R v Wotton[2007] QDC 181

DISTRICT COURT OF QUEENSLAND

1. [1]
   On 19 November 2004, Cameron Doomadgee died in the cells of the small Palm Island police station from traumatic injuries sustained after he had been taken into police custody.

2. [2]
   The police officer in charge of the police station has since been indicted with his manslaughter but not as a result of the normal processes of police investigation and arrest. Instead, the charge was laid after an independent review of the coronial evidence and by a prosecutor appointed from outside the office of the Director of Public Prosecutions (as the Director of Public Prosecutions declined to prosecute).

3. [3]
   These events took place in a small aboriginal community on Palm Island. In order to understand the issues the court is asked to determine, it is useful to have some understanding of the community on Palm Island. The community appears typical of many of the remote aboriginal communities the court visits in Queensland. Those who live on Palm experience a different reality from that experienced in mainstream Australia: inadequate housing (one house for every 17 persons), poor levels of public health (a life expectancy which may be 17 years shorter than the general population), little or no real employment, high levels of alcoholism associated with family disintegration and violence, and an unequal engagement with the administration of justice.^[1]  And it is above all else, like some other remote aboriginal communities, a place of funerals.

4. [4]
   The initial police investigation was, if the Acting Coroner is correct,^[2] likely to have been seen as compromised by the relationships between the investigating police officers and the police officer under investigation.

5. [5]
   In the period leading up to the riot, public meetings were held on the island. At one of the meetings (on 26 November 2004), the chairperson of the council informed a meeting of 200 to 300 persons that a pathology report made available by the Coroner suggested the cause of death was an accident.

6. [6]
   A large number of those assembled moved to the police station with a demand the police leave the island. The police were forced to retreat from the police station to the adjoining police barracks. The police station and a small adjoining courthouse were then set alight. The police were stoned and threatened during the riot. The group of approximately 20 police officers ultimately retreated to the hospital. After their retreat the police barracks and a police house were also burned.

7. [7]
   Some police officers sustained minor injuries, but fortunately none of the police officers and none of those involved in the riot were seriously injured. Some of the police officers were armed and mentally prepared to fire on the rioters if necessary to preserve their own life. The situation for some hours was intensely dangerous.

8. [8]
   Men can be moved by the power of an idea. I have no doubt an idea of justice moved those who attended the meeting and who took part in the riot. But what was required was a calmness of thought and action, even in the face of a denial of justice. To riot was morally wrong because it was an act which endangered the lives of those present, and because it involved choosing force over reason. It also provoked, in turn, an overwhelming^[3] use of State force to reassert police authority over the community.

9. [9]
   One of the consequences of the riot is that some of those who participated in it have been identified and charged with offences. Those who decided to enter a plea of guilty were sentenced at Townsville. A number (including Wotton), who decided to plead not guilty, were listed to stand trial on 5 March 2007 at Brisbane.

10. [10]
    Under the Criminal Code, anyone who takes part in a riot^[4] commits a misdemeanour punishable by three years imprisonment (s 63 Criminal Code). If a building is destroyed (s 65 Criminal Code) or damaged (s66 Criminal Code) by those rioting, the offenders are liable to imprisonment for life (s 65) or for seven years (s 66). The charge ultimately laid against Wotton and others was for a breach of s 65 Criminal Code, an offence which requires proof both of riot and of destruction of a building, together with proof against the particular accused, of participation in the offence charged.

11. [11]
    On the morning of the trial, Mr Mc DonaldSC, who was then briefed for Wotton, informed the Crown prosecutor (Mr Cowen) that Wotton would plead guilty to the charge. Wotton soon afterwards appeared in court, represented by McDonald SC (and his solicitor, Mr Cassis). He was formally charged and pleaded guilty. The allocutus was administered. He has been remanded in custody since that time. The trial against the others proceeded before a jury.

12. [12]
    The present application is for leave to withdraw the plea of guilty entered in court on 5 March 2007.

13. [13]
    Wotton’s request to withdraw his plea of guilty may be broken down into a number of arguments. One is that he was influenced in his thinking by the proposed sentence submission of the prosecutor, which Wotton thought carried the risk that he might serve a substantially greater sentence of actual imprisonment if convicted after a plea of not guilty. This claim he linked to an argument he was not in possession of all the information to enable him to make an informed decision to plea to the charge. Finally, he argued the plea of guilty was not the result of a genuine consciousness of guilt on his part, which he expressly denied in his affidavit.^[5]  Mr Einfeld Q.C., who appeared on this application, also argued the entry of the plea was affected by a number of procedural errors.

14. [14]
    Although I have ultimately arrived at a clear view the plea of guilty cannot stand because it was not entered in open court, in deference to counsel I should indicate the conclusions I have reached on the main points argued.

15. [15]
    The claim the plea is both tainted by inducement and undermined by a lack of real agreement to the facts on which it was entered cannot be sustained once the sequence of events leading up to the plea is understood.

16. [16]
    In the week before the trial, the prosecutor sent an email to McDonald SC setting out briefly the sentences he would suggest on both a plea of guilty and on a conviction after a trial. The email was sent on 26 February 2007. The question of a possible plea was discussed between the prosecutor, McDonald SC, and Cassis (the solicitor acting for Wotton) in a telephone conversation on 2 March 2007 (a Friday). At that time, the prosecutor was told that Wotton would not accept that he personally set fire to any of the buildings. The prosecutor was again telephoned by McDonald SC on the evening of 3 March 2007. In this conversation, McDonald SC asked the prosecutor to prepare a statement of agreed facts. Also during this conversation the prosecutor said that McDonald SC commented that “he had progressed instructions for Mr Wotton”.^[6]

17. [17]
    On 4 March at 7.52am the prosecutor sent an email to McDonald SC to which he attached a statement of facts, qualified by a number of concessions he was prepared to make on a plea of guilty.^[7]  This was the first detailed written communication about sentence.

18. [18]
    At 2.24pm on the same day (4 March 2007), Cassis sent an amended statement of facts to the prosecutor. The statement of facts was amended both by deletion and by addition. The prosecutor then made three alterations to the defence statement of facts. The three alterations are relatively minor.

19. [19]
    The plea offered on 5 March 2007 was one that was offered against the background of communications between the parties and must be regarded as having been entered on the basis set out in the defence statement of facts. The prosecutor’s final amendments were relatively minor and did not effect the decision to plead.

20. [20]
    Wotton also was present throughout the committal hearing during which a number of video recordings of the riot were played.^[8]  He had also spent approximately two weeks before trial in Townsville working with his solicitor in trial preparation.^[9]

21. [21]
    Wotton in his affidavit said he spoke to his partner (Cecilia Sibley) about a possible plea of guilty. From the material placed before the court, Wotton appears to have given serious and careful consideration to the plea. He was also entitled to receive competent legal advice about possible sentences from the senior counsel retained to represent him at trial. He has not made any criticism of the advice received by him from his solicitor or counsel, and he refuses to waive legal professional privilege in order to draw a curtain across the entirety of the discussions with, and advice from, his legal advisors leading up to the plea of guilty.

22. [22]
    The limited material placed before me at this hearing suggests the plea of guilty was entered by Wotton in the exercise of a free choice made in his interests as he believed them to be at the time. The disparity between the sentences proposed by the prosecutor was capable of operating as an inducement to plead.^[10]  In this case, however, it was received by Wotton through the filter of legal advice.

23. [23]
    I am also satisfied the agreed facts (the defence agreed facts) provides a sufficient factual basis for the entry of the plea. In this respect, I agree with the observation by McPherson JA in Mundraby that it is not necessary the accused person possess a full and informed understanding of the applicable law as distinct from a knowledge of the facts on which the plea is based.^[11]

24. [24]
    The remaining aspect I wish to discuss is Wotton’s claims his plea of guilty was not attributable to a genuine consciousness of guilt,^[12] and he did not genuinely believe he was guilty of the offence.^[13]  He also said that he believed whatever he did was morally justified; and that his belief he was morally justified “informed my belief that I was not really guilty of the offence charged”.^[14]  A belief by Wotton that his actions were morally “right” is not a defence in law. Nor is a belief, even if well founded, that the initial police investigation was compromised and justice was to be denied to Cameron Doomadgee (and, by extension, the community as a whole). In a legal sense the rationale for pleading an applicant’s denial of any consciousness of guilt is to counter the inference that a plea of guilty is an admission of all the elements of the particular offence. In the context of this case, accordingly, the denial of a consciousness of guilt must relate back to the defence statement of facts, as the plea of guilty was entered on the basis of those facts. The relevant question is whether his plea flowed from an acceptance by him of the truth of the defence statement of facts, or whether he pleaded for some other reason. In this case, in view of the curtain drawn by him around the entirety of his discussions with those acting for him at the time, it is in reality difficult for him to satisfy the onus resting on him.

25. [25]
    The claim the plea is affected by a procedural error is a more substantial point. The conclusion I have reached on this aspect is that if the plea was entered when the court was closed to the public then in law it cannot stand.

26. [26]
    An incident of the rule of law is that the law is administered by courts open to the public. Indeed, the principle of open administration of the law by the courts is one of the defining differences between the procedures of the courts and the procedures of executive government.^[15]  The present Chief Justice of New South Wales has argued the principle of open justice is so basic as to be part of Australian Constitutional law.^[16]  As a consequence, a judge has no inherent power to exclude the public^[17] nor, by logical extension, can the parties consent to the proceedings being held in secret.

27. [27]
    In this respect, Australian law is consistent with the International Covenant on Civil and Political Rights (1966), Article 14 to which Australia is a party.^[18]

28. [28]
    At common law the courts possess a residual power to deliberate in secret if there is no other way to do justice in the particular case.^[19]  In this case, I was told there was some apprehension that Wotton’s plea, or at least publicity in the media about his plea, might prejudice a fair trial of the other accused. Such an apprehension could never justify convening a secret hearing to take Wotton’s plea.

29. [29]
    In any event, in Queensland any residual power to arraign Wotton in secret is removed by the express requirement in the Criminal Code that arraignment and plea take place in open court (s 597C Criminal Code). This is one of the mandatory procedural provisions in the Code which in combination are “fundamental to the authority of a court to determine the criminal responsibility of a subject”.^[20]  If Wotton’s plea was entered in a closed sitting of the court, it constitutes such an irregularity that he is entitled, at the very least, to withdraw the plea.

30. [30]
    The material placed before me establishes the court was closed to the public. A police officer assisting the prosecutor with witness arrangements was excluded from the hearing, as was Wotton’s immediate family. Wotton was present. His barrister and solicitor were present. Counsel representing the other accused (but not the other accused) were also present. A Mr Armburster, a journalist with SBS News was excluded, as was the author and writer Chloe Hooper.^[21]  The sign “closed court” was illuminated outside the courtroom.

31. [31]
    The conclusion the plea was entered when the court was closed is not affected by the circumstances the learned judge did not order the proceedings be closed. In McPherson v McPherson, the judge, who sat in a law library at the courthouse, declared he was sitting in open court. The doors giving access to the library from the public areas of the courthouse were unlatched, but bore on them the word “private”. The Privy Council concluded the judge, despite his declaration, was sitting in closed court. In this case, I think the learned judge was unaware the courtroom had been closed. I was told the prosecutor did not believe the court had been closed but he believed that publicity was to be limited.^[22] 

32. [32]
    While it is clear the courtroom was closed, the circumstances which led to that situation are unclear. The bailiff said that counsel (or at least some of the counsel) told him the proceedings were to be closed to the public. He said he asked the judge’s associate, who confirmed counsel’s statements. Thereupon he closed the court.

33. [33]
    McDonald SC, the prosecutor, and counsel for the other accused were collectively concerned that any publicity about Wotton’s plea might prejudice the trial of the other accused. All counsel apparently attended on the learned judge in chambers. The meeting in chambers was brief, as the learned judge was concerned that anything said be said in court where it would be recorded.

34. [34]
    I cannot say what happened. The evidence does throw up a number of possibilities. However, in the absence of any clear evidence to explain what happened no useful purpose is served by speculating. I must say I do not think the learned judge knew the courtroom had been closed to the public when the plea was taken. At the same time I do not think any blame should be attributed to the bailiff. On the evidence before me I simply cannot take the issue any further.

35. [35]
    The evidence leaves this court with the situation the arraignment took place at a closed sitting of the court. This involved a procedural defect that is fundamental in the sense that the requirement the plea be taken in open court is a mandatory requirement (s 597C), the breach of which is a serious departure from the essential requirements of the law. In these circumstances, it is appropriate for me to allow Wotton withdraw the plea of guilty he entered on 5 March 2007.