R v Bourke[2009] QDC 62

DISTRICT COURT OF QUEENSLAND

HER HONOUR: This application was heard by me yesterday. Ms Bourke pleaded guilty to the following charges on the 28th of April 2008 - one of assault occasioning bodily harm; one of fraud; one of burglary and stealing; one robbery in company with personal violence; and one dangerous operation of a vehicle. She now applies to vacate each of those pleas, and for an order to remit them to the Magistrates Court for committal.

A Court will act on a plea of guilty when it is entered in open Court by a person of full age, and apparently of sound mind and understanding, provided it is entered in exercise of a free choice in the interests of the person entering the plea.^[1]

To disturb a guilty plea, the Court must be satisfied that it would be a miscarriage of justice to act upon it.

I have not been persuaded that the pleas were not freely and voluntarily entered. They were made on the day listed for sentence, although, upon her application, sentence was adjourned to allow Ms Bourke to travel to New Zealand for personal reasons, and to obtain a psychiatric report. The latter need arose because a psychologist had provisionally diagnosed bipolar disorder.

Ms Bourke said she only pleaded guilty because she was told that this is what she had to do. She did not specify when or by whom she was told to plead guilty. It could have been a reference to the solicitor who represented her on the day she entered the pleas, or it could have been a reference to statements she says Mr Mylne made to her at a time not specified.

She said Mr Mylne told her that she had to plead guilty by exofficio or she would get twice the penalty, and that he was too busy to discuss the proceedings with her. Ms Bourke also said she had received no advice about what arraignment meant, or the consequences of being arraigned prior to entering the pleas.

A number of solicitors with the firm, Mylne Lawyers, were involved in the conduct of Ms Bourke's matter. The first solicitor she dealt with, Mr Monroe, gave evidence that she instructed him on a number of occasions that she wished to plead guilty, and he explained to her more than once the pros and cons of doing so. He could not remember receiving written instructions to enter guilty pleas. The principal of the firm, Mr Mylne, gave evidence that he saw a file note of Mr Monroe's dated the 23rd of July 2007, in which Mr Monroe noted Ms Bourke's instructions to plead guilty.

Ms Maluish, who had carriage of the matter when Mr Monroe left the firm, recalled discussing the file with Mr Monroe before he left. She said she repeatedly explained the exofficio process to Ms Bourke, not because she did not seem to understand it, but because Ms Bourke seemed fearful of the outcome. While Ms Maluish did not expect Ms Bourke would be arraigned on the 28th of April because she was applying to adjourn the sentence hearing, she said it was not surprising because of the length of proceedings, and the reason for the adjournment application.

Ms Bourke signed an undated confirmation of her instructions to plead guilty. Ms Maluish could not specifically remember, but thought it was signed before the arraignment because that is a step normally taken in the lead up to sentence. Mr Mylne, the principal of the firm, thought it might have been a draft prepared shortly before the signed and dated instructions of 24 October 2008, well after the arraignment.

Ms Maluish recalled explaining to Ms Bourke the arraignment process. She thought she did this before the hearing. The transcript shows that Ms Maluish spoke to Ms Bourke after some pleas had been entered. Ms Maluish initially thought her conversation with Ms Bourke during the hearing was about who had to answer in response to the associate. After she looked at the transcript, she could no longer be sure of her recollection of that conversation.

Ms Bourke has not alleged that Ms Maluish said anything in particular that influenced her during that conversation. Rather, I am asked to draw an inference about the voluntariness of her pleas from the fact that there was a conversation after the arraignment had started. This, it was suggested, indicated the pleas were not spontaneous. However, guilty pleas to two of the counts had already been entered without apparent hesitation. By then her co-accused for count 6 and 7, had already indicated that he intended to plead not guilty to the charges he faced.

I am not satisfied that I should infer from what is recorded in the transcript that Ms Bourke's subsequent pleas were not freely and voluntarily made. Mr Mylne denied Ms Bourke was told to plead guilty and said that he explained to her all material aspects of a guilty and not guilty plea on more than one occasion, and she appeared to understand his advice.

I am satisfied Ms Bourke gave each of Mr Monroe and Ms Maluish oral instructions on more than one occasion that she wanted to plead guilty. I am also satisfied each of MrMonroe, Ms Maluish and Mr Mylne discussed with Ms Bourke the consequences of guilty and not guilty pleas. I also accept Ms Maluish’s evidence that she explained the process of arraignment and ex officio indictments to Ms Bourke.

I am not persuaded Ms Bourke's pleas were not freely and voluntarily entered. She is of full age. Mr Mylne observed that she lacked concentration and appeared to have a short concentration span. A psychologist, Mr Bonnet, made a preliminary diagnosis on 17 April 2008 that she suffered from a bipolar disorder. There is no evidence that that diagnosis was confirmed, and the psychiatrist who provided a report dated 21 July 2008, Dr Slack, diagnosed her as labouring under a borderline personality disorder.

He described that disorder as being characterised by a pattern of unstable and intense interpersonal relationships; some identity disturbance, involving an unstable self-image; some impulsivity in a number of areas; some mood instability; chronic feelings of emptiness; and also inappropriate and intense anger.

There is no evidence that she was not of sound mind at the time she entered her pleas; nor does Dr Slack's diagnosis suggest that she did not understand the advice she received from her lawyers, or was not capable of giving informed instructions. Nor am I persuaded there would be a miscarriage of justice if the Court acts upon her pleas.

In evidence is a copy of the statement of facts prepared by the Crown for the sentence hearing which contains Ms Bourke's notes of any matters recorded with which she did not agree. That shows there was no dispute about the facts prepared in relation to count 7. For count 1, the charge of assault occasioning bodily harm, the only dispute related to the contents of a basket with which Ms Bourke accepted she hit the complainant, a nail technician.

For count 2, fraud, Ms Bourke noted that she tried to give the caravan park owner either $280 or $300 but this was refused, even though she said her mother was on the way to pay the rest of the bill. For count 3, burglary and stealing, which involved the taking of property from the former residence, Ms Bourke noted that she'd been given two weeks to get her things and she went back two days later. For count 6, robbery in company with personal violence, she noted that the complainant tried to run her off the road several times, and she thought he was drunk and was going to take the keys to the police.

It is not clear when these notes were made on the statement of facts. Mr Mitchell, of the Office of the Director of Public Prosecutions, sent it to Ms Maluish on 11 February 2008, along with a certificate of readiness which Ms Maluish signed on 20 February 2008 and returned to the Crown. She could not recall when she returned it. Nor could she recall when she discussed the statement of facts with Ms Bourke. She sent it to Ms Bourke for her consideration before meeting with her to discuss it. Also unclear is what was done to resolve the dispute about the facts.

The usual practice of the Crown is to require a defendant, or their representative, to state there are no factual disputes to be resolved at the hearing. It is not argued, however, that a matter cannot proceed by way of ex officio indictment unless there are no factual issues to be resolved. At this point, the matter is listed for a contested sentence hearing.

Another matter raised by Ms Bourke's counsel was the late provision of photographs taken by a passer-by when Ms Bourke and her co-accused were at the complainant's vehicle. The photographs were not tendered. Mr Milne said that had he had them earlier, he would have asked Ms Bourke about them. It was possible that they were independent corroborating evidence of the antecedent circumstances which could go to the charges themselves, or to mitigating circumstances. Depending on her response to his questions about the photographs, it might be that he would have given her different advice about count 6. He couldn't say whether he would have without having discussed the photographs with her.

To establish it would be a miscarriage of justice to act upon a plea of guilty, the Court must be satisfied the pleas were not really attributable to a genuine consciousness of guilt. As his Honour observed in Mundraby,^[2] the onus of proving the negative, can, in practice, only be discharged by establishing that something other than a consciousness of guilt impelled or induced the defendant to enter the plea.

I do not accept Ms Bourke's account that she pleaded guilty because she was told to. Before 28 April 2008 Ms Bourke, instructed at least two solicitors of her desire to plead guilty. Those instructions were given at least by 27 August 2007 when Ms Maluish rang Mr Mitchell and informed him her client intended to enter pleas to all charges, and would advise whether she wished to proceed by ex officio indictment, or by pleas in the Magistrates Court.

Ms Bourke acted consistently with those instructions, both on the day of arraignment and subsequently. In October 2008, she confirmed her instructions in writing, after Mr Mylne became concerned about her then procrastination about her plea. Ms Bourke has not persuaded me her pleas were motivated by anything other than a consciousness of guilt, and I decline to make the orders requested. That will be listed for mention on Tuesday 24March at 9.45 a.m., legal representatives only, for both Bourke and Rangi.