity of the hearing date, the fact that the respondent is at liberty, and the matters adverted to by the primary judge.  There is another consideration.  The substantive appeal could have been heard on 14 August 2009.  The appellant does not want the appeal to proceed on that date because his counsel is not available.  The hearing date is now likely to be in late September.  The proximity of that hearing date provides a reason for not returning the respondent to custody.  Moreover, she should not be penalised because the Court has acceded to the appellant's, not unreasonable, request.