R v Ogawa[2009] QCA 307

SUPREME COURT OF QUEENSLAND 

1. KEANE JA:  On 19 March 2009, the appellant was convicted on the verdict of a jury of two counts of using a carriage service to harass in contravention of s 474.17 of the Criminal Code (Cth) ("the Commonwealth Code"), and two counts of using a carriage service to make a threat in contravention of s 474.15(1) of the Commonwealth Code ("the indictment offences"). 

2. The jury's verdicts were taken in the absence of the appellant, who had been removed from the courtroom because of her disruptive conduct during the course of the proceedings. After the verdicts were taken the appellant was returned to the courtroom so that the trial judge could call upon her with respect to sentence. The appellant's sentencing was adjourned to a later date. His Honour then charged the appellant with contempt of court ("the contempt") pursuant to s 129 of the District Court of Queensland Act 1967 ("the District Court Act").

3. On 27 March 2009, the trial judge convicted the appellant of contempt. His Honour sentenced the appellant to four months imprisonment and fixed a parole release date of 26 May 2009 ("the contempt term").

4. With respect to the indictment offences, the trial judge sentenced the appellant to six months imprisonment on each charge to be served concurrently ("the indictment term"). The indictment term was to commence on 27 May 2009, ie immediately after the non-parole period of the contempt term. The appellant was to be released after having served four months of the indictment term upon giving security by recognizance in the sum of $1,000 on condition that she be of good behaviour for a period of two years. The trial judge declared that the appellant had already served 44 days in pre-sentence custody in relation to the indictment term.

5. The appellant filed a notice of appeal on 1 April 2009 with respect to the indictment offences and the contempt, and a further notice of appeal on 10 September 2009 articulating grounds of appeal with respect to the contempt and the sentence imposed thereto only. The appellant also filed a document on 22 September 2009 containing amended grounds of appeal, which purported to amend the notice of appeal filed on 1 April 2009. The appellant was granted leave to so amend those grounds.

6. On 18 June 2009, a judge of the Trial Division of the Supreme Court granted the appellant bail pending this appeal. The Commonwealth Director of Public Prosecutions ("the DPP") appealed to this Court against the grant of bail. This Court dismissed the DPP's appeal on 9 July 2009.^[1]

7. I propose to proceed by summarising the history of the proceedings on indictment and the case at trial. I will then discuss the law relating to fitness for trial before addressing the grounds of appeal in relation to the indictment offences. I will then deal with the application for leave to appeal in respect of the contempt.

The history of the proceedings on indictment

8. The offences in question were alleged to have been committed in 2006. The charges against the appellant arose out of her dealings with officers of the Federal Court of Australia in connection with litigation in that Court in which the appellant was a party.

9. Count 1 on the indictment charged that between 12 April 2006 and 15 April 2006 the appellant used a carriage service to harass contrary to s 474.17 of the Commonwealth Code.

Count 2 charged that on 9 May 2006 the appellant threatened to kill another person, contrary to s 474.15(1) of the Commonwealth Code.

Count 3 charged that on 9 May 2006 the appellant threatened to kill another person, contrary to s 474.15(1) of the Commonwealth Code.

Count 4 charged that between 13 April 2006 and 19 May 2006 the appellant used a carriage service to harass, contrary to s 474.17 of the Commonwealth Code.

10. On 18 January 2008, the indictment was mentioned before his Honour Senior Judge Skoien.  At that stage, the trial had been listed to commence in the following week.  At the mention, the prosecution was ready to proceed.  Representatives from Legal Aid Queensland ("LAQ") appeared to advise his Honour that the appellant, though then unrepresented, had been previously represented by six different law firms funded by LAQ.  In each instance, the appellant had indicated to those firms that she did not wish them to represent her.  LAQ confirmed that it would no longer fund the appellant's representation. 

11. His Honour decided that the trial should proceed notwithstanding the presentation by the appellant of a certificate from a psychologist that alluded to difficulties leading up to trial. During the course of this hearing, the appellant personally served the learned judge with an application for prerogative orders under the Judicial Review Act 1991 (Qld).  That application was summarily dismissed by a judge of the Trial Division of the Supreme Court.

12. The matter came on for trial before his Honour Judge Martin SC on 29 January 2008. The indictment was presented to the court, and the appellant was called upon to plead. The appellant declined to enter a plea and applied for a permanent or temporary stay of the proceedings. She argued for a permanent stay on the basis that the DPP had commenced the proceedings for a collateral purpose and, for a temporary stay, on the basis that she was unrepresented and her psychological condition was such that she required further time to prepare for trial.

13. In relation to the collateral purpose issue, the DPP called officers of the Australian Federal Police ("the AFP") to give evidence of the considerations that the AFP took into account before charging the appellant with the indictment offences. These witnesses were cross-examined by the appellant. The appellant also maintained the medical objections foreshadowed at the mention before Senior Judge Skoien.  The DPP undertook to arrange for the Government Medical Officer ("GMO") to examine the appellant on the next day.

14. Mr Kent of Counsel, who appeared below on behalf of the DPP, summarised his opposition to a stay, whether permanent or temporary, in these terms:

"… your Honour is left with the situation that, as the Crown submits, she's brought about her own state of unrepresentation [sic].  There's no reason to think on the history of the matter that whatever were done by anyone, she would ever be represented at trial because every relationship with competent, experienced specialists in criminal law seems to result in her terminating the retainer.

Finally, she has already … mentioned the state of her health and the Crown have been informed by a somewhat outdated medical report of early December … that she is in essence anxious and depressed.  If that's the case, then she's in the same category in the Crown's submissions as perhaps the majority of criminal defendants.  There's no reason to think that that will change in the short term [and it] is not of itself a reason to derail the trial process when she appears otherwise able to represent herself and, given the quality of her representation today, it does not seem to impact to any significant degree on the fairness of her trial."

15. Argument on the appellant's stay applications continued on the following day. Mr Kent told his Honour that the GMO preferred that a psychologist examine the appellant.  Whether the appellant was willing to submit to any such examination was unclear.  The learned judge inquired of the appellant as to the need to detain the jury panel.  Upon her interrupting, his Honour said: "Do not talk over the top of me and do not raise your voice to me."  The court adjourned briefly so that the appellant could compose herself. 

16. The hearing then resumed. The appellant related her version of her prior dealings with legal representatives to the court. Mr Mackenzie, the appellant's treating psychologist, gave evidence by telephone. He stated: "I believe that at this particular point of time that Ms Ogawa is not fit to … appear and represent herself in Court." He also stated: "I believe that her grasp of the English language and her ability to articulate herself is adequate …". Mr Mackenzie identified the appellant's risk of self-harming and suicide as "significant". Upon an indication from the learned judge that the appellant's trial would last approximately six days, Mr Mackenzie said:

"I do not believe it would be appropriate at this particular point of time.  I do not believe she'd cope … because of her current situation in terms of her depression and anxiety disorders and the impact that that has on her level of functioning."

17. The DPP called Dr Doyle, a psychiatrist, to comment upon the reports and evidence of Mr Mackenzie. The appellant did not submit to an examination by Dr Doyle. Dr Doyle's evidence was understandably limited to the conclusions put forward by Mr Mackenzie.  Dr Doyle was unable to elaborate with any particularity as to the appellant's suicide risk or means of reducing her anxiety, for example, by way of being legally represented.  It is fair to say that, at the conclusion of the second day, the learned judge's concerns were focused more upon the uncontradicted evidence of the appellant's self-harming and suicide risk, and less with her ability to conduct her defence at trial.

18. At the commencement of the third day of the hearing of the appellant's stay applications, the appellant indicated to the court that she had overdosed on her anti-depressants.  The court directed that the appellant be examined by the GMO.  The GMO gave evidence that his examination had revealed no objective symptoms that could prove or disprove the appellant's assertion.  The GMO indicated that the medication in the dosage consumed required approximately 36 hours to leave one's system.  On that basis, the court adjourned until the next day.

19. On the fourth day of the hearing of the appellant's stay applications, it emerged that the appellant had appeared before his Honour Judge Rafter during the previous week on which occasion a representative from LAQ had extended the offer of a grant of aid on certain conditions. These conditions included that she not seek an adjournment to prepare for trial and that she provide instructions within 24 hours. The appellant had refused the offer of aid on these conditions. The following exchange ensued between the appellant and his Honour, Judge Martin SC:

"ACCUSED:  So I really need a lawyer who has a good knowledge of the evidence, who can deal with the very complicated matter.  So someone who's equivalent to your Honour. …

HIS HONOUR:  That's ridiculous there would be no-one like that, would there? …"

20. The hearing resumed after the lunch adjournment. The DPP made its submissions in opposition to the stay applications, particularly with respect to the medical evidence, to the effect that the resolution of the proceedings would actually be beneficial to the appellant's mental health. The DPP argued that the state of that evidence was such that any risk of self-harm or suicide was "elevated", but no more significant, and that the appellant's unwillingness to be examined reduced the weight to be accorded to that evidence.

21. His Honour inquired as to whether the appellant was willing to submit to an examination by an independent psychiatrist. During an exchange between the learned judge and the appellant, his Honour made this observation: "Miss Ogawa, when you seem to get into a corner, you resort to crying. Every other occasion, when you feel that you have got the upper hand, you seem to have no difficulty." Dr Clive Turner, Associate Professor of Law at the University of Queensland, purported to intervene in the hearing on behalf of the appellant.  Dr Turner suggested an adjournment of the hearing to enable her to consult a lawyer and to obtain medication.  Dr Turner undertook to ensure the appellant's attendance at court on the following Monday.  His Honour acceded to Dr Turner's suggestion.

22. The hearing of the appellant's stay applications resumed on Monday, 4 February 2008. The learned judge did not call upon the appellant to say whether she would now submit to a psychiatric examination. Rather, his Honour proceeded to rule on the applications for a stay of the proceedings, refusing both applications. His Honour also dealt with the appellant's application for an adjournment of the trial, concluding:

"I have already determined that the defendant is unlikely to ever be satisfied with whatever legal representation she might be offered.  However, as I have earlier indicated, she has demonstrated that she is competent to defend herself at trial.  The defendant will require time for preparation of the trial after the recovery period.

I intend allowing ample time for recovery purposes and ample time for the defendant to prepare for trial.  Whether the Legal Aid Office will be prepared to again grant aid to the defendant will be a matter for the defendant and the Legal Aid Office.  If legal aid were again granted, the legal representatives would have ample opportunity to prepare for trial.  If legal aid were granted but the defendant were to dismiss the services of the legal representatives, or create a situation whereby the legal representatives could not sensibly continue to act for the defendant, whether this were to occur before or during trial, in my view such conduct would clearly demonstrate that the defendant was simply setting about to thwart the judicial process.

In the circumstances I propose to give this matter a trial listing as trial number 1 in the week commencing 14 July 2008."

23. The parties appeared before his Honour again on the following day because of listing difficulties. His Honour listed the matter for trial to commence on 6 October 2008.

24. The matter was again mentioned before his Honour Judge Martin SC on 7 July 2008. His Honour inquired as to whether the defence would be calling any witnesses at trial. The appellant could not identify any witnesses, but foreshadowed challenges to the admissibility of certain evidence without identifying the evidence or grounds of challenge. The DPP raised concerns about the appellant purporting to appeal his Honour's failure to give reasons with respect to his adverse ruling on the appellant's stay applications, and the learned judge indicated that the reasons would be made available in due course. These reasons were ultimately published by his Honour on 18 July 2008.

25. The matter was mentioned for a review before the Chief Judge on 15 July 2008. Her Honour listed the matter for mention over the objections of the appellant who, yet again, sought the court's intervention to have a psychiatrist treat her in light of her impecuniousness. The Chief Judge informed the appellant that any such treatment must necessarily be on her own account. The matter was listed for mention again on 11 August 2008.

26. On that occasion, his Honour Senior Judge Trafford-Walker heard the matter.  At this hearing, the appellant sought to re-agitate the applications she had unsuccessfully brought before Judge Martin SC.  She also sought orders pursuant to s 590AA of the Criminal Code 1899 (Qld) ("the Queensland Code") that the proceedings against her be quashed, that she be permitted to put certain things to witnesses to be called by the DPP, and that she be permitted to conduct a Basha inquiry to demonstrate why certain unarticulated evidence should be excluded.  The following exchange ensued:

"HIS HONOUR:  You listen to me.

ACCUSED:  Your Honour—

HIS HONOUR:  If you are going to talk over me again I will have you excluded.

ACCUSED:  I will be excluded because your Honour going ahead without waiting for my understanding and your Honour might not be understandable but I am not from English speaking background and have great difficulty in catching up with what your Honour is talking.

HIS HONOUR:  Do you have any difficulty understanding what I am saying?

ACCUSED:  Yes, that is why I tried to ask a question and your Honour doesn't allow me.

HIS HONOUR:  We are going to hear – you are objecting to the evidence?

ACCUSED:  No, no, no, no, no.

HIS HONOUR:  Please, Mr Kent, proceed.  Just listen.

ACCUSED:  I want to be excluded because I don't understand what your Honour is talking about.

HIS HONOUR:  I think you understand.

ACCUSED:  It is waste of time I am sitting here [sic].

HIS HONOUR:  You understand perfectly.  Please sit down.

ACCUSED:  I don't.  That is why I want to ask a question, your Honour, and I don't have anyone to assist me.

HIS HONOUR:  Please sit down for the [moment].

ACCUSED:  I can't understand.

HIS HONOUR:  I told you to sit down.  Do you have any difficulty understanding that?  You are a lecturer in the law so I understand that you understand English quite well."

27. Mr Kent for the DPP reiterated his readiness to proceed to trial and his opposition to any application by the appellant for an adjournment of the trial.  His Honour observed that the hearing was "a total waste" and adjourned the matter. 

28. On 13 October 2008, the matter came on for trial before his Honour Judge Durward SC ("the trial judge"). The commencement of the trial was delayed because the appellant had committed herself to the Royal Brisbane Hospital and failed to appear at the scheduled start of proceedings.  The court adjourned until 11.30 am. 

29. Upon the appellant's appearance, the appellant purported to file and serve an application, which she described as "a work in progress". His Honour treated the application as an oral application for a stay of proceedings and an adjournment, and was persuaded to hear evidence to the effect that the appellant suffered from a current psychological or psychiatric condition that would impact upon her conduct of the trial. In addition, the appellant asserted that the committal proceeding was "null and void" because of her psychological or psychiatric condition at that time. On this footing, the appellant argued that the District Court did not have jurisdiction to hear the matter.

30. Over the next four days, the court heard evidence from various medical practitioners who had either previously given evidence or had since examined or consulted with the appellant. These included Mr McKenzie and Dr Robert Moyle. On 16 October 2008, his Honour adjourned to the following Monday to give his ruling and reasons thereto.

31. On Monday, 20 October 2008, his Honour refused the stay application brought by the appellant. His Honour's reasons relied upon the conclusions of Judge Martin SC for refusing the appellant's earlier stay applications. Judge Durward SC stated his conclusions thus:

"Ground 1: 'The indictment be stayed either permanently or temporarily.'  The accused expressed this ground also on the basis of psychological evidence and more broadly on the issue of whether she could receive a fair trial. …

I have had the opportunity of listening to and observing the accused in Court in the last week or so.  Prior to the commencement of this hearing on Monday last week the accused had never appeared before me in Court.

In his judgment following the adjournment of the trial in January this year Judge Martin SC made the following statements.  At paragraph 3.2 of his judgment he said:

'As I noted in my ruling on the application for adjournment of the trial the defendant demonstrated before me that she is intelligent and a competent advocate.  She does not require the use of an interpreter.  The defendant expressed herself well.  She demonstrated by being immediately response [sic] to submissions and questions that she clearly understood what the Crown Prosecutor and I said throughout the proceedings.  I had only occasional difficulty in understanding the defendant, causing her on those occasions merely to repeat what had been said.  The defendant cross-examined witnesses in the pre-trial hearing without communication difficulties.'

Again, at paragraph 5.1:

'The defendant is an experienced litigant and advocate, although not in the Criminal Jurisdiction.  The assertions from the Bar table that the defendant had appeared in Court in person on 16 occasions, including nine occasions in the High Court of Australia was not disputed by the defendant.  The defendant was studying in Australia for her Doctorate of Law, the subject matter being Copyright.  The assertions from the Bar table that the defendant had obtained a law degree and a Masters of Law in Japan were not disputed.  As referred to above, the defendant demonstrated before me that she is intelligent and a competent advocate.'

And again at 5.5 and 5.6:

'The number of changes of solicitors in this matter is inordinate.  I am satisfied of the material before me that despite the defendant's assertions that she desperately wants legal representation, the defendant would never be satisfied with any lawyer who is appointed to take her case or who takes her case.  In my view, any postponement of the trial for the purpose of the defendant obtaining or attempting to obtain legal representation would be futile.  The defendant's history with legal representation is such that it leads me to the conclusion that the defendant would dismiss any legal representative engaged or engineer the withdrawal of any legal representative engaged prior to or during trial.  It is my view that, for whatever reason, the defendant has no genuine intention of being represented by a lawyer at trial.'

And:

'In my view, the defendant is competent to conduct the trial in person and a trial so conducted would not be unfair to the defendant.'

… I agree, with respect, with his Honour's observations and conclusions because in a general sense they reflect the views that I have formed over the last week.

There is nothing that I have seen or heard that detracts from the quality or substance of the general thrust of those observations referred to by Judge Martin SC."

32. Judge Durward SC considered the appellant's argument before him that her psychological condition prevented her being able to present a defence to the charges brought by the DPP. His Honour said:

"However, the other part of the ground relates to the accused's psychological health which she asserts has prevented her from being able to prepare her case for trial.  This was not, as I have said, a basis argued before Judge Martin SC.

The accused's submission, in her own words, is essentially … that whilst she was getting better on the recovery she is not fully recovered and continued:

'Because my major depression is still a clinical and major depression, not just people's ordinary depressive state of mind, still clinically ill but compared to the last time obviously that was no longer severe now, so on the way to recovery I want your Honour to follow Judge Martin and order other precedent to give me time to recover from my clinical depression, then I can get rid of the depression and I can prepare my defence properly.'"

33. It may be noted here that although the accused's psychological health was not a basis argued before Judge Martin SC with respect to the stay applications heard by him, the record reveals that the appellant expressly adverted to her "mental health issues" immediately following her oral application.

34. In support of the appellant's assertion that her "clinical and major depression" precluded her from properly preparing her defence, she relied upon the evidence of Mr McKenzie, her treating psychologist. Judge Durward SC summarised his evidence in the following terms:

"The accused relied on and called a psychologist who has been treating her for some 18 months or so it seems, a Mr Malcolm McKenzie. …

He also seems to have assessed the accused's capacity in terms of her ability to do research and to work on a job as an associate lecturer.  It does not seem to me that he has made any assessment specifically, that is, with full knowledge of and concerning this case and, in particular, in respect to capacity to prepare the case in respect of the charges.  Nevertheless, he is aware of the charges it seems, to some extent. …

He confirmed that he had worked with the accused to try and resolve her emotional state and to deal with her concerns for some time.  He said that she had been able to engage in a variety of different activities such as submitting her PHD and commencing work at the Southern Cross University as an associate lecturer but he said she still remained significantly impaired in her functioning.  He referred to the difficulties from day to day that he perceived that she had and, undoubtedly based upon the history that she had given him, things were contributing significantly to her continuing - as he said - mood disorder.  He also referred to her persistence of thoughts regarding injustice and her continuing reflection upon those things which have an impact on her emotional state.

…

He says that there had been cooperative attempts to resolve the concerns on the part of the accused and that while she had seemingly coped better there had been no sustained recovery for any lengthy period.  He said that her illness appeared to be episodic in nature but was hopeful that with time it would lead to a recovery. 

Finally, as a consequence of what he said about these issues, he said that the proceedings against her should be further adjourned.  In the transcript of his evidence in court, he said he had no doubt about the English language skills of the accused, that her output from her university association was significantly below what he would have expected - I infer expected under other circumstances - and said that he had been aware that she had been involved in court litigation, but said the extent to which she might have represented herself or had representation and issues of that nature was not something that he would normally be going into in great detail during counselling. 

He was not aware of the amount of preparation that she might have been able to do over a period of time to prepare for any particular case. 

He said that he agreed that the accused was able to competently understand English and respond and that was his experience over time.  There had been numerous occasions when he had spoken with her on the phone and had difficulty in understanding her as well.  He had not been in court at any time that the accused had responded to or been required to respond to submissions. 

He agreed that on the previous occasion, a reference to January this year, or at least to the proceedings before Judge Martin, there was no difficulty between the accused and him so far as examination-in-chief had been concerned.  He said that he accepted that she had been in full time employment but that whether she was working at a full time capacity was something else. 

A significant amount of the opinion that he has expressed, was based on the view that she has been significantly impaired in her capacity to work.  He thought that she suffered from a mood disorder.  He said that there was always a possibility that her difficulties were that she was attempting to avoid facing a trial in a court and then he went on to refer to the matters that concerned him about her capacity to work and cope with other aspects of life.  He finally expressed the view that it was not his opinion that she had been seeking to delay proceedings."

35. Judge Durward SC also referred to the evidence of Dr Moyle. His Honour stated:

"Evidence was given by Dr Moyle, a clinical and forensic psychiatrist whom the accused said had expressed an opinion to the prosecution, either directly or indirectly, about her psychological health that she says is relevant for the stay application.

To the extent that any opinion was expressed by Dr Moyle, it is not [in] my view sufficient to support this ground.  Dr Moyle never examined the accused.  That was because she would not permit it to happen.  Hence his evidence is based on, primarily, his observations as an observer in Court proceedings and as a witness under cross-examination by the accused.

…

The thrust of Dr Moyle's evidence is that he had not diagnosed and did not diagnose the accused as having a personality disorder.  Of course, he had not assessed her in the traditional consultative way for the reasons that I have expressed.

All he could do was to make observations and see how she performed in Court.  He said that with conditions like, for example, a borderline personality disorder there were always questions of whether it might be reflective of a personality style.

He went on to talk about a narcissistic personality disorder and said that often a person has an outer shell that they show the world, that they're very successful or powerful, but were very fragile and they had difficulty tolerating disagreement, took affront and at times tended to be a little aloof.

They were often proud or driven people.  They had difficulty in relationships because they would demand absolute loyalty, and such characteristics along those lines.

Finally, he said that consistent with what he had said as a consequence of observations being made in January that he didn't see anything of the accused on this occasion, having been in Court and been cross-examined by her, that would render her unfit to have her trial."

36. Judge Durward SC accepted the evidence of Dr Moyle on the basis of what he perceived to be greater objectivity. His Honour concluded, having regard to Dr Moyle's evidence, and the appellant's litigation history and employment as a lecturer in law, that the appellant could be fairly tried.  His Honour stated:

"In my view, Dr Moyle is more objective in his conclusions about the accused's psychological health.  There is nothing in his evidence that points to there being any medical reason that renders the accused unable to conduct her trial.  The accused insists that she suffers from a diagnosed major depressive disorder.  On the evidence, I disagree with that. 

She certainly has suffered from a depressive condition that has been episodic from time to time and indeed there have been diagnosed depressive episodes.  She has not, so far as is relevant on my understanding of the evidence, been diagnosed with a recurrent depressive illness. 

The accused's litigation history and her capacity to obtain employment as an associate lecturer in law all mitigate against her having the illness to the extent and of the degree she asserts, in my view.  Whilst the accused may have deferred the finalisation of her doctorate thesis, whether it comprises the published material in her book or not, because of her health, this does not automatically mean that she is not able to look after her own interests in the preparation or conduct of her case in these proceedings.

…

In my view, a fair trial can be had by the accused.  There is no basis upon which a stay of proceedings, whether permanent or temporary, is warranted."

37. After the delivery of his Honour's reasons, and despite repeated applications by the appellant, including an application that an interpreter be provided, she was eventually arraigned with respect to the indictment offences. She entered pleas of not guilty on each count. The learned trial judge proceeded to empanel the jury. The appellant alluded to an application for a McKenzie's Friend, but then brought an application to have the matter, or herself, referred to the Mental Health Court.  Mr Kent on behalf of the DPP submitted that on his understanding of the Mental Health Act 2000 (Qld) no such referral was open with respect to Commonwealth offences. 

38. Thereafter the appellant stated that she was considering voluntarily submitting herself to a psychiatric facility during the continuation of the trial. His Honour adjourned the trial to the next day and informed the appellant that he would rule on her various applications before empanelling the jury.

39. On 21 October 2008, the learned trial judge informed the parties that the Registry had received a report from the appellant's treating psychologist, Mr Mackenzie, to the effect that she was "at serious risk of suicide". As a consequence, his Honour adjourned the proceedings so that an independent psychiatric examination could take place to consider Mr Mackenzie's opinion. To that end, his Honour revoked the appellant's bail and remanded her in the custody of the Corrective Services Commission ("Corrective Services") whose officers were ordered to arrange the examination. The trial was adjourned until the next day for directions.

40. On 22 October 2008, Mr Andrew Crawford, Director of the Escort and Security Branch of Corrective Services, informed Judge Durward SC that Corrective Services had undertaken to comply with his Honour's orders. Dr Bill Kingswell of the Logan Mental Health Service had advised that he could perform the assessment by the following Friday, 31 October 2008. His Honour decided that, as matters stood, the trial should be abandoned. The matter was adjourned to a directions hearing on 4 November 2008.

41. On 4 November 2008, his Honour raised concerns with respect to emails received by the court from Corrective Services with respect to requests by the appellant for external medical assistance. Mr Crawford again appeared on behalf of Corrective Services and informed his Honour that the appellant had presented to the nursing staff at the correctional facility, being treated by them for a fungal condition, and with Valium for her reported anxiety. Dr Kingswell's report concluded that the appellant, whilst apparently suffering from a "major depressive disorder of a severe degree", was fit to stand trial without adverse consequences. The learned trial judge expressed his concern that Dr Kingswell had not adverted to the report of Mr Mackenzie.  The appellant, for her part, challenged Dr Kingswell's independence and made allegations of bias.  His Honour directed that Dr Kingswell prepare a supplementary report in response to particular inquiries; namely, the appellant's fitness for trial, risk of self-harm, diagnosis of major depressive disorder, and ability to prepare for and represent herself at trial.  The learned judge also instructed Dr Kingswell to advise on a diagnosis of the appellant's state of mind at the time of offending.  The report was ordered to be delivered by 10 November 2008. 

42. On 10 November 2008, Judge Durward SC recorded that Dr Kingswell had informed the court that Dr Kingswell would be unable to complete his report until late November or December. At this hearing, Mr P E Smith of Counsel, instructed by Mr J Killen of LAQ, appeared pro bono on behalf of the appellant with respect to a bail application. As matters turned out, Dr Kingswell was available to give evidence that day. In consequence of his evidence, his Honour was disposed to make a conditional release order whereby the appellant undertook to consult a colleague of Dr Kingswell, Dr Calvird, for treatment. The matter was adjourned to a date to be fixed so that the details of any proposed bail order could be determined between the parties and the court.

43. The matter came before the court again on 11 November 2008. Mr Killen of LAQ appeared on the appellant's behalf. Some difficulties with the conditional release order were discussed, but not resolved. The parties approached the court again on 13 November 2008 with a final draft of the bail conditions. These were acceptable to his Honour and orders were made accordingly. His Honour listed the matter for directions on 10 December 2008. Mr Killen was given leave to withdraw as the appellant's representative.

44. The matter came before his Honour for directions on 10 December 2008. Ms R Devereaux appeared on behalf of the DPP; the appellant appeared on her own behalf.  Dr Kingswell's further report was provided to the court.  Dr Kingswell gave the following diagnosis of the appellant:

"There is a consistent picture throughout all of the records to hand. Ms Ogawa is prone to anxiety and depression. Ms Ogawa is given to inappropriate flights of anger with destruction of property and abuse.

In my view the history to hand is most consistent with more than one diagnosis. The most prominent is borderline personality disorder.

I maintain the comments that I made in Court about the difficulties in being certain about the diagnosis in the absence of a robust collateral history, particularly from family and friends that would know Ms Ogawa well and have known her throughout her late adolescence and young adulthood. However, there is an established pattern of behaviour continuing over a number of years.

Ms Ogawa suffers from recurrent episodes of anxiety and depression. These apparently worsen with stress and are probably best viewed as 'recurrent adjustment disorder with depressed and anxious mood' of mild to moderate degree.

Ms Ogawa is quite disturbed and she is prone to anxiety and depression. Her disturbance in large measure is due to her personality disorder rather than a mental illness. None the less, she needs ongoing psychiatric supervision. She needs continued surveillance for worsening of her anxiety and depression. Treatment for anxiety and depression is appropriate. It is likely that psychological management would assist Ms Ogawa control some of her care enlisting behaviour and perhaps form more stable relationships. Treatment could be provided as an outpatient.

I am not of the view that Ms Ogawa suffers from any illness that would warrant her hospitalisation, particularly not her involuntary hospitalisation."

45. Dr Kingswell was cross-examined by the appellant. In the course of that cross-examination, the following exchange occurred after his Honour had raised the question of the appellant's ability to represent herself at trial.  Dr Kingswell answered: 

"Well, I still remain of the view that Ms Ogawa has successfully completed a PhD in law.  Yes, she has some personality difficulties.  Yes, she is prone to anxiety and depression, and at times she is prone to act impulsively in a number of different ways, including with deliberate self-harm, but is she incapable of thinking clearly about the matters in front of the Court?  No.  If she is, it is not to do with any mental illness that I could elicit … Or cognitive impairment that I could elicit.  I can only come to the view that this has some other purpose other than as motivation to resolve this matter.

…

DEFENDANT:  Now, you referred to the thesis.  Because I submitted the thesis, that is one of the ground for your assessment that I should be able to work; is that correct?  You referred to the thesis?--  Sorry, Ms Ogawa, I know you are asking the questions, but perhaps one of the questions you might put to me is 'What mental illness would impair me from taking part in this process?' because there is none.

Okay.  But then why you refer to the thesis submission[?]  That is one of the finding you made, that I can work if I want to.  Isn't that the case?  If not, then why did you suddenly refer to the thesis submission?--  I think if you had any motivation to turn your mind to this matter, you could do so.  There is no evidence in front of me that you suffer from a mental illness or cognitive deficit that would prevent you from turning your mind to this case in an efficient and sensible way.

HIS HONOUR:  In preparation and appearing?--  In preparation and appearing."

46. At the conclusion of the evidence, his Honour made directions for the filing of written submissions with respect to Dr Kingswell's evidence, and adjourned the matter.

47. On 22 December 2008 the learned judge adjourned the matter again to 29 January 2009 for a hearing to determine any pre-trial applications, and enlarged bail on the same conditions until that time. The trial was set down to commence on 9 March 2009. These directions were made after his Honour Judge Durward SC determined the question of the appellant's fitness for trial. In reasons delivered on 22 December 2008 his Honour summarised the evidence of Dr Kingswell from the doctor's two reports. His Honour noted that Ms Ogawa had declined to make any submission for reasons which his Honour regarded as spurious. His Honour found that the appellant "was and continues to be engaged in a wilful course of frustrating the legal system. She is more intent on avoiding the continuation of the proceedings than in dealing with the charges."^[2]  In relation to the issue as to the appellant's capacity to prepare for trial and to appear self-represented on a trial before a judge and jury, his Honour accepted Dr Kingswell's evidence on this issue, concluding:  "I have no doubt that the accused has the capacity to represent herself in this matter including preparation for any pre-trial hearings, if any, and to prepare for trial and appear without legal representation."^[3]  It is unnecessary to set out in detail his Honour's discussion of the evidence of Dr Kingswell on which his Honour relied because there is no appeal from his Honour's findings on this point.  It is sufficient to note here that it was accepted on the hearing of the appeal in this Court that Mr Mackenzie did not claim to speak as an expert on the issue of the appellant's fitness for trial so that the only expert evidence on the issue was to the effect that the appellant was fit to be tried.  And, in any event, Mr Mackenzie's concern as to the appellant's ability to "cope" with the demands of a trial was belied by her participation in the various hearings before Judge Martin SC and Judge Durward SC.

48. On 20 January 2009, the matter was mentioned before his Honour Judge Durward SC with respect to applications made by the appellant that the judge disqualify himself, that the trial be adjourned, that the indictment be tried summarily, that the trial be vacated, that subpoenas be issued, that a McKenzie Friend be permitted, and that she present her defence from the Bar table. The appellant had not complied with the directions made by his Honour that required her to provide written submissions in support of any such application. His Honour decided that he would extend time for compliance by the appellant in that regard. The matter was adjourned until 29 January 2009.

49. On 29 January 2009, the learned judge heard argument on the appellant's applications. They were refused for reasons delivered on 24 February 2009. Relevantly for present purposes, his Honour said:^[4]

"The applicant has sought that the trial date (09 March 2009) be vacated. The grounds appear to be those previously relied upon by her in seeking adjournments. She has the capacity to prepare for and to appear on hearings including the trial. That is the unequivocal view of Dr Kingswell so far as her mental health issues are concerned. It is also my view. The applicant has a well documented history of preparation and appearance acting for herself in numerous Courts. She has made articulate and relevant submissions in this Court, including before me. She is a trained lawyer and is employed in an academic capacity at an Australian University. She has a doctorate (in law) awarded in Australia. She may not have practised as a solicitor or barrister but in my view she is intelligent and perfectly able to look after her own interests in respect of the trial. She has had ample time to prepare for trial. There is no reason or proper basis for the trial date to be vacated. I refuse the application in respect of this ground."

50. The matter proceeded to trial commencing on 9 March 2009. The trial occupied 10 hearing days.

The trial

51. On 9 March 2009, the commencement of the trial was delayed by the need to transfer the appellant from a watch house at Lismore where the appellant had been held since the previous Friday. The appellant had been arrested pursuant to a bench warrant issued upon her breaching the conditions of her bail undertaking.

52. Upon the appellant's appearance, the court dealt with an application by her to have the trial transferred to Lismore. The Crown Prosecutor, Mr Kent, referred to s 80 of the Commonwealth Constitution, which relevantly provides that "[t]he trial on indictment of any offence against any law of the Commonwealth … shall be held in the State where the offence was committed".  His Honour Judge Durward SC adjourned the matter to the next day.  Having regard to the appellant's apparent medical condition, his Honour directed that Corrective Services arrange medical and psychological consultations as soon as possible.

53. The next day, the learned trial judge received a report of Dr Griffiths from the Clinical Forensic Medical Unit which was prepared pursuant to his Honour's direction. The appellant was uncooperative, and was returned to a holding cell. In this respect, Mr Kent observed:

"MR KENT:  Perhaps I might just flag this with your Honour: criminal proceedings do occasionally reach the stage where proceedings have to take place in the absence of the accused because of reasons that they bring about themselves.

HIS HONOUR:  I am aware of that, although generally speaking that is when there is legal representation."

54. In consequence of the concern as to legal representation raised by his Honour, LAQ consulted again with the appellant. LAQ informed the court that an application for legal aid for the trial had been lodged and would be determined for the next day.

55. On the following day LAQ informed the court that the appellant had agreed to certain conditions that would permit her application for legal aid to be assessed in accordance with a means test. This assessment required further consultation with the appellant. Mr Kent opposed any further delay, submitting:

"… your Honour won't be surprised to hear me submit result [sic] in the conclusion that there should be no further delay of this trial for issues about Ogawa's legal representation under three broad themes.  In my submission, it would be futile.  Secondly, she has chosen to deliberately reject her right to representation and, thirdly, delay would be unfair to Crown witnesses."

56. His Honour Judge Durward SC decided to permit the further consultation between LAQ and the appellant to proceed but observed that, irrespective of whether the appellant obtained legal representation, the trial would proceed and, if necessary, in her absence.

57. On the next day, 11 March 2009, LAQ informed the court that the appellant had been granted aid, but that no representation would be available until the following Monday. The appellant made an application for bail, which was refused. The court adjourned the matter to be mentioned that afternoon. Upon the matter being called on again, the LAQ representative handed up written submissions prepared by the appellant, which resulted in LAQ being excused from further involvement in the matter. The trial was set down to commence the following day. His Honour reiterated that the matter would proceed in the absence of the appellant if she was disruptive,^[5] but that it would proceed.

58. At the commencement of proceedings the next day, a representative from Corrective Services informed the court that the appellant was refusing to clothe herself in court-appropriate attire. Mr Kent submitted that such behaviour supported the view that the trial proceed in her absence.  The appellant was brought into the courtroom and was informed by the learned trial judge that the jury would be empanelled and that she was entitled to participate in that process.  It is apparent from the transcript that his Honour's comments were met with screaming on the part of the appellant.  His Honour said:

"Well, the screaming stopped as soon as she went outside.  There is absolutely no doubt in my mind that her behaviour is wilfully directed towards preventing the trial from occurring and it is a continuation of behaviour of a less florid nature over many previous occasions in Court."

59. The jury panel was assembled in the courtroom and the appellant was brought into the courtroom. She then made the following statements:

"Help, don't.  [Indistinct] killing me.  Help.  Help.  Help.  White Australians killing me.  This Judge is always [indistinct] help me.  Help.  Help.  Help.  Help.  Help.  Help.  These white Australians killing me.  Help.  Help.  Help.  Help.  These white Australians killing me.  Help.  Help.  Help.  Help.  Please help.  Please help.  [Indistinct] justice help me.  These white Australians killing me.  These whites are killing me.  Please help.  [Indistinct] please help me.  Please help me.  They are killing me.  Help.  Help.  Help."

60. The appellant was then removed from the courtroom at his Honour's direction. The learned trial judge decided with the agreement of the DPP to proceed to empanel the jury in her absence. The jury was empanelled and the accused was returned to the courtroom and was placed in the charge of the jury. She was immediately removed thereafter.

61. The trial resumed later that day. The learned trial judge struck out the application made by the appellant to have the proceedings transferred to Lismore, and delivered reasons for ruling that the appellant be excluded from the proceedings. The appellant does not, by her notice of appeal, seek to challenge that ruling. The jury was returned to the courtroom and Mr Kent opened the case for the DPP.

62. The learned trial judge, obviously in an effort to afford the appellant an opportunity to exercise her right to defend the charges against her during the course of the trial, required that she be brought to the courtroom at the conclusion of the examination-in-chief of each witness in order to permit her to do so.  The appellant did not involve herself in the proceedings.  His Honour provided her with transcripts and documentation via Corrective Services as the trial progressed.  The DPP witnesses were not cross-examined by the appellant and the DPP did not present a closing statement.

63. On 18 March 2009, prior to the conclusion of the case for the prosecution, Mr Kent alerted the court to a request made by a local solicitor, Mr Terry O'Gorman, who sought permission for Dr Turner, who had previously intervened on behalf of the appellant, to attend upon the appellant in custody with a view to persuading her to involve herself in the proceedings. The learned trial judge granted that request. The appellant was returned to the courtroom after the meeting with Dr Turner but his Honour noted: "the prisoner has been returned to the Court, however her behaviour is as abominable as it has been throughout the trial and there is no change."

64. At the conclusion of the prosecution case, the appellant did not seek to adduce any evidence in her own defence.

The indictment offences

65. It is convenient here to summarise the prosecution case in relation to the indictment offences.

66. The appellant was charged with two counts of using a carriage service to harass and two counts of using a carriage service to make a threat in contravention of the Commonwealth Code.  Section 474.17 of the Commonwealth Code relevantly provides:

"Using a carriage service to menace, harass or cause offence

(1)A person is guilty of an offence if:

(a)the person uses a carriage service; and

(b)the person does so in a way (whether by the method of use or the content of a communication, or both) that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive.

Penalty: Imprisonment for 3 years."

67. Section 474.15(1) of the Commonwealth Code provides:

"Using a carriage service to make a threat

(1)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.

Penalty: Imprisonment for 10 years."

Section 474.15(4) provides that "fear" includes "apprehension".

68. The Dictionary to the Commonwealth Code defines "carriage service" as having the same meaning as in the Telecommunications Act 1997 (Cth), which defines it as "a service for carrying communications by means of guided and/or unguided electromagnetic energy".^[6]  In addition, the Explanatory Memorandum to the Crimes Legislation Amendment (Telecommunications Offences and Other Measures) Act (No 2) 2004 (Cth), which inserted the provisions creating the offences in question, identifies the following acts as constituting use of a carriage service: "making a telephone call, sending a message by facsimile, sending an SMS message, or sending a message by email or some other means using the Internet." 

69. Mr Graham Brown, who was a network support officer at the Principal Registry of the Federal Court of Australia, gave evidence which supported the conclusion that both the transmission of email via the Internet and the use of a telephone fall within the definition of "carriage service" in the Telecommunications Act.

Using a carriage service to harass

70. The two charges under s 474.17 of the Commonwealth Code involved the appellant sending 83 emails during an 18 hour period on 13 and 14 April 2006 to various email addresses at the Federal Court of Australia (count 1), and making 176 phone calls to the Federal Court registries and chambers between 13 April and 19 May 2006 (count 4).

71. In relation to count 1, the emails were admitted into evidence under a certificate for the purposes of s 95 of the Evidence Act 1977 (Qld).  The emails were sent to various people at the Federal Court, including judicial officers, from an email address apparently referrable to the appellant.  The following table summarises the date and time stamped on each email, and the subject of each email:

72. Ms Caroline Reynolds, a District Deputy Registrar at the Federal Court, gave evidence that the emails were received from the appellant in circumstances where the appellant had been involved in litigation in the Federal Court as a self-represented litigant.  Ms Reynolds also gave evidence that she contacted the police upon discovering that the numerous emails emanated from the one email address.

73. Mr Matthew Chapman, a constable with the Queensland Police Service ("QPS"), gave evidence that upon receiving the complaint from Ms Reynolds, he applied for a search warrant with respect to the appellant's residence at the Women's College at the University of Queensland where the appellant was a doctoral candidate.  Mr Chapman gave evidence that the appellant was uncooperative.  He also gave evidence that an examination of the appellant's laptop computer revealed that the emails forwarded to the QPS by Ms Reynolds were in fact sent from the appellant's email account.  This was confirmed by video footage of the computer display.  Mr Chapman also stated that the laptop computer was returned to the appellant before it had been forensically examined.

74. Mr Kim Wilson, an AFP officer, gave evidence that on 14 April 2006 he attended upon the Commonwealth Law Courts building in Brisbane and spoke to Ms Reynolds who showed him the emails that were received from the appellant.  On 19 May 2006, Mr Wilson and other AFP officers attended upon the appellant's residence.  The AFP officers detained the appellant under the Migration Act 1958 (Cth).  Thereafter she was held at the detention facility in Villawood, Sydney.

75. Mr Gregory Hinds, an officer of the AFP stationed at Sydney Airport, gave evidence that on 31 July 2006 when the appellant was present in Sydney to attend a meeting scheduled with the Department of Immigration the appellant was arrested by AFP officers in Sydney and extradited to Queensland pursuant to the warrant issued in this State. 

76. Ms Jane Mussett and Mr Tim Connard, a Deputy District Registrar at the Federal Court and Senior Registrar respectively, each gave evidence identifying the documents tendered as copies of the emails that various staff members at the Federal Court had received.

77. Each of Ms Mussett and Mr Connard was the subject of threats communicated by the appellant to the Associate to the Chief Justice of the Federal Court. These threats were the subject of the charges under s 474.15(1) of the Commonwealth Code.

78. In relation to count 4, evidence in the form of telephone records relating to an account held by the appellant showed that she had made 176 phone calls between 13 April and 19 May 2006 to the following telephone numbers at the Federal Court:

79. These telephone numbers were called from a telephone extension that was assigned to the appellant during her residence at the Women's College, and from the appellant's mobile telephone. Mr Jeff Sipek, who was the Operations Manager at the Women's College at the relevant time, identified the extension as belonging to the appellant, and the DPP tendered documents identified by him as "call list print outs" that evidenced the telephone numbers called from that telephone extension. A liaison officer from the appellant's mobile carriage service operator gave evidence with respect to the appellant's mobile telephone account.

80. Ms Jocelyn Green, who served as Director of Court Services at the Federal Court at the relevant time, gave evidence identifying the numbers that the appellant called as the numbers referrable to staff employed at the Federal Court. She also said that in her experience she was not aware of another litigant who had made such a large number of telephone calls to the court, and that it is the usual practice that litigants telephone the Registry with any inquiries rather than contacting the judges' chambers directly.

Using a carriage service to make a threat

81. The two charges under s 474.15(1) of the Commonwealth Code involved the appellant making a threat to Mr Christopher Young, a barrister and Associate to the Chief Justice of the Federal Court at the relevant time, to kill two Federal Court registrars with whom she had previously dealt with and was currently dealing with, namely Ms Jane Mussett (count 2) and Mr Tim Conrad (count 3).  The appellant's threat arose in the context of her seeking to have proceedings that she had commenced in the Federal Court removed from the docket of Justice Lander in South Australia to that of Justice Finkelstein in Victoria.

82. During examination by the DPP, Mr Young described the relevant conversation in the following terms:

"I called her back in relation to the issue of the docket Judges for the particular matter.  I advised [the appellant] that the matter had been docketed to Justice Lander and that it was not for litigants to choose the Judges that would be hearing their case.  I told her that in the matter being docketed in that way there was no breach of the law.  It was then at about that time, and my notes record it being 2.43 in the afternoon – I can actually quite vividly remember this part of the phone call, and at that time I had a phone on my desk which had the time recorded on it and I looked across to that as soon as she said it and saw the time stamp on the phone.  She then said, 'I will kill somebody.  I will kill Jane Mussett.  I will kill Tim Connard.  I've reached the limit.'  As soon as she said that, I said to her that that was – what she just said was a threat to kill and that was a very serious matter.  I told her that I would be referring the fact that she had said that statement to the appropriate officers in the Court for them to follow-up and that they may be calling the police as a result of that phone call.  At that point Ms Ogawa – in fact, throughout the phone call, even at an earlier point when I was telling her about the matter being docketed to Justice Lander, but particularly at this point, she was repeating the word, 'No, no, no, no, no', constantly.  She said a number of words which I couldn't make sense of at that time and were unintelligible really.  She didn't respond directly to what I was saying and shortly, within a matter of probably a minute or two after I said that, she hung up on me." (emphasis added)

83. Both Ms Mussett and Mr Connard gave evidence during their evidence-in-chief that Mr Young called each of them and informed them of the threat made by the appellant.

84. During his examination by Mr Kent, Mr Connard gave evidence of a phone conversation with the appellant some weeks after the telephone conversation that the appellant allegedly had with Mr Young that comprised the conduct said to give rise to counts 2 and 3 on the indictment.  The exchange between Mr Kent and Mr Connard was in these terms:

"Is it the case or do you recall, Mr Connard, having a phone conversation with Ms Ogawa yourself some weeks after all of this?-- Yes, that's right.

By some weeks after all of this, I'm referring to some weeks after perhaps May of 2006?-- Yes, it was after the phone call to Chris Young, so some weeks after that.

A few weeks after that?-- Yes.

All right. Was Ms Ogawa put through to you when you were at work one day?-- She was.

On the phone?-- I understand apparently as a result of her insistence that she wanted to speak to me.

All right. Did you say you didn't think it was appropriate to speak to her because you were aware that she was the subject of police investigation?-- That's right.

Did she say something to this effect, 'Well, yes, I did leave some messages with the Court and sent some e-mails, but that happened while I was having a panic attack and I'm not now in that same situation, so please talk to me.'?-- It was words to that effect, yes.

All right. Did you deal with some procedural inquiry after that?-- I dealt with the procedural inquiry as quickly as I could."

The appellant's fitness to be tried

85. I turn now to consider the question of the appellant's fitness to be tried and the manner in which that issue was dealt with in the course of the proceedings below. At the outset of the trial the appellant asked that the question of her fitness to be tried be referred to the Mental Health Court ("MHC") under the Mental Health Act. 

86. Section 257 of the Mental Health Act relevantly provides:

"(1)The matter of the person's mental condition relating to the offence may be referred to the Mental Health Court by–

(a)the person or the person's legal representative; or

(b)the Attorney-General; or

(c)the director of public prosecutions; or

(d)if the person is receiving treatment for mental illness–the director."

87. Section 257 is contained in Part 4 of Division 3 of Chapter 7 of the Mental Health Act, and s 256 of that Act relevantly provides that the part applies:

"… if there is reasonable cause to believe a person alleged to have committed an indictable offence–

(a)is mentally ill or was mentally ill when the alleged offence was committed; …"

88. Section 235 of the Mental Health Act provides that that Act is inapplicable to Commonwealth offences.  The Explanatory Notes to the Bill for the Mental Health Act explain that:^[7]

"The Crimes Act 1914 (Commonwealth) provides a separate scheme for determining criminal responsibility of alleged offenders with a mental illness and as Commonwealth law prevails over state law, Queensland has no jurisdiction to deal with federal offenders."

89. Section 20B of the Crimes Act 1914 (Cth) contemplates the determination of issues as to the fitness of an accused person to be tried.  Section 20B(3) relevantly provides:

"Where a court:

…

(b)before which a person appears in proceedings for trial of a federal offence on indictment …

finds the person charged unfit to be tried, the court must determine whether there has been established a prima facie case that the person committed the offence concerned."

90. Section 16 of the Crimes Act relevantly defines "unfit to be tried" as including "unfit to plead".  The legislation does not further particularise what facts the court must be satisfied of before finding that a person is unfit to be tried, but instead adopts the common law meaning.^[8]

91. In Kesavarajah v The Queen, the High Court described the interrelationship between s 20B of the Crimes Act and the State law thus:^[9]

"… in relation to proceedings for an offence against a law of the Commonwealth, the provisions of the State law must necessarily give way to the specific provisions of the [Crimes Act] to the extent of any inconsistency.  The consequence would be that State law would regulate the mode of determination of fitness to be tried … but the consequences flowing from the determination would be regulated by Commonwealth law."

92. In Kesavarajah, the High Court held that s 68(2) and s 79 of the Judiciary Act 1903 (Cth) required the question of fitness to be tried under s 20B of the Crimes Act to be determined in accordance with the procedures applicable under State law; that is, the sections "pick up and make applicable the relevant provisions of State law".^[10]  In Kesavarajah the State statute in question did not exclude the application of its procedure to the Commonwealth offences and officers as the Mental Health Act does.  Sections 68(2) and 79 of the Judiciary Act do not operate to change the words of the State Act.  Section 235 of the Mental Health Act denies the application of that Act to the indictment offences.

93. In cases of Commonwealth offences, s 68(2) and s 79 of the Judiciary Act pick up and apply s 613 of the Queensland Code as the "mode of determination of fitness to be tried". 

94. Section 613 of the Queensland Code provides:

"(1)If, when the accused person is called upon to plead to the indictment, it appears to be uncertain, for any reason, whether the person is capable of understanding the proceedings at the trial, so as to be able to make a proper defence, a jury of 12 persons, to be chosen from the panel of jurors, are to be empanelled forthwith, who are to be sworn to find whether the person is so capable or no.

(2)If the jury find that the accused person is capable of understanding the proceedings, the trial is to proceed as in other cases.

(3)If the jury find that the person is not so capable they are to say whether the person is so found by them for the reason that the accused person is of unsound mind or for some other reason which they shall specify, and the finding is to be recorded, and the court may order the accused person to be discharged, or may order the person to be kept in custody in such place and in such manner as the court thinks fit, until the person can be dealt with according to law.

(4)A person so found to be incapable of understanding the proceedings at the trial may be again indicted and tried for the offence."

95. It is an essential principle of our system of criminal justice that an accused person should not be put on trial for an offence unless he or she is fit to stand trial, ie to comprehend the course of the proceeding and to make a proper defence.^[11]  It is for the trial judge to ensure that where a question arises as to the fitness of an accused to stand trial, that question is resolved before the trial proceeds:  the onus in this regard is not upon the parties as adversaries but upon the court.^[12]  The proper resolution of a question as to the fitness of an accused to stand trial is a fundamental condition of a fair trial.^[13]

96. The operation of s 613 of the Queensland Code as an adjunct to s 20B(3) of the Crimes Act can be understood in the context of the historical concern of the common law that a person should not be required to stand trial if he or she is not in a mental condition to defend himself or herself.  In the New South Wales Court of Criminal Appeal in R v Tier, Kirby J (with whom Sheller JA and Grove J concurred) summarised the relevant legal history in the following passage:^[14]

"… Justice requires that any person put on trial should be fit to stand trial.  In Dashwood [1943] KB 1, Humphries J said this, on behalf of the court (at 4):

'It is a cardinal principle of our law that no man can be tried for a crime unless he is in a mental condition to defend himself.'

An accused person must be in a position to comprehend the course of proceedings, so as to make a proper defence (per Alderson B in Pritchard (1836) 7 Car & P 303; 173 ER 135; Presser per Smith J).

… the obligation to raise any issue concerning the fitness of the accused rests not simply with the parties, but with the court.  If, through observation or information (such as depositions), the court becomes aware that the accused is unfit, it must call a halt to the trial and, through inquiry, resolve that issue.  It should do so even though neither the prosecution, nor the defence, urges such an inquiry (Dashwood at 2; Eastman (2000) 74 ALJR 915 at 969 [294] and 971 [300] per Hayne J)."

97. In R v Tier, Kirby J went on to make the important point that the resolution of an issue as to the unfitness of an accused to be tried in favour of the accused is not an outcome which an accused person is likely to pursue lightly.  Kirby J explained:^[15]

"Indeed, the court should recognise that very often it will be against the interests of an accused person to raise the issue of unfitness.  Gleeson CJ, in Eastman, made the following remarks (at 920 [24]):

'It is not to be overlooked, as Deane and Dawson JJ pointed out in Kesavarajah (1994) 181 CLR 230 at 249; 74 A Crim R 100 at 113, that the usual consequence of a finding that a person is unfit to plead is indefinite incarceration without trial.  It is ordinarily in the interests of an accused person to be brought to trial, rather than to suffer such incarceration.'"

98. It is the responsibility of the trial judge to ensure that an issue as to unfitness is resolved by the jury. In R v Tier, Kirby J said:^[16]

"… the question being fundamental, it falls outside the adversarial system (per Hayne J in Eastman at 969 [294]).  Smith J in Presser said this (following Hood J in Davies (1853) 6 Cox CC 326) (at 49):

'Considerations of onus, however, in the sense in which onus applies on issues joined, would seem to be foreign to an inquiry of the kind in question.'

His Honour added (at 50):

'Upon the authorities, it seems to me that my proper course is to treat this inquiry as one which does not involve any issue joined between the parties, and one in which, notwithstanding the presumption of sanity, I should not regard the accused as bearing the onus of an issue, or require him to begin.'"

99. In R v Tier, Kirby J went on to refer to the authorities which show that the proper resolution of an issue as to unfitness to be tried is of fundamental importance to the integrity of the trial process:^[17]

"… if there is error as to whether the accused is fit to plead or stand trial, it is a fundamental flaw in the trial process (Gaudron J in Eastman at 924 [62]; Kesavarajah at 247; 111-112).  There is a mistrial."

100. The reasons of Kirby J in R v Tier give general guidance on the question whether an issue as to unfitness to be tried can be seen to have arisen:^[18]

"When can it be said that a question as to the accused's fitness to be tried has been raised?  In Ngatayi (1980) 147 CLR 1, a person described as a 'full blood tribal aborigine' was indicted for murder.  His counsel expressed concern that the accused could not understand the nature of the proceedings.  He sought an inquiry into his fitness to be tried.  The trial judge declined to direct such an inquiry.  On appeal, the High Court said this (at 9):

'Once a real question as to incapacity is raised, the judge must follow the procedure laid down in the section.  If counsel raises an issue of incapacity he should indicate the nature of the facts which in his submission will support the view that the accused is incapable of understanding the proceedings so as to be able to make a proper defence.  The judge should then leave the issue to the jury unless on the facts as stated no reasonable jury, properly instructed, could find that the accused was not capable of understanding the proceedings so as to be able to make a proper defence.'

In Kesavarajah, the accused was charged with the importation of heroin.  The Crown produced two medical reports before the trial began.  One diagnosed mental illness, and urged the trial be adjourned.  The other thought the accused fit, although the report was qualified in a number of respects.  The trial judge, in these circumstances, determined that there was not a serious issue to be tried.  When the matter came before the Court of Criminal Appeal, the court (Phillips CJ, Crockett and Marks JJ) said this (Allen, Kesavarajah and Moses (1993) 66 A Crim R 376 at 396):

'[I]f there is material that invites inquiry as to an accused's fitness either to plead or (if the trial has commenced) to be tried, the judge is under an obligation to determine if there is 'a real and substantial question' as to such fitness.'

Their Honours added (at 396-397):

'It must be borne in mind, as the Full Court pointed out in Khallouf ([1981] VR 360 at 364), that it is important to keep separate the two matters, namely a finding as to whether a real and substantial question as to fitness exists (which is for the judge to make) and a finding as to whether the accused is or is not unfit in the relevant sense (which is for the jury to make).'

When the same matter came before the High Court, Mason CJ, Toohey and Gaudron JJ said this (referring to the provisions of the Crimes Act 1958 (Vic)) (at 245):

'… it cannot be doubted that, in the context of s 393 '[o]nce a real question as to incapacity is raised, the judge must follow the procedure laid down in the section' (Ngatayi at 9).  Sometimes the test has been stated in terms of whether there is a reason to doubt the accused's fitness to stand trial (Gibbons [1947] 1 DLR 45 at 49).  However, the judge should leave the issue to be tried by the jury unless no reasonable jury, properly instructed, could find that the accused was not fit to be tried.'

Applying that test, the court found error.  There was, in that case, a real issue.  The trial judge, therefore, was obliged to follow the procedure laid down by the Act, which was to empanel a jury to determine whether the accused was unfit to stand trial."

The grounds of appeal:  fitness to be tried

101. Counsel for the appellant sought and obtained leave to add the following additional grounds of appeal with respect to all convictions:

"12(a)That the learned trial judge erred in failing to allow a jury to consider whether the appellant was 'capable of understanding the proceedings at the trial so as to be able to make a proper defence'.

     (b)Alternatively, the learned trial judge erred in failing to allow the jury, pursuant to s.645 of the Code (Qld) and/or s.20B Crimes Act 1914 (Cth) to consider whether or not the appellant was of sound mind during the course of the trial." (emphasis in original)

102. The words quoted in ground 12(a) are obviously referrable to s 613 of the Queensland Code.

103. Under ground 12(b), Counsel for the appellant suggested that s 645 of the Queensland Code required that the question of whether the appellant was "not of sound mind" should have been put to the jury to consider. 

104. Section 645 provides:

"(1)If on the trial of any person charged with an indictable offence it is alleged or appears that the person is not of sound mind, the jury are to be required to consider the matter, and if the jury find that the person is not of sound mind, the finding is to be recorded, and thereupon the court is required to order the person to be kept in strict custody, in such place and in such manner as the court thinks fit, until the person is dealt with under the Mental Health Act 2000.

(2) A person so found to be not of sound mind may be again indicted and tried for the offence."

105. Ms Abraham QC who appeared in this Court with Mr Kent for the DPP submitted that the learned trial judge did not err in failing to empanel a jury to decide the question of the appellant's fitness to be tried or in failing to require the jury to consider whether the appellant was of sound mind because "no real question" arose as to the appellant's capability to understand the proceedings at trial and to make a proper defence. As a result, s 613(1) was not engaged.

106. Section 645 was raised at trial. At that time, Mr Kent said that s 645 of the Queensland Code "has no operation at the moment because the [appellant was] not in the charge of the jury" at the relevant time.  Mr Vasta QC, who appeared with Mr Di Carlo of Counsel for the appellant in this Court, points out that, by virtue of s 597C(3) of the Queensland Code, a trial is deemed to begin when the accused person is called upon to plead to the indictment.  Section 613 of the Queensland Code applies "when the accused person is called upon to plead to the indictment", and s 645 applies "on the trial of any person charged with an indictable offence".  Each of these sections requires the court to follow a process whereby those questions are to be determined by the jury, and not the judge.  So much may be accepted; but the issue in respect of s 645 is whether there was any basis for the suggestion that the appellant was not of sound mind.

107. It is convenient to note here as well that, in the grounds of appeal with respect to the contempt, the appellant also argues that the learned trial judge erred in failing to refer the appellant to the Mental Health Tribunal under the Mental Health Act at her request.  Whether or not such a course was open as a matter of law, Ms Abraham QC makes the same response, namely that there was no real question as to the appellant's capacity to understand and deal with the contempt charge. 

108. Ms Abraham's submission must be accepted. The present case is not analogous to Kesavarajah, where it was held that the trial judge ought to have directed an inquiry as to the accused's fitness.  In Kesavarajah the trial court was faced with competing evidence as to the accused's fitness to plead; that is, the fact that there was competing evidence gave rise to "a real question".  That was not the case here.  Indeed on the evidence which had been adduced at pre-trial hearings instigated by the appellant, the learned trial judge had formed views distinctly adverse to the appellant.  His Honour had come to the firm view that the appellant was a humbug feigning an incapacity to represent herself.  That view was well open to his Honour. 

109. His Honour had the benefit of having seen and heard the appellant conduct her applications over many days. She conducted lengthy cross-examinations of medical witnesses with competence and energy inconsistent with a debilitating mental illness. The expert medical evidence was all one way to the effect that the appellant suffers from no mental illness which would impair her participation in the trial process in accordance with the criteria set out in R v Presser.^[19]  These criteria concern her ability to understand the nature of the charges against her, to plead to the charge and to exercise the right to challenge, to understand the nature of the proceedings (namely that it is an enquiry as to whether the appellant committed the offences charged), to follow the course of proceedings, to understand the substantial effect of any evidence that may be given in support of the prosecution and to make a defence or answer the charge.  The approach in Presser has been consistently applied.^[20] 

110. In R v Tier, Kirby J commented in the context of the Mental Health (Criminal Procedure) Act 1990 (NSW), but in remarks which apply to s 613 or s 645 of the Queensland Code:^[21]

"… [A]n inquiry into fitness (involving a separate jury) is disruptive.  It will often lead to the discharge of the jury hearing the trial.  A mechanism is therefore needed … for the trial judge to prevent attempts by the accused, or his representatives, to disrupt or abort the trial.  No inquiry need be held where it appears to the court that the question has not been raised in good faith ….  It will not be raised in good faith where there is no real and substantial question of unfitness, and where the motivation in raising the question (which is either transparent or to be imputed) is to disrupt the trial process ….  Conversely, where there is a real and substantial question, good faith will be presumed.

…  If, however, the basis for concern is not obvious, or the validity of that concern is dubious, it is appropriate for the trial judge to seek an elaboration upon the matters giving rise to the concern (cf Ngatayi at 8).  Where that elaboration demonstrates a real and substantial question, good faith will be presumed.  The question of unfitness must then be determined by a separate jury.  It is only where there is patently no real and substantial question that the court may impute an absence of good faith, and decline to conduct an inquiry …"

111. It may be acknowledged that the language of s 613(1) of the Queensland Code is broad and that, in the light of the historical considerations to which I have referred, it should not be read down.  Read in conjunction with s 20B(3) of the Crimes Act in the context of Commonwealth offences, it provides: "If … it appears to be uncertain, for any reason …" the defendant is unfit to be tried, a jury is to be empanelled to determine that question.  Once the Court becomes aware of "any reason" whereby "it appears to be uncertain" that a defendant "is capable of understanding the proceedings at the trial" (for State offences), or "is [fit] to be tried" (for Commonwealth offences), the trial judge should determine the threshold question as to whether there is "a real question" as to whether it appears to be uncertain that the defendant is either capable of understanding the proceedings at trial, or fit to be tried, as the case may be. 

112. The lengthy summary of the history of the pre-trial proceedings set out above demonstrates that, at least up until shortly before the trial actually commenced, the appellant's fitness to be tried had been thoroughly canvassed in the course of the various pre-trial applications brought by the appellant. The learned trial judge had been obliged to make findings as to the appellant's fitness for trial. His Honour had made findings the effect of which was that the appellant was deliberately seeking to avoid a trial by feigning mental incapacity. Those findings were not the subject of an appeal then or now. There was nothing to suggest to the learned judge at trial that there had been some change for the worse in the appellant's capacity to understand the case against her and make her defence to it in the short time which had elapsed since he had made his findings adverse to her. Accordingly, the effect of the learned trial judge's findings, which were not the subject of appeal, was that when the matter came on for trial, he was entitled to proceed on the footing that the appellant was fit to be tried and that any suggestion to the contrary on her part was a feigned attempt to frustrate the course of justice.

113. At this point I should note that the appellant's position as a legal academic was not necessarily decisive of the issue of fitness for trial. That a defendant has some legal learning is not a guarantee of fitness to be tried. The very absurdity of the appellant's applications to the court was apt to give rise to a concern that her legal learning, at least in combination with other problems, might be an obstacle to a conclusion that she was "capable of understanding the proceedings at trial, so as to be able to make a proper defence". As the Roman magistrate Festus said to the Apostle Paul at a hearing recorded in the Acts of the Apostles: "Paul, thou art beside thyself; much learning doth make thee mad."^[22]  The legal profession has known eminent lawyers and judges whose deep learning in the law did not render them immune from disabling mental illness.^[23]  That having been said, the findings that the learned trial judge made, based on his observations of the appellant and the expert medical evidence, were sufficient to justify his Honour in regarding the appellant's position raised at the start of the trial as a position which was not raised in good faith and which was devoid of substance.

114. I would therefore reject these grounds of appeal.

Other grounds of appeal against conviction for the indictment offences

115. I turn now to consider the other grounds of appeal advanced on behalf of the appellant.

116. By way of a document entitled "Amended Grounds of Appeal", which was filed on 15 September 2009, the appellant sought leave to amend the grounds of appeal with respect to the convictions for the indictment offences. Leave was granted at the commencement of the hearing in this Court. As amended, the grounds of appeal provide:

"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'.
4. Evidence given by a prosecution witness Young referring to his fear about the welfare of persons at the Womens College [sic] at the University of Queensland, was irrelevant to the issues in the trial; was extremely prejudicial and ought to have been excluded.
5. The linking of the evidence referred to in Ground 4 hereof to the killing of students at Monash University exacerbated the prejudicial effect of that irrelevant evidence.
6. Evidence led from a prosecution witness Mussett about a reference in an email, allegedly sent by the appellant, concerning shootings at Monash University and the effect upon her was irrelevant, highly prejudicial and ought to have been excluded.
7. Evidence led from a prosecution witness Connard about a reference in an email allegedly sent by the appellant concerning shootings at Monash University and the effect that this reference had upon him, was irrelevant, highly prejudicial and ought to have been excluded.
8. Evidence from the witness Connard as to the distressed state of one Mussett during the period November/December 2005 to May 2006 was irrelevant, highly prejudicial and ought to have been excluded.
9. The learned trial judge's charge to the jury at pp.334, 341 and 342 about the effect of the threat made by the appellant had upon the witness Connard and the further reference to the Womens College [sic] at the University of Queensland resulted in a miscarriage of justice.
10. The failure of the learned trial judge to direct the jury that evidence concerning the appellant's statement that she 'had a panic attack' was relevant to the appellant's intention at the time the alleged threat was made, was a serious omission resulting in a miscarriage of justice.
11. The learned trial judge failed to adequately direct the jury as to the necessary elements of counts 2 and 3 and thereby caused the jury to consider irrelevant matters."

117. The appellant abandoned Ground 1 of the amended grounds.

Ground 2: separate and distinct charges in counts 2 and 3

118. Under this ground, the appellant advanced the argument that "the Crown was precluded from bringing more than one charge in respect of what was essentially one offence". That is, there was only one offence because there was only one communication to Mr Young, notwithstanding that there were two threats made.

119. In support of this ground, the appellant relied upon the following observations of McHugh, Hayne, and Callinan JJ in Pearce v The Queen:^[24]

"To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common.  No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn.  Often those boundaries will be drawn in a way that means that offences overlap.  To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts.

…

The identification of a single act as common to two offences may not always be as straightforward.  It should, however, be emphasised that the inquiry is not to be attended by 'excessive subtleties and refinements' (Barry, The Courts and Criminal Punishments (1969),p 14).  It should be approached as a matter of common sense, not as a matter of semantics."

120. The DPP submits that the appellant's argument with respect to Pearce v The Queen was misconceived in that the High Court in that case was addressing the issue of sentence.  The DPP says that:

"The number of counts is not determined by how many occasions the offending behaviour occurred.  Clearly more than one offence can be committed on any one occasion.  For example, if as a result of an offender driving in a dangerous manner he kills more than one person, that offender is charged with a separate count in relation to each death.  Similarly, an offender would be charged with numerous counts of murder, if as a result of one action, he killed more than one person.

Here, each of the threats, to two different individuals, satisfies the terms of s 474.15(1) of the Code.  They are two separate offences." (emphasis in original)

121. The issue is really one of construction of s 474.15(1) of the Commonwealth Code.  The provision contemplates, in terms, that the offence is committed upon a first person using a carriage service to make a threat, which is communicated to a second person, to kill the second person or a third person.

122. The evidence of Mr Young establishes that the appellant made two distinct threats, one against each of the registrars. The appellant was reported as relevantly saying: "I will kill Jane Mussett. I will kill Tim Connard." The making of each of those threats by the use of the telephone was a contravention of s 474.15(1).

123. I would reject this ground of appeal.

Ground 3: no evidence of the content of the telephone calls

124. Under this ground of appeal, the appellant argues that the DPP did not establish the elements of the offence in s 474.17 on the basis that the prosecution case was confined to the quantity and frequency of the telephone calls, without proof of the content of the telephone calls. The appellant's submission is:

"… that unless the jury had before them evidence from persons concerning the content of the conversation or the utterances of the caller (assuming it was the appellant) there was no evidence of the 'use' of the 'carriage service' as being 'harassing'.

We anticipate the Crown contending (as it did elsewhere) that it was relying upon the 'quantity and frequency' of the calls.  The offence creating provision is concerned with the nature of the content of the calls passing along the carriage service.  The number of calls and/or the frequency of the calls cannot[,] by this fact alone, prove the essential element of 'harassing' without at least some evidence of what has been said."

125. The appellant argues that the conviction with respect to count 4 of the indictment should be quashed on the basis that the DPP has not proved its case under s 474.17. That is said to be because "there was no evidence (or no sufficient evidence) that these calls could be regarded 'by reasonable persons as being harassing'." He submits that recipients of the calls should have been asked to give evidence as to whether the calls were unwanted by, or annoying to, them, and that the absence of direct evidence in this regard was a fatal lacuna in the case for the prosecution.

126. In response, the DPP argues that:

"… the terms of s 474.17 of the Code do not confine the offence to the content of the telephone call.  The section explicitly refers to 'the method of use or the content of a communication or both'.  For example, depending on the circumstances, repeatedly telephoning and hanging up without speaking would come within the terms of the section.  Whether conduct is characterised as harassing depends on the facts and circumstances of the particular case." (footnotes omitted) (emphasis in original)

127. The DPP says that the jury was entitled to be satisfied that the telephone calls were "harassing" in relation to count 4, by reason of "the general circumstances in which [each of the calls] were made", and the evidence of Ms Mussett to the effect that the appellant would become abusive towards her if she did not get what she wanted. The DPP also relies upon the evidence of Mr Connard (which the appellant argues is inadmissible under ground 8) to the effect that:

"The number of calls and the content of them was such that it was distressing for Ms Mussett to deal with the Appellant and as a result she was removed as the Appellant's contact point." (footnotes omitted)

128. The argument that the offence is directed to the content of the telephone calls and not their "quantity and frequency" must be rejected. Parliament expressly included the words "whether by the method of use or the content of a communication, or both" in re-enacting the offence previously contained in s 85ZE of the Code. The Explanatory Memorandum to the Crimes Legislation Amendment (Telecommunications Offences and Other Measures) Act (No 2) 2004 (Cth) relevantly notes:

"'The method of use' refers to the actual way the carriage service is used, rather than what is communicated during that use.  The continual making of unwanted telephone calls to a particular person would fall into this category."

129. For the reasons that appear below, I conclude that the evidence of Mr Connard as to the distress caused to Ms Mussett by the number of calls and the content of them was inadmissible. Nevertheless, on the balance of the evidence, and having regard to the proper construction of s 474.17, I consider that the jury were entitled to find the appellant guilty of the offence charged in count 4. The jury were entitled to have regard to the quantity and frequency of telephone calls in the context established by the vituperative emails the subject of count 1 and to conclude on that basis that reasonable persons would regard frequent and apparently random telephone calls made in that context as harassing. The jury were entitled to conclude that the appellant must have understood that her calls were, by reason of their quantity and frequency, unwelcome and unwanted by the recipients.

130. I would reject this ground of appeal

Grounds 4 to 9: evidence irrelevant and prejudicial

131. These grounds challenge the admissibility of certain evidence proffered by the DPP at trial on the grounds of relevance and prejudice.

132. In Smith v The Queen,^[25] Gleeson CJ, Gaudron, Gummow, and Hayne JJ said:

"As is always the case with any issue about the reception of evidence … the first question is whether the evidence is relevant …  Further, although questions of relevance may raise nice questions of judgment, no discretion falls to be exercised.  Evidence is relevant or it is not.  If the evidence is not relevant, no further question arises about its admissibility.  Irrelevant evidence may not be received.  Only if the evidence is relevant do questions about its admissibility arise.  These propositions are fundamental to the law of evidence and well settled. …

In determining relevance, it is fundamentally important to identify what are the issues at the trial.  On a criminal trial the ultimate issues will be expressed in terms of the elements of the offence with which the accused stands charged.  They will, therefore, be issues about the facts which constitute those elements.  Behind those ultimate issues there will often be many issues about facts relevant to facts in issue."

133. Ground 4 objects to the admission of evidence given by Mr Young to the effect that, as a result of the threats to Ms Musset and Mr Connard communicated to him by the appellant, he feared for the welfare of persons at the Women's College at the University of Queensland.  The appellant argues that what Mr Young felt and thought and feared were completely irrelevant.

134. The DPP argues that this evidence was relevant on the following basis:

"In relation to counts 2 and 3 the Crown was required to prove that the Appellant used a carriage service to make to Mr Young a threat to kill another, intending Mr Young to fear that the threat would be carried out.  While it is not necessary to prove that Mr Young was put in fear, it is necessary to prove that it was a threat and that the Appellant intended that on receiving it, Mr Young would fear it would be carried out.  That is, that Mr Young feared that she meant it.

It is submitted that in addition to the contents of the call, and the circumstances in which the threats were made, Mr Young's reaction on receipt of those threats, is relevant to proving those elements.  It is relevant whether anything was said and the manner in which it was said, which made him take the call seriously." (footnotes omitted)

135. Section 474.15(1)(b) required that the appellant intend that Mr Young (as the "second person") should be fearful that the appellant would carry out her threat against either of those threatened; that is, Ms Mussett and Mr Connard. To the extent that the DPP sought to adduce evidence of Mr Young's fear with respect to the residents of the Womens' College, that testimony was irrelevant. While one may readily accept that the manner in which the threats were communicated was relevant to whether the threat would be likely to be taken seriously and so reflect upon the intent of the person making the threat, the information the subject of complaint here was not of that kind, and was quite irrelevant to the charges under s 474.15(1) of the Commonwealth Code. 

136. Ground 5 objects to the linking of Mr Connard's evidence with respect to his apparent fear for the safety of residents at the Womens' College to the killing of students at Monash University (said to form the content of one of the emails dispatched by the appellant).  Grounds 6 and 7 object to the admission of the evidence of Ms Mussett and Mr Connard, respectively, concerning "a reference in an email allegedly sent by the appellant concerning shootings at Monash University and the effect this had on [her and him], was irrelevant, highly prejudicial and ought to have been excluded".

137. In relation to ground 5, the DPP submits:

"The threats to Mr Young were made in a context where the Appellant had made threats in previous emails which had included a reference to the shooting of various students at Monash University.  The threat was made to persons who the Appellant knew were working in Melbourne.  It was made by the Appellant intending them to make the connection with the events that occurred at that University.  Those emails had been sent to many Federal Court judges, associates and registrars.  The Appellant had been arrested for that offence at the time the threats the subject of counts 2 and 3 were made.  Mr Young was the associate to the Chief Justice."

138. The DPP submits with respect to grounds 6 and 7:

"… the Appellant sent this email, amongst others, to a numbers [sic] of persons who she knew were based in Melbourne.  The complaints in the email related to actions she had in the Federal Court in relation to Melbourne University.  The terms of one email included 'I now know why Monash student shot people around'.  In those circumstances, the significance and meaning of this email, as interpreted by those who received it (directly or indirectly) is relevant to proof of the charges.  Ultimately the jury were required to determine whether they were satisfied that sending the 82 emails (of which the shooting at a university was one) would be regarded by reasonable persons as harassing and, if so, whether the Appellant was reckless in that regard.  The jury were entitled to consider those questions in the circumstances in which the emails were sent in this case.  It is submitted that these circumstances include the meaning of the emails and their effect." (emphasis in original)

139. I am unable to accept the DPP's submissions on this point. The reference to the shooting at Monash University was quite irrelevant to the DPP's case against the appellant.  It was, however, distinctly prejudicial to the appellant to have the case against her "spiced up" with reference to this outrage. 

140. Ground 8 objects to the admission of the evidence of Mr Connard with respect to Ms Mussett's allegedly "distressed state" as an apparent consequence of her dealings with the appellant.

141. With respect to this ground, the DPP contends that:

"… during the relevant period, Ms Mussett was the point of contact at the Federal Court for the Appellant.  She received the emails the subject of count 1 and calls the subject of count 4.  Observations of her reaction and/or state of mind are relevant to determining whether the conduct in the circumstances was harassing.

Mr Connard, as a result of what he saw (the emails) and his dealing with and observations of Ms Mussett, removed her as the contact point for the Appellant. … The observations (which merely supported the direct evidence of Ms Mussett) were relevant in a case where the Crown was required to prove that the emails were harassing in their quantity, frequency and content, and that the telephone contacts were harassing, in their quantity and frequency.  In any event, as Ms Mussett gave evidence as to the effect of the emails and telephone calls on her, the evidence could not be said to be prejudicial."

142. This evidence had no relevance to the elements of the offence and was, therefore, inadmissible. The Explanatory Memorandum to the bill for the Crimes Legislation Amendment (Telecommunications Offences and Other Measures) Act (No 2) 2004 (Cth) explains that the language of the offence contained in s 474.17(1), which was previously enacted in s 85ZE(1), was expressly directed to removing any subjective element from the statement of the offence.  The Explanatory Memorandum states:

"The proposed offence is broader than existing subsection 85ZE(1) in relation to menacing or harassing use of a carriage service, because it removes the requirement that the recipient be in fact menaced or harassed and replaces it with an objective standard.  The proposed offence provides that reasonable persons must regard the use of the carriage service, given all the circumstances, as menacing, harassing or offensive.  This allows community standards and common sense to be imported into a decision on whether the conduct is in fact menacing, harassing or offensive."

143. In summary, the evidence canvassed in these grounds of appeal should not have been admitted. As the accused was not represented, it fell upon the learned trial judge to ensure that irrelevant and prejudicial evidence was not adduced at trial. As Gibbs CJ and Wilson J stated in MacPherson v The Queen,^[26] which involved a self-represented accused:

"The judge presiding at a criminal trial is under an obligation to ensure that the trial is conducted fairly and in accordance with law.  He [sic] must accordingly exclude evidence tendered against the accused which is now shown to be admissible."

144. Brennan J (as his Honour then was) saw the duty to exclude inadmissible evidence as one cast squarely upon the trial judge. Brennan J stated:^[27]

"… a corollary of the duty to control the admission of evidence is that the judge is entitled to intervene to exclude the tender of particular evidence which ought not go before the jury whether or not an objection has been taken (Stirland v Director of Public Prosecutions ([1944] AC 315 at pp 327-328))."

145. In his submissions, Mr Vasta complains that on the basis that the evidence described in grounds 4 to 9 was improperly admitted, the learned trial judge erred by referring to the evidence in his Honour's summing up to the jury and, by doing so, gave it "the stamp of importance". I agree that his Honour erred in this regard. At the very least, the learned trial judge should have instructed the jury not to act upon the evidence that had been admitted in error.^[28]

Grounds 4 to 9:  the proviso

146. The question which now arises is whether s 668E(1A) of the Queensland Code should be applied. 

147. Section 668E(1A) of the Queensland Code provides that this Court may dismiss an appeal notwithstanding an error in the trial process if the Court "considers that no substantial miscarriage of justice has actually occurred".  This section is usually referred to as "the proviso".

148. In Weiss v The Queen,^[29] the High Court explained that the task of deciding whether a substantial miscarriage of justice has occurred is an "objective task".  This Court must make its own independent assessment of the evidence on "the whole of the record of the trial including the fact that the jury returned a guilty verdict".

149. In this case, the jury clearly accepted that the appellant made the threats the subject of counts 2 and 3 on the indictment. The evidence in this regard was unchallenged. The only question relates to whether the appellant intended Mr Young to fear that her threat would be carried out. I am in no doubt that the appellant did so intend. Her threats were made with a view to getting her way in relation to the litigation in which she was involved in the Federal Court. She could only have expected to get her way if her threats were taken seriously by the officers of that Court to whom they were made. It is to be emphasised that the intention of which s 474.15(1)(b) speaks is an intention that the person to whom the threat is made should "fear that the threat will be carried out". The evidence does not suggest that the appellant could have had any other intention in mind in making the threats. On the contrary, the context in which the threats were made suggests that the appellant was determined that her threat be taken seriously.

150. I have no doubt as to the appellant's guilt of these charges on the evidence which was properly admitted against her. No substantial miscarriage of justice occurred as a result of the appellant's convictions on counts 2 and 3 on the indictment.^[30] 

151. For these reasons, these grounds of appeal must fail.

Ground 10: the judge failed to direct the jury about the appellant's intention

152. Under this ground, the appellant asserts that the learned trial judge erred by failing to direct the jury that a statement made by the appellant to Mr Connard was relevant to the appellant's intention with respect to counts 2 and 3. The evidence was adduced by the DPP in its examination of Mr Connard to the effect that:

"Well, yes, I did leave some messages with the Court and sent some e-mails, but that happened while I was having a panic attack and I'm not now in the same situation, so please talk to me."

153. Counsel for the appellant complains on appeal that the direction given by the learned trial judge to the jury was "quite unsatisfactory". It is appropriate to set out the direction in full. His Honour stated:

"[Mr Connard] also gave evidence about a phone conversation with the accused some weeks after the phone call that Mr Young had received, and he said that he took the call because there had been an insistence that she wanted to speak to him.  He said that he told her when he got her on the phone that he didn't think it was appropriate for her to speak to him because she was the subject of a police investigation.  And then he was asked this question 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 and so she said please talk to me['] and he said it was words to that effect.  He said that he dealt with the procedural inquiry that the accused wanted to make in that phone call as quickly as he could.

I just want to say something to you about that statement, namely that she said to him - he's given evidence to this effect: that she did leave some messages with the Court and sent some emails and that it happened whilst she was having a panic attack and she was not now in the same situation.  It's open to you to regard that statement, if you accept Mr Connard's evidence that the accused said words to the effect of that fact to him, as an admission made out of Court by the accused that she in the context of her being the subject of a police investigation in fact left some messages with the Court and sent some emails.  She referred to a panic attack.  What that meant when it occurred, if it did, in respect of which messages or emails it refers, or how it influenced what was said or e-mailed by her, if in fact it did, or what her state of mind was is unknown because there's no evidence before you about those things.

What you make of this is a matter for you.  If you find that her statement was an admission as to her being the sender of the emails then you can act on this evidence.  If you do not so find then you should put this evidence of what Mr Connard says the accused said to him to one side and not act on it at all.  However, in order to rely on this evidence you must be satisfied that she did say the things Connard referred to and that what she said was true." (emphasis added)

154. Mr Vasta QC proposes a different formulation in his submissions. He contends that the learned trial judge ought to have directed the jury as follows:

"(i)The jury could consider this conversation as containing an admission that the appellant did, in fact, send emails and also made the threats that Young passed on to him.  In this conversation the appellant also proffered some explanation for these actions;

(ii)Since her intention at the relevant time was the essential element in Counts 2 and 3, her reference to a 'panic attack' may have assisted the jury in relation to whether the Crown had proved such intention beyond reasonable doubt.

(iii)The jury could have regard to the fact that this was a self-serving statement and the weight they put upon the explanation was a matter for them."

155. The DPP argues that the directions given by the learned trial judge were appropriate, particularly considering that the statement does not amount to evidence of a panic attack, and that there was no other evidence to suggest that the appellant had had a panic attack or, if she did, that it influenced her intention with respect to counts 2 and 3. The DPP argues that the absence of supporting evidence was a consequence of the appellant's choosing not to participate in her trial. The DPP also submits that any direction in the form advanced by Counsel for the appellant would be contrary to the evidence of Dr Kingswell, who gave evidence that any mental illness the appellant suffered did not prohibit her "knowing the nature and quality of her conduct."

156. In my respectful opinion, there was nothing defective in the directions and comments to the jury made by the learned trial judge.^[31]  The jury were entitled to reason that the appellant's statements with respect to the earlier emails and telephone calls did constitute admissions.  But in any event the case against the appellant was supported by the undisputed evidence tendered in the form of copies of the emails and telephone records.  The jury were entitled to reject the appellant's apparent assertion of a panic attack as a self-serving statement designed to procure Mr Connard's assistance on the occasion of that assertion.  The learned trial judge's comment, emphasised above, balanced the need to draw potentially exculpatory evidence to the attention of the jury (particularly in her absence), whilst having regard to the minimal weight that the jury could reasonably attach to it in the circumstances of the case.  It is a necessary consequence of the lack of involvement by the appellant in her trial that no additional evidence of the panic attack she alluded to in her conversation with Mr Connard was tendered at trial.  In the circumstances, there was no irregularity in the learned primary judge's summing up to the jury. 

157. The DPP's submission with respect to the evidence of Dr Kingswell must be rejected. It is necessary to note that his evidence was not before the jury. The reports prepared by Dr Kingswell and his oral evidence were adduced to inform the learned trial judge with respect to the appellant's fitness to stand trial following concerns raised by her treating psychologist, Mr Mackenzie, that she was "at serious risk of suicide" after being arraigned on 20 October 2008.

158. Nevertheless, this ground of appeal must fail.

Ground 11: the judge failed to direct the jury on the elements of counts 2 and 3

159. Under this ground of appeal, Mr Vasta QC submits that the learned trial judge erred in his Honour's directions with respect to the elements of the offences charged pursuant to s 474.15(1) in counts 2 and 3; that is, the use of a carriage service to make a threat.

160. It is unnecessary to deal at length with Counsel's arguments. As the DPP submits, the passages cited on behalf of the appellant are references to his Honour's discussion of the evidence: they do not purport to identify the elements of the offences. The elements of the offences were correctly identified by the learned trial judge elsewhere in his directions to the jury.

161. This ground of appeal must fail.

Leave to appeal against sentence for the indictment offences

162. On the application for leave to appeal against sentence for the indictment offences, the appellant contends that "if a term of imprisonment had to be imposed, having regard to the time she had already spent in custody it should have been fully suspended."

163. The DPP contends that "in the circumstances of this case, the sentence imposed is not manifestly excessive. In the circumstances, the total sentence imposed was quite moderate".

164. No error in the sentencing process has been identified. The sentence was justified by the conviction on counts 2 and 3 bearing in mind the maximum penalty of 10 years imprisonment and the appalling nature of the appellant's conduct. 

165. The application for leave to appeal against sentence should be refused.

Appeals from the District Court from findings of contempt

166. The appellant seeks leave to appeal against both the conviction for contempt and the sentence imposed. Counsel for the appellant contended that this Court had jurisdiction to hear appeals from the District Court with respect to contempt pursuant to either s 118(1)(b) or 118(3) of the District Court Act. 

167. Section 118(1)(b) of the District Court Act permits an appeal from judgments of the District Court "in the exercise of its criminal jurisdiction."  Section 118(3) provides for an appeal by leave of this Court in other cases.  The decision of the High Court in Hinch v Attorney-General (Vic) establishes that proceedings for contempt belong to the civil jurisdiction of the court.^[32]  Accordingly, s 118(3) of the District Court Act applies in this case.

168. In Bradshaw v Attorney-General this Court proceeded on the footing that, with respect to convictions for contempt of court, "it had no power to grant leave or to entertain an appeal against such a judgment."^[33]  Thomas JA, who delivered the leading judgment, did not articulate the legal analysis underlying that conclusion.  In Bradshaw the Court removed the matter into its jurisdiction by an order in the nature of certiorari.^[34]  Significantly, Thomas JA did not advert to the circumstance that this Court had previously exercised the jurisdiction to hear such an appeal.^[35]  Because an appeal is a creature of statute, it is necessary to look closely at the terms in which an appeal to this Court is permitted by the District Court Act.

169. Section 118(3) of the District Court Act provides for appeals from judgments of the District Court to this Court with the leave of this Court.  Whether this Court may grant leave to appeal against a conviction for the contempt turns on whether that conviction constitutes a "judgment of the District Court".  "Judgment" is broadly defined in s 3 of the Act as including "a judgment, order, or other decision or determination of the court".^[36]

170. In Maxwell v The Queen,^[37] the High Court considered the nature of a conviction in the context of acceptance by the Court of a plea of guilty.  Their Honours variously considered that the meaning of "conviction" differed with its context, but concluded that, at its most basic level, a conviction does not occur until there has been a final determination of guilt by the Court.  Dawson and McHugh JJ observed that the passing of sentence "results in the judgment of the court embodying a determination of guilt."^[38]  Gaudron and Gummow JJ considered that "imposition of a sentence will amount to an indication that there has been a determination of guilt".^[39]

171. The Full Court of the Federal Court examined the position in Hinton v R.^[40]  The Court stated:

"The term 'conviction' has sometimes been understood, in context, to mean the complete orders made by a court after finding an accused person guilty of an offence.  These orders will include both the finding of guilt and the sentence passed as a consequence: Re Stubbs (1947) 47 SR (NSW) 329 at 339; S (an infant) v Manchester City Recorder [1969] 3 All ER 1230 at 1246; Attorney-General (NSW) v Dawes [1976] 1 NSWLR 242 at 245; and R v Hannan; Ex parte Abbott (1986) 41 NTR 37 at 40-1. …

When dealing with the term 'conviction' a court will not be taken to have convicted a person unless it does some act which unequivocally indicates that this was its intention."^[41]

172. Accordingly, upon the passing of sentence in consequence of a conviction for contempt, there is a "judgment" for the purposes of s 3 and s 118(3) of the District Court Act.  That judgment would be amenable to an application for leave to appeal pursuant to s 118(3) of that Act. 

173. I respectfully incline to the view, contrary to the view in Bradshaw, that s 118(3) of the District Court Act does provide an avenue of appeal by leave to this Court with respect to contempt of the District Court.  It is not necessary to express a concluded view on this point, however, because I consider that even if s 118(3) does provide the appellant with an avenue of appeal, leave to appeal would not be granted in the circumstances of this case.

Should leave to appeal be granted in this case?

174. In seeking to appeal from the conviction for contempt and the sentence imposed by the District Court, the appellant must obtain the leave of this Court.

175. In Smith v Woodward,^[42] this Court said: "It is the practice of this Court to grant leave to appeal under s 118(3) of the District Court Act in order to remedy substantial injustices."^[43]  There must be a substantial injustice to be corrected and a reasonable argument that the injustice is a consequence of error in the court below.  An appeal to this Court which lies only by leave under s 118(3) of the District Court Act is not available to resolve disputes which are of academic interest only. 

176. In the present case the appellant has served her sentence for contempt. Accordingly, there is no evident utility in the proposed appeal. Moreover, it is far from apparent that the contempt sentence resulted from an error on the part of the learned trial judge. I will explain, as briefly as possible, why I have come to that conclusion.

The contempt in this case

177. On 19 March 2008 the learned trial judge charged the appellant with contempt in the following terms:

"According to section 129 of the District Court Act you are charged with contempt of the District Court.  The charge is as follows: 'That on [diverse] dates between 9 March 2009 and 18 March 2009 in the District Court at Brisbane you wilfully interrupted the proceedings of the Court in the course of your trial by physically struggling with the correctional officers and screaming constantly and continually while in Court'." 

178. His Honour observed that the appellant's "conduct has given rise to a real risk of undermining public confidence in the administration of justice."

179. At the hearing on 27 March 2009, the appellant was represented by counsel who tendered an apology on her behalf. His Honour considered, but rejected, the apology offered on behalf of the appellant by her counsel. His Honour said:

"Your counsel has submitted that you offer an apology.  The Court did everything in its power to persuade you or permit you to participate in the trial.  In my view, you wilfully set out to obstruct the trial proceeding.  In doing so you not only caused distress to everyone involved in the trial but created obvious security difficulties for the Corrective Services officers who are responsible for your safety and security.  Your behaviour involved what I regard as derogatory statements about the Court and the system of justice, constant loud screaming in Court and physical struggle with the Corrective Services officers.  You also attempted to disrobe in Court.  I do not regard your conduct as being driven by a psychiatric condition or the effects of it, although your personality disorder may have been an influencing factor in your decision to behave as I have described.  You had many opportunities to desist from your behaviour in Court but you ignored my requests that you do so and ignored the advice of friends and of Mr O'Gorman who intervened as a friend of the Court to try to persuade you to participate in a constructive way in the trial.  You rejected those opportunities and in my view you did so wilfully.  I note on some occasions when you were removed from the Court you stopped screaming after the door was closed before there was an opportunity to take you to the cells downstairs.

I reject your apology.  I do not believe it to be genuine.  I doubt that any other Court has ever had to endure the level of disgraceful conduct that you are responsible for in the course of this trial.  A charge of contempt could have been found before the verdicts were delivered.  Indeed, I made at least one and possibly more statements about a charge of contempt being open for consideration in the course of the trial.  However, I never gave up on the hope that your behaviour would improve and that you would participate in the trial.  In those circumstances, the making of the charge of contempt in the course of the trial would have been contrary to that hope and it may have rendered what was a futile expectation on my part, nugatory."

180. Having reviewed the evidence with respect to the appellant's conduct, his Honour found the charge proved. His Honour said:

"I am satisfied beyond reasonable doubt that the evidence of your conduct amounts to a contempt of Court in the terms that I have charged you.  I am also satisfied that your conduct has in reality given rise to a real risk of undermining public confidence in the administration of justice.  I find the charge of contempt proved.  I find you guilty of the charge and I convict you of it."

181. In relation to sentence, his Honour remarked: "In my view the gravity of your conduct is such there is no reasonable alternative to my imposing a sentence of imprisonment." His Honour proceeded to impose sentence in her presence, but could not explain the matter to the appellant due to her conduct. Her "continual screaming" during the sentencing process was not transcribed, but its occurrence is clear from comments made by counsel for the Commonwealth.

The conviction for contempt

182. The appellant particularised her proposed grounds of appeal with respect to the finding of contempt and the sentence imposed thereto. Those grounds with respect to conviction are:

"1.The learned trial judge failed to:-

1.1adequately inform the applicant and/or failed to distinctly identify to the applicant the particulars of the charge of contempt of court ('the charge')

1.2adequately consider that the frequency of his calling the applicant into court when she had clearly indicated that she did not wish to participate in the proceedings led to the actions alleged to constitute the charge.

1.3properly examine the psychiatric evidence before the court in determining whether the charge had been made out.

2. Prior to the court calling upon the applicant to show cause, the applicant's mental condition should have been referred to the Mental Health Court pursuant to the provisions of s.257 of the Mental Health Act 2000."

Ground 1.1: The failure to distinctly identify or particularise the charge

183. In his written submissions, Counsel for the appellant argued that, insofar as the learned trial judge charged the appellant pursuant to s 129 of the District Court Act, his Honour's charge was "necessarily … inadequate" for the reason that his Honour made no specific reference to s 129(1)(c).  In support of this submission, Mr Vasta QC relied upon the following statement of the High Court in Macgroarty
     v Clauson:^[44]

"Where … the charge is of a particular statutory offence, the charge will, in the absence of a clear legislative intent to the contrary, necessarily be inadequate if it fails to identify, either expressly or by necessary implication, the particular statutory offence with which the accused stands charged. That requirement is not a mere matter of form or procedure. It is fundamental for the reason that the specific statutory offence must be identified if the person charged is to be informed of the elements of what is alleged against him and afforded an adequate opportunity of answering the charge (cf Cotroni
v Quebec Police Commission and Brunet ((1977) 80 DLR (3d) 490, at p 497))."

184. Section 129(1)(c) prescribes that a person will be in contempt if the person "wilfully interrupts the proceedings of the court or otherwise misbehaves himself or herself in court".

185. The conduct of the appellant might be said to amount to contempt in the face of the court,^[45] but the words used by the learned trial judge indicate his Honour's reliance upon s 129(1)(c) of the District Court Act.  His Honour, by referring generally to s 129, and using the words of s 129(1)(c) in charging the appellant, necessarily implied that his Honour was charging the appellant pursuant to s 129(1)(c).^[46]  In my respectful opinion, his Honour sufficiently particularised the charge as required by Macgroarty. 

186. Accordingly, this proposed ground of appeal is without substance.

Ground 1.2: the frequency of the appellant's presentation before the court

187. The submissions made on behalf of the appellant purport to centre the debate on whether the appellant "interrupted" the proceedings. In support of this ground, it is submitted:

"… the appellant, in her disturbed mental state, [had] made it clear from virtually the outset of her trial, that she did not believe that she would get a fair trial and therefore requested that it proceed in her absence.  Thereafter, each time the trial judge called a halt to the trial proceedings and [ordered] that she be brought into court, her screaming began even before she entered the courtroom and continued until she was removed. …  Whether the appellant could be said to have technically 'interrupted' the proceedings in these circumstances would seem debateable."

188. The DPP refers to s 617 of the Queensland Code.  It relevantly provides:

"(1)Subject to this section the trial must take place in the presence of the accused person.

(2)If an accused person so conducts himself or herself as to render the continuance of the proceedings in the person's presence impracticable, the court may order the person to be removed and may direct the trial to proceed in the person's absence."

189. The DPP's argument continues:

"… It is not for an accused person in a criminal trial to choose whether she wants to participate in the proceedings.  Nor is it for them to dictate the course of the proceedings.  Section 617(1) of the Criminal Code (Qld) is in mandatory terms (See R v TQ [2007] QCA 255).  While the Appellant's behaviour brought her within s 617(2), His Honour was appropriately trying to ensure that the trial was conducted [in] the fairest manner, and gave the Appellant every opportunity to participate.  It was clearly in her interests to do so.  The effect of the ground is that the Appellant was provoked into behaving as she did.  The learned trial judge's proper conduct of the trial cannot be used as a basis to justify the Appellant's contemptuous misbehaviour."

190. The DPP's submissions must be accepted. The learned trial judge was anxious to exercise the power conferred upon him by s 617(2) to no greater extent than was necessary to enable the trial to proceed because of the fundamental importance of the terms of s 617(1). As McMurdo P remarked in R v DAJ:^[47]

"Section 617 reflects the common law: it is an essential principle of the criminal law that the trial for an indictable offence (at least in cases other than a misdemeanour) ordinarily be conducted in the presence of the accused, even if legally represented; that rule is mandatory unless the violent conduct of the accused has made it impossible to continue the trial in the accused's presence: Lawrence v The King ([1933] AC 699, 708), R v Vernell ([1953] VLR 590, 595) and R v Cornwell ([1972] 2 NSWLR 1). …  The unlawful exclusion of the appellant from the court room strikes at his constitutional democratic right to be present at his trial on these serious offences ….  This error of law was so fundamental to the criminal trial process that it invalidated the whole trial (R v Cornwell, above) and in itself requires that the appeal be allowed, the convictions set aside and a retrial ordered."

191. His Honour was, of course, firmly of the view that the appellant's mental state was such that she was capable of participating in the trial had she chosen to do so. On this view, what is said to be the product of an unsoundness of mind can be seen to be the conduct of a contumacious litigant in defiance of the authority of the court.

192. In any event, it can be no answer to a charge of contempt of court that the contemnor would not have committed the contempt but for his or her presence in the courtroom. As Dixon CJ, Fullagar, Kitto and Taylor JJ observed in John Fairfax & Sons Pty Ltd v McRae, speaking of the power to punish summarily for contempts, "because of its exceptional nature, this summary jurisdiction has always been regarded as one which is to be exercised with great caution."^[48]  Whilst warning that judges must exercise caution, however, their Honours also remarked that:^[49]

"[b]ecause it is founded on the elementary necessities of justice, there must be no hesitation to exercise it, even to the point of great severity, whenever any act is done which is really calculated to embarrass the normal administration of justice."

193. In my opinion, this proposed ground of appeal is without substance.

Ground 1.3: the failure to properly examine the psychological evidence

194. Under this ground, it is argued on behalf of the appellant that "appropriate assessment of [the psychological evidence] leads to the conclusion that the appellant was so mentally disturbed at the time of her trial that she should not have been found guilty of contempt of court by the trial judge". This is said to be so because s 129(1)(c) contains a mental element that cannot be established beyond reasonable doubt as a consequence of the appellant's "disturbed mental state".  The mental element is said to be constituted by the requirement that any interruption of the proceedings be "wilful".  In this regard, Counsel relies upon observations of the High Court in Lewis v Judge Ogden.^[50]

195. The DPP submits that his Honour was fully aware of the relevant evidence and was entitled to make the findings he made.

196. Given that, on his Honour's view, there was no "medical reason" rendering the accused unable to conduct her trial, a challenge to the finding of contempt based on the appellant's "disturbed mental state" cannot succeed.

197. This proposed ground of appeal is without substance.

Ground 2: the failure to refer the appellant to the Mental Health Court

198. The appellant contends that the learned trial judge erred in failing to refer the appellant to the MHC under the Mental Health Act upon calling on the appellant to show cause with respect to the contempt.  The appellant argues that his Honour was empowered to refer the matter by s 257 of the Mental Health Act on the footing that "the charge for contempt of court was under the State jurisdiction".  It is unnecessary to determine this question of "jurisdiction".

199. Once again, the learned primary judge proceeded on the footing that, in fact, the appellant was not affected by mental illness. The learned trial judge had come to the firm conclusion that the appellant was a humbug. There was ample evidence justifying that conclusion, and there was no reason for his Honour to revisit that conclusion.

200. This proposed ground of appeal is without substance.

The sentence for contempt

201. The appellant submits that the sentence imposed for the contempt "was manifestly excessive in all of the circumstances." The appellant argues that "[t]he learned trial judge erred in rejecting the applicant's apology made through her counsel". This ground is more properly considered in the context of her appeal against sentence.

Ground 1: the rejection of the appellant's apology

202. It has long been recognised that the provision of an apology to the court on behalf of a contemnor in an attempt to purge his or her contempt is a factor in mitigation of sentence to be considered by the sentencing judge.^[51]  As Kirby P (as his Honour then was), with whom Mahoney JA and Hope A-JA concurred, observed in Registrar of the Court of Appeal v Maniam (No 2), which involved a medical practitioner who, upon being subpoenaed twice, failed to appear as a witness in a criminal trial:^[52]

"It is this repetition of defiance which is the most serious feature of the present case.  Such repeated refusal to comply with the orders of the court simply cannot be accepted in a community governed by the rule of law.  It raises a question of whether the expression of contrition is wholehearted or simply an acceptance of the inevitable power of the law ultimately to assert its scale of values over those which were twice asserted by the opponent in the face of his lawful obligations.  For my own part, I give the opponent the benefit of the doubt.  I will accept that his apology and expressions of contrition are genuine and wholehearted.  But the fact that it has taken him two experiences to reach this point must be reflected in the approach which the Court takes to the seriousness of his conduct and the punishment which is therefore apt for it."

203. A court is not bound to give a contemnor the benefit of the doubt in every case. In the ordinary course, there is much to be said for the approach of the New South Wales Court of Appeal in Director of Public Prosecutions v Wran.^[53]  That case involved contempt charges brought against the State Premier with respect to statements made to a journalist concerning criminal proceedings brought against the late Justice Lionel Murphy.  The Court of Appeal in Wran, which was constituted by five Justices of Appeal (Street CJ, Hope, Glass, Samuels, and Priestley JJA), delivered a per curiam judgment, and stated:

"During his evidence [Wran] sought, in various ways, to justify his response, asserting his belief that he was entitled to comment as he did.  It is unnecessary for us to make any finding as to whether or not Mr Wran held that belief.  What is clear is that it was not until his submissions on penalty that he expressed contrition, and he is not therefore entitled to the credit which an earlier expression of regret might have earned."

204. In this case the appellant's apology was delivered through her Counsel at sentence for the indictment offences. Mr Kent observed the appellant had engaged in "continual screaming during [his] Honour's attempt to pass on the description of the sentencing process".  Not only was the appellant's supposed contrition conveyed only at the stage of sentencing submissions, but it was accompanied by the appellant continuing to engage in the very kind of conduct that his Honour found to be contemptuous.  In these circumstances, it was open to his Honour to find that the appellant's apology was not "genuine" and to reject the apology on that basis.

205. This proposed ground of appeal is without merit.

Ground 2: the sentence was manifestly excessive

206. Counsel for the appellant submit that "an order to perform unpaid community service work would have been sufficient punishment to satisfy both the punitive and deterrent aspects of sentence." Counsel for the appellant sought to emphasise in this Court that:

"His Honour erred in failing to consider adequately, or at all, that at the time of the 'interruption' the [appellant] was deeply disturbed.  To then impose what is … a crushing sentence is an erroneous exercise of sentencing discretion."

207. The DPP relies upon the cases of Camm v ASI Development Company P/L^[54] and Dow v Attorney-General^[55] in support of its contention that the sentence imposed was not manifestly excessive.  In Camm, six months imprisonment was imposed for disobeying a court order.  In Dow, the contemnor, who had wilfully insulted the judge, was sentenced to three months imprisonment (the statutory maximum).  This was overturned on appeal, such that the term imposed was ordered to cease seven weeks after being taken into custody for the contempt charge.

208. Contrary to the submissions made on behalf of the appellant, the learned trial judge did not fail to "consider adequately, or at all" the appellant's "disturbed mental state": his Honour had expressly found that there was "no medical reason" that she could not stand trial. The appellant cannot complain of any failure to consider her "disturbed mental state" with respect to sentence.

209. This proposed ground of appeal must fail.

Orders

210. The appeal with respect to the indictment offences should be dismissed.

211. The application for leave to appeal with respect to the determination of guilt for the contempt should be refused. The application for leave to appeal with respect to the sentence imposed for the contempt should also be refused.

212. A warrant should issue for the apprehension of the appellant.

213. CHESTERMAN JA:  I agree with the orders proposed by Keane JA for the reasons given by his Honour.

214. JONES J:  I have read the reasons of Keane JA.  I respectfully agree with those reasons and with each of the orders he has proposed.