The Queen v Hardy[2009] QDC 142

[2009] QDC 142

DISTRICT COURT

CRIMINAL JURISDICTION

JUDGE SAMIOS

Indictment No 3672 of 2006

THE QUEEN

v.

PAMELA CLAIRE HARDY

BRISBANE

DATE 19/05/2009

DAY 1

RULING

HIS HONOUR: The applicant has been charged in the District Court on indictment that on the 13th day of December 2005 at Brisbane in the State of Queensland she assaulted Arveen Singh, a police officer while Arveen Singh was acting in the execution of his duty. The applicant pleaded guilty to this charge when arraigned on the 14th of December 2007.

She was represented by solicitors and had two conferences with a barrister who then appeared for her when she pleaded guilty. Her sentence was to take place thereafter, however she has changed solicitors and is now seeking to set aside her plea of guilty. Her affidavit shows that on the date the offence is alleged to have occurred she denies having spat at the police officer.

She obtained solicitors and says that she told them that she would plead guilty to the drink driving charge but wanted to plead not guilty to the other offences. A committal hearing was held on the 14th of September 2006. She obtained the brief of evidence. She noted the statements of the two police officers. She pointed out inaccuracies in the statements, but says she was told not to make an issue about that and to stick to what the police have said because that would be in her favour.

She says she accepted what the solicitor from the solicitors told her because it seemed that the truth was out of her control and she had let the police and her lawyer have a fight about the truth of the statement, which she believed was untrue in many respects. The committal proceedings took place and she was committed for trial. She did not enter any plea at that stage. The indictment was presented in the District Court and she says that she met with the solicitor from her solicitors.

The matter was listed for a trial in the week commencing 30 April 2007. She was told she needed a barrister. One was arranged and she says the one that was arranged was to do the trial for her. She says that the solicitor told her the barrister had looked at her case and thought she should plead guilty because it was two police officers against her and that their word would be believed over hers. If she pleaded not guilty and was found guilty then she would get eight months' imprisonment. She said that she would probably get two and a half years' sentence which would probably be suspended after she had spent eight months in prison.

She was going to arrange a meeting with the barrister. She then met the barrister. She claims he was dismissive of any explanations or instructions she gave or attempted to give. She says he appeared uninterested in any explanations that he attempted to give. He concentrated solely on the allegations contained in the police statements and dismissed her explanations concerning those allegations. He told her the police would be believed over her.

She says she told him that she did not want him to represent her in Court and she got up and walked out of the meeting. She says she said, "I don't like you. I don't want you to represent me."  Later she received a phone call from Ms Morton the solicitor. She told the applicant that the barrister was the best barrister for the case and that she really needed him to represent her. She told her that she did not like the barrister and was concerned that he had not listened to her. She said she wanted a different barrister.

The solicitor told her that what was important was keeping her out of prison. She said there was another barrister, however that she should really have this barrister representing her and that it was a big mistake telling him that she did not want him to represent her; that as a consequence of that mistake she was going to go to gaol.

The applicant swears that she was still very concerned that she was going to have to accept facts and allegations that were untrue in order to stay out of gaol. She says that Ms Morton told her that it was the spitting charges that were the ones that were putting her in gaol, that she would have to plead guilty because there was a chance that she could have spat at the police officer when she went to extract all the grass and hair out of her mouth when she was on the ground.

She says that she said, "We are going to plead guilty because you might have spat on him by accident."  She also says that the solicitor told her that the barrister did not want to represent her, but that she would need to try and persuade him to represent her because if he didn't represent her then another barrister would represent her and that would make her look like a difficult person before the Judge because she had changed barristers.

Nevertheless another appointment was made with the barrister who had been first retained. She says she apologised to him for previously telling him that she did not like him. She was crying and felt like the whole case was out of her control.

She was worried because they didn't appear to listen to her and she had no control over the way the matter was going. Despite this, she asked the barrister to represent her and he said he would.

Again, during this meeting, she says she told her lawyers she was adamant that she did not spit on the police officer. "However, they insisted that I really should plead guilty because it was definite that I would go to gaol if I pleaded not guilty and then was found guilty."

She says the trial was due to commence on 8 October 2007 but was de-listed and was listed for sentence on 7 December 2007. When the matter came on in the District Court, she was formally charged.

She says she had been told to say, "Guilty." when the charge was read out. She says she said, "Guilty." when asked how she pleaded, acting in accordance with the legal advice she'd been given, although she says she had been bullied into saying, "Guilty."

This was not what she had wanted to do during the entire conduct of her case and the only reason she said it was because she was told that that was what she had to do. She had always denied spitting on the police officer.

The matter was set down for sentence on 21 February 2008. Actions were taken to obtain a report from a neuropsychologist.

She met the barrister on the sentence date, 21 February 2008. She sat down with the barrister and the new solicitor. She had her two young children with her. The barrister asked the children to go and sit outside the room and then he became very agitated and angry with her and asked her why she'd brought her kids along.

She swears to an exchange between herself and the barrister in which the barrister said, "You are wasting my time."  Before that, he told her to stop crying and told her that she was going to gaol.

She said that she thought she wasn't going to gaol because she was pleading guilty. She says he told her, "You have been told that you are going to gaol. We’ve always told you that. You are going to gaol."

The applicant swears this was totally untrue and this was the first time she had heard of this. No-one had ever discussed this with her. She says the barrister was claiming that she was wasting his time and that he wasn't going to represent her.

A discussion took place between her and the new solicitor from the same firm that she needed to get the matter set down for a contested sentence. She says that throughout the entire period that she was with the solicitors, no-one took from her a statement or proof of evidence concerning her recollection and version of what took place during the incident involving the police.

She says, "We discussed what happened but no formal proof of evidence was ever given by me."  She instructed her solicitors to have the matter down for a contested sentence. She sought and was granted legal aid to enable her to be represented in a contested plea.

She says since being charged with serious assault, she has always maintained that she did not and has never spat on the police officer, as alleged. Having met her current counsel and her current legal representatives, it is her intention to enter a plea of not guilty to the charge of serious assault.

She has been granted legal aid to enable her to contest the charge of serious assault.

There is also an affidavit from Tony John Marshall. He was present at the scene when the incident is alleged to have taken place on 13 December 2005. Although he swears to other issues, effectively, his affidavit goes to swearing that the applicant never spat at the police.

A lengthy affidavit has been filed on behalf of the respondent to this application from Antoinette Elspeth Morton, a solicitor in the employ of the solicitors who had previously acted for the applicant.

Her affidavit takes issue with a number of allegations made by the applicant in her affidavit and some of these issues are of minor compass, some are more substantial.

As to the former, Ms Morton denies ever advising the applicant that she was learning on her matter, as alleged by the applicant. She exhibits in her affidavit, a file memo of the conference held by one of the solicitors in the firm with the applicant on 9 February 2006.

In this memo, the applicant is reported as having alleged to rough treatment from the particular police officer involved and also an implication of some sexual wrongdoing on the part of that police officer in the places where and in the manner in which he sought to forcibly place her in the police vehicle.

There was no suggestion in this memo of the applicant's intention to plead either way. She was to produce a statement of all the details she could recollect and obtain statements from people such as Mr Marshall.

Ms Morton also swears to the events at the conference held with the barrister on the 9th of February 2007. Again, while this deposes to a number of matters being discussed, the important matter, in my opinion, is that Ms Morton deposes to the applicant in this conference providing instructions that she wanted to contest the matter and go to trial.

Although she received advice, apparently, about this, there is no suggestion she gave instructions that she wanted to plead guilty. In the memo of that conference, the trial process was discussed.

Ms Morton's affidavit goes on to say that the applicant became distressed and cried, describing the events of the night in question. When questioned for the purpose of clarifying her instructions, she was unable to answer. In paragraph 8 of Ms Morton's affidavit she says that the Barrister did not say he did not want to represent her in Court, nor did the applicant get up and walk out of the meeting, and she did not express any concerns to her about the Barrister's representation. The applicant was continued to be represented in the Magistrates Court matters as well as the matter on indictment.

Then there was a further conference with the Barrister on 1 October 2007. At paragraph 14 of Ms Morton's affidavit she says that she received a telephone call from the Barrister on that day, and he expressed concern at remaining involved in the matter as the applicant would not provide instructions. Ms Morton says that she recalls hearing the applicant giggling in the background and saying words to the effect, "I'm not that bad."

Nevertheless, despite what may appear to be an allegation of some frivolity on the part of the applicant, Ms Morton says that the Solicitor who was in the conference with the Barrister, upon returning to the office told her that the applicant had become agitated during the conference and had expressed a desire to see another Barrister. Ms Morton rang the applicant that evening on the 1st of October 2007, and she advised the applicant that she had made admissions to clearing her mouth of debris; that the officer was in proximity at that time; that a second opinion could be gained from alternative counsel; that the Barrister had advised that he did not believe it was in the applicant's interests for him to remain involved.

She says the applicant advised her she wanted the Barrister to remain in the matter and that she believed that she was receiving sound legal advice and wanted the Barrister to remain in the matter. A lengthy conversation regarding the applicant's matter was undertaken. Amongst these things that were discussed was the Crown case was strong and the police officers were likely to give consistent evidence. The applicant was unable to provide consistent instructions except for some details, but when questioned by her own Barrister she became extremely distressed and became easily confused as to a version of events. Her Solicitors and the Barrister were concerned that the applicant would not be able to give strong evidence in cross-examination.

The penalty again was advised upon. She says that she told the applicant that even upon a plea of guilty, including all mitigating factors, the applicant was still at risk of imprisonment. She says she did not take instructions from the applicant at that time. She advised the applicant she would require her to call her office in the morning to advise her instructions. She says at no time during this conversation did the applicant advise her that she did not like the Barrister, however the file note I see, Exhibit AEM6 states that the applicant stated she wanted to see another Barrister because "Counsel wasn't very nice."  It may not be in the same terms, but it's very close to not liking somebody to say you do not think they are very nice.

Although the arrangement was that the applicant would contact Ms Morton's office on the 2nd of October 2007, she did not make contact. Then there was a telephone call from the applicant on the 3rd of October 2007 in which she said she did not require a second opinion from alternative counsel; that she wanted the Barrister to remain in the matter, and she advised the applicant that she would need to discuss it with the Barrister; that she wanted to enter a plea of guilty to the offence and she was directed to seek legal aid funding for a psychological report.

The Barrister was then engaged and the matter de-listed from trial. Instructions were sought from the applicant about some of her background. Arrangements were made for her to see a neuro-psychologist, and the matter had some difficulties being listed because of the provision of the psychological report. The sentence was de-listed but retained for the applicant to be arraigned. She did not turn up. The applicant failed to attend her arraignment on the 7th of December 2007. The arraignment was adjourned on 10 December 2007 as attempts to contact the applicant were unsuccessful.

Ms Morton says that the advice she gave the applicant when contacted on the 12th of December 2007 was that she was to appear in person on 14 December 2007, and if she wanted to go to trial to say not guilty, and if she was accepting the Crown case then to say she was guilty. Arrangements were made to meet on the 14th of December 2007, however the applicant did not attend the office of the Solicitors that day. There was no further contact with the applicant until early January 2008. Contact was made on the 15th of January 2008 and ultimately the matter proceeded towards sentence, the arraignment having occurred on the 14th of December 2007.

The solicitors were given leave to withdraw on the 22nd of February 2008 and new solicitors appeared for the applicant on the 7th of March 2008. The barrister has sworn an affidavit. He recalls the two conferences. Although I do not propose to paraphrase all his affidavit, he says the first conference involved a great deal of discussion about how a trial would be run based on the applicant's instructions and that she faced the prospect of prison even on a plea. He advised her that she would be highly likely to be convicted at a trial on the spitting charges.

The applicant's instructions were canvassed in a frank manner but there was no falling out and the applicant did not say those things to him as she says she did in paragraph 40 of her affidavit. He describes the second conference as becoming a farce as he could not get the applicant to address the relevant issues and she would simply start talking about other aspects of the case.

He ultimately advised her she should get a second opinion. He rang Ms Morton in the presence of the applicant and advised her of the situation. He again advised the applicant her prospects of going to prison were high. She never advised him that she didn't like him and has never apologised to him and there was never any reason for her to do so that he is aware of.

On the day of the arraignment he says he thinks he may have been uninstructed but does not recall seeing or asking to see any written instructions that may have been obtained with respect to the applicant's plea. He denies having been involved in any bullying of the applicant, nor is he aware of any bullying of her by any other person and is of the opinion that Ms Morton and Ms Lynch, the solicitors having dealings with the applicant, do not have the capacity to engage in such behaviour.

He says the issue of the applicant's exposure to a term of imprisonment with actual custody was discussed at both conferences on the day of arraignment as well as the day previously set for her sentence.

The onus is upon the applicant to show that a miscarriage of justice has occurred or would occur if she was not allowed to withdraw the plea. The Queen v. Mundraby, 2004 QCA 493, paragraph 11.

In the Queen and Meissner 1995 148 CLR 132 at paragraph 22 the majority, Brennan, Toohey and McHugh Justices said, "A person charged with an offence is at liberty to plead guilty or not guilty to the charge whether or not that person is in truth guilty or not guilty. An inducement to plead guilty does not necessarily have a tendency to pervert the course of justice for the inducement may be offered simply to assist the person charged to make a free choice in that person's own interests. A Court will act on a plea of guilty when it is entered in open Court by a person who is of full age and apparently of sound mind and understanding provided the plea is entered in exercise of a free choice in the interests of the person entering the plea. There is no miscarriage of justice if a Court does act on such a plea even if the person entering it is not in truth guilty of the offence."

The Court of Appeal of Queensland in the Queen v. O 2003 QCA 446 at paragraph 2 per McMurdo President said, "The principle referred to in Meissner and the Queen is based on the proper administration of the criminal justice depending on the ability of Courts to proceed on the basis that a plea of guilty is made in the exercise of the accused's free choice."

It is also relevant to see the observations of Jerrard Justice of Appeal in Mundraby where at paragraph 23 his Honour questioned whether it is not a miscarriage of justice if someone who's innocent pleads guilty. He said, "The majority held that there is no miscarriage of justice where a Court acts on a plea entered by a person not in truth guilty of an offence, who entered the plea in open Court when of full age, apparently of sound mind and understanding and in the exercise of a free choice in the interests of that person. I did not understand how such a person not guilty of the offence could have any consciousness of guilt or be conscious of anything except innocence."

Consequently I doubt, based on Jerrard Justice of Appeal's judgment, that it is not a miscarriage of justice to plead guilty when innocent.

However, the affidavits before me conflict in many respects and neither deponent has been cross-examined. It is difficult to come to conclusions about who is right and who is wrong about what has happened. However, there are aspects of the dealings between the parties that are not in dispute. Clearly the matter was listed for trial. The instructions were in the initial stage that the applicant wanted the matter contested and to go to trial. There seems to have been some disputation between the barrister and the applicant. There was offers of second opinions. It took time to get instructions and those instructions came in circumstances where there appears to have been a conference that the barrister called a farce and the applicant apparently was quite agitated about, and her instructions were sought not then but the next day.

There is also a reference in the file note to the client considering the barrister not to be very nice. There is also, apparently, reluctance on the part of the applicant to give instructions and have the matter come to a head either by trial or plea of guilty. It has come to a head to a plea of guilty. As to a trial, that seems to be what she has always sought.

I am satisfied that the applicant's lawyers gave her advice they thought was in her best interests. However, I accept at the same time, the applicant genuinely believed she was not guilty of the offence, and when she did give instructions to plead guilty she had given in to the pressure of the circumstances of being charged with a serious offence, and being told the consequences.

It was not what she wanted to do. Her behaviour before pleading guilty, and since pleading guilty, in my opinion, is evidence of that.

I am satisfied the applicant has discharged the onus upon her in this application. I am satisfied when she pleaded guilty it was not a free and voluntary confession, nor was the plea attributable to a genuine consciousness of guilt.

I am satisfied that a miscarriage of justice would occur if she was not allowed to withdraw her plea of guilty.

I set aside her plea of guilty entered on 14 December, 2007.

Now, in my reasons I'm just worried that I have got a date wrong. Have I‑‑‑‑‑

MR SMITH: Yes I think your Honour, that that refers to the arraignment‑‑‑‑‑

HIS HONOUR: Yes.

MR SMITH: Your Honour drifted over into January, but the arraignment was in December. I think your Honour corrected it later though.

HIS HONOUR: Yes.

MR SMITH: And I think that correction probably covers the point, your Honour.

HIS HONOUR: Yes. All right, well that's the order. Do either of you have any submissions as to what other orders I should make at this stage?

MR SMITH: It's already listed I'm told for mention on Monday, your Honour. So, given the orders that have now been made, I imagine that the call-over judge will then determine an appropriate listing for the matter.

HIS HONOUR: Yes. Do you agree with that Ms Cupina?

MS CUPINA: Yes I do, thank you, your Honour.

HIS HONOUR: Yes.

The plea of guilty is set aside, and the matter is listed for mention on Monday, the 25th of May, 2009; and in case someone

has an opinion about this, I will enlarge bail.

It may not be strictly necessary to enlarge bail but - yes, we'll adjourn, thank you, Madam Bailiff.

THE COURT ADJOURNED AT 3.33 P.M.