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2 November, 2009  
More charges please

Federal Court CJ Michael Black tried to intervene in the criminal justice process … Crossing the line … How often do judges get their staff to ring the DPP and suggest that charges against an accused be cranked-up?

imageAn FOI discovery has turned up an intriguing memo from Federal Court CJ Michael Black in which he sought to intervene with the AFP and the DPP to have further charges laid against the troubled Japanese legal academic Dr Megumi Ogawa (seen here).

In a memorandum to the Federal Court registrar Warwick Soden on August 28, 2006 Black suggested the AFP or the DPP be approached to see if a new charge of attempting to pervert the court of justice, or something similar, could be added to the existing charges that Ogawa already faced of “using a carriage service to harass and threaten”.

Following Black’s unusual judicial intervention in the prosecutorial process the court’s deputy registrar Philip Kellow memoed Soden to say that he would approach the DPP “in relation to the Chief Justice’s query about possible charges for attempting to pervert the course of justice (or some related and similar offence)”.

Soden then told Black he would keep him informed of developments “concerning possible additional charges”.

This flurry of activity to try and ramp-up the charges was related to a case that Dr Ogawa had before the Federal Court.

The background to this saga goes something like this.

In 2003 Ogawa, who was in Australia on a scholarship to study for a PhD in law, took trade practices proceedings in the Federal Court against Melbourne University, which had cancelled her enrolment as a PhD student.

She claimed that the university had made misleading statements in its handbook about “infrastructure support” and the experience of the supervisors to be assigned to PhD students.

There was a two year jurisdictional wrangle about whether her case should be heard in the Federal Court or the Federal Magistrates Court.

Ultimately, Justice Ray Finklestein decided it should be heard in the Federal Court.

Subsequently, Ogawa “lost her block” after being told her case had been docketed to Justice Bruce Lander of South Australia.

It was alleged by the DPP that between April 13 and 14, 2006 she sent 83 harassing emails to various people who worked at the Federal Court.

The coppers traced these emails to Ogawa’s residence at Women’s College at the University of Queensland.

On May 19 that year she was detained by the AFP under the Migration Act and packed off to Villawood.

While attending a meeting with the Immigration people on July 31, 2006 she was arrested and charged by the AFP with making 176 harassing phone calls and one threatening phone call to Federal Court officers between April 13 and May 19, 2006.

imageOn August 1, 2006 she was extradited from Sydney to the Brisbane Watch House.

The memo from chief justice Black (pic) to Soden to see if the charges could be cranked up was dated August 28, 2006. Most of the FOI version was redacted, but the portion that was released said:

“Finally, I do not understand why Ms Ogawa has not also been charged with attempting to pervert the course of justice (or some related or similar offence) since the object of her threats was evidently to obtain the judge of her choice to hear her case. This matter might be taken up separately with the AFP or the DPP.”

Dr Ogawa was diagnosed with anxiety and a “major depressive disorder of a severe degree” but was deemed fit to stand trial.

At the trial before Judge Stuart Durward of the Queensland District Court, Christopher Young, a barrister and former associate to Black CJ, gave evidence that Ogawa had called him and threatened to kill two Federal Court registrars, Jane Mussett (now the public information officer at the High Court) and Tim Connard.

On March 12, 2009 the trial start date, Corrective Service officers said that Dr Ogawa was refusing to dress for court.

She was brought into the courtroom in a distressed state and screamed:

“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.”

She was removed from the court and the proceedings largely took place in her absence. She was not legally represented at her trial.

On March 19 the jury convicted her of two counts of using a carriage service to send harassing emails and phone calls and two counts of threatening to kill Federal Court officers in the phone call to Christopher Young.

She was brought back to court and charged with contempt.

On March 27 she was sentenced to four months for contempt to be followed by six months on each of the four harassment and threat offences (the latter to be served concurrently).

On June 18, 2009 a Queensland Supreme Court judge ordered her release on bail pending the hearing of her appeal.

Last month her appeals against the verdicts and the sentences were rejected by the Queensland Court of Appeal (Keane, Chesterman and Jones).

This was the second bite that the QCA had taken of the Ogawa case.

An earlier appeal bench (Muir, Fraser and Wilson) expressed reservations about the procedural fairness of the original trial and dismissed the prosecution’s appeal against the grant of bail.

In the reasons rejecting the appeal against conviction and sentence the later appeal judges accepted that part of the evidence presented by the prosecution was inadmissible and prejudicial but nonetheless considered that “no substantial miscarriage of justice has actually occurred”.

The finding that Dr Ogawa was not suffering from a mental illness such as to impair her participation in the trial, rather she had a depressive disorder, was also upheld.

Megumi Ogawa is at the Brisbane’s Women’s Prison and it seems the authorities won’t let things rest there.

She’s been charged by Queensland police with assaulting a correctional officer in the court cells during her trial.

The CCTV footage of the event shows a semi-naked Dr Oqawa being held by three or four burly male officers with her arms behind her back while a female officer tried to dress her.

The basis of the allegation is that Ogawa spat at the female officer.

We asked Chief Justice Black whether his involvement in a non-judicial function, namely the prosecutorial process, is acceptable.

He did not wish to comment.

See AIJA’s Guide to Judicial Conduct