SUPREME COURT OF QUEENSLAND

[1]  FRASER JA: I agreed that the order of 2 June 2010 should be made for the reasons given by White JA, which I have had the benefit of reading.  I also agree that the Court should make the further order proposed by her Honour.

[2]  WHITE JA: On 2 June 2010 the Court granted an extension of time to the applicant to appeal against his conviction for stalking and other summary charges imposed in the District Court on 27 October 2008 with reasons to be published at a later date.  Those reasons follow.

[3] On 27 October 2008 the applicant pleaded guilty in the District Court at Brisbane to offences contained on three indictments and to a number of summary charges.  They were, in chronological order:

Indictment no. 1686 of 2008

●  Between 27 December 2006 and 3 July 2007 the applicant unlawfully stalked in contravention of a Magistrates Court order made on 14 November 2006.

Summary Charge 1

●  Between 26 March 2007 and 2 July 2007, the applicant breached a domestic and family violence protection order made on 14 November 2006.

Summary Charge 2

●  On 29 August 2007 the applicant was unlawfully in possession of amphetamine.

Summary Charge 3

●  On 29 August 2007 the applicant was in a park in contravention of a park curfew.

Indictment no. 2566 of 2008

●  On 14 February 2008 the applicant broke and entered premises (a pharmacy) and stole medication.

Indictment no. 2421 of 2008

●  On 27 February 2008 the applicant broke and entered premises (a pharmacy) and stole medication.

[4] The applicant was born on 26 November 1970 and was thus aged between 36 and 38 when these offences were committed.  He had an extensive criminal history dating from 1988 including stealing, breaking and entering, wilful damage to property and numerous breaches of Magistrates Court orders.  He had been addicted principally to methylamphetamine for many years and offended to finance his drug habit.

[5] The sentencing Judge imposed a sentence of 18 months imprisonment for the stalking offence; he did not impose any sentence for the breach of the domestic and family violence order or the park curfew offence; he imposed six months imprisonment for possession of amphetamine; and two and half years for each break and enter, all to be served concurrently.  The applicant had spent nine months in pre-sentence custody which could not be declared but his Honour gave credit for seven months of that period.  A parole release date was fixed at 26 January 2009.  He is presently in custody in respect of other charges. 

[6] The applicant wishes to appeal his conviction in order to seek to withdraw his plea of guilty in respect of the stalking and domestic and family violence orders only.  His reason for seeking to do so is that he had a complete defence to those charges.  Support is found in the conclusion of a report of Dr Peter Fama, forensic psychiatrist, dated 8 December 2009 addressed to Legal Aid Queensland.  In Dr Fama’s opinion, at the time the applicant engaged in the conduct constituting the offence of stalking, he was of unsound mind within the meaning of s 27 of the Criminal Code, similarly, with the possession of amphetamine offence and breaching a park curfew.  Dr Fama diagnosed the applicant as suffering from paranoid schizophrenia during the relevant periods which, at the time of his examination, was in complete remission.  He also diagnosed other mental/behavioural disorders not relevant to this application.

[7] It is uncontroverted that the applicant was of sound mind when he made his pleas of guilty on 27 October 2008.

[8] It is necessary to say only a few things about the detail of the unlawful stalking conduct, much of which occurred while the applicant was an inmate at the Woodford Correctional Centre.  The applicant and complainant had formed a relationship some 15 years before the stalking behaviour, which continued during an earlier period of the applicant’s incarceration.  The complainant terminated the relationship prior to the applicant’s release from prison and the applicant made no contact with her for about five years.  The applicant then made contact with the complainant at her work.  Direct contact ceased again for 10 years.  From about June 2006 he started telephoning the complainant’s parents frequently and arrived uninvited at their house.  He left messages on the complainant’s telephone and sent letters to her address.  On 14 November 2006 the complainant obtained a domestic violence order against the applicant in the Brisbane Magistrates Court for two years.  During the period 25 March to 3 July 2007, according to Dr Fama, the complainant received 27 handwritten letters mostly with expressions of love but also one reference to ‘revenge’ with pictures of skulls and tombstones.  During some of the period of offending, the applicant was an inmate at the Woodford Correctional Centre. 

[9] It is not clear how it came about that Dr Fama was retained by Legal Aid to prepare a report about the applicant’s mental health status at that time.  He examined the applicant on 1 December 2009 and simply refers to “your instructions of 29 October” in his report.  Dr Fama had access to a considerable volume of material as set out in his report, including psychiatric assessments and progress notes from correctional centres. Whilst he was in prison Dr Fama noted that the applicant was treated by Dr Mark Schramm for mental disturbances. 

[10]  Dr Fama reported that the applicant gave a history of persistent distressing hallucinations through 2006 and 2007.  Dr Fama noted that this reporting was supported by prison case notes, for example, on 1 March 2006, during the course of a session, the applicant advised that he had been suffering from “quite significant paranoid thinking and auditory hallucinations”.  Other notes in prison records reveal that on 14 May 2007 the applicant’s external general practitioner telephoned the prison authorities stating that the applicant had telephoned him from prison to tell him that he was hearing voices and that “that is the reason why he has smashed the television sets”.  Dr Schramm recorded on 16 June 2007 that the applicant was hearing voices.  The applicant revealed that in the past he thought that the voices were piped through speakers by prison officers “who’d spoken with his g/f [girlfriend]”. 

[11]  The applicant had first developed hallucinations in a persecutory way when using amphetamines and other drugs.  They had become worse when he was held in isolation in the maximum security unit.  The symptoms had continued despite abstinence from all illicit substances.  The applicant told Dr Schramm that the voices were encouraging him to contact his girlfriend.  He told Dr Fama that in the secure unit he experienced continual harassing and threatening voices which cajoled him, urging him to try harder to contact the complainant.  He told Dr Fama that the police kept telling him to stop but the voices told him to keep going to prove his love for the complainant.  He told Dr Fama that those hallucinatory experiences continued for about two years, apart from a brief respite while responding in prison to prescribed medication which he later abandoned while he was in the community.

[12]  Dr Fama noted a family history of likely schizophrenia.  He concluded that the long persistence of the applicant’s psychotic symptoms while in custody without access to illicit drugs indicated that the correct diagnosis was schizophrenia not a drug-induced psychosis.  It was that finding which led Dr Fama to conclude that a defence of unsoundness of mind pursuant to s 27 of the Criminal Code was available to the applicant during this period.  While Dr Fama says there is some evidence to support the unsoundness of mind defence to the break and entering of pharmacies, the applicant himself does not seek to resile from his pleas of guilty in respect of those offences. 

Prior appeal

[13]  The applicant had filed a notice of appeal within time on 24 November 2008.[1]  The ground was:

“There was a miscarriage of justice because I entered the plea of guilty in circumstances where I may have had a psychiatric defence.”

He also sought leave in that notice to appeal against his sentence on the ground that it was manifestly excessive.  He no longer pursues that application.  His appeal was set down for hearing on 25 August 2009.  There was no appearance for or by the applicant and no outline had been received by the appeal registry.  His appeal was struck out for want of prosecution.  The applicant told the Court at the hearing on 2 June 2010 that he was in drug rehabilitation on the date of the appeal hearing and there were “issues” with legal aid.  It was not clear what those issues were but the Court file reveals that on 5 February 2009 the applicant’s solicitors, who had appeared for him on sentence, indicated to the appeal registry that they had legal aid funding for an opinion on prospects of success on an appeal.  Subsequently, due to a “conflict”, fresh solicitors were requested to advise on those prospects.  As late as 14 August 2009 it was thought that those solicitors were to appear for the applicant on 25 August 2009.  However, the appeal registry was, in some manner, made aware that the applicant would not be represented on 25 August 2009 but that he was aware of the date.  In those circumstances the appeal was struck out.  The respondent’s outline, filed without the benefit of outline from the applicant, referred to the ground of appeal but noted that there was no supporting evidence for it.

Circumstances of plea of guilty

[14]  The applicant does not contend that he was of unsound mind when he made his pleas on 27 October 2008.  He told the Court on 2 June 2010 that he had his first face-to-face conference with his lawyers in the courtroom before the Judge arrived so there was no opportunity to canvass the issues which concerned him.  There was some discussion, he said, about his plea, a Mental Health Court reference, the delay and a likely sentence.  Counsel submitted to the Court:[2]

“His instructions are that in terms of the stalking matter he was subject to some auditory hallucinations and delusional thinking at the time.  It is clear he was aware of the wrongness of his actions.  That is evident in the content of, for instance, some of the letters themselves and references to the police and him being incarcerated.”

Counsel informed the Court that the applicant was symptom-free and without delusional thinking or experiencing auditory hallucinations at the time of the sentence hearing.

[15]  In his letter placed before the Court,[3] the applicant wrote:

“The last couple of years have been horrible for me.  I have suffered from hallucination [sic] and delusions that led me to contact my ex girlfriend because she still meant alot [sic] to me.

This has now been brought under control with medication and I have had no contact with her for over a year.”

Setting aside a plea of guilty

[16]  In Meissner v The Queen,[4] Brennan, Toohey and McHugh JJ said:[5]

“A court will act on a plea of guilty when it is entered in open court by a person who is of full age and apparently of sound mind and understanding, provided the plea is entered in exercise of a free choice in the interests of the person entering the plea.  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.”

Dawson J said:[6]

“It is true that a person may plead guilty upon grounds which extend beyond that person’s belief in his guilt.  He may do so for all manner of reasons:  for example, to avoid worry, inconvenience or expense; to avoid publicity; to protect his family or friends; or in the hope of obtaining a more lenient sentence than he would if convicted after a plea of not guilty.  The entry of a plea of guilty upon grounds such as these nevertheless constitutes an admission of all the elements of the offence and a conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred.  Ordinarily that will only be where the accused did not understand the nature of the charge or did not intend to admit he was guilty of it or if upon the facts admitted by the plea he could not in law have been guilty of the offence.  But the accused may show that a miscarriage of justice occurred in other ways and so be allowed to withdraw his plea of guilty and have his conviction set aside.”[7]

[17]  The examples given in Meissner and the cases cited therein are not exhaustive of the examples of miscarriage of justice arising from a plea of guilty which will justify intervention by an appeal court.  See, for example, Soteriou v Police (SA),[8] a decision of Duggan J hearing an appeal from a plea of guilty in the Magistrates Court at Adelaide, South Australia.  In that case the defendant pleaded guilty to a drink-driving offence to protect a friend who would have lost her licence.  His Honour concluded that the plea was entered without sufficient knowledge to make an informed decision.[9]

[18]  Had the court below been in possession of Dr Fama’s unequivocal opinion about the applicant’s criminal responsibility for the stalking offence and the summary offence associated with the stalking, it is unlikely that his Honour would have accepted the pleas of guilty to those offences.  More to the point, had the applicant been aware of Dr Fama’s diagnosis even though, in fact, he was concerned about his mental status, he may not have entered those pleas of guilty.  It is in the interests of justice that the applicant be entitled to seek to persuade this Court that the pleas were not freely and voluntarily made with sufficient knowledge by him to make an informed decision.

Orders

[19]  On 2 June 2010 the Court ordered that time be extended as necessary for the applicant to appeal against his convictions on 27 October 2008 for the offence of unlawful stalking in Indictment 1686/08 and for the breach of domestic violence order in Bench Charge Sheet 2808/08.

[20]  It is appropriate also to order that, to the extent that the applicant’s notice of appeal in CA 314 of 2008 related to those convictions, it stand as the notice of appeal in CA 90 of 2010.

[21]  MULLINS J: I agree with White JA.