The conviction of Tammy Louise Lysaght for the aggravated assault of her 16-month-old daughter in 2010 in Perth, Australia was quashed on February 7, 2018. Lysaght had appealed her 2011 conviction based on the confession of her then live-in boyfriend, Robert Edward Dacey, in a Facebook post in 2016 and then to police, that he committed the crime. Dacey pled guilty to aggravated assault in March 2017 and was sentenced to 20 months in prison.
On November 30, 2010 the 20-year-old Lysaght called an ambulance when she noticed her youngest daughter, LMH, had swollen eyelids. She was taken to the Princess Margaret Hospital for Children in Perth. Dr. Winterton examined the girl and determined she had a fractured skull and femur and extensive bruising to her buttocks. He concluded she had been physically assaulted, most likely with a linear shaped object on her left hip, her right head, and her left buttock. Winterton’s report was provided to the Department of Child Protection and the police.
Tammy Lysaght was interviewed twice by the police, denying she caused her daughter’s injuries.
Her male live-in boyfriend Robert Dacey also denied inflicting the injuries, when questioned by the police.
Lysaght was charged in January 2011 with aggravated assault.
She insisted to her lawyer, Dean Richard Love, that she was innocent. Love advised her to plead guilty, telling her that if she went to trial and lost she would be imprisoned for years, and she would have her children taken away. DCP personnel also advised her to plead guilty, because by accepting responsibility she would not lose all access to her children.
Around the first of July Dacey admitted to Lysaght that he beat LMH, but he threatened to kill her and her family members if she told the police.
Lysaght pled guilty on July 25, 2011. She was sentenced to a one-year prison term suspended for one year and to pay $62.50 in costs. Contrary to what Love told her, as a result of her conviction the State took away custody of her two children. The two children she later had were also taken from her soon after birth. Her children were placed with two relatives. She was only permitted to see her four children four times a year for three hours at a time.
Lysaght split-up with Dacey and in 2012 she moved to Sydney — almost 2,500 miles east of Perth.
In 2016 Dacey admitted in a Facebook post that he assaulted LMH in 2010. Based on his admission the police in Perth reopened Lysaght’s case. The police learned from interviewing people who knew Dacey, that beginning in late 2010 he told many people that it was he and not Lysaght who injured her daughter. When police confronted Dacey with the evidence of their investigation, he admitted to assaulting the girl.
When the police interviewed Lysaght in September 2016 she told them Dacey confessed to her about three weeks before her sentencing that he caused her daughter’s injuries. She said she remained silent because Dacey threatened to kill her, her kids, and other family members if she reported him to the police.
In January 2017 Dacey was charged with aggravated unlawful assault. In March 2017 he pled guilty and was sentenced to 20 months in prison.
On November 29, 2017 Lysaght filed a petition for leave to appeal her conviction based on the new evidence that her conviction was a miscarriage of justice because Dacey had been convicted of the same acts she had been convicted of committing. She argued her new evidence overcame the procedural bar that her appeal was filed almost six years late.
The police whose investigation resulted in Dacey’s conviction, recommended that her petition not be opposed.
After a hearing on January 24, 2018, Supreme Court Justice Lindy Jenkins orally granted Lysaght leave to appeal and quashed her conviction. She said she would issue her written opinion later.
On February 7, 2018 Justice Jenkins released her written ruling in Lysaght v. Youlden  WASC 38. Jenkins ruling stated in part:
“6. The appeal is over six years out of time. …
7. I do not find that the appellant has explained satisfactorily her delay in instituting this appeal. However, the respondent concedes that there will be a miscarriage of justice if an extension of time within which to appeal is not allowed. … Given the unusual circumstances, I will grant an extension of time within which to appeal.
24 In relation to why she did not give that information to the police [that Dacey admitted to her he injured LMH], the appellant says in her statement …:
35. I never came forward to Police with this information because Rob threatened to kill me and my kids if I did. He also made threats to go after my family.
36. I was fearful for my safety and my family so I didn’t tell Police that Rob was responsible for assaulting [the victim].
37. I was involved in numerous domestic violence incidents with Rob but never reported it because I was too scared.
38. I went to court through instruction from my lawyer. I pled guilty against my wishes, to the assault on [the victim].
25. Despite ending the relationship, the appellant did not provide information to the police that exonerated her and implicated Mr Dacey. It seems that did not occur until September 2016.
27. On 11 January 2017… Mr Dacey was charged with aggravated assault occasioning bodily harm on the victim. This was the same assault and harm to which the appellant had pleaded guilty in July 2011. Mr Dacey entered a plea of guilty to this charge and on 10 March 2017 he was sentenced to 20 months’ imprisonment for the offence.
31. The respondent concedes that a miscarriage of justice has occurred in this case for five reasons: …
32. In these circumstances, the respondent concedes that it would be contrary to the proper administration of justice for the respondent to attempt to maintain the appellant’s conviction in circumstances where the respondent accepts that in truth Mr Dacey was solely responsible for the offence.
33. After taking into account all of these matters, I conclude that there has been a miscarriage of justice. … Mr Dacey has been convicted of his own admission of the assault on the victim, to which the appellant pleaded guilty. In law two people cannot be guilty of the same offence when the allegation is that only one person did the acts which constitute the offence and when there is no allegation or evidence which could establish that a second person was a party to the offence. This is the situation in this case. It now being accepted by the prosecution that Mr Dacey is the sole offender, it would be a miscarriage of justice for the appellant’s conviction to remain.
34 For these reasons, I would grant an extension of time within which to appeal, grant leave to appeal on the sole ground of the appeal, grant leave to rely upon the affidavits filed by the parties which I have identified and set aside the conviction and the sentence.
Although she was sympathetic to Lysaght’s conundrum at the time of her prosecution, Justice Jenkins agreed with the State [respondent] in denying Lysaght’s application to be reimbursed the cost of her appeal: it was her guilty plea to a crime she knew she didn’t commit that resulted in her submitting her appeal:
41. The respondent submits that this is not a case where the appellant has been shown to be innocent simply because on the admitted facts she could not as a matter of law have committed the offence. Neither, it says, is this a case where her plea was entered due to any misconduct or negligence on the part of the investigator or the prosecution. It says that it was beyond question that an offence had been committed. The identity of the perpetrator was the only issue. In those circumstances, the appellant pleaded guilty despite the fact that she knew in truth that she had not inflicted the injuries upon the victim. … By pleading guilty, she ensured that her only remedy would be to apply to set aside the conviction if the truth ever became known. Consequently, her plea amounted to conduct which was unreasonable and resulted in the institution of the appeal.
44. …When the appellant pleaded guilty to the offence she knew that she had not committed it and she knew the identity of the offender. She did not tell the police or the court of these facts and deliberately led them to believe that she was responsible. … It does not seem to me that this is a situation in which the system has failed the appellant or a situation in which the respondent failed the appellant.
45. The appellant’s lawyer may have failed her. If he did, the appellant may have remedies against him. …
46. I appreciate that people who are accused of crimes can have personal problems which may cause them to plead guilty to a charge of which they may not be guilty. … However, it is a different thing entirely for a court to visit the costs of their earlier and regretted decision on a respondent or on the State.
47. For these reasons, the application for costs is dismissed.”
Click here to read Justice Jenkins’ ruling in Lysaght -v- Youlden  WASC 38 (WA Supreme Court, 2-7-2018).
Justice Jenkins’ recognition the police and prosecution weren’t responsible for Lysaght’s conviction is important because her guilty plea can be expected to preclude her from being successful in obtaining ex gratia compensation from Western Australia’s government. Lysaght suing her ex-lawyer Love would also likely be futile: his advise for her to plead guilty to minimize her punishment is what lawyers do every day, and Lysaght can only blame herself for not telling him the exculpatory evidence that Dacey confessed to her.
The best that the now 28-year-old Lysaght may hope for is regaining custody of her four children. The basis for the State to take away her custody was her admission she assaulted her daughter, which it is now known wasn’t true. However, the State may argue she is unfit for allowing the environment to exist that resulted in the assault of her daughter.
Before and after he represented Lysaght, her lawyer Dean Love was disciplined by the Legal Practice Board of Western Australia (equivalent of a state bar association in U.S.) four times related to four different situations unrelated to her case: In 2010, 2011, 2012, and July 2014 he was sanctioned after being found guilty of Unsatisfactory Professional Conduct. The hammer was dropped on Love for a fifth situation that resulted in his disbarment: On October 28, 2014 the Western Australia Supreme Court unanimously ordered his name be stricken from the roll of legal practitioners, for: “(1) … intentionally causing the publication of a webpage that was likely to mislead and deceive persons using it. The website was misleading in that it caused a person using it to believe they were submitting an application for legal aid to the Legal Aid Commission of Western Australia, when in fact the website would cause an email to be sent to the practitioner, who would then submit an application to Legal Aid on that person’s behalf …”[Legal Profession Complaints Committee -v- Love  WASC 389 (28 October 2014)]
Endnote 1. Because of the victim’s age her initials are being used, and not her name.