Keane and Chesterman JJA and Jones J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:
1. Appeal with respect to indictment offences dismissed
2. Application for leave to appeal with respect to the determination of guilt for the contempt refused
3. Application for leave to appeal with respect to the sentence imposed for the contempt refused
4. A warrant to issue for the apprehension of the appellant
CATCHWORDS:
APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – BY LEAVE OF COURT – GENERALLY – where primary judge determined appellant/applicant guilty of contempt of court – where primary judge sentenced appellant/applicant with respect to contempt – where appellant/applicant sought leave to appeal against determination of guilt and sentence with respect to contempt – whether avenue of appeal available under s 118(3) of the District Court of Queensland Act1967 (Qld)
CRIMINAL LAW – PROCEDURE – FITNESS TO PLEAD OR BE TRIED – DETERMINATION OF ISSUES – where appellant/applicant asserted she suffered from psychological illness – where appellant/applicant sought referral to Mental Health Court – where expert evidence suggested appellant/applicant fit to be tried – where primary judge made finding that appellant/applicant fit to be tried – where jury convicted appellant/applicant on indictment offences – whether primary judge erred by not finding that a "real question" as to the appellant/applicant's capacity arose
PROCEDURE – CONTEMPT, ATTACHMENT AND SEQUESTRATION – POWER OF COURT TO PUNISH FOR CONTEMPT – OTHER COURTS – COUNTY, DISTRICT AND LOCAL COURTS – where primary judge charged appellant/applicant with contempt and called upon her to show cause – where primary judge paraphrased wording and referred to empowering section of relevant Act – whether primary judge sufficiently particularised charge of contempt
[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.
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Details
AGLC
R v Ogawa [2009] QCA 307
Case
[2009] QCA 307
Decision Date
CaseChat Overview and Summary
In the matter of R v Ogawa, the appellant, Ogawa, was found guilty by the primary judge of contempt of court and was subsequently sentenced. The appeal was brought before the court seeking leave to appeal both the determination of guilt and the sentence imposed for the contempt. The court was required to decide whether an appeal was available under the given circumstances, specifically concerning the contempt charges and the subsequent sentence.
The central legal issues involved the procedural correctness of the primary judge’s decision and the availability of an appeal pathway. The court needed to examine whether the primary judge's determination and sentence were subject to review by the appellate court and if the appeal was properly brought within the statutory provisions and judicial discretion.
The court found that the appeal regarding the indictment offences was dismissed, as it was determined that no appeal lay from the primary judge's decision. Furthermore, the application for leave to appeal the determination of guilt and the sentence for contempt was refused. The court concluded that the primary judge had correctly exercised his discretion in finding Ogawa guilty and imposing the sentence. The appeal process was deemed to be without merit, and no legal grounds for an appeal were identified. Consequently, a warrant was issued for the apprehension of the appellant.
Orders
Orders of the court
1. Appeal with respect to indictment offences dismissed
2. Application for leave to appeal with respect to the determination of guilt for the contempt refused
3. Application for leave to appeal with respect to the sentence imposed for the contempt refused
4. A warrant to issue for the apprehension of the appellant