Ogawa v The Queen

[2010] HCATrans 168

[2010] HCATrans 168

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B45 of 2009

B e t w e e n -

MEGUMI OGAWA

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

FRENCH CJ
BELL J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 24 JUNE 2010, AT 2.49 PM

Copyright in the High Court of Australia

MR S. DI CARLO:   Your Honours, I appear for the applicant.  (instructed by Provest Law)

MS W.J. ABRAHAM, QC:   I appear with my learned friend, MR D.R. KENT, for the respondent.  (instructed by Director of Public Prosecutions (Cth))

FRENCH CJ:   Now, I understand, Mr Di Carlo, that the section 78B notice which was issued has not been served on the Attorneys‑General of the States and the Commonwealth.

MR DI CARLO:   That is correct, your Honour.  That was the preliminary matter I was going to raise.  They have not been served ‑ ‑ ‑

FRENCH CJ:   Why is that?

MR DI CARLO:   I have no explanation.  I think it was, at best, an oversight - there is no explanation that we can give - an oversight by my instructing solicitors.  I cannot give any better explanation than that, being as frank as I possibly can.

FRENCH CJ:   Yes.  Section 78B, as you know, says that:

Where a cause pending in a federal court including the High Court . . . involves a matter arising under the Constitution or involving its interpretation, it is the duty of the court not to proceed in the cause unless and until the court is satisfied that notice . . . has been given to the Attorneys‑General of the Commonwealth and of the States, and a reasonable time has elapsed since the giving of the notice for consideration by the Attorneys‑General . . .

On what basis can we proceed, absent the service of the notice on the Attorneys‑General?

MR DI CARLO:   In my respectful submission we could not proceed except under section 78(1) or (2)(c), which would be to effectively sever that aspect of the argument.  I would urge against that, your Honours, because as a whole the argument – I should say the argument needs to be dealt with as a whole.  There are a number of issues that all interrelate and indeed, as I can see, your Honours - 78(2)(a) has the power to adjourn and then give directions to give notice which, we would, of course, undertake and then under (c) in, I suppose, circumstances which I would not be submitting are appropriate in this instance, having regard to the nature of the argument, perhaps consider severing the constitutional argument under section 80.  Unless I can assist your Honours any further on that, that is the only way I would think possible.

FRENCH CJ:   I think another course that we can take, and which I am minded to take, is to adjourn the matter, to direct you to serve notices within seven days and then we will decide the matter on the papers.  I do not see any point in delaying this further for the purposes of setting up another special leave hearing.  We have the benefit of your written arguments on both sides, and your reply, and we have, of course, the judgments below, all of which we have read.  But if there were any intervention by an Attorney‑General then, of course, that would be a different question.  We might then need to bring the matter back for oral hearing, but otherwise my inclination would be to deal with it on the papers and advise you in due course of a date upon which a decision would be given after, of course, the Attorneys‑General have had the opportunity to respond.  I will hear from Ms Abraham on that, Mr Di Carlo.

MR DI CARLO:   Can I just say on that point, your Honour, that that would not be a significant issue with us because the substantive part of our argument, in fact almost all of our argument, is in our outlines.  It is really a question of the extra aspect, and that is the summons.

FRENCH CJ:   Yes, I was going to come to that in a minute, but I will just deal with this.  Yes, Mr Abraham.

MS ABRAHAM:   Your Honours, I agree there is no choice but to adjourn the application.  How the Court wishes to deal with it after that, we are in the Court’s hands.

FRENCH CJ:   Yes, all right.  Do you oppose the summons?

MS ABRAHAM:   We do.

FRENCH CJ:   Yes, all right.  Mr Di Carlo, I have read your submissions in support of the summons and I can tell you also that we have both watched the DVD and read the material in support of the summons.  Is there anything more that you want to say in support of the proposition that we should grant the orders sought in the summons?

MR DI CARLO:   Very little, your Honours, other than to say this:  I am grateful for the process your Honours have adopted in that regard.  I would simply say one point, and one point – well perhaps two.  The first point is that my learned friends raise this, that it is of no significance or can be of little significance because it only occurred on the last day.  As against that, in my respectful submission, we have the yelling and screaming on each and every day, each time the appellant is brought into court and every time

there is a new witness that gives evidence or is about to be cross‑examined.  She is brought in and out and on each of those occasions she screams and conducts the same sort of conduct.

That is indicative but it is not inconsistent with the video on the last day.  It seems, therefore, that without any disrespect to the courts below, Dr Ogawa was brought in every single day despite the same result and then, ultimately, convicted of contempt for the very conduct which occurs each time she is brought in, despite her assertion that she did not want to be there in the first place. 

In my respectful submission, ultimately, one final point, and that is that any matter or any material such as an exhibit like this which enables the Court to deal with all of the issues so that there is not a miscarriage of justice, in my respectful submission, should be looked at in circumstances of this nature.  I do not know that I could assist your Honours any further.

FRENCH CJ:   Yes, thank you.  We do not need to trouble you, Ms Abraham.

The Court has read the summons and supporting affidavits and submissions and has viewed the DVD upon which the applicant seeks to rely.  We are of the view, however, substantially for the reasons set out in the respondent’s submissions, that the proposed additional evidence should not be received.

The orders which we will make as just foreshadowed are:

1.The application is adjourned.

2.The applicant is to serve her section 78B notices in accordance with the requirements of section 78B(1) within 14 days.

3.The Court will thereafter either decide the matter on the papers or list it for further hearing.

The Court will now adjourn until 10.15 am on Tuesday, 27 July 2010 in Canberra.

AT 2.58 PM THE MATTER WAS CONCLUDED