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R v Williamson[2012] QCA 139

 

 

SUPREME COURT OF QUEENSLAND

 

PARTIES:

FILE NO/S:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

DELIVERED ON:

Orders delivered ex tempore on 23 February 2012

Reasons and direction delivered on 29 May 2012

DELIVERED AT:

Brisbane 

HEARING DATE:

23 February 2012

JUDGES:

Fraser and White JJA and Daubney J

Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Orders delivered ex tempore on 23 February 2012:

  1. Application for leave to appeal against sentence is refused.
  2. Appeal against conviction is allowed.
  3. Conviction is set aside.
  4. New trial is ordered.
  5. An order as to bail is to be provided to the presiding Judge.

Direction of 29 May 2012:

1.The Registrar provide a copy of these reasons to the Legal Services Commissioner.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEA – PARTICULAR CASES – where appellant convicted on own plea of one count of torture and sentenced to four and a half years imprisonment with parole fixed – where appellant argued plea of guilty and conviction should be set aside because plea of guilty not attributable to genuine consciousness of guilt, or that it was not informed and voluntarily made on the basis of competent legal advice – where appellant argued she did not understand nature of charge – whether there was a miscarriage of justice

Criminal Code 1899 (Qld), s 320A

Meissner v The Queen (1995) 184 CLR 132; [1995] HCA 41, cited

R v Mundraby [2004] QCA 493, cited

R v Ping [2006] 2 Qd R 69; [2005] QCA 472, cited

COUNSEL:

A Edwards for the appellant

V A Loury for the respondent

SOLICITORS:

Bosscher Lawyers for the appellant

Director of Public Prosecutions (Queensland) for the respondent

[1] FRASER JA: On 14 September 2010 the appellant was convicted on her own plea of guilty of one count of torture.  After some evidence was called to resolve a contest about the facts upon which the appellant should be sentenced, on 24 May 2011 the appellant’s counsel told the sentencing judge that the appellant no longer pursued that contest.  After hearing submissions, the sentencing judge sentenced the appellant to four and a half years imprisonment with eligibility for parole fixed at 23 February 2013. 

[2] The appellant appealed against her conviction.  The grounds of her appeal were that her plea of guilty and her conviction should be set aside because her plea of guilty was not attributable to a genuine consciousness of guilt of the offence of torture, or it was not an informed and voluntary plea made on the basis of competent legal advice, such that to allow the plea of guilty to stand would amount to a miscarriage of justice.  The Court received affidavit evidence in the appeal and the appellant was cross-examined on her affidavits.  At the conclusion of the hearing of the appeal, the Court allowed the appeal, set aside the conviction, and ordered a new trial.  These are my reasons for joining in those orders.

[3] The indictment charged the appellant with one count of torture and an alternative count of cruelty to children.  The appellant was arraigned only on the count of torture.  That count charged that between the first day of January 2003 and 14th day of June 2008 at Woodridge in the State of Queensland the appellant tortured the complainant, who was a child in the appellant’s foster care.

[4] The offence of torture was created by s 320A of the Criminal Code.  Section 320A(1) provides that a person who tortures another person commits a crime.  The maximum penalty is 14 years imprisonment.  Section 320A(2) defines “torture” to mean “the intentional infliction of severe pain or suffering on a person by an act or series of acts done on 1 or more than 1 occasion.”  “Pain or suffering” is defined to include “physical, mental, psychological or emotional pain or suffering, whether temporary or permanent.” 

[5] The appellant was represented in the District Court by counsel, Mr Williamson, and by a solicitor, Mr Bartels.  The appellant’s case on appeal was that she did not understand the nature of the charge against her; in particular, she did not understand that her plea of guilty meant that she admitted that she intentionally caused severe psychological and emotional pain to the complainant; and she believed that she was pleading guilty to locking the complainant in her room at night on about half a dozen occasions.  As she has since been advised, her conduct in locking the complainant in her room at night was merely one of the particulars of the offence supplied by the prosecutor.  The respondent argued that the record of the proceedings in the District Court revealed that the appellant must have appreciated the nature of the charge and that she did intend to admit that she was guilty of it. 

[6] The prosecutor supplied particulars of the conduct alleged against the appellant (exhibit 1) and of the period during which the Crown alleged that the appellant had engaged in that conduct (exhibit 1A).  Exhibit 1A provided:

Particulars

Crown case

Defence case

Locking [the complainant] in her bedroom at night time and/or

Period from late 2007 until June 2008.  At very least for a period of 4 months

 

[the complainant] not being able to access toilet facilities at night and therefore being forced to soil herself and/or

As above

 

Tieing [the complainant]’s clothing at night so that she could not remove them or move freely and/or

As above

 

Only providing a bed frame and not providing a mattress for [the complainant] to sleep on and/or

As above

 

Providing [the complainant] with a room that did not have a window or a light in the room and/or

As above

 

Making [the complainant] sleep in a room that would flood and/or

As above

 

Not providing [the complainant] with a clean place to sleep

As above

 

Not providing [the complainant] with clean clothes and/or

2004-2008

 

Providing [the complainant] with inadequate equipment to perform chores and/or

2003-2008

 

Not allowing [the complainant] access to shower or bath facilities on a regular basis and/or

Allowed to shower once a week.

 

Not allowing [the complainant] inside the house on most occasions even to eat and/or

2003-2008

 

Prior to the room under the house being built making [the complainant] sleep on the verandah tied to a chair and/or

Up to 18 month period prior to moving into room downstairs.

 

Not allowing [the complainant] to have social contact with other children.

2003-2008

 

[7] The prosecutor also supplied a “schedule of facts” which provided detailed particulars, in the form of summaries of the versions of events given by the complainant and other witnesses, of the alternative count on the indictment charging cruelty to children.  It is sufficient to quote the references to the complainant’s statements and the summaries of the statements (which were also given in more detail) of neighbours, social workers, school staff, and others:

“[The complainant] was 12 at time spoke to police and in Grade 7 at … . Defendant was her foster carer.  Also in the house was the defendant’s mother, Elaine, the defendant’s 14 yrs old daughter [A] and another foster child, [B] is 6.

[The complainant] gave a s 93 A statement to police on the 16 June 2008.  In her statement she said that around March 2007 the defendant moved her into a bedroom that was in the downstairs area of the house.  From that time the defendant began locking her into her room in the evening and not letting her out until the next day.

[The complainant] described her room as having ‘cement’ a ‘bed base’ and a ‘blanket’.  She said that her ‘clothes are in the spare room’.  She was asked where she sleeps and she replies ‘in the room with the bed base, ah … the bed frame and the blanket’.  Specifically she said that she sleeps on the ‘bed frame’ and has slept on that since ‘March last year’.  She remembered that it was this time because it was before Easter (p. 27).

She described the room as being ‘cold’ and with no windows and lights.  She said that there has never been a light bulb in her room.

The defendant would take rope and feed it through holes in [the complainant]’s clothing and around her neck in a manner which made it impossible for her to remove her clothing throughout the night.  Whilst locked and tied up within her bedroom [the complainant] would often soil her clothing as she could not get to the bathroom or remove her clothing.

[The complainant] would be forced to clean her clothes using the laundry sink before she could go to school.  She would have to wash all of her own her own clothes using the grey water (used water) from the washing machine.

[The complainant] was only allowed to have a shower once a week (Sunday night)  and when she would have a shower the defendant would supervise her (watch her) during this.

On the afternoon of 12 June 2008 the defendant came home after taking her daughter to dancing.  [The complainant] was outside on the driveway doing her homework.  The defendant became angry with [the complainant] and accused her of making a mess.  The defendant then told [the complainant] to pack up your stuff and go into her room.

The defendant put [the complainant] in her bedroom.  The defendant locked the door.  [The complainant] could see the defendant locking the door through the crack in the wall.  [The complainant] was not tied up at this point.  The defendant did not explain to [the complainant] why she was locking her in her room.  [The complainant] then heard the defendant go upstairs.  [The complainant] says that at 5:30pm (she guesses this time) the defendant came back downstairs and gave her potato and chicken for dinner.  [The complainant] then tied the defendant’s dogs up.

The defendant then took [the complainant] back to her room and the defendant tied her up with rope.  [The complainant] said that the defendant makes her stand there with her hands out so that she can tie the rope through the holes in her cloths [sic].  The rope is then tied tightly.  [The complainant] is then put in her room downstairs all night until the defendant comes to let her out in the morning.

Locks on [the complainant]’s door (p. 12)

She described the lock on her bedroom door as a lock that ‘twists’ … ‘Like the ones you put on a gate?’  She says that position of the lock is ‘on the outside’.  [The complainant] says that she doesn’t know why the locks are on her door.

[The complainant] is asked when she goes to bed can you get out the door?  She replied ‘no … because it is locked’ (p. 32).

Windows

[The complainant] also thought that the reason why she has no window is because ‘I run away’.  She says that ‘when she gets angry I just leave’.  When asked how many times this has happened she said ‘that she comes here (meaning the police station) lots’.  She said the last time she ran away was when she was in grade 4.  She then includes that last year she ran away to her to her [sic] next door neighbours.

Rope (14)

The rope was on top of the downstairs fridge.  This fridge is used to store animal food.  [The complainant] describes the rope as being ‘thin, grey and from Crazy Clarks’.  She knows that it is from there because she was with the defendant when she bought it.

[The complainant] stated that the rope ‘gets tired [sic] around my waist around there and taken up and it’s supported like around my neck’.  She continued that ‘there’s holes in my shirt and then it gets [indistinct] and it gets pulled up’.

[The complainant] said that this happens ‘lots of times.  It’s done before I go to bed’.  She said the last time that it happened was on Thursday night (which was the last night spent at the defendant’s).

The clothes that have the holes in them are her pink pants, blue denim shorts and green school shirt.  They are stored out the back corner of the yard where the ladder and slide is.  [The complainant] stated that she was tied up every night before bed and the defendant would cut the string off of her in the morning.

[The complainant] stated that there used to be lino on the floor in the bedroom but it was pulled up because when it rained water would get underneath it.  She said the water would accumulate in the room on the floor when it rained.  [The complainant] had to clean the cement floor in her room with the broom brush which did not have a handle (depicted in one of the photographs).

[The complainant] ate her meals outside in the backyard and she wasn’t allowed in the house unless [A] wanted to play.  Then she would be allowed in for a short time.  The defendant prevented her from coming inside by locking the sliding door on the veranda.  The only way inside up stairs is through this sliding door.

[The complainant] said that before she moved downstairs she would sleep outside on the verandah and the defendant would tie her up by putting a chain around her waist and then locking it to a chair with a padlock with a key.

[The complainant] told police that the previous weekend she had been playing throwing the ball to her friends next door.  The defendant started yelling at her that she shouldn’t play with them.

She stated that all of her clothes had come from [A].  She said many of the clothes didn’t fit her ie they were either too small or too big.

Neighbours of [the complainant] report that they have often seen outside the home in the backyard doing her homework and eating her dinner.  Neighbours would see [the complainant] was often seen outside doing chores, homework, eating dinner or sitting on the ground.  They would see her in the backyard all by herself for hours even when it was dark and cold and raining.

Neighbours, social workers and school staff all comment that [the complainant] is often seen in the same clothes which are ripped, in poor condition and filthy.  Neighbours have commented that [the complainant] appeared to have few personal possessions and clothing.  In particular, staff at her school, …, have noticed that [the complainant] smells of urine and appears dirty.

Police and department child safety officers note that when they visited on the 13 June 2008 [the complainant]’s bedroom contained a futon bed frame with no mattress.  The other items that were in the room were a plastic child’s bath, a doona and some empty shelves.  The room’s floor was bare cement.  There were no windows in the room and there was no light bulb in the light socket.  Police and department of child safety officers observed that the room was dirty and smelt strongly of human urine and faeces.  The room had 2 locks on the outside of the door.  Rope was located as were [the complainant]’s clothes that had holes throughout the clothing that appear that appear [sic] more deliberate than just normal wear and tear.

Department saw the downstairs room that was to be [the complainant]’s while it was still being built.  The defendant gave them the impression that in this state it wasn’t finished.  On department visits the defendant always met with them with [the complainant] upstairs and visits were always pre-arranged with the defendant.

[The complainant] stated that the defendant called her at her Nana’s place before she went to school the morning she spoke to police.  [The complainant] said that in the conversation the defendant was asking her ‘to tell the Department that she only started pulling all this stuff out on last week and that I slept on the lounges but I didn’t’.”

[8] The particulars also referred to statements by a psychologist about the traumatic and detrimental effect upon a child of the circumstances in which the complainant was kept, according to the Crown case. 

[9] It appeared from other statements in the particulars that the appellant denied many of the allegations against her.  The particulars referred to statements allegedly made by the appellant to a Child Safety Officer that, in relation to the allegations that the complainant had been sent home from school smelling of urine, the complainant was not keeping herself clean, and that the accommodation for the complainant had been approved by a previous case worker; and statements allegedly made by the appellant to police on 17 June 2008 in which the appellant blamed the complainant for the state of the downstairs room.  The appellant was alleged to have said that the complainant “cannot be trusted to be by herself or look after herself”, the complainant deliberately urinated and defecated in the room, that the complainant was allowed upstairs but had to knock on the door before she came in “as she had set fire to things before”, and that the complainant “stole everything”. 

[10] The prosecutor observed in submissions at the sentence hearing on 24 May 2011, this was “…an unusual case of torture in that it involves little violence.”[1]  The Crown case was, the prosecutor then submitted, that the appellant’s “cruel and degrading treatment on a daily basis” was “…gratuitous and clearly designed to cause significant emotional and psychological pain”.  As to the element of intention, the prosecutor submitted that the “…deliberateness of this conduct and the clear intention to cause suffering to [the complainant] is reflected in the fact that the school - when the school spoke to the defendant about the issue of [the complainant] smelling of urine on a number of occasions, each occasion would be followed by a brief improvement, but then the situation would deteriorate again.”

[11] That should not be regarded as a complete statement of the Crown case as to intention, particularly because the prosecutor’s statements were made in the context of a guilty plea.  It is the case, however, that in the apparent absence of any direct evidence that the appellant intended to inflict upon the complainant the severe emotional and psychological pain which the Crown alleged, proof beyond reasonable doubt of that element of the offence depended upon an inference from conduct of the appellant, which was itself required to be proved beyond reasonable doubt.  In R v Ping[2] Chesterman J noted that, if one assumed that the Crown had proved in that case that the appellant’s conduct had caused the complainant to suffer a severe psychological disorder, “…the inquiry then turns to whether it proved that the appellant intended to cause, or inflict, that psychological suffering upon the complainant.”  Chesterman J continued:

“Torture is, as I mentioned, the intentional infliction of suffering by an act or a series of acts. The words of s. 320A are plain and unambiguous; they offer no scope for misunderstanding. To make out a case of torture the prosecution must prove, beyond reasonable doubt of course, that an accused intended his acts to inflict severe pain and suffering on his victim. It is not enough that such suffering is the consequence of the acts, and that the acts were deliberate. The prosecution must prove an actual, subjective, intention on the part of the accused to bring about the suffering by his conduct. The acts in question must have as their object the infliction of severe suffering; that must be their intended consequence.

There is no doubt that torture, as defined by the Criminal Code Act 1899, is the intentional infliction of severe pain and suffering, physical or mental. That point was recognised by this Court in R. v. Burns [2000] QCA 201 in which it was said ‘the essence of that offence under s. 320A is the intentional infliction of ‘severe pain or suffering’, which may be mental or emotional only, and either temporary or permanent’.

‘Intention’ has no specific legal definition. It is to be given its ordinary, everyday, meaning. ‘Intention’ is the act of ‘determining mentally upon some result’. It is a ‘purpose or design’. (See the Macquarie Dictionary.) To prove that the appellant tortured Mr Loncar the Crown had to prove that his assaults and cruelty were designed to inflict severe psychological harm upon him. It had to prove that the purpose of those assaults was to inflict that harm on the complainant. It had to prove that the appellant consciously decided to beat the complainant in order to cause him severe psychological distress (or suffering). Nothing else would suffice.”[3]

[12] I turn now to the evidence adduced in the appeal.  The evidence comprised the appellant’s affidavit sworn on 26 October 2011 (filed on 18 January 2012), her affidavit sworn on 25 January 2012 (filed on 30 January 2012), an affidavit of her partner, Glenn Lovell, sworn 28 October 2011 (filed on 18 January 2012), and an affidavit of Eileen Hughes sworn 2 February 2012 (filed on the same day).  The respondent relied upon an affidavit by Mr Williamson sworn 20 February 2012 and an affidavit by Mr Bartels sworn on 21 February 2012, both filed on the date of swearing.  The appellant was cross-examined on her affidavits.  Mr Williamson, who swore his affidavit in response to the appellant’ first affidavit, was in hospital and too ill to attend for cross-examination.  He has since died.  The other deponents were not required to attend cross-examination.

[13] That the appellant’s intention in her alleged treatment of the complainant would be in issue was suggested by the statements attributed to the appellant in the particulars summarised in [9] of these reasons.  The appellant gave evidence upon that issue in her second affidavit.  The appellant swore that the complainant had previously, on four or five separate occasions, set small fires on the table to which the mattress was later removed; the complainant lit those fires during the day or night and it was lucky that she did not burn the house down;  the complainant constantly stole belongings from everyone else in the house at night time when everyone was asleep; the complainant broke everything she could get her hands on, including the chest of draws and dressing table the appellant had put in her room and her toys; she would rip her clothes and tear her school books; she also killed animals, killing chooks by breaking their backs, and killing guinea pigs and mice.  The appellant swore that she lived in constant fear of what the complainant would do to her, to her family, and to her belongings.  She swore that she did not lock the complainant in the room to be nasty or to cause her physical or emotional pain, but to keep the complainant safe and to keep the other people in the house and their belongings safe from the complainant.  The appellant swore that when she locked the complainant in her bedroom at night it was not done to cause the complainant significant emotional and psychological pain, but to keep both the appellant’s family and the complainant safe.

[14] The appellant’s evidence about those matters was consistent with the evidence of Ms Hughes.  Her evidence was that she had been a foster carer for more than 140 children, only two of which caused her significant problems.  One was the complainant.  Ms Hughes swore that she and her husband had the complainant in their care for nine months before the appellant commenced to care for the complainant.  Ms Hughes kept a diary which, she said, revealed that the complainant damaged and destroyed her property, committed acts of cruelty to animals and made (false) complaints against her of the kind which were subsequently levelled against the appellant.  Ms Hughes swore that she was in contact with the appellant during the time when the appellant cared for the complainant, and repeatedly told the appellant that she should let the complainant go to another family or to the Department because the complainant was a dangerous child.  The appellant responded that she could not do that to the complainant as she would have nowhere else to go.

[15] The appellant also swore that, contrary to one of the particulars, there was a bed mattress usually on the bed; it was removed the day before the Department of Family Services attended at her residence, because the complainant had urinated on the mattress; it was removed with the complainant’s help and put on a table immediately outside the bedroom, which was in the downstairs section of the house; and she never required the complainant to sleep either on the bare floor or on the bed frame without a mattress.

[16] It was neither necessary nor appropriate to determine questions about the admissibility of Ms Hughes’ evidence or to assess the strength of this evidence or of the Crown case as to the appellant’s intention.  It is sufficient to observe that, in light of the whole of the evidence adduced in the appeal, there was a real question whether the Crown ultimately would satisfy a jury beyond reasonable doubt of the essential element of the offence alleged in this case that the appellant intended to cause the complainant severe psychological or emotional pain.

[17] The appellant’s evidence, which the respondent did not challenge, was that she had no previous contact with the criminal justice system.  Clearly she was in need of legal advice in relation to the very serious charge of torture she was facing.

[18] There was no challenge to the appellant’s evidence that Mr Bartels did not give her any advice about the nature of the charge or the processes she would encounter in the District Court.  The appellant swore that, after having spent about 10 minutes discussing the general nature of her predicament at her first meeting with Mr Bartels in his office on 18 May 2008, he brought Mr Williamson into the room and said to her words to the effect, “Tom will look after you”.  She had some conversations with Mr Bartels during the ensuing years, but at no time did he ever discuss the charges against her, what her legal rights were, or the court processes.  He occasionally repeated words to the effect, “Tom will look after you”.  There was also some discussion about how much money she had given to Mr Williamson, including on one occasion when Mr Bartels told her not to give him any more money.  On the last point, Mr Bartels swore that he did not discuss the particular sum the appellant said she had mentioned ($20,000), but that he “…did indicate to her that in effect that she should limit the amount of money that the applicant was paying to Tom Williamson.”[4]  Otherwise, Mr Bartels agreed with the appellant’s evidence about the extent of his contact with her.  He agreed that at the first meeting he “spent only a short amount of time with her”, introduced her to Mr Williamson, told her that Mr Williamson would look after the matter on her behalf, and referred to “an overview discussion with her”.[5]  He swore that:

“In effect the carriage of the matter from the time of my initial introduction to the Applicant was attended to by Tom Williamson.”[6]

[19] Mr Bartels also agreed that “…at no time did I go through the case with her and at no time did I discuss the charges or what her legal rights were or what the Court process was…”.  His explanation was that he “proceeded on the basis that [Tom Williamson] was representing her and for that reason I had no ongoing role in the preparation of the matter…”.  That is so although, as Mr Bartels acknowledged, he was on the record as the solicitor for the appellant.  Mr Bartels also agreed with the appellant’s evidence that during the three years that her case was before the Court she “had contact effectively only with Tom Williamson”.[7]  Mr Bartels went on to express ignorance about what contact Mr Williamson had with the appellant, and whether or not it was at Mr Bartels’ office, for the period of at least 12 months before the final disposition of the matter in the District Court.  Mr Bartels’ explanation for that was that “…I proceeded on the basis that I no longer had any involvement in the matter both because from the early stages of the matter Tom Williamson was effectively acting for the Applicant directly and certainly from the period that Tom Williamson indicated to me that the Applicant was bankrupt not only did I have no involvement in the matter (with the exception of my staff arranging for an agent to appear in Court) but to the best of my recollection I do not recall Mr Williamson continuing to meet with the Applicant at my office.”[8]  However in the proceedings in the District Court in 2010 and 2011, terminating in the sentence imposed upon the appellant, Mr Williamson continued to announce his appearances as counsel instructed by Mr Bartels. 

[20] If the appellant was given any of the legal advice which she so obviously needed, it was not given by Mr Bartels.

[21] Before the appellant entered her plea of guilty to the charge of torture on 14 September 2010 she had paid thousands of dollars to Mr Williamson for his advice and representation.  There is a dispute on their affidavits about exactly how much she paid.  It is not necessary to resolve that dispute, but it is noteworthy that Mr Williamson apparently had no record of how much money he was paid.  He swore that he could not remember what money the appellant paid him for her representation, “but I doubt that more than $6,000 - $8,000 was paid.”[9] 

[22] For present purposes, what is more significant is that there is no evidence that Mr Williamson advised the appellant that the offence alleged against her, and to which she pleaded guilty on his advice, involved an allegation that she intended to inflict severe psychological and emotional pain upon the complainant. 

[23] The appellant swore in her first affidavit that Mr Williamson did not ever explain the process of the court to her.  She was not given any opportunity to go through the QP9’s or any statements produced by the Office of the Director of Public Prosecutions; that she was always adamant that she intended to plead not guilty to the charges brought against her; that her plea of guilty was not entered in the exercise of a free choice in her own interests or as a result of her belief in her guilt in relation to the offences in the indictment; it was not entered for purposes such as worry, inconvenience, expense, to avoid publicity, or in the hope of obtaining a more lenient sentence.  The appellant swore that she pleaded guilty because Mr Williamson advised her to plead guilty to “…locking the complainant in the room and that I would be going to trial in relation to all of the other matters upon the indictment”;[10]  Mr Williamson never told her that she was entering a plea of guilty in relation to a charge of torture; he instructed her simply to stand up in court and say guilty; and she did not understand what she was saying guilty to and did not understand or appreciate the effect that saying guilty would have upon her.  The appellant swore that her understanding stemmed from conversations she had with Mr Williamson about the trial process; Mr Williamson told her that she “…had to have a trial by Judge alone”; “…this is how the matter had to proceed as a jury would not like the allegations before the Court”.[11] 

[24] The appellant also swore that she provided Mr Williamson with the names of witnesses she wanted him to call to give evidence on her behalf.  She swore that if Mr Williamson had explained to her the effect of entering a plea of guilty to the charge of torture she would never have entered such a plea; it was never her intention to plead guilty and proceed to sentence; her intention was only to proceed to trial in an attempt to clear her name. 

[25] In the appellant’s second affidavit, the appellant swore that she provided detailed instructions to Mr Williamson about the matters mentioned in [13] and [15] of these reasons.  The appellant swore that, in relation to the particulars of torture, Mr Williamson explained to her that “…each of the individual particulars was a discreet [sic] charge” and she understood from the particulars that the Crown was obliged to prove “…each one of those individually against me”.  She explained to Mr Williamson why she was not guilty of any of the particulars, except the first particular of locking the complainant in her bedroom at night time.  In relation to the schedule of facts, she explained why what was alleged was not right and why she was not guilty of the allegations in that document.  Mr Williamson said to her “you’re pleading guilty to locking the room”, and there was no discussion in relation to torture or in relation to a contested sentence.  She swore that Mr Williamson explained the arraignment process briefly to her but he did not explain the ramifications of entering the plea of guilty; before going into court for the arraignment, she reiterated “that we were having a trial”; Mr Williamson “told me that he understood this; and that this was what was going to happen but I had to plead guilty to locking her in the room.”[12]  Mr Williamson told her to say guilty when she was asked whether she was guilty or not guilty and to respond “no” to “the other question” put to her. 

[26] The appellant also swore that Mr Williamson told her that “…he was good friends with the Judge and that he would discuss the case with him over drinks and would be therefore in a position to sort the matter out for me.  My Barrister guaranteed that I would not go to jail in relation to the alleged offending.”  Similarly, Mr Lovell swore that Mr Williamson told the appellant in his presence that he knew the judge and that he would be having drinks with him at Easter and that it will all be sorted out.[13]

[27] The appellant swore that she did not understand exactly what was happening, she expressed that concern to Mr Williamson, and he told her to “…trust him and not to worry as he had been doing this for 32 years and he was the expert”.  Mr Williamson told her “…not to worry about the words that were being used in Court”, he assured her that she was having a trial, and he said that she had to plead guilty to locking the complainant in her room.[14] 

[28] The appellant pleaded guilty to the torture charge on 14 September 2010. The transcript records the following exchanges:

“MR WILLIAMSON: I appear on behalf of [the appellant]. There is a - one matter before the Court which my client intends to enter a plea of guilty to.

HIS HONOUR: Thank you.

MS GEARY: Your Honour, I should note that I have provided my learned friend with some particulars this morning that the Crown - are the Crown’s allegations with respect to the charge that [the appellant] is pleading to. Now, I understand a number of those may well be contested but at least it’s on – clearly on the record-----

HIS HONOUR: Okay.

MS GEARY: -----what the Crown’s allegations are.

HIS HONOUR: Okay. Now, once she’s arraigned what was the plan? I remember being told but I’ve forgotten.

MR WILLIAMSON: It was to be adjourned to the 19th of October for the-----

HIS HONOUR: That’s right.

MR WILLIAMSON: -----contested sentence.

HIS HONOUR: That’s right.

MR WILLIAMSON: I think your Honour grabbed that date last Friday.

HIS HONOUR: Yes. Yes. Okay. Thank you for-----

MS GEARY: I asked that she-----

HIS HONOUR: -----reminding me because-----

MS GEARY: -----I asked that she be arraigned your Honour on count 1. There’s an alternative count on the indictment.

HIS HONOUR: Okay.

MS GEARY: So, just count 1.

HIS HONOUR: Thank you. Stand up please, [the appellant]. Arraign [the appellant] on count 1 please?

ASSOCIATE: [The appellant], you are charged that between the 1st day of January 2003 and the 14th day of June 2008 at Woodridge in the state of Queensland you tortured [the complainant]. [The appellant], how do you plead? Guilty or not guilty?

DEFENDANT: Guilty.

ASSOCIATE: Guilty, your Honour.

HIS HONOUR: Thank you. I note your appearance, Mr Williamson.

MR WILLIAMSON: Yes, I appear on behalf of [the appellant].

HIS HONOUR: Thank you. Call on the defendant please.

ASSOCIATE: [The appellant], you have been convicted on your own plea of guilty of one count of torture. Do you have anything to say as to why sentence should not be passed on you according to law?

DEFENDANT: No.

HIS HONOUR: You can take a seat, [the appellant]. Okay. So listed for a contested sentence on the 19th of October and delist the trial from the 20th of September. Okay. No objection to bail being enlarged?

MS GEARY: No, your Honour.

HIS HONOUR: Okay. Bail’s enlarged.”

[29] It would not be surprising if the appellant was unable to understand the first part of that passage.  Furthermore, the appellant swore, and I had no hesitation in accepting in the circumstances of this matter, that the court proceedings were a “whirlwind” which she could not entirely follow.[15]  On reading the transcript, she accepted that there was a discussion about a contested sentence, but Mr Williamson had always told her that they would contest the charges, in the context of a trial.  She did not understand the words “contested sentence” to mean that “I was having a contested plea of guilty” but that she understood “the contest to be a trial”.[16]  In cross-examination, the appellant gave evidence that she remembered saying that she was guilty.  When the words of the arraignment were put to the appellant she agreed that she had said guilty, but she said that she did not listen to what was being said because she “just had to say ‘guilty’”.  She agreed that the matter was over fairly quickly on that day.  She thought that it was adjourned to another day.  When it was put to her that it was adjourned so that witnesses could be called, the appellant responded, “yeah, my witnesses in the trial, yes.”  In subsequent cross-examination, which was mainly directed to subsequent hearings in the contested sentence, the complainant spoke of the difficulty in breathing because of the anxiety from which she suffered.  She said, “I have to count so I can breathe”, and when she got her breathing under control she could focus but “…if I couldn’t keep it together I would have to go back to the counting so I could focus.”[17]

[30] The appellant also gave evidence that “…I’ve never plead guilty to all the charges, never, to my barrister, never”; and when it was put to her that she now appreciated that she had in fact pleaded guilty on 14 September, the appellant responded, “[t]o locking her in the room, yes”; “… I pled guilty to locking her in the room.  For the other charges we will have to go to trial.  That’s what he said because I’m not going to confess to something I did not do so that’s why we were going to trial.”[18] 

[31] The complainant accepted that on 14 September 2010 she was aware of the allegations that the complainant had made and had seen her give evidence.  She said that she had spent only five minutes with Mr Williamson that day, and in the conferences leading up to the hearing they had not talked about the case.  In an appropriately vigorous cross-examination, the appellant adhered to her evidence that she understood that on 14 September 2010 she was to plead guilty to locking the complainant in her room.  She accepted that the room had no window and no light but she denied that the complainant was forced to urinate and defecate in the room.  She said that she did not understand that the prosecution alleged that she intended to cause the complainant severe pain and suffering and that this had never been discussed at anytime with Mr Williamson.  She had had no discussion with Mr Williamson about what the word “torture” meant.  She found that out only three days before she gave evidence in the appeal.

[32] In many cases, such evidence would be difficult to reconcile with the transcript I have quoted, but, especially in the context of the deficiencies in the legal advice she was given, I accepted the appellant might well have misunderstood the meaning of what was said to her and what she conveyed when she entered her plea.  I have already indicated that her solicitor gave her no legal advice about the charge or the processes she would face in court.  The sum total of Mr Williamson’s evidence of the advice he gave to the appellant before she pleaded guilty was as follows:

“I cannot remember when the appellant decided to plead guilty to the charge of torture but she did give me clear instructions that she would do so.  Her concern was to challenge some of the allegations.  The appellant was aware of the particulars of the charge as the Crown Prosecutor had supplied me with a copy of them before the mention on 14 September 2010.  These were shown to the appellant before she pleaded guilty to the charge of torture.”[19]

“I deny that the appellant did not know she was pleading guilty to the charge of torture.  It is obvious from the record that she did and did so knowing that there was to be a contested sentence.  I know she understood this from our discussions before the plea was entered and from our discussions before and during the contested sentence.  I deny any allegations of the appellant or Glenn Lovell to the contrary.  I did not pressure the appellant to plead guilty although I did give her advice to so.”[20]

“The appellant understood the strength of the case against her when I pointed it out to her and in my opinion it was for this reason she pleaded guilty.”[21]

[33] Mr Williamson did not assert that he explained the nature of the charge of torture or, in particular, that if the appellant pleaded guilty she would admit that she intentionally inflicted severe psychological and emotional pain upon the complainant.  It also appears that Mr Williamson did not make any note, much less take the usual precaution of obtaining signed instructions, as to any advice he gave the appellant about pleading guilty or of her decision to plead guilty.

[34] It is also significant that Mr Williamson did not deny the appellant’s evidence in her first affidavit that the processes of the criminal court were never explained to her, she was never given the opportunity to go through the statements produced by the officer of the Director of Public Prosecutions with Mr Bartels or with Mr Williamson, and that Mr Williamson could not have read the many pages of handwritten notes and instructions she had supplied to him.

[35] Mr Williamson’s response to the affidavit of Ms Hughes was merely “…I can make no comment on its contents”.[22]  Whether or not the evidence of Ms Hughes would have been admissible in defence of the charge of torture, Mr Williamson’s inability to comment upon the evidence was consistent with the appellant’s evidence in her first affidavit that, although the appellant provided Mr Williamson with the names of many witnesses she wanted him to call at her trial, he did not follow her instructions, he did not speak to any of the proposed witnesses, and he could not have read the pages of written instructions she gave to him in relation to the matter. 

[36] Furthermore, Mr Williamson’s affidavit did not refute allegations of unprofessional conduct made by the appellant that she often waited in Mr Bartel’s office for more than one and a half hours for Mr Williamson to arrive after having made appointments, and he would only arrive after staff at that office telephoned him and told him that she had been waiting.  The appellant swore that this happened more than about 50 times in the three year period when Mr Bartels and Mr Williamson represented her, and when, at Mr Williamson’s request, she subsequently visited him at his home, he simply asked her for more money and did not go through her case with her. 

[37] Mr Williamson did deny that he told the appellant that she would have a trial by judge alone.  He swore that he told her that she was contesting “…the most of the allegations contained in the particulars”.  He also said that, after the appellant was sentenced, she said that she did not blame him for anything and he did his best.  Mr Williamsons’ affidavit also referred to proceedings on the contested sentence in which he cross-examined witnesses on the appellant’s instructions, and he referred to various statements made in the transcript of those proceedings.  Mr Williamson denied that he told her that he was friends with the judge and would discuss the case over drinks with him.

[38] The appellant’s case derived force from the grossly inadequate legal advice she was given.  On the evidence I have so far mentioned, the appellant established her case that she pleaded guilty whilst under a fundamental misapprehension about the nature of the charge and the effect of her plea of guilty.

[39] The respondent argued that statements made in the appellant’s presence by the prosecutor, Mr Williamson, and the sentencing judge at the subsequent hearings of the contested sentence, and when the contest was withdrawn, tended to contradict her account.  The matter was first mentioned again on 18 April 2011 when the prosecutor reminded the sentencing judge that the appellant had pleaded guilty on a previous occasion to “one count of torture”, and the prosecutor went on to refer to the particulars provided to the appellant’s representatives before the plea of guilty and an indication of a factual dispute in relation to many of those particulars.  The sentencing judge referred to the proceedings as “the contested sentence”. 

[40] When this passage of evidence was put to the appellant in cross-examination, she said that she did not understand the words “contested sentence”.  Her evidence about her inability to understand the language used by the lawyers and the sentencing judge was persuasive.  Although expressions such as “contested sentence” are familiar to the professional participants in the criminal justice system, it is hardly surprising that a person of the appellant’s capacity and background, and who had received the inadequate advice to which she testified, would not understand the meaning of such terms. 

[41] The respondent also relied upon the discussion between the sentencing judge and Mr Williamson, also on 18 April 2011, in which the sentencing judge referred to the likely length of time of the contested sentence and the resultant effect that “the value of the plea tends to leach away as the contest continues”.  Mr Williamson told the sentencing judge that “this has been a difficult one – with no disrespect to my client, it has been difficult”.  Mr Williamson then went on to submit that the “problem” with the appellant’s admission of locking the complainant in her room overnight was that “the majority of the other material, to a degree, flows from that”, that “…you can’t get out and you can’t access a toilet because you’re locked in and you’re also tied down”, and that the “…problem with an admission there in relation to 1 is that there would’ve been an admission that we locked the door, but on how many times? … [a]nd I – as I always understand an admission, the admission is that you accept in total that allegation.”  On the evidence which I accepted, those submissions were made without instructions and were inconsistent with the appellant’s instructions.

[42] The respondent also relied upon the statement by Mr Williamson at the commencement of the final hearing on 24 May 2011 that he had “…informed the Crown yesterday and the listing office that the contested sentence is no longer apparent after instructions and advice for - to … my client last Friday. … There has – a plea of guilty has been entered.”  The matter then proceeded to submissions on sentence.  In cross-examination, the appellant agreed that she had a telephone conversation with Mr Williamson before 24 May 2011.  Her evidence in cross-examination was that Mr Williamson said that “…the judge has made up his mind, that he had spoken to the judge and the judge had made up his mind that I would get 15 years …”.[23]  The appellant said that Mr Williamson told her that the judge was “…taking the plea, and … the more that we try to fight we’re wasting the Court’s time so he’s taking the plea.”[24]  Again, I thought it was apparent that the appellant had little appreciation of the significance of any of this.

[43] The appellant denied that it was her decision to not further contest the matters and she denied that she decided not to call or give evidence herself.  The respondent cross-examined the appellant upon statements made by the prosecutor in her submissions on sentence, referring to the complainant being subjected to systematic and continuous psychological and emotional abuse from the defendant over a number of years which was persistent and deliberate, the prosecutors recitation of the serious facts alleged by the Crown, and the deliberateness of the conduct and the clear intention to cause suffering to the complainant.  Reference was also made to submissions made by Mr Williamson that the appellant had said goodbye to her family, her sister was outside and would not come into court, she was traumatised, and her brother-in-law and her friend were there but would not come into court.  Mr Williamson also told the sentencing judge that the had had a long talk to the appellant on the Friday before the hearing and that she had “reconciled herself to the end result”.  Immediately before passing sentence the sentencing judge asked the appellant whether there was anything she wanted to say about any aspect of the matter and she said “no”.  The appellant denied that the reason why she did not raise any concerns with the sentencing judge at that time was that she knew that she was being sentenced for the offence of torture.  I accepted her evidence about that. 

Conclusion

[44] The evidence was compelling that neither Mr Bartels nor Mr Williamson explained to the appellant that, if she pleaded guilty to the offence of torture, she would admit that she inflicted severe psychological and emotional pain upon the complainant.  After seeing and hearing the appellant give evidence and undergo a searching cross-examination, I thought that she was a person who, without the benefit of clear legal advice in straightforward language about the nature of the offence and the processes of the court, might well have failed to understand the nature of the offence with which she was charged, the apparently straightforward language in which she was arraigned, and the effect of her plea of guilty.  I considered that the appellant entered her plea of guilty under a fundamental misapprehension as to its effect.

[45] Much of the respondent’s argument to the contrary focussed upon the protracted proceedings after the appellant had pleaded guilty, but the focus must be upon the appellant’s understanding when she entered the plea.  The subsequent events were capable of shedding some light on the appellant’s state of mind when she entered the plea, but her legal advice was so deficient and, as a consequence, her misunderstanding of the proceeding upon which she had embarked was so marked, that, I did not attribute much weight to those matters.  I concluded that this was one of those relatively rare cases in which a miscarriage of justice was established because the accused person did not understand the nature of the charge and did not intend to admit being guilty of it.[25]

Proposed Direction

[46] I would direct the Registrar to provide a copy of these reasons to the Legal Services Commissioner.

[47] WHITE JA: On 23 February 2012 I joined in orders that the appellant’s appeal be allowed, the conviction set aside and a new trial ordered.  The court indicated that it would give its reasons for those orders subsequently.

[48] I have read the reasons of Fraser JA for joining in those orders and I respectfully agree with those reasons.

[49] DAUBNEY J: I respectfully agree with the reasons for judgment of Fraser JA.  I also agree that a copy of the reasons should be provided to the Legal Services Commissioner.

Footnotes

[1] Transcript 169.

[2] [2006] 2 Qd R 69 at [27].

[3] [2006] 2 Qd R 69 at [27]-[29].

[4] Affidavit of Bartels, para 11.

[5] Affidavit of Bartels, para 6.

[6] Affidavit of Bartels, para 8.

[7] Affidavit of Bartels, para 10.

[8] Affidavit of Bartels, para 14.

[9] Affidavit of Williamson, para 13.

[10] First affidavit of the appellant, para 42.

[11] First affidavit of the appellant, para 45.

[12] First affidavit of the appellant, para 20.

[13] Affidavit of Lovell, para 27.

[14] First affidavit of the appellant, para 23.

[15] First affidavit of the appellant, para 25.

[16] First affidavit of the appellant, para 24.

[17] Transcript 1-12.

[18] Transcript 1-13.

[19] Affidavit of Williamson, para 7.

[20] Affidavit of Williamson, para 11.

[21] Affidavit of Williamson, para 14.

[22] Affidavit of Williamson, para 3.

[23] Transcript 1-22.

[24] Transcript 1-22.

[25] Meissner v The Queen (1995) 184 CLR 132 at 157 per Dawson J; R v Mundraby [2004] QCA 493 at [11]-[12], per MacPherson JA, referring to Kirby P’s reasons in R v Liberti (1991) 55 A Crim R 120 at 121-122.

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Editorial Notes

  • Published Case Name:

    R v Williamson

  • Shortened Case Name:

    R v Williamson

  • MNC:

    [2012] QCA 139

  • Court:

    QCA

  • Judge(s):

    Fraser JA, White JA, Daubney J

  • Date:

    29 May 2012

  • White Star Case:

    Yes

Litigation History

EventCitation or FileDateNotes
Primary JudgmentDC1010/09 (No citation)14 Sep 2010Date of conviction, upon plea of guilty, of one count of torture.
Appeal Determined (QCA)[2012] QCA 13929 May 2012Appeal against conviction allowed; conviction quashed; retrial ordered. Despite having legal representation, Ms Williamson did not properly understand the nature of the charge nor the effect of her plea, giving rise to a miscarriage of justice: Fraser and White JJA, Daubney J. Ms Williamson’s solicitor, Mr Bartels, was, for failing to maintain reasonable standards of diligence and competence in Ms Williamson’s and another unrelated matter, publicly reprimanded and fined $5,500: [2015] QCAT 60.

Appeal Status

Appeal Determined (QCA)

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