CHILDRENS COURT OF QUEENSLAND

The application

1. [1]
   This is an application by a defendant child who was charged in the Childrens Court at Rockhampton with two counts of indecent treatment of a child under 16. Having pleaded guilty to these charges and with sentence pending, he now makes an application to have both pleas of guilty, or failing that, the second plea of guilty, set aside and, instead, have the counts or count tried by the Court.

Short history

2. [2]
   The child was born on 30 October 1994, which made him 14 years of age at the time of the alleged offences relevant to this application and 15 years of age when he entered pleas of guilty.

3. [3]
   A short account of the charges is necessary in order to appreciate certain features of this application. The complainant's version of events, recorded in her witness statement is that on the 1 September 2009 she was staying at the same house as the defendant child. They were lying on a trampoline together in the early evening. The defendant rolled on top of her and, despite being told to stop, started to kiss her. He pinned her arms down and fondled her breasts. This relates to the first charge of indecent treatment. Then, despite further protests, he tried to unbutton her shorts, and fondled her vagina on the outside of her clothes, only desisting when she threatened to scream. This relates to the second charge.

4. [4]
   The defendant child was interviewed the following day, 2 September 2009. His version of events was that although he acknowledges laying on the trampoline with the complainant, she began kissing him, and he resisted. He pulled away from her and left.^[1] He denied flatly that he had “fondled with her breasts” and “play[ed] with her downstairs area near her vagina”^[2].

5. [5]
   The defendant child has sworn an affidavit, on 16 August 2010, describing how he came to plead guilty to the charges. He deposes to the events of the day of 7 June 2010. He was woken up in the Brisbane Youth Detention Centre, he says, at about 5:00-5:30am, and flown to Rockhampton for the purposes of pre-recording of evidence of affected child witnesses.^[3] He says he was confused about why he was there^[4], but does remember eating lunch and apparently breakfast earlier in the day.^[5]

6. [6]
   The next thing he recalls is that while waiting in the watchhouse he met his barrister and solicitor and spoke about the matter with them for the first time. He cannot be more precise on the time that it took other than it was between five and 20 minutes.^[6] He says that, at the time, he had never had an opportunity to look at the transcripts of the police interviews and witness statements that were the basis for the charges.^[7] They told him that a previous charge of attempted rape would be dropped and replaced with a charge of 'an indecent act'.^[8]

7. [7]
   The child deposes that when he was asked by his legal representatives whether he had touched the complainant's breasts and vagina he responded, “Yes.” However, he deposes that he only did so “because I wanted to get the case over and done with and thought this was a quick way of doing this”^[9]. He notes that he was “feeling fairly tired after being woken up so early”^[10].

8. [8]
   Importantly, the child deposes that he understood there was only one charge. Further, he deposes that after telling his representatives he would plead guilty a Field Officer from the Aboriginal and Torres Strait Islander Legal Services (ATSILS) came into the cells. He said he signed a piece of paper to acknowledge his intention to plead guilty. That piece of paper refers to only a single charge, the charge of attempted rape, and that it had been reduced to a charge of indecent treatment.

9. [9]
   A copy of that piece of paper is in evidence.^[11] Regrettably, as a document prepared for the apparent purpose of providing a firm record of what the child had been told and what the child understood, it creates more difficulties than it solves. It records, in handwriting, the following under the heading 'General Instructions':

“7/6/10

I, [defendant child's name] declare that I have spoken with my legal representatives. I have been advised that the former Charge of Attempted Rape has been changed to 1 x Count of Indecent Treatment of a child.

On that basis I declare that I wish to plead Guilty to One count of Indecent Treatment in the District Court.

[defendant child's name] (Defendant)

[signature]

[Field Officer's name]

[signature] (Witness)”

10. [10]
    The child deposes that when he was arraigned, he was arraigned on each of the two counts in turn. He states that he was confused as he thought there was only one charge, and thought that when the second charge had been read out that it was repeating the process so that he could answer more clearly.^[12] The transcript of the proceeding confirms that the arraignment proceeded in a regular form. The first charge was read, the child's response of “guilty” is recorded and the Associate is recorded as stating, “Guilty, Your Honour”. The Associate then stated “And you stand further charged” and continued reading out the second charge which was in identical terms to the first charge, and a further response of “guilty” is recorded.

11. [11]
    The transcript also confirms that the child was immediately called upon in the usual form, commencing with the Associate stating, “You have been convicted of two counts of indecent treatment of a child under 16 years.” The matter was then adjourned for the purposes of preparing a pre-sentence report. The transcript does not record that any questions or concerns were raised by any person present, including the child’s representatives and the Childrens Court Judge presumably observing the process, which seems to make it less likely that the child’s second response was made in a way that appeared confused or equivocal.

12. [12]
    The two bases for the application for the pleas of guilty should be set aside. First, that the child was tired, confused, and not in a fit state to make a decision on how to plead; and second, that the child had no true intention to plead guilty to the second charge, completely misunderstanding the nature of the proceeding and thinking he was only repeating his answer to the first count.

13. [13]
    The next relevant thing that occurred is that the child participated in interviews with an employee of the Department of Communities in order to prepare a pre-sentence report. It notes two interviews were conducted with the child, one by telephone on 20 June 2010, and another in person in the 25 June 2010.

14. [14]
    Nowhere in that report does the author refer to either of the issues now raised by the child. These were that, firstly, that he had only told his legal representatives that he had touched the complainant’s breasts and vagina and then pleaded guilty in Court not because he was guilty but because he was tired and simply wanted to get the matter over with. Secondly, that he was not even aware that there was two charges and had only ever intended to plead guilty to one charge.

15. [15]
    The closest the report does come to indicating anything along these lines is under the heading, “Young Person's Attitude to the Offence(s) and the Victim(s) of the Offence(s)” and is in these terms:

“[The child] was not willing to discuss at any length the impact this offence has had on the victim. When asked questions relating to the victim [he] became defensive, agitated and expressed hostility towards the victim, implying to the author of the report that he felt victimised.

In summary, [the child's] attitude towards the victim was poor. [The child] was able to identify who the victim of this offence was but transferred the responsibility of [sic] his own actions by blaming the victim for his behaviour. [The child's] anger appeared to stem from the point that he had been charged for the offence and is now having to face court...”^[13]

16. [16]
    The most that can be said in favour of the applicant from this passage is that it is consistent with the attitude of someone who had been falsely accused and felt enraged towards the accuser. Despite being based on interviews that arose about two weeks after the entry of pleas, the report does not state that the child maintained his innocence and regretted pleading guilty. There is no evidence from any person from the Department of Communities who can confirm that child gave any such indication in interviews.

17. [17]
    Further, the anger and hostility referred to seem equally explicable as an unpleasant reaction to the complainant’s decision to complain to the police about his conduct. It is noteworthy that the summary of the child’s attitude does not in its terms deny that the conduct (touching of the complainant’s breasts and vagina) occurred, only whether he was responsible for those actions.

18. [18]
    The child deposes further that at an unspecified time – although apparently it must have occurred prior to 13of August 2010 – he made a decision that he did wish to maintain his innocence in Court and maintain that nothing happened between himself and the complainant.^[14]

Defendant’s mistake or confusion as to the second plea of guilty

19. [19]
    The law in this area can be succinctly stated. If it can be established that a defendant did not, when arraigned, understand the nature of a charge or did not intend to plead guilty to it, then any plea of guilty should be set aside.^[15] It can be accepted for the purposes of argument, then, in favour of the child, that if it can be established that the defendant child misunderstood entirely that the second count was a separate and distinct count to the first, then the application should succeed and that second plea should be set aside.

20. [20]
    The evidence in favour of the child’s application mainly comprises his written affidavit in which he deposes that:

“27. When I went into Court a person who was sitting near the Judge read out a charge to me and asked how I was pleading and I told him that I was pleading guilty.

28. However, he then read out another charge, which was exactly the same words as the first charge.

29. I was a little bit confused but thought he wanted me to answer more clearly, so again I said that I was pleading guilty.”^[16]

21. [21]
    In the child’s favour it can be noted that the written instructions do seem to establish that, after his legal representatives had left the room before his arraignment, he signed his statement of instructions that only referred to a single charge. Finally, the transcript of the arraignment confirms that the wording of the two charges that the child was arraigned on from the indictment was identical.

22. [22]
    However tending against a finding that the child was under the misapprehension that he was when he pleaded guilty to the second count are the following indications:

1. (a)
   The arraignment proceeded after some discussions in the presence of the child that referred to two charges. These included the following:

“[CROWN PROSECUTOR]: Your Honour, I have a – a two count indictment which I seek to present to the Court.”^[17] (emphasis added)

And shortly after:

“[CROWN PROSECUTOR]: Your Honour, in relation to the indictment that I’ve just presented in relation to the two indecent treatment charges I would ask that [the child] be arraigned on those charges – on those counts, I should say. [DEFENCE COUNSEL]: Yes. We’re reading for that to occur, your Honour.”^[18] (emphasis added)

2. (b)
   As noted above, the reading of the second count was prefaced with, “And you stand further charged”.^[19]

3. (c)
   The allocatus was administered immediately after these pleas in these terms:

“ASSOCIATE: [Child’s name], you have been convicted on your own pleas of guilty of two counts of indecent treatment of a child under 16 years. Have you anything to say why sentence should not now be pronounced on you according to law?”^[20] (emphasis added)

4. (d)
   Even weeks after the sentencing procedure, no issue as to whether the second plea of guilty had been entered by mistake was raised with the representatives of the Department of Communities who prepared the pre-sentence report.

5. (e)
   It was acknowledged at the hearing of the application that both the barrister and solicitor who had a short conference with the client were experienced lawyers in the criminal jurisdiction. While the conference itself was short – perhaps as short as five minutes according to the child’s evidence – as the Crown submits, the charge itself was a simple matter.

6. (f)
   Notice can be taken that both practitioners were satisfied with the client’s preparation and conference and indicated the matter was ready to proceed on the basis of a plea of guilty to both counts. The child’s representative at the hearing of the application conceded that judicial notice could be taken of the fact that both were experienced practitioners.

7. (g)
   Even the child confirms that the distinct factual basis for both the distinct charges raised with him; he deposes that he was asked whether he had touched complainant both on the breasts and vagina and responded that he had. It cannot be maintained that the child was unaware of factual basis for the second count

8. (h)
   The child had a very extensive history of Court appearances and the process of arraignment and pleading. Counsel for the child conceded that it had to be accepted that the child had a “significant criminal history as far as Court appearances are concerned”. The Crown noted it involved at least 18 appearances in Court in relation to 68 matters before the relevant date of the 7 June 2010. The Supervised Order History attached the pre-sentence report confirms at least 12 Court appearances before the Childrens Court at Rockhampton at fairly regular intervals between 25 June 2007 and 23 March 2010. Such an extensive experience with criminal proceedings tends to significantly undermine any assumption that might be made in the child’s favour that, at the age of 15, he was unaware of the process of pleading or the consequences of entering a plea of guilty. The child has spent considerable time in detention and on probation.
9. (i)
   Note can also be taken that, for what it is worth, the plea was accepted by the learned Judge at the hearing and if the child was confused, hesitant or equivocal either in his demeanour or in the way he responded to the second charge, neither his legal representatives nor the trial Judge raised any concerns about his understanding..

Law relating to the defendant’s choice to plead guilty

23. [23]
    As the High Court referred to in Maxwell v R, "It has long been the law that when a man pleads guilty to an indictment the trial judge can permit him to change his plea to not guilty at any time before the case is finally disposed of by sentence or otherwise." ((1996) 184 CLR 501 at 509, quoting Lord Reid in S v Recorder of Manchester [1971] AC 481 at 488.)

24. [24]
    Both the applicant and respondent correctly refer to authoritative statements of principle by the High Court:

“A court will act on a plea of guilty when it is entered in open court by a person of full age, apparently sound mind and understanding, provided the plea is entered in the 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.” (Meissner v R (1994) 184 CLR 132 at 141 (Brennan, Toohey and McHugh JJ))^[21]

Dawson J, in that same cased, stated that:

“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. For example, he may show that his plea was induced by intimidation of one kind or another, or by an improper inducement or by fraud.” (at 157)

25. [25]
    The majority judgment in that case cited with evident approval the stated principle that:

“The whole basis of a plea on arraignment is that in open court an accused freely says what he is going to do; and the law attaches so much importance to a plea of guilty in open court that no further proof is required of the accused's guilt.” (Lawton LJ in R v Inns (1974) 60 Cr App R 231 at 233; cited at 141-2)

This consideration was also echoed by McPherson JA of the Court of Appeal in R v Mundraby, who referred to:

“the fact that a plea of guilty is regarded as full confession in open court after being formally arraigned or charged with the offence.” ([2004] QCA 493, at [11])

26. [26]
    Subsequent decisions have made clear that what is required to be shown is that a miscarriage of justice occurred in relation to the entering of the plea of guilty, or that a miscarriage of justice would occur if the plea was acted upon. For example:

“To obtain such leave it was and is incumbent on the appellant to show that a miscarriage of justice has occurred or would occur if he was not allowed to withdraw his plea. See Boag (1994) 73 A Crim R 35, 36-37. No doubt the circumstances capable of amounting to a miscarriage of justice in this context are not to be restricted or circumscribed; but it has been held that they must be such as to indicate that the plea of guilty was “not really attributable to a genuine consciousness of guilt”: see R v Murphy [1965] VR 187 (Sholl J); Boag, at 37 (Hunt CJ at CL).” (R v Mundraby [2004] QCA 493, at [11] (McPherson JA))

27. [27]
    It is perhaps worthwhile to note, as Jerrard JA noted in Mundraby (at [23]), that, to some extent, the High Court authority is to some extent inconsistent with the earlier intermediate appellate authority which spoke of establishing an absence of a 'consciousness of guilt' (see for example, R v Murphy [1965] VR 187). This is because the joint judgment in Meissner states that even a person innocent of an offence, but who nevertheless makes a fully informed decision to plead guilty for pragmatic reasons of their own, cannot claim that a miscarriage of justice is occasioned by being held to their plea.

28. [28]
    Perhaps the best way of reconciling the earlier authorities that speak of a ‘consciousness of guilt’ and the High Court authority of Meissner which focuses on fully informed choice is as follows. It will always be an ingredient of a finding that a miscarriage of justice has occurred or will occur in acting on a plea of guilty to find that it was not entered into as a result of a consciousness of guilt. The well-recognised categories where a plea will be set aside (such as fraud, intimidation or duress) will vitiate any satisfactory basis for finding that a defendant has acted in consciousness of guilt. But such improprieties also establish that the decision was not free and voluntary. It is essential to establish that a defendant did not plead out of their own consciousness of guilt, but it must also established that the defendant's choice was not free and voluntary in order to describe proceeding on the plea as a miscarriage of justice.

29. [29]
    Understood in this way, authoritative statements such as:

“A miscarriage of justice will only be established if it can be shown that the plea was “not really attributable to a genuine consciousness of guilt” (R v Gaudry [2005] QCA 395, at [7] (Keane JA, McMurdo P and Atkinson J agreeing))

can be understood to refer to the requirement that any consciousness of guilt indicated by the plea of guilty must be impugned by some improper circumstances or pressure bought to bear upon the informed choice of a defendant. This would not permit, however, a defendant to merely establish that they pleaded guilty for reasons other than a consciousness of guilt and, without more, conclude that a miscarriage of justice has occurred. Such a holding seems clearly foreclosed by the decision of Meisnner, as Jerrard JA noted in Mundraby, referred to above.

30. [30]
    Counsel for the defendant child referred to the decision of Mullins J in R v Moxham [2000] QSC 152, where her Honour considered a range of authorities and concluded that “there was no consciousness of guilt which dictated the accused's actions after committal” (at [50]). However this finding followed directly from a finding that the accused had, among other things, been undergoing medical treatment that would have affected his decision-making and a conclusion that the accused had not been “in a position to make an informed decision”.

Evaluation of whether the child was able to make a fully informed decision in his own interests as to how to plead

31. [31]
    On behalf of the applicant, the application is not agitated on the basis that any duress, fraud of intimidation was bought to bear on the child in making him plead guilty. Instead, it is a fair summary to say that there was an aggregation of factors that impaired the child’s ability to make an informed decision in his own interests. These included:

1. youth (the child was 15 years of age);

2. cultural background (the child is of Aboriginal descent);

3. limited formal education; and

4. a limited opportunity to consider and deliberate his position prior to arraignment.

32. [32]
    It is worth pausing to recollect that the authoritative formulation of principle in this area, in the case of Meisnner, refers to the capacity of an individual of “full age and understanding”. Neither the child’s representatives nor the Crown referred to any authority on the issue of whether a different approach was justified in relation to a child who has legal capacity to decide how to plead to a criminal offence, but is still regarded with some tenderness by relevant legislation.

33. [33]
    Legislation provides certain standards in relation to children and criminal responsibility and processes involving in the administration of criminal justice. Section 29 of the Criminal Code provides that a child over the age of 14 years is criminally responsible for their actions. The Youth Justice Act 1992, which establishes the basis for the administration of juvenile justice in Queensland enshrines certain principles to apply in the administration of criminal justice in relation to children. To do the utmost in favour of the child, it could be noted that the following principles may be relevant:

“4. Because a child tends to be vulnerable in dealings with a person in authority, a child should be given the special protection allowed by this Act during an investigation or proceeding in relation to an offence committed, or allegedly committed, by the child.

…

12. A person making a decision relating to a child under this Act should consider the child’s age, maturity and, where appropriate, cultural and religious beliefs and practices.”^[22]

These principles do not of course directly apply to the Court in exercising an inherent discretion to set aside pleas of guilty, such a decision not being provided for under any enactment, but they are a relevant legislative standard.

34. [34]
    It is frequently cited in this context that:

“For good reasons, courts approach attempts at trial or on appeal in effect to change a plea of guilty or to assert a want of understanding of what was involved in such a plea with caution bordering on circumspection. This attitude rests on the high public interest in the finality of legal proceedings and upon the principle that a plea of guilty by a person in possession of all relevant facts is normally taken to be an admission by that person of the necessary legal ingredients of the offence” (Liberti (1991) 55 A Crim R 120 at 122 (Kirby P, as his Honour then was)).

I accept that in the case of a child the caution or circumspection referred to in this passage should not be applied with full vigour.

35. [35]
    However the balance of evidence available in this application seems to fall far short of establishing either that the child did not plead guilty because of a belief in his own guilt, or that his ability to make a free and informed decision in his own interests was affected in any material way.

Lack of sleep and tiredness

36. [36]
    While it could be accepted that the child was woken up two hours earlier than usual, as early as 5am, it was still only shortly after and that the child felt “fairly tired”^[23], this falls far short of establishing any lack of relevant capacity. The time on the transcript establishes, after all, that the arraignment occurred shortly after 2:34pm in the afternoon.

37. [37]
    In a recent decision, while clearly a decision on its own facts, the Court of Appeal held that in considering whether a confession had been made of free will, it was quite insufficient to establish that someone was “in pain and sleep-deprived”: R v Peterson [2008] QCA 405 (McMurdo P at [29], de Jersey CJ and White AJA (as her Honour then was) agreeing). The Court in that case noted, aptly, that it could be expected that any defendant in a criminal proceeding is likely to feel some degree of anxiety and stress.

Limited education, and cultural background

38. [38]
    I accept that the child, being of Aboriginal descent, may have suffered some disadvantages. At the application hearing there was reference made to the child’s limited formal education. No specific information on the child’s education was provided however his history of youth detention, a history of what is described as a “chaotic family environment” and “transient lifestyle”^[24], and the child’s extremely troubling criminal history dating from the age of 12 all seem to put beyond doubt that the child is likely to face significant social and educational challenges in relation to children his own age.

39. [39]
    However, the question to be answered is not whether the child suffered disadvantage in the abstract, but whether such disadvantage indicates that the child would have pleaded guilty for reasons other believing in his guilt and affected the child’s ability to make a free and informed choice or express a genuine intention through a plea.

40. [40]
    The child’s own evidence rebuts any suggestion that he did not appreciate the consequences of a plea of guilty, when he deposes that the reason he told his representatives that he had performed the acts that constituted the charges:

“because I wanted to get the case over and done with and thought this was a quick way of doing it.”^[25]

41. [41]
    The Court of Appeal in R v Peterson referred to above, evidently took notice of the fact that an applicant seeking similar relief had “extensive prior experience with the criminal justice system, including many court appearances”^[26] and in this context his lack of subsequent attempts to protest his innocence “telling”^[27]. The same notice can be taken in the present application. I cannot accept that, even making every allowance possible, the child did not appreciate both the process of entering a plea, and the consequences to follow.

42. [42]
    It can be further noted that the child was attended on by an ATSILS field officer after speaking with his legal representatives and presumably had an opportunity to raise any issues at that time. Instead, he signed a declaration to the effect that he did intend to plead guilty. I note that the field officer himself was an Aboriginal who was experienced in his job.

Conclusion

43. [43]
    I am not persuaded that the child did not, when he entered both pleas of guilty, understand what was occurring and what the consequences were of entering those pleas. His written and signed instructions referring to a single count are concerning. However, there are overwhelming indications that the child before, during and after the arraignment did understand what was going on and certainly understood the factual basis for both counts.

44. [44]
    I am satisfied that no circumstances existed that would indicate that the child was prevented from making a considered decision about what he was to do. His conference, while brief, was on a relatively simple issue. The potential witnesses to that conference, and his meeting with an ATSILS field officer shortly after, provide no evidence indicating any inability on his part to decide what he should do due to tiredness or other personal characteristics.

45. [45]
    I consider that no sufficient basis has been demonstrated to conclude that the child entered the pleas of guilty in the absence of belief in or consciousness of his guilt.

46. [46]
    The application should be dismissed.