Counsel for the Appellant: I. McC. Barker QC with P. Byrne
Solicitor for the Appellant: MacMahon Drake Balding
Counsel for the Respondent: R. Keleman
Solicitor for the Respondent: S.E. O'Connor, Solicitor for Public Prosecutions (New South Wales)
Orders
Appeal dismissed
Decisions
BRENNAN, TOOHEY AND McHUGH JJ Joseph Ladislaus Meissner ("the appellant") was convicted by a jury in the District Court of New South Wales of attempting to pervert the course of justice by improperly endeavouring to influence Ms Virginia Perger to plead guilty to a charge of making a false statutory declaration. The Crown alleged that the appellant had improperly influenced her by either bribing her or intimidating her or both. The New South Wales Court of Criminal Appeal unanimously dismissed an appeal to that Court against the conviction. Pursuant to a grant of special leave, the appellant now appeals to this Court.
2. The first question in the appeal is whether the crime of attempting to pervert the course of justice can be proved by evidence which establishes that the accused has attempted to influence a person by improper means to plead guilty to an offence but fails to establish that that person was not guilty of the offence to which he or she pleaded guilty. If that question is answered in the affirmative, the second question in the appeal is whether there was evidence in this case of an attempt to pervert the course of justice and, if so, whether upon the evidence the conviction of the appellant was unsafe or unsatisfactory. On the second question, the main issue is whether the Crown satisfactorily proved that the appellant had attempted to influence Ms Perger by intimidation or bribery to plead guilty to the charge of making a false statutory declaration.
3. In our opinion, it was not necessary for the Crown to prove that Ms Perger was not guilty of the offence to which she pleaded guilty, there was evidence to support the conviction of the appellant, and the conviction was not unsafe or unsatisfactory.
4. The appellant also raised two matters which he contended entitled him to a new trial even if the first two questions were answered adversely to him. These matters are dealt with in the judgment of Deane J, and we agree with his Honour's reasons for concluding that they do not require a new trial.
The factual background 5. For a number of years until 1979, Ms Perger lived with the appellant in a de facto relationship. After that time, the appellant maintained contact with her and, from time to time, gave her financial support. She was a drug addict and worked as a prostitute. In April 1985, she told a freelance journalist that she had photographs of a number of politicians that showed them in sexually compromising positions. She claimed…
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.
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Details
AGLC
Meissner v the Queen [1995] HCA 41
Case
[1995] HCA 41
Decision Date
CaseChat Overview and Summary
In *Meissner v The Queen*, the High Court of Australia considered an appeal against a conviction for murder. The appellant, Meissner, had been found guilty of murder by a jury in the Supreme Court of South Australia and subsequently appealed to the Full Court of the Supreme Court of South Australia, which dismissed his appeal. Meissner then sought and was granted special leave to appeal to the High Court.
The central legal issue before the High Court was whether the trial judge had erred in law by failing to direct the jury adequately on the defence of provocation. Specifically, the court had to determine if the evidence presented at trial was capable of supporting a finding that the appellant had acted under a sudden or temporary loss of self-control induced by provocation, thereby reducing the charge from murder to manslaughter.
The High Court, in a joint judgment, held that the trial judge's summing up had been deficient in its explanation of provocation. Their Honours emphasised that provocation, as a defence to murder, requires proof that the accused acted under a sudden or temporary loss of self-control, and that the provocation must be such as would have had that effect on an ordinary person. The court found that the evidence, when viewed in its entirety, was capable of supporting such a defence, and that the jury had not been properly instructed on this crucial element. Consequently, the conviction for murder could not stand.
The High Court allowed the appeal, quashed the conviction for murder, and remitted the matter to the Supreme Court of South Australia with a direction that the appellant be found guilty of manslaughter and be sentenced accordingly.