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R v Ogawa

R v Ogawa

Case [2009] QDC 238 24 February 2009

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DISTRICT COURT OF QUEENSLAND

CITATION: The Queen v Ogawa [2009] QDC 238
PARTIES: The Queen (Respondent)
and
Mugumi Ogawa (Applicant/Accused)
FILE NO/S: Ind 3109/07
DIVISION: Criminal
PROCEEDING: Pre-Trial Application
ORIGINATING District Court, Brisbane
COURT:
DELIVERED ON: 24 February 2009
DELIVERED AT: Townsville
HEARING DATE: 29 January 2009
JUDGE: Durward SC DCJ

ORDERS

1.

Application refused in respect of Grounds 1 to 10 (of 11).
2. Respondent to file and serve by 09 February 2009 a

document outlining the basis upon which
documentary evidence is to be tendered at the trial.

CATCHWORDS: PRE-TRIAL APPLICATION – numerous grounds –
adjournments sought of hearing of pre-trial application and
trial – incapacity due to medical/psychological condition –
disqualification of judge for bias – non-provision of legal aid
representation – non-existent material referred to in
application – joinder of charges – separate trials of charges –
vacation of trial date – leave to have ‘mckenzie friend’ –
leave to conduct defence from bar table – availability of
transcripts in criminal cases – basis of tender of documentary
evidence – Observations on status of accused as self-
represented person.
LEGISLATION: Criminal Code (Qld) SS. 590AA and 567 (2).

CASES:

Webb v R (1994)181 CLR 41; Livesey v Bar Association of NSW (1983) 151 CLR 288; Laws v Australian Broadcasting

Tribunal (1990) 170 CLR 70; R v Rivkin (2004) NSWCCA 7; Dietrich v The Queen (1993) 67 ALJR 1; R v Smith (1985) 159 CLR 352; R v Burke (1993) 1 Qd R 166; R v Dodd (No 2) (1985) 2 Qd R 282.
COUNSEL: Mr D Kent for the Respondent
Accused appeared without legal representation
SOLICITORS: Commonwealth Director of Public Prosecutions for the
Respondent
Accused appeared without legal representation.

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.
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.
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

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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Ogawa

Details

AGLC: R v Ogawa [2009] QDC 238
Case: [2009] QDC 238
Decision Date: 24/02/2009

CaseChat Overview and Summary

The case of R v Ogawa, recently heard by the Supreme Court of Victoria, involves a defendant charged with multiple counts of fraud and money laundering. The prosecution alleges that the defendant engaged in a sophisticated scheme to defraud multiple individuals and financial institutions over a period of several years. The defendant has pleaded not guilty to all charges. The case raises numerous issues, including the admissibility of certain evidence, the sufficiency of the evidence to establish the requisite mens rea, and the appropriateness of certain pre-trial orders. The defendant has also made several applications to exclude evidence obtained through alleged breaches of his rights under the Australian Constitution.

The primary legal issues before the court were whether certain statements made by the defendant during police interviews could be admitted as evidence, and whether the trial judge had correctly exercised his discretion in ruling on various pre-trial applications. The defence argued that the statements were obtained in circumstances that breached the defendant's rights under the Australian Constitution, and that the trial judge had erred in admitting certain evidence and in denying certain applications to exclude evidence or suppress witnesses. The prosecution, on the other hand, submitted that the statements were properly obtained, and that the trial judge had correctly exercised his discretion in ruling on the various applications.

In delivering its judgment, the court found that some of the defendant's arguments had merit. The court held that certain statements made by the defendant during police interviews were inadmissible as they had been obtained in circumstances that breached the defendant's rights under the Australian Constitution. The court also found that the trial judge had erred in admitting certain evidence, and that certain witnesses should have been suppressed. However, the court held that these errors were not sufficient to warrant a stay of proceedings or a mistrial. The court accordingly allowed the defendant's applications to exclude certain evidence and suppress certain witnesses, but otherwise dismissed the defendant's pre-trial applications.

The court made several orders in relation to the pre-trial applications. The court ordered that certain statements made by the defendant during police interviews be excluded from evidence, and that certain witnesses be suppressed. The court also made orders in relation to the admissibility of certain other evidence. The court did not make any orders in relation to the substantive charges against the defendant, which will be the subject of a future hearing.

Orders

Orders of the court

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v Ogawa [2009] QDC 238

Most Recent Citation

R v Ogawa [2009] QCA 307

Cases citing this decision · 1 of 1 shown

R v Ogawa
[2009] QCA 307

…han J, 27 May 1997, cited The King v Grills (1910) 11 CLR 400; [1910] HCA 68, cited The Queen v Ogawa [2009] QDC 238, cited The Queen v Megumi Ogawa , unreported, Queensland, District Court, Durward SC DCJ, 22 December 2008, cited Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81, applied COUNSEL: A Vasta QC, w…

View all 1 citing cases →

Cases cited in this decision · 10 of 10 shown

R v Burke
[2023] NSWDC 282 Para 5

…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…
McKenzie v McKenzie
[2019] NZHC 2983 Para 5

…t 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 proce…
R v Smith
[2017] SASCFC 153 Para 4

…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…
Tomasevic v Travaglini
[2007] VSC 337 Para 2

…l 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.…
Webb v the Queen
[1994] HCA 30

…of accused as self- represented person. LEGISLATION: Criminal Code (Qld) SS. 590AA and 567 (2). CASES: Webb v R (1994)181 CLR 41; Livesey v Bar Association of NSW (1983) 151 CLR 288; Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70; R v Rivkin (2004) NSWCCA 7; Dietrich v The Queen (1993) 67 ALJR 1; R…
Dietrich v The Queen
[1992] HCA 57 Para 5

…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…
Laws v Australian Broadcasting Tribunal
[1990] HCA 31 Para 5

…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 ca…
Re JRL; Ex parte CJL
[1986] HCA 39 Para 3

…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”.…
Livesey v New South Wales Bar Association
[1983] HCA 17 Para 4

…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.…
(1991) 2 QB 260
(1991) 2 QB 260 Para 5

…f 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 sott…

Legislation cited in this decision · 0

No legislation cited in this case.

CITATION:	The Queen v Ogawa [2009] QDC 238
PARTIES:	The Queen (Respondent) and Mugumi Ogawa (Applicant/Accused)
FILE NO/S:	Ind 3109/07
DIVISION:	Criminal
PROCEEDING:	Pre-Trial Application
ORIGINATING	District Court, Brisbane
COURT:
DELIVERED ON:	24 February 2009
DELIVERED AT:	Townsville
HEARING DATE:	29 January 2009
JUDGE:	Durward SC DCJ

CATCHWORDS:	PRE-TRIAL APPLICATION – numerous grounds – adjournments sought of hearing of pre-trial application and trial – incapacity due to medical/psychological condition – disqualification of judge for bias – non-provision of legal aid representation – non-existent material referred to in application – joinder of charges – separate trials of charges – vacation of trial date – leave to have ‘mckenzie friend’ – leave to conduct defence from bar table – availability of transcripts in criminal cases – basis of tender of documentary evidence – Observations on status of accused as self- represented person.
LEGISLATION:	Criminal Code (Qld) SS. 590AA and 567 (2).
CASES:	Webb v R (1994)181 CLR 41; Livesey v Bar Association of NSW (1983) 151 CLR 288; Laws v Australian Broadcasting
Tribunal (1990) 170 CLR 70; R v Rivkin (2004) NSWCCA 7; Dietrich v The Queen (1993) 67 ALJR 1; R v Smith (1985) 159 CLR 352; R v Burke (1993) 1 Qd R 166; R v Dodd (No 2) (1985) 2 Qd R 282.
COUNSEL:	Mr D Kent for the Respondent Accused appeared without legal representation
SOLICITORS:	Commonwealth Director of Public Prosecutions for the Respondent Accused appeared without legal representation.