SUPREME COURT OF QUEENSLAND

1. McMURDO P:  The appellant was charged jointly with her husband on an indictment presented in the District Court for offences concerning injuries to their baby son when he was aged between six and eight weeks in September 2000.  On 26 July 2001 she pleaded guilty to one count of grievous bodily harm and one count of assault occasioning bodily harm.  Her husband pleaded guilty to one count of failing to supply necessaries.  Their sentence was adjourned and the appellant was remanded in custody whilst her husband’s bail was enlarged.  On 17 August 2001 the appellant was sentenced to an effective sentence of six years imprisonment with a recommendation for parole after 18 months.  A declaration was made that 23 days in pre-sentence custody was time already served under the sentence.  On 24 May 2002 this court granted the appellant an extension of time in which to appeal against her conviction.  She was granted bail on 19 June 2002 after serving 11 months imprisonment under her sentence.

2. The appellant sought orders from this court allowing the appeal, setting aside the conviction and for a new trial. A plea of guilty entered in open court by a person of full age, apparently sound mind and understanding, even if that person is not in truth guilty of the offence, will not ordinarily be set aside, provided the plea is entered in the exercise of a free choice in the interests of the person entering the plea: Meissner v R (1994-1995) 184 CLR 132, Brennan, Toohey, McHugh JJ at 141.  This is because the proper administration of criminal justice depends on the ability of courts to proceed on the basis that a plea of guilty is made in the exercise of the accused’s free choice: Deane J at 148.  To succeed in her appeal the appellant has had to demonstrate a miscarriage of justice necessitating the setting aside of the conviction consequent on her guilty plea: McKenzie (2000) 113 A Crim R 534, 536, 541-542 and 553.  The appellant has pointed to extraordinary circumstances enabling her to surmount this high hurdle and this court allowed her appeal, set aside the conviction, ordered a retrial and extended her bail on 17 September 2003.  These are my reasons for those orders.   

3. The known circumstances of the offences the subject of this appeal are as follows. The victim was the appellant’s baby son, who suffered rib fractures, leg fractures, a retinal haemorrhage and a skull fracture. He was born on 26 July 2000, the younger brother to a female 15 month old toddler. On 24 September 2000, he attended the local hospital and then the Mater Children's Hospital suffering from shocking injuries including large bilateral frontal subdural haematomas which were about two weeks old, a partially compressed and generalised cerebral shrinkage of the brain, a small inter-cerebral collection of blood in both the frontal regions consistent with a contusion or a cerebral tear, two skull fractures (one a large widened fracture of the parietal bone and one a smaller fracture of the occipital bone), bilateral haemorrhages, 11 fractures of the ribs, a healed fracture above the left elbow approximately two weeks old, a healing fracture of the tibia on the left leg about a week old, a bowing fracture of the left fibula, a healed metaphyseal fracture of the upper end of the left tibia and bruising to the face and back. The injuries were consistent with physical abuse on at least two separate occasions. At admission, the baby boy was convulsing, given medication and placed in paediatric intensive care. He could have died from the injuries and it is likely he will be severely neurologically impaired. The child currently suffers general spasticity, including minimal visual behaviour and brain related visual loss and intellectual impairment delaying development.

4. The injuries were consistent with him being manually squeezed around the chest and shaken. The skull fractures were the likely result of an impact against a firm surface and are inconsistent with a fall or by being caused by a 15 month old child.

5. The appellant was interviewed at the hospital by a police officer who taped the conversation. The appellant denied abusing the child. Later when she was interviewed on 6 October 2000 she said the child's crying and the demands of a baby and a toddler became too much; she might have patted the baby too hard; she could only remember shaking him once; she applied CPR, (perhaps meaning expired air resuscitation), on two occasions.

6. The husband was also interviewed by police on 6 October 2000. He said that he knew something was wrong about three or four weeks earlier but he turned a blind eye because he trusted his wife. He had suspicions but thought things would get better. He did not take the baby boy to a doctor because he accepted assurances the baby was all right. He did not seek medical attention because he thought his wife "might have got put away".

7. Further evidence has become available since the appellant’s conviction. Such evidence is seldom received by the court but, unusually, it meets the stringent tests set out in R v Gallagher (1986) 160 CLR 392, 397 and 407 discussed in R v Main (1999) QCA 148; CA No 387 of 1999, 30 April 1999.  That further evidence is as follows.

8. The appellant was pregnant when sentenced on 17 August 2001. Two days after the birth of her female child, the baby was given into the joint care of the appellant’s husband and mother. The appellant’s mother observed the husband strike the new born baby on a number of occasions and asked him to stop. At the six week medical check up, the baby had fractures to four ribs on her rear left side, fractures to seven ribs on her front side and a fracture to the left side of her skull. Her husband admitted to lashing out at the baby. He has since been charged with injuring the baby girl.

9. On 14 March 2002 the husband was again interviewed by police about the injuries to the baby boy in September 2000. He admitted injuring the baby boy by twisting his elbow backwards and hearing it crack, bruising his face, squeezing his ribs when the baby was windy and whinging; grabbing his leg and hearing it crack; and hitting him on the back of the head with his closed fist when he was crying. On the last occasion the baby stopped breathing; he resuscitated him and took him to the hospital at Logan. He said that when interviewed by police about the injuries to her baby son the appellant made false admissions to protect him. He said he was responsible for all the baby boy's injuries but he let his wife confess because he was frightened of prison and the jail system; his wife did not lay a finger on the children.

10. A covertly recorded conversation between the appellant and her husband after initial contact by the police at the hospital, apparently available at the time of her plea but not provided to her lawyers, records the husband repeatedly saying words to the effect of “one of us has done [injuries]” and “who’s going to take the blame?”. It records the appellant’s statements such as “I’m not a good mother….how on earth did I let my son cry and be in pain for two weeks and not even know it?”; “my god, I couldn’t have done that”; and “how can I say anything when I don’t remember anything happening”.

11. Her statements in this recording are consistent with the observations of the learned sentencing judge that the appellant had made initial denials and had failed to afford any satisfactory explanation for the child’s injury. They are also consistent with the account to which she now deposes, namely that she pleaded guilty not knowing how the injuries to her baby occurred or who had caused them; that her husband suggested to her that she had caused the injuries and pressured her to take responsibility for them; that she was not in a proper mental condition to give proper instructions to her legal representatives or to defend the charges; that she now has a clear recollection that she did not cause any injuries to her baby boy and denies responsibility; and that she is presently mentally able to address the allegations and conduct her defence.

12. The appellant has been treated by psychiatrist Dr Enno Taemets since 17 January 2001. A report from Dr Taemets was tendered on her behalf at her sentence. In a report prepared for the appeal dated 30 April 2003 he notes that the appellant was suffering a severe post natal depressive disorder when he first saw her and she consulted him on seven more occasions up until 30 May 2001 by which time she had improved and had only a mild depressive disorder. Her depression concerned her pending court case, her future and that of her children and family. She gave a history of feeling depressed for three and a half years following the birth of another child. During the period she consulted Dr Taemets, she felt an unreality, negativity, out of control, dwelt on past issues and experienced marked mood swings. At the initial consultation she recalled flashes of the baby boy screaming, and had very sketchy memories of how he became injured.

13. Dr Taemets opined that it:

“….is feasible in a very depressed state of mind for an unreality to occur and not have clear memories of all those events.  It is also very possible in a very depressed state of mind that she would have been easily influenced and therefore succumb to suggestion by her husband that she may have inflicted injuries on her child.  In her depressed state of mind she would have had difficulty….in keeping a sense of reality and events that happened at that time.  In severe depression it would be difficult to differentiate reality from unreality. 

Also when one is deeply depressed one has a very negative view of oneself, and the individual is likely to be racked with guilt of being evil, of being bad, and in this frame of mind it would not be hard for the individual to take on the responsibility for the wrong doings of others that are close to them or feel responsible for accidents, mishaps and the like.  In a very depressed state of mind it is hard to make any logical sense of the events and to rationalise what occurred.  

Unfortunately when the individual does get better, the confusion of events that occurred during the deep depression can persist, because concentration and memory are severely affected in depression.  So even though she got better, [the appellant] may well then have believed that she perpetrated the actions that led to the injuries her child suffered.  If this is then reinforced by the husband, she may well then take on the responsibilities for those actions, but still be unsure and unclear of how those events occurred”.

14. Dr Taemets was of the view that, although at the time of the plea of guilty the appellant’s depression was in the mild range, she may have suffered from “retrospective falsification, i.e. erroneous conclusions drawn from the evidence she had at hand, from the lack of anything else to the contrary, and due to suggestion by her husband. Thus she came to believe that she was the perpetrator of the child’s injuries. She would not have been able to argue against the accusations for she did not have a clear memory or recollection of all that happened and because of the depression reality and unreality may well have been blurred.”

15. Psychiatrist J G Redden at the request of the DPP has perused records of interview between the appellant and police, between her husband and police, witness statements and psychiatric reports. He has also viewed the video taped records of interview between the appellant, her husband and police. Dr Redden noted that the most striking aspect of the material was the lack of empathy both parents have for the children and the parents’ unreliability. He notes that the case is:

“…complex in that these two individuals are needy, dysfunctional personalities and both lack a well-developed capacity for empathy. ...what is unclear from the material is whether in fact both parents may have caused the child’s injuries.  …[the appellant] has….been consistent in her willingness to admit to shaking the baby, but she has always been unwilling to admit to a clear memory of assaulting the baby with significant force. 

...

It is...not unreasonable speculation, to suggest that [the appellant] was willing to accept the blame for the child’s injuries due to a combination of factors.  The first being that she had shaken the baby, and the second being that because her husband was often at work she had thought it unlikely that he could have harmed the baby.  Thirdly, [the appellant] appears to have been very supportive and protective of her husband because of significant dependent personality traits rather than because she was necessarily in fear of him.  [She] may have never suspected just how seriously her husband was betraying her and it is likely that she interpreted the charade of his support for her in the way he wanted.  Fourthly, [she] is probably psychologically unsophisticated and therefore willing to believe that because she has been tired and stressed, she could have injured the baby seriously without any real awareness of it or subsequent memory for it. 

….

In summary, the material available suggests that [the appellant’s] willingness to accept more blame than was appropriate was largely a reflection of the complex dynamics between two dysfunctional personalities.”

16. Ms Clare for the respondent very fairly does not oppose the orders sought in the peculiar circumstances here but is understandably anxious to ensure the remarkable course of setting aside a plea of guilty remains limited to those exceptional cases where the appellant establishes a miscarriage of justice.

17. The unique combination of circumstances set out above demonstrate that the plea of guilty entered by the appellant on 26 July 2001 cannot be said to be a free and voluntary plea. There is a real likelihood that it was the product of the combination of her depression and the intimidation and duress placed on her by her husband on whom she was dependent in many ways; new evidence suggests he may have been the perpetrator of the most serious injuries to the child and, if so, it was in his interests to have her take responsibility for his criminal actions. There is a real prospect that a failure to set aside the plea of guilty would result in a miscarriage of justice: see Meissner v R (1995) 184 CLR 132, and McKenzie (2000) 113 A Crim R 534.  As a result, at the hearing of the appeal on 17 September 2003 this court allowed the appeal, set aside the conviction and ordered a re-trial.  It remains a matter for the Director of Public Prosecutions to determine whether, a re-trial is warranted in all the circumstances, including the sentence of 11 months imprisonment already served by the appellant.

18. DAVIES JA:  I agree with the reasons of the President.

19. JERRARD JA:  In this matter I have had the advantage of reading the reasons for judgment of the President, and I respectfully agree with those.  The orders have already been agreed and made by the Court.  The President's reasons illustrate a point that may be regarded as unsatisfactory in the administration of justice and which derives from the reasoning of the High Court in Meissner v The Queen.^[1]  This is the proposition derived from that judgment and repeated in [2] of the President's reasons, namely that a plea of guilty entered in open court by a person of full age, apparently sound mind and understanding, even if that person is not in truth guilty of the offence, will not ordinarily be set aside, provided the plea is entered in the exercise of a free choice in the interests of the person entering the plea.  The joint judgment of Brennan J (as he then was), Toohey and McHugh JJ in Meissner (at CLR 141) holds that:

"There is no miscarriage of justice if a court does act on such a plea, even if the person entering it is not in truth guilty of the offence."

20. What appears unsatisfactory about that proposition is that what results, when the question arises whether a miscarriage of justice has occurred when a person who has pleaded guilty later asserts innocence, is that courts are required to answer that question not by asking if an innocent person has been convicted, but rather why the person pleaded guilty. In a system of criminal justice in which the courts and the community can take pride, the answer to the first question should be the critical one; to which the answer to the second question will almost always be relevant.

21. Meissner was of course, concerned with that variety of perverting the course of justice which results from placing improper pressure on a defendant to plead guilty. The plea of guilty entered in consequence of that pressure results, as the reasoning in Meissner demonstrates, in a miscarriage of justice; and this is so whether it is a plea by a guilty or an innocent person. I respectfully suggest that it was unnecessary in Meissner to take the further step of holding that a conviction on a plea of guilty by an innocent person, freely made and not as a result of improper pressure, is not a miscarriage of justice.

22. Taking as an example the circumstances of this case, if the appellant had simply made the rational calculation that, given her husband's claims which she found persuasive that he had not caused the injuries to their child, it was therefore probable a jury would believe she had, and if she had for that reason pleaded guilty to causing those injuries knowing that she was innocent but believing she would in all probability be convicted and hoping thereby to gain some amelioration of the almost inevitable but utterly undeserved sentence of imprisonment facing her, then this Court would have to let the conviction stand in accordance with Meissner.^[2]  Instead, because she pleaded guilty when depressed without knowing whether she was guilty or innocent, and as a result of pressure placed upon her in circumstances in which a plea was not free and voluntary, her conviction can be justly set aside.