Appeal 474.14 criminal Code              Appeal from Bail Application from the Supreme Court, Trial Division – Criminal Law – Bail – Revocation, Variation, Review and Appeal – Appeal by the Commonwealth Director of Public Prosecutions – Respondent (in this hearing) was convicted after trial of two counts of using a carriage service to harass and two counts of using a carriage service to make a threat – Ogawa sentenced to six months imprisonment on each count and ordered to be released after serving four months imprisonment subject to certain conditions – The learned trial judge in his sentencing remarks observed that Ogawa’s behaviour in court had been “disgraceful”, that she had not been legally represented and that her conduct had resulted in her exclusion from the court for most of the proceedings – Reference was also made to remarks by a psychiatrist having diagnosed Ogawat as having a personality disorder – A judge of the Supreme Court, Trial Division, granted Ogawa bail pending the hearing of the appeal – On Appeal – Ordinarily, in order to establish “exceptional circumstances” it will be necessary to show that “there are strong grounds for concluding that the appeal will be allowed” and that the appellant may be required to serve an unacceptable portion of his or her sentence before the appeal can be heard – In his summing up the learned trial judge highlighted the evidence of the persons against whom the threats were made by informing the jury that they “will understand that counts...focus to some extent on the evidence of those witnesses and that of [the Registrar of the Federal Court]” – The judge’s directions as to the elements of the offences of making threats were thus, arguably, tainted by the judge’s intimation that the evidence of the persons to whom the threats were directed was of relevance in determining whether the elements of the offences had been proved – The evidence, including evidence of the Registrar that he found the contents of one of the respondent’s emails “incredibly chilling” and in which he expressed his concern for the safety of residents of the university’s accommodation in which Ogawa was residing, was likely to have distracted the jury from focussing on the question of whether Ogawa had the requisite intention at the relevant time – It is thus strongly arguable that inadmissible and potentially highly prejudicial evidence was admitted and that the summing up included material errors – Another ground of appeal appears to have substance – It is to the effect that the learned trial judge failed to direct the jury that Ogawa’s statement that she “had a panic attack” was relevant to Ogawa’s intention at the time of the alleged threats – The evidence of Ogawa’s emotional and mental state at the time the alleged offences were committed were highly relevant to the jury’s determination of Ogawa’s intention for the purposes of the threat charges and relevant to the harassment charges having regard to the fault elements of intention and recklessness – There was evidence from witnesses that also supported a conclusion that Ogawa was in an unstable, and possibly deteriorating, mental state – The summing up by the trial judge was silent on the relevance of the evidence to the assessment of Ogawa’s state of mind – The trial judge treated the evidence in relation to “the panic attack” by directing that it was potentially an admission by Ogawa that she was the sender of the emails – There is thus an argument, particularly having regard to the lack of representation of Ogawa and, indeed, her absence from the trial, that insufficient was done by the trial judge to maintain a proper balance in the summing up by directing the jury’s attention to matters which may have been detrimental to the prosecution case but favourable to the accused’s – A summing up must be balanced and fair – Of course, it is impossible and also undesirable, to express any definitive views about this and most of the other grounds of appeal bearing in mind the nature of the appeal, the material before the Court and the limited extent of the argument – The Court’s conclusion based on limited material and brief argument, is that the prospects of some of the grounds of appeal are considerably greater than the primary judge thought – Of particular concern that the respondent may have been denied procedural fairness – HELD: Appeal dismissed.