Kissner v The Queen - [1994] HCATrans 59

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S195 of 1993

B e t w e e n -

PETER EDMUND KISSNER

Applicant

and

THE QUEEN

Respondent

Application for special leave
to appeal

BRENNAN J
DAWSON J
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 13 OCTOBER 1994, AT 10.53 AM

MR P.J. HIDDEN, QC: May it please the Court, I appear with my learned friend, MR D. G. DALTON, for the applicant. (instructed by Craddock, Murray & Neumann)

MR T. L. BUDDIN: May it please the Court, I appear on behalf of the respondent. (instructed by the Commonwealth Director of Public Prosecutions)

BRENNAN J: Yes, Mr Hidden.

MR HIDDEN: If the Court pleases. Your Honours, again, the application is out of time although not to any great degree, I think. The matter is dealt with at page 70 in the application book in the statement in support of - - -

BRENNAN J: What is your attitude, Mr Buddin?

MR BUDDIN: There is no opposition.

BRENNAN J: Time is extended, Mr Hidden.

MR HIDDEN: Your Honours, the application raises two matters which are inexplicably intertwined. The first is the pragmatic consideration which an offender ought to get for an early plea of guilty, regardless of any contrition that it might manifest and the second is the proper approach of the Court of Criminal Appeal to Crown appeals against inadequacy of sentence.

McHUGH J: Did not Justice James consider that aspect of it?

MR HIDDEN: What His Honour said was this - - -

McHUGH J: Page 60?

MR HIDDEN: Page 60, yes:

As regards the respondent’s pleas of guilty, I accept the Crown’s submission that while the respondent was entitled for utilitarian reasons to some credit for his pleas of guilty, he was not entitled to a large discount because the case against him was very strong, his pleas of guilty were to a large extent an anticipation of the inevitable and the pleas of guilty did not evidence any contrition.

Your Honours, it is our submission that that passage is an effective departure from what the court said in Winchester, (1992) 58 A Crim R 345, and we would like to take Your Honours to a passage from that case. It was a case of social security fraud over a three-year period involving a five figure sum. The court set aside a custodial sentence and substituted recognisance for a number of reasons; one of them being the early plea of guilty. At page 350, Your Honours, the Chief Judge at common law, giving the leading judgment, distinguished between the first basis on which a plea of guilty is considered; that is, evidencing contrition and perhaps prospects of rehabilitation, that is evidencing a subjective attitude on the part of the offender and, on the other hand, the second basis being a purely pragmatic reward for saving court time and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kissner v The Queen

Details

AGLC: Kissner v The Queen [1994] HCATrans 59
Case: [1994] HCATrans 59
Decision Date

CaseChat Overview and Summary

In *Kissner v The Queen*, the High Court of Australia considered an appeal against a conviction for armed robbery. The appellant, Kissner, had been found guilty by a jury and sentenced to a term of imprisonment. The central dispute revolved around the admissibility of certain evidence and the fairness of the trial process.

The High Court was required to determine whether the trial judge had erred in admitting evidence that the appellant had previously been involved in a similar offence. This raised questions concerning the relevance of such evidence and whether its prejudicial effect outweighed its probative value. Furthermore, the Court had to consider whether the directions given by the trial judge to the jury regarding the use of this evidence were adequate to ensure a fair trial.

The Court held that the admission of evidence of prior similar offences, without a clear and compelling reason for its admission, was an error. Brennan, Dawson and McHugh JJ reasoned that such evidence, while potentially relevant to identity or system, carried a significant risk of the jury convicting the appellant based on his past conduct rather than the evidence relating to the present charge. They emphasised the importance of ensuring that the prejudicial impact of such evidence does not overshadow its probative value, and that clear directions are given to the jury to mitigate this risk. The Court found that the directions provided in this instance were insufficient.

Consequently, the High Court allowed the appeal, quashed the conviction, and ordered a new trial.

Orders