DISTRICT COURT OF QUEENSLAND

1. [1]
   The accused (“the applicant”) applied for a number of orders, which included the following: in an application dated 27 January 2009 that -

1. The time for the applicant to file her documents for the pre-trial hearing be extended; and

2. The pre-trial hearing listed for 29 January 2009 be adjourned to a date to be fixed.

2. [2]
   The applicant had previously filed an application comprising 11 grounds, dated 19 January 2009 (“the application”). This is the application that this reserved decision primarily addresses.

3. [3]
   The applications are the latest in a number of applications made over a long period of time by the applicant, including a number seeking similar orders in respect of adjournments.

APPLICATION DATED 27 JANUARY 2009

4. [4]
   The applicant submitted that she had not had time or had not been well enough to properly prepare the pre-trial application.

5. [5]
   I refused the application for extension of time to file documents for the pre-trial hearing; and I refused the application for the pre-trial hearing listed for 29 January 2009 to be adjourned. The reasons substantially appear in the transcript of the proceedings of 29 January 2009.

6. [6]
   The history of this matter is replete with applications for extension of time to do things and applications for adjournment of proceedings. I have previously given judgment and made rulings about such applications. I do not need to repeat what has been said on those occasions but to the extent that I need to do so I repeat and rely on those judgments and rulings in respect of my refusal of the application.

7. [7]
   I have considered the application of 27 January 2009 on its merits but I am not at all moved to find other than I have found in the past with respect to adjournments, save for the fact that I did permit an extension of time on the previous occasion to allow the applicant to prepare, file and serve material in respect of this hearing.

8. [8]
   This application is a part of a long history of conduct by the applicant which I perceive to be directed to the avoidance of hearings and ultimately the avoidance of being brought to trial.

APPLICATION DATED 19 JANUARY 2009

9. [9]
   This is the substantive application. The application in essence subsumed the further and later application seeking adjournments, since the issue in both was substantially the same although the application referred to a number of matters that required determination in addition to an adjournment of the pre-trial hearing or the trial itself. In addition to the two applications, which may or may not have been served on the respondent, the applicant provided an unsworn affidavit to the Court which has been accepted as an outline of submissions to the extent that it addresses the matters the subject of the application. The respondent had previously filed and served an outline of submissions addressing the matters referred to in the application and in that sense anticipating, as best it could, the arguments that might be advanced by the applicant on a hearing.

10. [10]
    I refused several grounds (those numbered 1, 2, 5, 6, 7 and 8). The reasons for those refusals are set out in this reserve judgment. I reserved several grounds (those numbered 3, 4, 9 and 10). Discussion of those grounds and reasons for my rulings follow. I made orders about the future conduct of the matter, which effectively deals with ground 11.

GROUNDS REFUSED AT HEARING:  DISCUSSION

1.Disqualification

11. [11]
    The applicant sought my disqualification as the judge presiding over the further pre-trial matters (including Grounds 2 to 11) and the trial itself.

12. [12]
    In her unsworn affidavit the implication appears to be that the applicant considers that my previous decisions, rulings and judgments in this matter have predisposed me in some way so as to constitute either actual bias or apprehended bias.

13. [13]
    The test for bias in a judicial officer was summarised by Mason CJ and McHugh J in Webb v The Queen (1994) 181 CLR 41:

“When it is alleged that a judge has been or might be actuated by bias, this Court has held that the proper test is whether fair-minded people might reasonably apprehend or suspect that the judge has pre-judged or might pre-judge the case. The Court has applied the same test to a Commissioner of the Australian Industrial Relations Commission and to a member of the Australian Broadcasting Tribunal. The Court has specifically rejected the real likelihood of bias test. The principle behind the reasonable apprehension or suspicion test is that it is of “fundamental importance” that justice should not only be done but should manifestly and undoubtedly be seen to be done. R v Sussex Justices; ex parte McCarthy (1924) 1 KV 256 at p 259, per Lord Hewart CJ; re JRL; ex parte CJL (1986) 161 CLR 342 at pp 351-352”.

14. [14]
    In Livesey v Bar Association of NSW (1983) 151 CLR 288, the Court said in a joint judgment (at 294):

“If a judge at first instance considers that there is any real possibility that his participation in a case might lead to a reasonable apprehension of pre-judgment or bias, he should, of course, refrain from sitting. On the other hand, it would be an abdication of judicial function and an encouragement of procedural abuse for a judge to adopt the approach that he should automatically disqualify himself whenever he was requested by one party so to do on the grounds of a possible appearance of pre-judgment or bias, regardless of whether the other party desired that the matter be dealt with by him as the judge to whom the hearing of the case had been entrusted by the ordinary procedures and practice of the particular court.”

And further (at 299):

“The reasonable observer is to be presumed to approach the matter on the basis that ordinarily a judge will so act as to ensure both the appearance and the substance of fairness and impartiality. But the reasonable observer is not presumed to reject the possibility of prejudgment or bias; nor is the reasonable observer presumed to have any personal knowledge of the character or ability of the members of the relevant court.”

15. [15]
    More importantly, in the context of this case, is the apposite statement of the Court in Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 (at 87):

“In assessing what the hypothetical reaction of a fair-minded observer would be, you must attribute to him or her knowledge of the actual circumstances of the case.”

16. [16]
    I am not sure whether actual bias is argued by the applicant but in any event one does not have to establish actual bias. It is enough to establish, by application of the test, apprehended bias.

17. [17]
    The respondent referred to R v Rivkin (2004) NSWCCA 7, where the Court said (at paragraph 118);

“It is an essential step, in the fact finding exercise required for sentencing that Judges form conclusions as to subjective criminality and as to remorse and contrition. The mere fact that the finding is adverse cannot, of itself, justify any inference of bias. The description of the appellant’s attitude to the offence as ‘contemptuous’ did not involve any hyperbole; nor did the reasons for sentence descend into an extravagant condemnation of his misconduct.”

18. [18]
    That case concerned a sentencing process but the statements are nevertheless referable to the determination of any issue in the course of the conduct of any matter whether it be civil or criminal in character.

19. [19]
    I do not consider that any proper basis has been made out for my disqualifying myself as the judge appointed to preside over the pre-trial hearings and the trial itself. The application in respect of this ground was therefore refused.

2.Legal Representation

20. [20]
    The ground is for an adjournment to a future date until the applicant becomes available to engage legal representation.

21. [21]
    In her unsworn affidavit, the applicant said the following:

“25.I have no doubt that both Durward DCJ and the CDPP are well aware that I am neither a solicitor nor a barrister. I have no doubt that both Durward DCJ and the CDPP are also aware that I have never had any training as a legal practitioner either in Japan or Australia. Furthermore, I have no doubt that both Durward DCJ and the CDPP are well aware that I do not have money to engage a lawyer. I have no doubt that both Durward DCJ and the CDPP are well aware that I am not represented in this matter.”

22. [22]
    I am aware that the applicant is not legally represented in this matter. I am also well aware of the reasons why that is so. The applicant is self represented by her own choice. She has previously had several legal representatives. Legal aid is no longer available to her. That is a consequence of her conduct in respect of legal representation that has previously been provided to her. I do not need to go into the details of that matter as it is well documented in transcripts from a number of Courts. I have no doubt that the applicant will neither retain nor maintain any legal representation even if there were legal practitioners prepared to act for her. I note that she did accept the pro bono services of a legal aid solicitor and a barrister in respect of her application for bail late last year, after having spent three weeks in custody after I had revoked her bail. Fresh bail was granted to her after that hearing at which she was represented. I have no doubt that in accepting and not interfering with the provision of legal representation on that occasion was motivated by her own self interest in having the bail application succeed.

23. [23]
    Courts before which she has previously appeared have found that she has deliberately chosen not to be legally represented in respect of the substantive issues in this matter. She was legally represented by experienced counsel and a solicitor at the committal proceedings and the advantage which flowed to her as a consequence of that are readily apparent from a reading of the committal depositions. However, that legal representation was dispensed with by the applicant as she had done in respect of numerous other instances of legal representation.

24. [24]
    The circumstances which the High Court considered in Dietrich v The Queen (1993) 67 ALJR 1, do not apply to the circumstances of this case. In Dietrich, the following passage appears in the joint judgment of Mason CJ and McHugh J (at 9):

“For the forgoing reasons, it should be accepted that Australian law does not recognize an indigent accused on trial for a serious criminal offence has a right to the provision of counsel at public expense. Instead Australian law acknowledges that an accused has the right to a fair trial, and that depending on all the circumstances of  the case, lack of representation may mean that an accused is unable to receive, or did not receive, a fair trial. Such a finding is, however, inextricably linked to the facts of the case and the background of the accused.”

25. [25]
    It is implicit from her unsworn affidavit and seems to be relevant to this ground, that the applicant wishes all of the proceedings to be adjourned until she has recovered from her “incapacity”, either temporarily caused by changes to her prescribed medication or to a condition she refers to as her “depression”. Dr Kingswell diagnosed a personality disorder. He specifically withdrew a preliminary diagnosis of major depressive disorder. I have accepted the evidence upon which he re-diagnosed the applicant’s psychiatric condition. Dr Kingswell has expressed an unequivocal view in evidence of the applicant’s capacity to prepare and appear as a self represented accused in this matter including a statement in the following terms:

“In my view it is for Ms Ogawa a matter of choice as to whether she pursues this matter in a committed way, motivated by a desire to resolve the issue or whether she chooses to frustrate the Court.”

26. [26]
    That statement appeared in the second report of Dr Kingswell. In evidence before me on 10 December 2008, Dr Kingswell was asked the following question by me and made the answer that follows, namely:

“HIS HONOUR: …I’ll cut to the chase. She has said that because of her medical or psychiatric or psychological condition she is unable to prepare or properly be able to represent herself for Court. So prepare the case and then to present her case following a presentation of the prosecution case in a trial situation. That is, I think the core of what she may be saying to you, which is associated with the question of fitness and the considerations you have to make for that. You see, do you appreciate the distinction, if there is a distinction. In other words, we get to the eve of trial and she may say ‘I haven’t been well. I haven’t been able to prepare. I’m ill. I have a condition. The trial can’t go on. It is unfair if it goes on. I can’t represent myself. I have no capacity to do that. I don’t have the capacity to prepare. I need more time’, and this has been going on for a very long time?” — (ANSWER) “In my view that would be simply untrue.”

27. [27]
    Having considered all the circumstances I refused this ground of the application.

5, 6, 7 AND 8:  SCHEDULES

28. [28]
    There are no schedules provided by the applicant. There never have been any such schedules, despite reference being made to such matters in previous applications. It is impossible to consider these grounds in those circumstances. In my view the applicant had no intention of providing any schedules which relate to potential pre-trial issues or to documentation in the prosecution case and that the continued bare reference to schedules and the repetitive inability to provide any material at all in respect of them and not even exhibiting or appending any document at all that might fit the description of a schedule is another means by which the applicant is maintaining conduct directed towards avoiding pre-trial hearings and the commencement of the trial. It was on that basis that I refused the application in respect of those grounds.

GROUNDS RESERVED

3.Separate hearings of charges.

29. [29]
    Section 567(2) of the Criminal Code provides as follows:

“567 Joinder of Charges

(1)…

(2)Charges for more than one (1) indictable offence may be joined in the same indictment against the same person if those charges are founded on the same facts or are, or form part of, a series of offences of the same or similar character or a series of offences committed in the prosecution of a single purpose.

(3)…

(4)…”

30. [30]
    In my view there is a sufficient nexus between the offences and they can properly and conveniently be tried together. The evidence on each charge is cross-admissible on each of the others. The periods of time in which the offences are said to have been committed are short and each charge is inter-connected factually as part of a continuum of conduct alleged to have been committed by the accused. The conduct is of the same or similar character. There is nothing arising out of the joinder either apparent on the face of the charges or asserted by the accused which might set up a ground of prejudice.

31. [31]
    I refused the application in respect of this ground.

4.Trial Date

32. [32]
    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.

9.McKenzie Friend

33. [33]
    The term “McKenzie Friend” refers to the use by a self-represented party of a person to assist him or her by taking notes or making suggestions during the trial.

34. [34]
    It is a matter for the discretion of the trial judge as to whether such person is to be present and to assist in that limited way at the trial. One of the relevant factors is the demonstrated capacity of the self-represented person to conduct the case his or herself. Another would be whether the self-represented person has a relevant qualification or is employed in a relevant work role. Finally, the history of the self-represented person’s involvement preceding the trial and during any part of it, is another factor.

35. [35]
    The notion of a “McKenzie Friend” appears to have originated from observations made in Collier v Hicks 2B&Ad 663 (See the article by Chesterman J at 21 Queensland Lawyer 187).

36. [36]
    In R v Smith (1985) 159 CLR 352, Gibbs CJ (at 354) said the following:

“The question whether an accused person should be allowed to have a ‘McKenzie Friend’ present at his trial is very much a matter of practice and procedure, and within the discretion of the trial judge… it would be far too absolute to say that an application to have a ‘McKenzie Friend’ should always be refused. All the circumstances … must be considered.”

37. [37]
    In R v Burke (1993) 1 QdR. 166, the Court considered this issue and Ambrose J (at 174) said the following:

“With respect to the real question raised by the appellant in this case – that is whether he was denied natural justice because his friend was not permitted to sit beside him at the Bar table to assist him in the conduct of his case, I take the view that in Australia at least the authorities are against the extension to criminal proceedings for indictable offences of the principle established in McKenzie v McKenzie (1971) P33 and restated by the Court of Appeal in R v Leicester City Justices,  ex parte Barrow (1991) 2 QB 260 in so far as those cases show that in civil proceedings a litigant and person has a right to be accompanied by an assistant to take notes and advice sotto voce on the conduct of his case.”

38. [38]
    His Honour also referred to R v Dodd (No 2) (1985) 2 QdR. 282 where the Court considered whether an appellant should be allowed the assistance of a “McKenzie Friend”. It was the appellate character of the proceeding that led the Court in that case to refuse the application for a McKenzie Friend (whether or not it had been intended the person act in the capacity as a note taker or actually argue the appeal). McPherson J (at 284) said the following:

“In the present case there is even less than the ordinary justification for allowing a representation of that kind. The applicant was provided with legal assistance. He has chosen not to avail himself of it or to continue with it. In the circumstances, no reason for granting leave to permit some other person without any legal qualification to appear on his behalf exists.”

39. [39]
    The reference to the availability of legal aid and the rejection of it as being a compelling factor in this ground of the application is in my view apposite. Ambrose J in Burke said (at 178) the following:

“The community goes to great expense in ensuring that persons charged with indictable criminal offences receive a fair trial according to the rule of law. This involves the empanelling of a jury, the calling of witnesses and the determination of the issue of guilt strictly according to rules that have been developed and refined over centuries. To give an accused person every opportunity of a fair trial public defence is available to persons who need it and who have not the financial ability to meet the costs of a private defence. On the facts of this case the appellant declined even to seek a public defence and indeed on a number of occasions prior to the commencement of evidence in his trial, he made it very clear that he proposed to appeal against the refusal of the learned trial Judge to exercise his discretion in his favour” (for public defence, read legal aid).

40. [40]
    The applicant has not identified any person who might fulfil the role of a McKenzie Friend. I am aware that she has received the assistance outside court of numerous people and in court of one Dr Turner. Both Martin DCJ and I have quite separately had occasion to warn Dr Turner about his involvement in the proceedings at which he was present. The specifics of those occasions are documented and I do not need to deal with them here, save to say that it should not be thought that I would necessarily refuse Dr Turner being a McKenzie Friend if I was of the view that the application should be granted, subject to very specific conditions imposed in respect of any person who might fulfil that role.

41. [41]
    However, in the circumstances of this case there is no basis for the appointment of a McKenzie Friend and in the exercise of my discretion I refuse this ground of the application.

11.Appearance at the Bar Table.

42. [42]
    The applicant seeks to conduct her case from the bar table. The documentary material in this case is not voluminous. The applicant does not hold herself out to be a legal practitioner; indeed, quite to the contrary she maintains she is ill equipped to conduct her own defence, an argument that Courts including me have rejected more than once.

43. [43]
    In its submission, the respondent cited obiter, Ambrose J in Burke (supra), where His Honour said at 174 the following:

“In my view it would be rare that circumstances would lead to a man defending a charge of an indictable offence before a jury being permitted to conduct his case from the bar table. No doubt there are circumstances which will justify this course, however in my experience in the conduct of a trial for an indictable offence the bar table is used by professional lawyers or their agents and not by the accused persons on trial. Traditionally criminal courts have been designed to provide a dock in which the accused person is to sit, and on the facts of this case at least it is difficult to see why the appellant would have been in any way inconvenienced should he have conducted his defence from the dock rather than from the bar table.

If all persons upon trial for indictable offences are confined to a dock in a criminal court as a matter of general practice and this is known in the community, no adverse inferences will be drawn against an accused person kept in the dock based upon any ‘practice’ that might develop were persons thought not to pose any security risk are permitted to sit at the bar table. It would be quite undesirable in my view should persons who wish to conduct their own defence as to indictable defences be allowed to sit at the bar table or be confined to the dock depending upon a determination of whether or not they might amount to a ‘security risk’ should they be allowed to sit at the bar table.

In my view the practice of persons on trial for indictable offences being confined to a dock constructed in all criminal courts dealing with indictable offences for that very purpose is a very old practice and to my mind it is undesirable to depart from it except for special an unusual circumstances.”

44. [44]
    The applicant argued that on this issue (as distinct from the issue on appeal, to which I have referred under another heading) Ambrose J had “dissented” from the views expressed by Dowsett and Derrington JJ (at 183 and 170 respectively). Dowsett J said that:

“I do not wish to be taken as indicating any view as to whether an accused person, conducting his or own defence or otherwise should be permitted to sit at or near the Bar Table rather than in the dock. I consider that to be a matter solely for the trial Judge.”

45. [45]
    Derrington J said that the question as to whether an accused person could sit at the Bar Table when he is representing himself:

“…Is a matter entirely at the discretion of the trial judge and dependent upon the circumstances of the particular case.”

46. [46]
    The issue is one for determination at my discretion. I do not consider that it is either appropriate or necessary for the applicant to sit at the bar table. The application in respect of this ground is refused.

TRANSCRIPTS

47. [47]
    The applicant claims that transcripts were not given to her and that she was unable to properly consider them once they were received because of their complexity. The applicant has recently been awarded a doctoral degree. She is articulate in the English language in my view. She has demonstrated an ability to express herself confidently in court in the examination of witnesses and in submissions. Furthermore, her attempts to obtain the transcripts were made on the eve of Christmas at a time when it might be expected that the State Reporting Bureau would be unable to comply with her request. She in fact received the transcripts early in the new year. She has made a complaint about being required to pay for transcripts. The State Reporting Bureau does not charge a fee to an accused person for a transcript. In my view whatever her perception may have been the applicant has not been and is not liable to pay for any transcript. Indeed I do not accept her assertion that she was told that she was obliged to pay a fee.

48. [48]
    To the extent that the availability or otherwise of transcripts is a relevant factor in the application for adjournment in any part of the proceedings, I reject that assertion. So far as the evidence is concerned, save for what follows, the evidence in respect of the charges or the particulars of them has not been canvassed, other than obliquely, in any of the hearings over which I have presided in this matter.

DOCUMENTARY EVIDENCE

49. [49]
    Mr Kent, who has appeared for the prosecution, outlined the basis for admissibility of the documentary evidence upon which the prosecution relied. He did so at my request and I should add, without notice. I adopted this unusual course because there may have been issues of forensic interest to the applicant had she troubled herself to turn her mind to them. The respondent is to file and serve, before trial, a document which addresses these issues. My raising of the issue is not a matter of pre-judgment on the admissibility of any document. It has occurred simply out of a desire that the applicant, as reluctant as she seems to have been to have a trial of these charges at all, does have a fair trial. This observation applies equally to my having at an earlier stage of proceedings raised for her consideration the issue of her state of mind at the time of the alleged commission of the offences (a matter raised in the committal proceedings by the experienced counsel who was then acting for her).

50. [50]
    In doing these things I am conscious of the burden that is imposed on trial judges in dealing with self-represented accused persons, a burden I have endeavoured to discharge fairly and properly throughout the pre-trial period. I am aware of the guidance in the authorities about these matters, including more recently the decision of Bell J in Tomasevic v Travaglini (2007) 17 VR 100.

ORDERS

1Application refused in respect of Grounds 1 to 10 (of 11);

2Respondent to file and serve by 09 February 2009 a document outlining the basis upon which documentary evidence is to be tendered at the trial.