R 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

1-1

HIS HONOUR: The applicant has been charged in the District

1

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	10
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	20
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.	30
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
40
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	50

favour.
She says she accepted what the solicitor from the solicitors 1-2 RULING 60

1

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	10
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.
20
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	30
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'
40
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	50
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 1-3 RULING 60

1

contained in the police statements and dismissed her

explanations concerning those allegations. He told her the

police would be believed over her.

10

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	20
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.	30
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
40
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	50
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 1-4 RULING 60

1

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.

10

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	20
another barrister would represent her and that would make her
look like a difficult person before the Judge because she had
changed barristers.
30
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.
40
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.	50
Again, during this meeting, she says she told her lawyers she

was adamant that she did not spit on the police officer.
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"However, they insisted that I really should plead guilty	1
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	10
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.
20
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."	30
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	40
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
50
neuropsychologist.
She met the barrister on the sentence date, 21 February 2008.

She sat down with the barrister and the new solicitor. She
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had her two young children with her. The barrister asked the	1
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.

10

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.	20
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."	30
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	40
was wasting his time and that he wasn't going to represent
her.
A discussion took place between her and the new solicitor from
50
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
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and version of what took place during the incident involving	1
the police.
She says, "We discussed what happened but no formal proof of
evidence was ever given by me." She instructed her solicitors	10
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.
20
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.	30
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	40
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.
50
A lengthy affidavit has been filed on behalf of the respondent

to this application from Antoinette Elspeth Morton, a 19052009 D.1 T(3)06/LBM(BNE) M/T BRIS27 (Samios DCJ) 1-8 RULING 60

solicitor in the employ of the solicitors who had previously	1
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	10
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	20
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	30
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	40
vehicle.
There was no suggestion in this memo of the applicant's
intention to plead either way. She was to produce a statement
50

of all the details she could recollect and obtain statements
from people such as Mr Marshall.
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Ms Morton also swears to the events at the conference held	1
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	10
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	20
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	30
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	40
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
50
indictment.
Then there was a further conference with the Barrister on

1 October 2007. At paragraph 14 of Ms Morton's affidavit she
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says that she received a telephone call from the Barrister on	1
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	10
that bad."
Nevertheless, despite what may appear to be an allegation of
some frivolity on the part of the applicant, Ms Morton says	20
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	30
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	40
believe it was in the applicant's interests for him to remain
involved.
She says the applicant advised her she wanted the Barrister to
50
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
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were discussed was the Crown case was strong and the police	1
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	10
version of events. Her Solicitors and the Barrister were
concerned that the applicant would not be able to give strong
evidence in cross-examination.
20
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	30
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	40
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.
50
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
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applicant on the 3rd of October 2007 in which she said she did	1
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	10
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	20
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	30
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.	40
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
50
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
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no further contact with the applicant until early January	1
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.

10

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	20
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	30
spitting charges.
The applicant's instructions were canvassed in a frank manner
but there was no falling out and the applicant did not say	40
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
50
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
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her of the situation. He again advised the applicant her	1
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.	10
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	20
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	30
behaviour.
He says the issue of the applicant's exposure to a term of
imprisonment with actual custody was discussed at both	40
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
50
justice has occurred or would occur if she was not allowed to withdraw the plea. The Queen v. Mundraby, 2004 QCA 493,

paragraph 11.
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In the Queen and Meissner 1995 148 CLR 132 at paragraph 22 the	1
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	10
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	20
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	30
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	40
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."
50
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
19052009 D.1 T(3)08/KC(BNE) M/T BRIS27 (Samios DCJ) 1-16 RULING 60

someone who's innocent pleads guilty. He said, "The majority	1
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	10
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."	20
Consequently I doubt, based on Jerrard Justice of Appeal's
judgment, that it is not a miscarriage of justice to plead
guilty when innocent.
30
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	40
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
50
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
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applicant apparently was quite agitated about, and her	1
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,	10
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	20
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	30
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.	40
It was not what she wanted to do. Her behaviour before
pleading guilty, and since pleading guilty, in my opinion, is
evidence of that.
50
I am satisfied the applicant has discharged the onus upon her

in this application. I am satisfied when she pleaded guilty
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it was not a free and voluntary confession, nor was the plea	1
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.	10
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-----	20
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.
30
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,	40
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.
50
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.
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It may not be strictly necessary to enlarge bail but - yes,	1
we'll adjourn, thank you, Madam Bailiff.
THE COURT ADJOURNED AT 3.33 P.M.

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