Meissner v The Queen

[1994] HCATrans 45

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
              Sydney           No S171 of 1993

B e t w e e n -

JOSEPH LADISLAUS MEISSNER

Appellant

and

THE QUEEN                     Respondents

Respondent

BRENNAN J
DEANE J
DAWSON J
TOOHEY J
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 7 OCTOBER 1994, AT 10.16 AM

Copyright in the High Court of Australia

MR I. McC. BARKER, QC  If the Court pleases, I appear with MR P. BYRNE, for the appellant.  (instructed by De Rubeis & Associates)

MR R. KELEMAN:  May it please the Court, I appear for the respondent.  (instructed by S.E. O’Connor, Solicitor for Public Prosecutions (New South Wales))

BRENNAN J:   Mr Barker, you have furnished us with a summary of argument, I gather.

MR BARKER:   Yes, Your Honour.

BRENNAN J:   Perhaps you might give us a moment to look at it.  Yes, Mr Barker.

MR BARKER:   If the Court pleases, can I take you firstly and briefly to the charge containing the indictment.  It is at page 7, volume 1 of the appeal book, about line 7; the charge being that:

For that he between the 4th day of May in the year 1985 and the 13th day of June in the year 1986 at Sydney.....did attempt to pervert the course of justice in that he did improperly endeavour to influence Virginia Perger, otherwise known as Rebecca Dupont, to change her plea from not guilty to guilty to a charge of make false declaration.

Now, there was quite a deal of history preceded that.  Before Your Honours there is a short chronology which I might take Your Honours through, if I may.  The information against her was laid on 11 September 1985 and that was for making false statements in respect of the conduct of various well-known people.  In fact, what she had done was to sign and attest a statutory declaration prepared by some journalists which set out in considerable detail what was said to be sexual misconduct on the part of these people. 

Ultimately, she said that the allegations were false, so the information was laid against her.  Apparently she intended to defend the proceedings.  The charge was indictable so there was to be a committal.  Mr Sankey’s solicitor commenced to act for her on 19 September 1985 and she paid him some money.  There was some appearances before the local court by senior counsel for her and on 2 October 1985 Mr Rolfe, QC indicated to the magistrate that the proceedings would be defended.

But then on 27 February 1986 she told Mr Sankey that she wanted to plead guilty and she gave some explanation which did not emerge in evidence.  Mr Sankey said he did not feel he could act for her on the plea.  He asked her for some money for costs and on 28 February 1986 the appellant paid those costs.  I should mention here that the appellant and Miss Perger had in the past lived together as man and wife and there was still a relationship of a sort between them; he helped her financially from time to time.

On the day that he paid the costs to Mr Sankey, he and Miss Perger opened the term deposit account with the National Australian Bank at Kings Cross in their joint names and he deposited $15,000 in it.  She made a Bankcard application.  Mr Sankey sent the file to Mr Murphy ‑ this is in March 1986 ‑ and on 7 March Mr Murphy appeared for her in the local court and he said that the matter was to be the subject of a plea of guilty.

BRENNAN J:   What was the situation on 3 March?

MR BARKER:   Her former counsel, I think Mr Rofe, simply withdrew from the case on that day, Your Honour, and there was a remand until the 7th, as I understand it.  She was committed for sentence to the District Court.  She entered a plea of guilty on 22 April 1986.  In fact she gave evidence on oath deposing to the falsity of the allegations that she had made.  On 15 May 1986 Judge Muir deferred sentence and ordered that she enter into a recognizance.  On 2 September 1986 the money in the joint account was disbursed as to $12,506 to the appellant’s account and, as to the balance, most of that was used to pay her debts due to the bank.  In fact she received no benefit from the payment beyond payment of her bank debts.

McHUGH J:   She was known as Rebecca Dupont?

MR BARKER:   Yes.  Mr Meissner, the appellant, said the money was on term deposit so she could not get her hands on it and he said, in his evidence, that it was intended that it be available for her legal costs in case she went to gaol.  In May 1987, that is about a year after the plea, she was questioned at considerable length by two detectives and a record of interview was taken from her.  On 3 May the police installed a listening device in the appellant’s premises pursuant to a warrant for a reason quite unconnected with this case, and during the time the listening device was there some conversations were recorded which led to the proceedings against Mr Meissner.

On 13 October 1988 she was interviewed by a Crown prosecutor at police headquarters in the presence of other officers of the Director of Public Prosecutions Office and some policemen and her solicitor, and she declined to discuss the matter.  I have included that because it is one of the matters suggested by the Crown as a good reason for not calling her to give evidence on the prosecution of Mr Meissner.  In that month the information was laid against the applicant which led to his conviction in the District Court.

TOOHEY J:   Mr Barker, could I just interrupt you?  You took us to the charge on page 7 which is a charge of attempting to pervert the course of justice by endeavouring to influence Miss Perger to change her plea.  Just looking at page 1, it looks as if that charge was amended, was it, to simply entering a plea, as opposed to changing a plea?

MR BARKER:   Yes, that is so, Your Honour.

TOOHEY J:   I do not know that anything turns on it but, in terms of accuracy, it is page 1, I assume, that we should be taking as the charge in its final form?

MR BARKER:   When I looked at it I firstly thought it was page 1 and then I saw that this was the charge that was actually read out.

MR KELEMAN:  Can I assist?  The charge that was actually run appears at page 37 of the appeal book and at page 1 of the Court of Criminal Appeal judgment which is at page 313 of the appeal book.

MR BARKER:   Yes, thank you.  I am indebted to my friend:  “to enter a plea of guilty” because she had not at that stage entered a plea, it was still at committal.

Your Honours, although charged with attempting to pervert the course of justice, the case as put was that he in fact succeeded in inducing Miss Perger to plead guilty, and he did so improperly, firstly by bribing her, and that was the $15,000 in the bank, and secondly by other improper pressure, the nature and extent of which remain undefined.  It was suggested that something must have happened but the Crown could not say what, but in one of the conversations Mr Meissner said - and, really, the Crown case rested very heavily on this - “I made her plead guilty”.  In the context, that was a statement entirely equivocal and is ‑ ‑ ‑

DAWSON J:   Mr Barker, you seem to question the form of the charge in that the charge is an attempt.  Are you saying that either he did pervert the course of justice or he did not because he succeeded in what he was doing?

MR BARKER:   The reason I raised the matter is that the Crown relied upon the plea as evidence of the attempt, and they said, “Well, he set out to improperly induce her to plead guilty.  She did plead guilty.  You’re entitled to take that into account as evidence of his making the attempt.”  In other words, you may infer that the plea was a consequence of the inducement.  The importance of that is of course that Miss Perger was not called, and there was no evidence at all regarding her state of mind or why she pleaded guilty but yet ‑ ‑ ‑

TOOHEY J:   Could I just ask you in relation to that, you said that when she pleaded guilty on 22 April she actually gave evidence.

MR BARKER:   Yes, she gave evidence and said that the allegations were false.

TOOHEY J:   I take it the material before us does not include her evidence given at the time of her plea?

MR BARKER:   Yes, it was evidence led in mitigation of penalty.

TOOHEY J:   But not bearing upon the circumstances in which she changed her plea from not guilty to guilty?

MR BARKER:   I think not.

BRENNAN J:   Was the evidence she gave on that occasion before the jury on this occasion?

MR BARKER:   No.

BRENNAN J:   How was the plea proved?

MR BARKER:   By production of the - I am sorry, I am not sure that last answer is right.  By production of the District Court record; it was put in evidence, and her solicitor was called as a witness.  Mr Murphy was called as a witness at Meissner’s trial simply to say what his instructions were.  But there was no evidence which bore upon the issue why she changed her plea, and the importance of this was that the fact of the plea was said to be evidence of the inducement, but this was notwithstanding that the plea was some two months after the alleged inducement.  She was legally represented by an experienced criminal lawyer during that time.  She gave evidence on her plea disavowing the allegations she had made, and she was not called as a witness at Meissner’s trial.

So there was no evidence from the one person who could have said why she pleaded guilty and what her state of mind was and whether in fact she had been subjected to what she had perceived to be improper pressure which caused her to act as she did.  It is our respectful submission that both the nature of the so‑called improper pressure and the reason for her plea of guilty remain matters of mere speculation, and the evidence was not sufficient, setting aside the other arguments of law, the evidence was simply not adequate to found a verdict - a finding beyond reasonable doubt that he had done something improper.

Could I take Your Honours to parts of the Crown opening to illustrate what I mean by the way the case was put.  It is firstly at page 42 of the first appeal book.

TOOHEY J:   Just before you do that, Mr Barker, could I just ask you, in relation to the terms of the charge, and I am looking at page 1, which is that he attempted to pervert the course of justice in that he did improperly endeavour to influence Virginia Perger to enter a plea of guilty, do you say it is incumbent on the Crown to prove the circumstances in which, and the reason why, she entered a plea of guilty, given the fact that the charge is one of attempting to pervert the course of justice and improperly endeavouring to influence her?

MR BARKER:   No, I do not say that.  But what I do say is this, that the Crown called that fact in aid as offering proof of the attempt.  In doing so, they were able to call it in aid without calling the only person who could really depose to why she pleaded guilty, and whether there was any causal connection in an improper sense.

BRENNAN J:   But why is that a relevant issue on a charge of attempt?

MR BARKER:   It becomes relevant - and I will deal with it in more detail when I come to the ground which relates to a miscarriage caused by not calling her as a witness.  It was unfair to the appellant because the jury were invited to use the fact against him whereas had she been called he could have examined her as to her state of mind and as to why she pleaded guilty.

TOOHEY J:   If the Crown had not sought to lead any evidence of the fact that she pleaded guilty - and I realise it would have been a rather artificial way in which to run the case, but let us assume that the Crown stopped short of proving that - I take it you would not say that the charge for that reason alone must fail?

MR BARKER:   No, I would not say that, Your Honour.

TOOHEY J:   But your complaint, if I understand it, is that having adduced that evidence then the Crown was under some obligation to call Miss Perger to explain why she pleaded guilty.

MR BARKER:   And perhaps, more importantly, to say what, if anything, was the improper pressure which the Crown invited the jury to infer from the appellant’s words as recorded on the tape.

TOOHEY J:   That is taking us, really, to your second ground, is it not; the unsafeness? 

MR BARKER:   Yes. 

TOOHEY J:   It does not really go to the question of whether an offence had been disclosed in law.

MR BARKER:   I do not assert that the plea itself was a necessary part of the Crown case but, however, it was relied upon.

DAWSON J:   Just while we are on that:  you can have an attempt to pervert the course of justice, can you, even though you succeed in what you are attempting to do?

MR BARKER:   Yes, because the attempt is a substantive offence.

DAWSON J:   It is not an inchoate offence at all?

MR BARKER:   It is not an inchoate offence.

DAWSON J:   It is the tendency of the act to interfere with the course of justice.

MR BARKER:   Yes.  At page 42 of the first volume, about line 26, the transcript is a little garbled, but the learned Crown prosecutor says:

What the essential part of this case is what Mr Meissner did and what the Crown says any person if they come before a Court can choose, albeit not sensible in light of the fact to take the course of action pleads guilty or not guilty.  That is a choice a person has and it could be that in light of the available evidence it would seem to you unlikely that Miss Perger would take a course of action as pleading not guilty but however unlikely that would be or could be that for reasons known to herself she was going to take that course of action despite other available evidence and just because she was going to do that however irrational if Mr Meissner stepped in, so to speak, and tried to convince her by an improper means to do something she did not want to do, that would still amount to perverting the course of justice.  In other words, a person has a free will if they want to do something although it might not be sensible or in accordance with somebody’s standing, by weighing all the evidence you could say “Look Virginia you have no chance of winning”.  Anybody can say that.  There is no problem with that.  Lawyers mostly say that every day to their clients.  What the issue is here is did Mr Meissner step in and use improper means to overbear her will?

Then at the end of the next passage, about line 18:

If you come to the conclusion that is what she is going to do but for reasons she is persuaded by Mr Meissner, reasons being paid a large amount of money and some persuasion that she changed her course of action and pleaded guilty.  The Crown says that will satisfy you that his actions perverted the course of justice.

At page 47, line 26, he said:

One of the things I think I should just direct I think I said when referring to the actions the Crown suggests that Mr Meissner did was he convinced Virginia Perger to change her plea.  The plea was not entered until some time in March after possibly the money was paid.  What the Crown says up until that period of time she had indicated via her legal representatives that she was going to defend the matter, so that was the history of the proceedings until suddenly she changed her plea.  What the indictment of the actual charge says is that he did improperly influence her to enter a plea of guilty and the background will reveal up until that time she was going to plea not guilty.

So, that is the way it was put, Your Honours, and the evidence relied upon, in substance, was the deposit of the $15,000 and the thing said by Mr Meissner. 

It would probably be convenient for me to take you to that, so you are conversant with the facts.  The conversation evidence is summarised in the Court of  Criminal Appeal judgment, at page 318, in volume 2 of the appeal book, line 24:

In May 1988 pursuant to warrants lawfully obtained the police implanted recording devices in the home and business premises of the appellant.  The conversations recorded, amongst other things, the appellant stating in respect of Perger that she was “a bit pissed off for ever pleading guilty”; that she had wanted to “fight it”; that she reckoned “She’s not guilty”; that he “made her plead guilty”; that it was, in fact, understandable that she didn’t like to “bloody well take a rap”; and that he couldn’t let her fight it “because that would have brought everyone undone for nothing”.  He referred also to two of the political figures whose names had been involved ‑ ‑ ‑

BRENNAN J:   Before you pass that, are the words “he couldn’t let her fight it”, a paraphrase, or are they the words used in the tape?

MR BARKER:   It is close to what he said.  I can take Your Honour to the actual words.  In all this, let me say that our submission is that these words are more consistent with ‑ or at least, as consistent with ‑ ordinary legitimate, if enthusiastic, persuasion.  It is a common enough expression, “I made her do it”.

BRENNAN J:   Yes, but what it may come down to - and it depends on the way in which you are going to run your first basic question about the nature of the offence but, as I understand it, what it may come down to is, whether or not, if there is inducement offered by A to B to plead guilty, for a purpose that is, in A’s mind, something improper, or something alien to the ordinary administration of justice, is that sufficient to constitute the offence?  Is that right?  Is that what the point it?

MR BARKER:   That is how the Court of Appeal looked at it.  We say certainly it is not.

BRENNAN J:   Yes, well I understand that, but if that is the point do we not need to know whether or not (a) the accused did endeavour to make her plead guilty;  and (b) the reason that he had for wanting her to plead guilty, rather than the reason that she had.

MR BARKER:   He gave evidence on oath about this and I will take you to that, but his reasons were because she could not win it, in his view, and he thought it was the best thing she could do.

BRENNAN J:   Well, that was your case.

MR BARKER:   That was our case, yes.

BRENNAN J:   But, this is the part which is the Crown’s case, is it not?

MR BARKER:   Yes.  The problem, if I could just jump ahead a bit, with this notion of impropriety is that, firstly, it is an entirely elusive concept;  secondly, it is not clear whether the impropriety attaches to the nature and extent of the pressure or the motive for which the pressure is applied, and this is where the Court of Criminal Appeal judgment, with respect, lapsed into a confusion of principle, but I will take Your Honours to that.  Just going back to page 319:

It was upon the admissions made in these tapes that the Crown in the main relied to establish that for the improper purpose of protecting these political figures, his mates, the appellant had by bribery and/or intimidation induced Perger to change her plea from not guilty to guilty.

Perger ultimately received only modest benefit from the joint term deposit account for $15,000.  Shortly after the account matured on 25 August 1986 a little over $3,000 was applied to pay debts due by Perger to the bank and a further $500 was applied to reduce her Bankcard indebtedness.  The balance was paid out to the benefit of the appellant.

And then, if I could take Your Honours back to Volume 1 to the summing up at page 227, we have the important, the most important, part of the recorded words where the accused said at just under line 20:

“It’s all...she’s a bit, she’s a bit pissed off because I made her plead guilty, you know, she reckons she’s not, she’s not guilty.”

Then there was some talk, and then at about line 5 on the following page, someone said:

That’d be worryin’ -

and the appellant said:

I got plenty worry about too.  You can understand her position though, like you know, how would you like to bloody well take a rap and then get shitted on, you know.....You know she got paid for it -

Now this conversation was in the context of a television appearance and it is not at all clear what that refers to.  At the bottom of the page:

Members of the jury, the Crown suggests that this tape is critically important because it shows that the accused by using the words “I made her plead guilty” was indicating that in some undisclosed way, he forced Perger to plead guilty when she was maintaining that she was not guilty and saying that she wanted to fight the case.

Then at page 230:

It is no exaggeration to say that the whole of the Crown’s allegation about some improper behaviour by the accused, other than the payment of the bribe, is bound up with that statement by the accused, “I made her plead guilty”.

The Crown suggested the use of the words “how would you like to bloody well take a rap and then get shitted on”, implies a number of things.  Firstly, that the primary meaning of that expression “take a rap”, is to plead guilty although innocent.

The Crown says that is what the accused meant from the context:

Secondly, the Crown suggests that the words immediately following the words “take a rap”, to wit, the words “and then get shitted on” show that in the accused’s mind there was a connection between those two things -

Then at line 18 he says:

The Crown suggested to you that the words “you know she got paid for it”, referred to Perger being paid for pleading guilty, and that is the linchpin of the Crown’s case, to prove that the payment as deposit into the National Bank in Kings Cross was in fact, at least Perger was led to believe, that it was to be a payment to her for pleading guilty.

The only evidence about this was from the appellant, himself, and the bank officers.  It was a joint deposit and it was disbursed in the way it was recounted in the judgment I read to Your Honours.

The suggestion of the Crown is that it was in a term deposit rather than the money being given to her because it acted as an inducement to her to plead guilty, seeing the money put in there, but she couldn’t get her hands on it until after the case was over.  It was put there in a six months deposit.

BRENNAN J:   Where is the evidence that he said he could not let her fight it because that would have brought every bum undone for nothing?

MR BARKER:   Can I find that?

BRENNAN J:   Perhaps your junior can look for it while you go on.

MR BARKER:   It is certainly set out in the summing up. 

TOOHEY J:   Just while you are on this point, Mr Barker, what did the Crown say was the mental element that it had to establish?  There are two aspects to this:  the facts which constitute the attempt to pervert the course of justice and, I assume, the intent of the accused to do something with a view to perverting the course of justice.  But how did the Crown run its case in terms of the mental element that it had to establish?

MR BARKER:   They said the intention necessary was an intention to, by improper means, cause her to take a course which she would not have otherwise taken, that is, to plead guilty. 

TOOHEY J:   Is that the way the Court of Criminal Appeal dealt with the matter?

MR BARKER:   Yes, Your Honour, broadly. 

TOOHEY J:   And is that an approach which you accept for the purposes of this appeal?

MR BARKER:   No, because we say that those circumstances could not amount to the offence of attempting to pervert the course of justice at all.

TOOHEY J:   You mean, whatever the mental element of the appellant might have been?

MR BARKER:   Yes.

TOOHEY J:   Does that mean that we are not concerned for the purposes of your argument, at any rate, with the mental element of the accused, but only with the acts upon which the Crown relied as constituting the offence?

MR BARKER:   Yes.  If the facts relied upon by the Crown can constitute the offence, then we would not dispute that the mental element is the intention to improperly cause her to take that course of action.

TOOHEY J:   And would you want to be heard on that aspect?  Is that part of the grounds of appeal?

MR BARKER:   No.  What we put is this, in general:  that the circumstances relied upon could not amount to an attempt to pervert the course of justice because all he did was to try to induce her to do something she was entitled to do and which involved no interference with the judicial process, and which is really done every day of the week to a greater or lesser extent.

The touchstone of the case, so it was said, was impropriety.  But if impropriety be the test, Your Honours, it makes the offence obscure and elusive because how can a court determine in these sorts of circumstances whether the means of persuasion fall above or below the propriety line?  And to what is the notion of impropriety directed:  the means used or the motive?  Secondly, we say that in any event the evidence was insufficient to sustain the charge.

TOOHEY J:   But is that not where the mental element might become important?  It may be one thing to say to someone, “Well, I think you should plead guilty because there’s no apparent defence to this and it’s only going to take up time and money and probably do you no good in the end”, and to say to somebody, “I think you should plead guilty to this because” ‑ if not necessarily “because” - but having in mind that otherwise something is going to come out that is prejudicial to the person who attempts to persuade the offender to plead guilty.  I just have some difficulty in distinguishing the facts and the mental element in the way in which the appeal is conducted.

MR BARKER:   Perhaps I was not responding properly to what Your Honour was putting to me.  Firstly we say that on the evidence, there was no evidence of any sinister intention, no evidence from which a sinister intention could be inferred.  If inducing somebody to plead guilty can be an attempt to pervert the course of justice, the mental element which must be proved is the intention to do something knowing that it may interfere with the course of justice.  In the Crown case here, it is said specifically that he did this for a purpose extraneous to the ordinary process because he wanted to protect other people; therefore, that was his intention, and that is the intention that must be found.

TOOHEY J:   It might become clearer to me later on.

MR BARKER:   I am sorry, Your Honour.

TOOHEY J:   I am not suggesting it is because of the way in which you are putting it, Mr Barker; I am just still having some problems with it.  The charge itself uses the word “improperly”.  It does not say that there was an attempt to pervert the course of justice in endeavouring to influence Perger to plead guilty.  It says that there was an “attempt to pervert the course of justice in improperly endeavouring”.  So that seems to be the focal point, that there was an improper endeavour.

MR BARKER:   Yes.

TOOHEY J:   In terms of the Crown case, did the impropriety lie in the motives which underlay the appellant’s attempts to endeavour to persuade her to plead guilty, or did it lie somewhere else?

MR BARKER:   That is a difficulty in the case.  The way it was put was that the impropriety lay in the degree of pressure applied to her for a purpose of the accused, the accused’s own purpose.  In the Court of Criminal Appeal Their Honours seemed to be saying that if the motive was to achieve an ulterior purpose, well then the degree of pressure did not seem much to matter, and the determining factor was why the pressure was being applied.

DAWSON J:   Would it make any difference if you really believed she was guilty and to protect other people you put pressure on her to plead guilty?

MR BARKER:   We would say in either event she was entitled to plead guilty and she did no more than she was entitled to.

DAWSON J:   I can understand inducing someone to plead guilty when she was not guilty may  be seen in one light as perverting the course of justice, and that may go to the intent.  But I do not at the moment grasp how if you attempt to persuade someone to plead guilty, believing that they are guilty, that is the same thing.

MR BARKER:   We say it is not.  We say it cannot be attempting to pervert the course of justice because there was no course of justice which was - - -

DAWSON J:   But you say in the Court of Appeal the emphasis was placed only on the pressure and not upon the belief as to guilt or non guilt?

MR BARKER:   The emphasis was on the accused’s ulterior motive.

TOOHEY J:   I thought you were putting it forward as a composite, that is that the Court of Appeal was saying, “It’s the degree of pressure coupled with the motive.”

MR BARKER:   That is the way it was put at the trial.  Let me take you to what the Court of Criminal Appeal said, at page 341.  There are a number of references to this.  What Mr Justice Allen, who wrote the leading judgment, said was this, in dealing with our submissions, at page 341 line 10:

The law, so it is contended, should approach with great caution attaching criminal sanctions to the inducing of an entirely lawful act.  It is lawful to plead guilty even if the person accused knows full well that he is innocent and has every reason for confidence that the Crown would fail to persuade a jury of his guilt.  Pressure upon a person to do the lawful act of pleading guilty should be sharply distinguished from pressure to do an unlawful act such as committing perjury, committing a crime such as misprison of felony, or failing to answer to a subpoena.

In my judgment these arguments fail to recognise that one of the ways in which the course of justice can be perverted is the twisting of it so that it is used not to serve the purposes for which it exists but to serve some extraneous collateral purpose.  The law long has recognised that such is a perversion of the course of justice.  It treats it as an abuse of process - an abuse which will not be countenanced by the law.

And His Honour then got on to Spautz v Williams, which is an abuse of process case and here we submit the court fell into error in confusing intention and motive, and in attempting to pervert the course of justice with the tort of abuse of process.

At page 353 line 15, His Honour said:

If his intention was to induce Perger to plead guilty not because of considerations falling within the ambit of the ordinary course of criminal proceedings but so that he could protect his own mates then the mens rea is established even if he considered Perger to be as guilty as sin and his mates to be the innocent victims of her perfidy.

At page 354 point 5, His Honour said:

The jury clearly were entitled to take the view that the tapes pointed to a deliberate attempt by the appellant to induce Perger to charge her plea not primarily because of considerations of costs and the other considerations, to which I have repeatedly returned, which are incidents of the ordinary administration of the criminal law but because of overriding considerations of necessity affecting the appellant and others - in short for extraneous collateral considerations.  There was evidence from which clearly the jury were entitled to infer that what the appellant did did have the tendency to cause that to happen.  In that respect the jury were entitled to take into consideration that Perger did change her plea despite the appellant’s acknowledgment in the tapes that she considered that she was not guilty.  If the jury found, as it was entitled to do, that what he did did cause her to change her plea that finding would powerfully support the conclusion that the appellant’s conduct did have the tendency to cause her to plead guilty for extraneous collateral consideration or considerations.

Then, at page 355, His Honour said at line 15, that there was ample evidence:

“that the accused’s motives were not directed at helping Perger that if she benefited in any way that was only incidental to his primary motive which was attempting to persuade her to plead guilty in order to serve his own end and perhaps those of others, in particular certain Right Wing ALP politicians, whom he regarded as friends by ‘putting the lid on’ a series of allegations -

and then, finally, at page 356, line 25, His Honour said:

The relevant impropriety in relation to the financial arrangements was the intent thereby to cause Perger to plead guilty to effect a purpose which was collateral and extraneous to considerations pertinent to the entering of a plea in the ordinary course of the criminal trial procedure ‑ namely, that she took a “bribe” so that from the time the plea of guilty was entered the proceedings thereafter did not fulfil the objects of the criminal trial procedure but the object of leaving unsullied, or not further sullied, the reputations of the appellant’s “mates”.

Now, either the pressure was so great that it was improper, or it was not.  His Honour, in another part of the judgment, distinguished between a family situation, where members of the family might, however zealously apply pressure to another member to plead guilty to something, but that would not be an offence because they would be trying to help the person charged.  That is at page 344, at line 11:

Family members, associates, the professional advisers, no matter how over‑zealous or incompetent, having nothing to fear if the pressure which they bring to bear upon the accused, by lawful means, is pressure within the confines of the considerations integral to the criminal proceedings and hence within the purposes of those proceedings.

Which rather suggests that, no matter how zealously or over‑zealously the person was treated to the point of physical persuasion, it would not matter, provided the motive was pure.  That simply cannot be, with respect, and this is the problem where it is said this offence turns on a question of impropriety, entirely ‑ ‑ ‑

DAWSON J:   Surely the impropriety comes in applying pressure knowing the person is not guilty or reckless whether he or she be guilty or not?  Is that not the mental element that is required?

MR BARKER:   It would be if this can be an offence.

DAWSON J:   Well, surely, it is improper for someone to go and give someone a hundred dollars in order to plead guilty if that person is not guilty or if the person giving the money does not know whether the person is guilty or not, or does not have any belief as to it.

MR BARKER:   Yes, that, of course, is a different situation, if that is a straight-out bribe or if a person is put to torture ‑ ‑ ‑

DAWSON J:   A straight-out bribe or an indirect bribe, it does not matter, but I am talking about the mental element.

MR BARKER:   Yes, and so terrified that the ‑ ‑ ‑

DAWSON J:   But, is not the mental element on the part of the accused which is required to be proved, that he either knew the person was not guilty or was reckless as to whether the person was guilty or not?  It could only be in those circumstances that there would be an attempt to pervert the course of justice.  I mean, it does not matter if you have all sorts of collateral purposes for attempting to induce someone to plead guilty if, in fact, they are guilty.  You may not care about the person at all.  You may care about innocent persons who are going to be harmed if the trial goes on, that would not matter, would it, if, in fact, the person was guilty or you believed them to be guilty?

MR BARKER:   Well, that is our case because there is no course of justice which is being obstructed in those circumstances.

TOOHEY J:   I do not follow that.  When you say it is your case, is it your case that the Crown has to establish that the accused believed a person to be not guilty but nevertheless took some course of conduct directed to persuading her to plead guilty?

MR BARKER:   By the use of pressure which was entirely improper.

TOOHEY J:   Well, before you get to the question of pressure, I thought your answer to Justice Dawson was that belief in innocence or belief in guilt was somehow crucial to a charge of attempting to pervert the course of justice.

MR BARKER:   Your Honour, can I put it this way:  the impropriety can be seen to emerge if an accused person knows that someone is innocent, but nonetheless by improper means forces a plea of guilty.

TOOHEY J:   I just have a lot of difficulty with the concept of knowing that a person is innocent or guilty.

MR BARKER:   Well, it is obviously a question of fact.

TOOHEY J:   Well, that is the problem that it is not. I mean, you may well be aware of the facts of a particular incident but whether those facts constitute the commission of an offence and whether a person is guilty or not guilty moves into a fairly refined area.

MR BARKER:   Yes.

DAWSON J:  When we are talking about mens rea we would be talking about belief, would we not?

MR BARKER:   Yes, and that is the problem with the case. I have cited the cases in the list of authorities and Your Honours have them before you in photocopy form, two English cases where the Court of Appeal has held that judges acted improperly in applying improper pressure to accused persons to plead guilty.  In one case a young man was charged with stealing wire from a railway yard ‑ ‑ ‑

BRENNAN J:   What is the name of this case, Mr Barker?

MR BARKER:   The two cases are Barnes and Inns.  Let me take you to Barnes, which is before Your Honours.  The reason I cite these is because if impropriety ‑ ‑ ‑

BRENNAN J:   Would you give us the reference so it can go into the record?

MR BARKER: (1971) 55 Cr App R 100, that is Barnes.  The other one is Inns (1974) 60 Cr App R 231. At page 103 in the case of Barnes, the Lord Chief Justice said:

complaint is made of what can only be described as an outburst by the trial judge in the absence of the jury half way through the case for the prosecution to the effect that the appellant was plainly guilty, and that the time of the court was being wasted.  After asking the jury to retire, the trial judge addressed defending counsel thus:  “I think it right I should tell you in the presence and hearing of your client that I take a very serious view indeed of hopeless cases, without the shadow of a defence, being contested at public expense.  May I tell you, that last month an estimate was made of the time that would be taken by the cases then remaining to be tried; just under two thousand judge-days -

and he said he took a very serious view of it indeed.  Then the barrister sought instructions and came back and said at page 104, point 5:

“I took the opportunity of seeing my client and giving him certain advice.”  The judge thereupon went on:  “I am not going to mince matters.  It is absolutely outrageous that other people are waiting for their trials because of behaviour like this.” 

Counsel gave further advice to the client who had declined to accept it.  Then he said he felt that he should withdraw from the case.  At page 105, near the bottom of the page, the trial judge said:

Well, do you wish counsel to continue representing you, or do you wish to defend yourself, because I can tell you, I am not going to allow other counsel to come in -

And he said he would carry on.  In the middle of the page the court said:

It is in the Court’s opinion clear that the trial judge’s conduct referred to above was wholly improper, and for a number of reasons:
(1) It was putting extreme pressure on the appellant to plead Guilty, whereas after advice from his counsel the choice of plea was his.....
(2) It was bound to make the appellant think that the judge had taken so adverse a view of his case that he was unlikely to obtain a fair trial.

And so on.  The court took the view that the conviction should be quashed.

BRENNAN J:   That is understandable enough, but what has it got to do with this case?

MR BARKER:   What it has got to do with this case is that if that judge acted improperly, as it said he was, in inducing somebody to plead guilty, according to the Crown’s reasoning he would be guilty of a criminal offence because impropriety, it is said, is the test.  This is the sort of example which suggests, with respect, that that simply cannot be.  There are too many practical problems in the way of it.  In the other case of Inns, at page 232 near the bottom of the page, there was a conversation between counsel and the judge.  The judge said:

I understand there is some doubt as to whether your clients are pleading guilty.  Murphy:  My client will be pleading not guilty.  Judge:  What is his defence?  Murphy:  He says he was not dishonest; he thought the wire was abandoned.  Judge:  This was presumably signalling wire?  Anderson (prosecuting):  Yes.  Judge:  If these men are asking the jury to believe that they thought they could just go and take railway property, one of them used to be an employee of the railway.  If that is what they are saying, if they are convicted, they will go to detention centre.  That is quite certain.  Murphy:  I was sceptical myself when I read the papers, but if you look at the wire.....it looks as though it could have been abandoned.....Judge:  I was virtually standing counsel to the railways for about 20 years at the Bar ‑ I know all about signalling wire.  I take a very dim view indeed of ‑

people stealing it.

If they are convicted, they will be going away.

BRENNAN J:   You do not need to take that any further, Mr Barker.

MR BARKER:   The plea was a nullity and the conviction was a nullity.  But if the Crown is right, the consequence would be that that judge was committing the criminal offence of attempting to obstruct or pervert the course of justice.

DAWSON J:   But that is why the mental element is of some importance.  In both those cases the judge had a clear belief that the accused was guilty.

MR BARKER:   Yes, but on the Crown case they would say that if there was impropriety ‑ ‑ ‑

DAWSON J:   What do you say the mental element of the offence in these circumstances of attempting to pervert the course of justice is?

MR BARKER:   It has to be an intention by improper means to induce someone to do something they would not otherwise do.

DAWSON J:   Put the means on one side.  What does the man have to believe in his own mind.....to be guilty of the offence

MR BARKER:   He has to believe that the person being induced may well do something which he or she does not want to do which is contrary to his or her interests.

TOOHEY J:   Does that mean that an intention to persuade someone to plead guilty for reasons that are relevant to the person who is trying to do the persuasion, for extraneous reasons, is or is not a relevant consideration?

MR BARKER:   It would be relevant as proof of motive, but not of intention.  See the difficulty I have in answering these questions is there is no reported case of circumstances such as these constituting this offence, except a couple of rather extreme American cases.  We say that the law should not be extended in this way, that it is adequate now to cope with the sort of impropriety which it is suggested could force someone to take this step that they would not have otherwise taken.

TOOHEY J:   Say a person said to an accused, “Look, I’ll give you $5000 if you plead guilty.  I don’t know whether you’re guilty or not and I don’t care, but if you plead not guilty something’s going to come out which could be harmful to me.  If you plead guilty, well, there’s no reason why that information should come out.”  Now, is that attempting to pervert the course of justice?

MR BARKER:   We would say not, because it is doing no more than inducing somebody to do something they are entitled to do anyway.

TOOHEY J:   Then that puts the motives or intention, the purpose, of the person who makes the offer completely to one side.  It is just not a relevant consideration.  I am not saying it is or it is not but on your - - -

MR BARKER:   In those circumstances, yes - - -

TOOHEY J:   On your case it is an irrelevant consideration?

MR BARKER:   Yes, Your Honour, yes.

DAWSON J:   It is irrelevant because there is no actus reus, you would say?

MR BARKER:   Yes, but if the offender put the other person to torture or if an issue was why violent pressure was applied, then obviously his intention would be at least - obviously if it was for an extraneous purpose that would be evidence of motive.

TOOHEY J:   I do not follow that.  What is the difference between saying to somebody, “I’ll give you $5000 if you plead guilty or I’ll thump you if you don’t”?

MR BARKER:   The case you put to me was one where the person offering the money did not know whether or not the person was guilty.  The case I am putting is the one where the pressure is applied to cause the person, who wanted to plead not guilty, to plead guilty.  I mean there are many shades of such situations.  There may be a belief in the person applying the pressure that the person was not guilty.

TOOHEY J:    I was trying to put belief in guilt or innocence to one side, because I thought you were focusing on the degree of pressure as somehow indicative of whether there was an attempt to pervert the course of justice or not.

MR BARKER:   That is what the Crown focused upon in this case.  I mean, that is how the case  ‑ ‑ ‑

DAWSON J:   Really, what you are saying, Mr Barker, is that a plea of guilty can never be a perversion of the court in a course of justice.  A person can plead guilty; it is a perfectly legitimate cause of action.

MR BARKER:   Yes.

DAWSON J:   If there is any impropriety, it may constitute another offence, such as assault, such as bribery, but there is no such thing as attempting to pervert the course of justice by attempting to get someone to plead guilty.  That is what you are saying.

MR BARKER:   That is what we are saying, Your Honour.
That is what we said in the written submissions.

TOOHEY J:   Well, if that is what you are saying, why does the degree of pressure matter?  It seems to me to be quite irrelevant.

MR BARKER:  I suppose I am dwelling upon it because it was the way this case was put.

BRENNAN J:   Yes, but what is the issue that we have to decide, Mr Barker?  How do you put the elements of the offence which might have been proved but were not?

MR BARKER:   We do not, because we say that it could not be an offence.

BRENNAN J:   Right.  Well you say, it could not have been an offence for what reasons?

MR BARKER:   Because the person induced was entitled to plead guilty.  There was no relevant course of justice obstructed.

BRENNAN J:   That is your basic proposition?

MR BARKER:   Yes.

BRENNAN J:   Have you any fall-back positions in relation to that?

MR BARKER:   Our fall-back position is, of course, the circumstances of this case and the evidence relied upon.  If inducing somebody to change a plea can amount to an attempt to pervert the course of justice, we say, in these circumstances there simply was no evidence of the fact.

BRENNAN J:   Of what fact?

MR BARKER:   Of an attempt to pervert the course of justice.

BRENNAN J:   Well, what do you say is the fact of which there was no evidence?  Now that is a rather difficult question to ask, but are you saying - I understand the first proposition, and that is that you cannot found a conviction for this offence on an attempt to get somebody to change their plea.

MR BARKER:   Yes.

BRENNAN J:   Now assuming that that was resolved against you, do you say anything about, something along these lines:  you cannot be convicted of an offence of attempting to pervert the course of justice by attempting to get somebody to change their plea, unless it is for a purpose which is alien to that for which the criminal prosecution has put in train, or something along those lines.

MR BARKER:   You would need to apply pressure to the extent that it was improper, and this is the problem with Your Honour’s question.

McHUGH J:   I have a problem with this question of pressure.  What concerns me is the reverse situation where there is change of plea to not guilty.  Supposing in this case somebody, who wanted to embarrass these politicians, having heard that Miss Perger was going to plead guilty, came along and said, “I will give you $25,000 if you plead not guilty to this charge”.  Is that a perversion of the course of justice?

MR BARKER:   We say no, Your Honour, because you can do that.

DAWSON J:   It might be suborning perjury and a few other things.

MR BARKER:   Yes.  You see, the law takes care of these situations already.  If the physical pressure applied - and here, this is a “something nasty in the woodshed” case but no one has ever been able to determine what it is.

BRENNAN J:   Your basic proposition so far so the elements of the offences concerned, is that you cannot be convicted of an offence of this kind by reason of an attempt, however procured, to get somebody to change their plea.

MR BARKER:   Yes, Your Honour. 

McHUGH J:   In the illustration I gave you about the plea of not guilty, would it make any difference if the person, instead of offering a sum of money, said, “Unless you plead not guilty I will expose other criminal behaviour of yours”.

MR BARKER:   That is blackmail. 

McHUGH J:   It may be blackmail, but is it a perversion of the course of justice?

MR BARKER:   We would say, no.  I should withdraw the concession I made to Your Honour Mr Justice Toohey about the $5000, on reflection, because we say, no, that would not amount to perverting the course of justice.

This is a singular case, because it is the first time in Australia that resort has been had to the offence of attempting to pervert the course of justice in relation to a plea.  All the cases to date are the obvious ones of bribing a witness or procuring a witness’s absence from the jurisdiction, or intimidating a witness, or conspiracy to commit perjury or obstructing of police inquiry as in Rogerson.  We say here, there was no obstruction of any inquiry.  There was no deception of the court and there was no illegality.  There was just no offence.

If we then go to what the case was, in an evidentiary sense, it involved no more than inviting the jury to speculate about what might have happened in respect of which the accused said something which was recorded by the intercept.

BRENNAN J:   That is the evidentiary basis but, as I understand it, from what you have told us so far, the elements of the Crown case, as it was laid was that Miss Perger was prevailed upon to change her plea by the accused in order that the mates of the accused should be protected, and not for any reason associated with factors relating to Miss Perger’s guilt or innocence, or the interest that she might have had in adopting one or other course.

MR BARKER:   Yes, that it true, but it was also put to the jury that they must infer, to convict, that there was improper pressure.

BRENNAN J:   Well, that may have been a requirement which, if I understand the Crown’s case correctly from what you have told us, was surplus to needs. In which case it was a direction, more favourable to the accused than the Crown case required.

MR BARKER:   If one accepts what was said in the Court of Criminal Appeal, that is right. 

BRENNAN J:   Well then, should we not be dealing with what was said in the Court of Criminal Appeal?

MR BARKER:   I have taken Your Honours to those passages and ‑ ‑ ‑

BRENNAN J:   And one passage that you have not taken us to yet, and I do not know whether your junior has found it, is a passage which does deal with the intention of the accused.

MR BARKER:   Yes, this is at page - I think Your Honour asked me to find what the accused himself said, concerning this ‑ ‑ ‑

BRENNAN J:   Yes.

MR BARKER:   At page 220 is the relevant section of one of the conversations, commencing at line 8, where he talks about Virginia’s failings:

she’s paid her rent.....she’s pathetic, she does stupid things, you know what I mean...I just can’t follow her reasoning what she does.  I am starting to get sick and tired of it.  They’re using her, you know what I mean... the girl’s a bit pissed off for ever pleading guilty, you know, but she wanted to fight it and...careless thing but you know I couldn’t let that happen because that would have brought everyone undone for nothing, isn’t it.  On top of that who was gunna pay the legal fees...me, isn’t it.  So I figures this was the best result and all she had to do was to keep her mouth shut and say nothing but then she said oh, it wasn’t her fault.

BRENNAN J:   Well now, is that sufficient to justify a finding, (a) that she had intended to plead not guilty in his belief;  (b) that he prevailed upon her to change her plea;  (c) that he did so in order to protect his mates?

MR BARKER:   No, Your Honour.

BRENNAN J:   All right.

MR BARKER:   He gave evidence about this on the next page, the evidence is accounted, line 7:

“Q.  Did you hear a reference to “they’re using her, do you know what I mean?”
A.  I refer there to the news media using her to beat up a story.

Q.  ‘The thing is like the girl’s a bit pissed off for ever pleading guilty, you know, but she wanted to fight it and, careless thing, but you know, I couldn’t let that happen because that would have brought everyone undone for nothing’?”

He was asked what that referred to, and his answer was this:

That’s a reference to the fact she initially wanted to fight the case, using the Walker photographs, and she thought with that she probably could win the case and she was advised subsequently she couldn’t.  That’s what that is a reference to, because none of those other fellows were ever on the boat with her.

Q.  Why was she ‘pissed off’?
A.  I guess she was being ridiculed by the people in the media about going back on the statement and not coming up with the goods when it counted.  She did tell people that I would put those people on the boat with her and she told the media that and somewhere I’m going to put those politicians on the boat.  They weren’t on the boat with me and her.

Q.  What did you mean by ‘I couldn’t let that happen, it would have brought everyone undone for nothing’?

A.  Because if she was to let the case run on the Frank Walker photographs alone it would have involved bringing all these other people forward, some mud would have stuck to it, some of those people I know, some I don’t, I thought it would be damaging for her case and she couldn’t win, she would surely go to gaol for it.

Question, on page 222:

Why couldn’t you let that happen?
A.  I was concerned with her going to gaol, she also expressed the fact she had fear of gaol.

Q.  Did you have any concern for the other parties?
A.  Yes, I thought they could have a lot of embarrassment and hurt by the pack of lies beat up by the media and her.

Q.  Did you hear yourself say on the tapes “who was gunna pay the legal fees - me isn’t it”?
A.  Yes, I was the bunny, I was expected to pay legal fees.

The next question began with a quote:

“So I figured this was the best result and all she had to do was to keep her mouth shut and say nothing then she said, ‘Oh it wasn’t her fault’ -

Question:

what did you mean by ‘best result’.
A.  It’s the best result for her, it produced the best result for her in the long run, and obviously all she had to do was keep her mouth shut and not reactivate and let anything happen, which obviously she couldn’t do, she seems to have had some need for money and some need to beat it all up again”.

And then he got on with the query and asked about the present embarrassment, newspapers printing the story.

As to the question of making her plead guilty, his explanation about that is at page 320.  There is a precis of his evidence at line 12:

he and Perger had discussed the forthcoming case at some length and she told him she was thinking of pleading guilty.  He expressed concern that she would go to gaol if she persisted in her untruthful allegations and indicated that he did not believe that she could win the case even ‑ ‑ ‑

BRENNAN J:   We have just seen that, have we not?

MR BARKER:   Yes.  Over the page there is the reference to the “made her plead guilty”.  Your Honours, it is those words that were, it was said, the linchpin of the case because it was said you are entitled to infer ‑ again using this word ‑ impropriety.  Our submission is that whether or not that is so ‑ and we say it is not so, whatever the circumstances proved here ‑ in her absence, there is simply no evidence of what sort of inducement or pressure, or whatever one calls it, was applied to her apart from the money, and that is explained perfectly innocently.

BRENNAN J:   Why are you coming back to the extent of pressure continually?  What is the issue which you ‑ ‑ ‑

MR BARKER:   The issue is our appeal ground 2, that there was just no case to answer.

BRENNAN J:   As you put it to us before, that was not the Crown case that had to be answered.  It was a question of the intention with which the steps were taken.

MR BARKER:   No, that is what the Court of Appeal said about it, but what the jury were told was they may infer from the words - - -

BRENNAN J:   The jury found all of those things.

MR BARKER:   Yes.

BRENNAN J:  They did not have to.  He would have been guilty even if they had not found it.  So where does that take us, according to the Court of Appeal?

MR BARKER:   It takes us to this point, that the Court of Appeal is wrong, and this conviction should be quashed, that the evidence was simply not there.

BRENNAN J:   It depends what the evidence had to establish, does it not?

MR BARKER:   The case had to be fought on the Crown’s terms, and the Crown sought to establish that he did something which caused her to take a course of action, and he achieved his intention in getting her to take that course of action because she pleaded guilty.

DEANE J:   What if, when she came up for her plea she had said, “I’m going to plead guilty because I’ve been given money to plead guilty and because I’ve been pressured to plead guilty, but you can’t infer at all from what I say that I am guilty.”, would you say that the judge should have accepted that plea and sentenced her on the basis of it?

MR BARKER:   No, he would not accept it.

DEANE J:   And would he not say, “It would be a perversion of the course of justice and of the stream of justice for me to accept that plea and sentence you on the basis of it”?

MR BARKER:   He may say that.  It is more likely that he would say, “You have purported to plead guilty but you have qualified your plea by saying that I can’t assume that you’re guilty.”

DEANE J:   “And I won’t accept it as a plea of guilty.”

MR BARKER:  It is meaningless; the plea is meaningless.

DEANE J:   Now, is that not precisely the situation that your client’s comments indicate he set out to achieve, except it goes without saying the true nature of the plea was concealed?

MR BARKER:   No, Your Honour.  We say there is nothing here to suggest that he did that at all.  He is looking at - - -

DEANE J:   I appreciate you point to evidence that explains things that seem to me to say he did it, and obviously evidence which the jury rejected because it was put to them by the trial judge as the defence case.

MR BARKER:   Yes.  He says he looks at the broad situation.  He sees that she is going to go to gaol and other people are going to be affected.

DEANE J:   But if that were accepted, he would have been acquitted.  This might be relevant to - apparently there is an unsafe and unsatisfactory ground, but I would have thought it was obvious that the jury drew the inferences from the conversation to the effect of what I put to you.

MR BARKER:   Quite.  They obviously drew the inference they were invited to draw:  that he had done something bad to her.

DEANE J:   No, that he had provided a financial inducement and pressure to persuade her to plead guilty, regardless of whether she believed she was guilty, so that he could protect his political friends.

MR BARKER:   Except that he said he knew she was guilty. 

DEANE J:   But she did not want to plead guilty.  That is exactly the situation I put to you.

MR BARKER:   So she said.  According to him, yes. 

DEANE J:   As I say, the facts as he believed them were disclosed by her to the trial judge when she came up for the plea.  I would have thought no trial judge would have accepted the plea. 

MR BARKER:   He could not accept the plea if it was so qualified as to be no plea at all, Your Honour.

DEANE J:   But that was what your client set out to achieve and keep concealed.

MR BARKER:   She would then be saying:  “I am pleading guilty but I do not want to”.  But that is not this case, nothing like that. 

DAWSON J:   What did the trial judge say about his evidence that he believed her to be guilty?

MR BARKER:   He said that it was irrelevant.

DAWSON J:   Yes.  That was what he charged the jury?

MR BARKER:   Yes.

DAWSON J:   At some time could you just direct us to that?

MR BARKER:   Yes, Your Honour.  You see, this plea was two months after these events. 

DEANE J:   Mr Barker, I am trying to distinguish between the inferences which can be drawn from the evidence you pointed us to and the question whether the drawing of those inferences was unsafe and unsatisfactory.  Because as I read the summing up, the jury would have acquitted if they did not draw the adverse inferences that I have put to you in terms of the theoretical position. 

MR BARKER:   On the face of the words he uttered, which he did not want to plead guilty, that is obviously evidence that he thought she did not want to plead guilty.  Could I just take you to the Court of Criminal Appeal judgment on page 353 on this point.  I have taken you to this passage but Your Honour Mr Justice Dawson asked me about the question of belief in guilt and Their Honours said here, in the middle of the page:

If his intention was to induce Perger to plead guilty not because of considerations falling within the ambit of the ordinary course of criminal proceedings but -

for this extraneous purpose -

then mens rea is established -

That is how the Court of Criminal Appeal sees it and it would not matter, in those circumstances, whether she was guilty or not.

DEANE J:   Well, they do not say that.  They say, ”even if he considered”.  There is a difference, is there not?

MR BARKER:   It would follow from what they say that it is irrelevant.

DEANE J:  What, to create the situation that I put to you and have somebody convicted in that situation, because you assume to yourself the function of determining guilt or innocence?

MR BARKER:   Yes.  I am sorry, was  ‑ ‑ ‑

DEANE J:   Well, that was the question.  In other words, what I was putting to you is that it is really a red herring, in one sense, if you are setting out to create the situation in this case, on what the jury accepted, to say, “Oh, he assumed to himself the function of deciding guilt or innocence”, and that being so, the fact that he created this facade is all justifiable, because he thought, “Oh, she is guilty”.

MR BARKER:   We would submit that that is not a view properly open on this evidence.

DEANE J:   You are taking me back to unsafe and unsatisfactory?

MR BARKER:   Yes.  It is difficult to keep the two separate.

BRENNAN J:   No, it is not. 

MR BARKER:  Well, perhaps for me, Your Honour.  May I go to ground 2, or perhaps say just a little more about it.  Two things we say about it further;  without her evidence the issue is incapable of proof and the evidence as led is incapable of excluding hypotheses consistent with innocence, particularly having regard to the discussion of this Court in Knight’s case (1992) 175 CLR 495, which is on the list of authorities.

As Your Honours will recall, a criticism made there of the approach of the court below was that the Chief Justice Young expressed the view that the appellant could only succeed if two inferences were said to be open, one consistent with innocence and one with guilt, and that they were equally open.  This Court said no, at 503, that this was wrong, that:

There are not, as Dixon CJ observed, degrees of consistency.....and, if a reasonable jury ought to have found that an inference or hypothesis consistent with innocence was open on the evidence, then it ought to have given the appellant the benefit of the doubt necessarily created by that circumstance.

For that reason, the conviction was quashed, because whether or not the two competing hypotheses competed equally, the one could not be excluded.  So here, we say, the hypothesis consistent with innocence cannot be excluded on this evidence, particularly having regard to the absence of any evidence by the person said to have been directly affected.

TOOHEY J:   I can see the force of that if it were not for the tapes.  You might be able to argue that the opening of the joint account, payment of money into account, assisting her to get a Bankcard are equally consistent with innocence as with guilt but, given the tapes, is that a submission that you can really make good?  I am thinking just by way of example of what appears at the foot of page 318 and the top of page 319.  I will not read it to you because you have read it to us before but, given that sort of evidence on the tapes, was there not sufficient evidence from which the jury could exclude an hypothesis of innocence?

MR BARKER:   No, and I say that partly because of the way the case was conducted by the Crown.  That is, His Honour said, “You may look at the plea to support the inducement”, in other words, find that one followed from the other.  But what a difference her own evidence may have made to the case.

TOOHEY J:   It may have, that is quite true.  But that seems to me to be getting on to another ground again, whether the Crown should have called her, but I thought your proposition was that in the absence of her evidence, it was impossible to exclude an hypothesis of innocence.

MR BARKER:   Yes, we do say that.

TOOHEY J:   And do you say that, given the sort of material that comes through on the tapes, she wanted to fight it, that she is not guilty, that he made her plead guilty, that “she did not like to bloody well take a rap”, that he could not let her fight her because “that would have brought everyone undone for nothing”?

MR BARKER:   Yes, we do say that, Your Honour.  That is not adequate to prove this case as put against the accused.

BRENNAN J:   If the accused’s evidence had not explained away the passage at page 220 from the tapes, would your present argument have stood?

MR BARKER:   Yes, we would maintain the same argument.

BRENNAN J:   I understand you might maintain it, but on what basis would you maintain it?  In other words, if the inferences to which reference has earlier been made are drawn adversely to you from that evidence alone, what evidence stands against the drawing of those inferences other than your client’s explanation?

MR BARKER:   I would rest my argument only upon the words themselves, at page 220.  He is talking about legal fees.  He is talking about what he figured was the best result.

BRENNAN J:   Well, let me take you to the words that seem to be the critical ones:

she wanted to fight it.....I couldn’t let that happen because that would have brought everyone undone for nothing ‑

Now, is that sufficient to support an inference that he knew that she proposed to plead not guilty, or believed that she proposed to plead not guilty; that he took the steps that he did in order to induce her to change what he apprehended to be her intended plea, and that he took those steps in order to protect his mates?

MR BARKER:   No, it is not, Your Honour, with respect, and I say it for this reason, that it is consistent with no more than ordinary legitimate persuasion.  Now, surely it cannot be the case that, even if I have an ulterior motive in mind, I am committing a criminal offence if I simply suggest to another person that he or she plead guilty to an offence?  That is not causing the person to plead guilty; it is simply making a suggestion.  But if it is right that one cannot even make the suggestion because of an ulterior motive, well then, Your Honour is correct, with respect.  But, all he is saying here is why he did the persuading.  But if the persuading itself was simply that, our submission is that that cannot be criminal.  I do not know whether that answers Your Honour’s question. 

BRENNAN J:   Yes.

MR BARKER:   I am sorry, Your Honour, I promise I will not mention the word again, but that exchange between us indicates the problem of the way the case was run, which was that they were invited to find impropriety in the means used to persuade and that cannot be inferred from that sort of evidence.

The remaining ground, Your Honours, is that the trial was rendered unfair because of the missing witness and much of that has been covered.  But firstly, the reasons for her not being called are set out at page 147 to 150, the reasons advanced by the Crown.  At line 18:

the learned Crown Prosecutor has not called a person who could have been a central witness, Virginia Perger; neither has the defence.

The Crown says that he has valid reasons.  They are:

(1) that Perger has sworn on oath both that her allegations are true and that they are untrue, making her a suspect witness incapable of belief -

he is there referring to the declaration she made and the evidence she gave before Judge Muir.

(2) that she could not, in these proceedings in any event, have given evidence claiming that her allegations were true, without exposing herself to the risk of prosecution for perjury in respect to the evidence which she gave before Judge Muir saying that her allegations were untrue.

Then he said that he would have had to warn her that she need not incriminate herself.  At line 15, on page 148:

The third reason advanced by the Crown is that, as the Crown has put it, Perger is clearly “in the accused’s camp”.  She refused to even speak to the Crown’s representatives, that is, the learned Crown Prosecutor himself and his instructing solicitor, in October 1988 when a meeting was set up to investigate this very question as to whether she would be prepared to give evidence in the present proceedings or if such proceedings were to be commenced.

And on page 149:

The Crown further suggests that in any event the Crown could not ethically call Perger as a witness in order simply to have her declared hostile and then to seek to be permitted to cross‑examine her before the jury.

And finally, on page 150, line 13:

The last reason, as I understand it, is that there has been a very long standing, at times intimate, and continuing association, for some years between Perger and the accused.  The Crown has suggested to you that in all of those circumstances it had valid reasons for not calling Perger.

Your Honours, none of those reasons, we submit, were compelling enough in the circumstances of this case for the Crown not to have called her.  They could have at least called her for cross-examination, and I refer to the discussion in Apostilides, (1991) 47 A Crim R 425 at page 436, but may I take you to Shaw’s case which is a recent example of Apostilides at work.  Just going to the judgment of Mr Justice Murphy, line 4 there is a reference to Miss Goyen, who was an eyewitness:

The circumstances were that Miss Goyen herself had been verbally involved in the altercation between the two groups immediately before the deceased crossed the road with his two male companions and accosted the applicant.  She had witnessed the events as they unfolded and was not, on the face of things, any more or less reliable as an eyewitness than the female Thacker.

Accordingly, the applicant himself was obliged to call the said eyewitness -

because the prosecutor declined to do so:

and he was deprived of the normal opportunity to cross‑examine her.

In Apostilides.....the High Court in a joint judgment enunciated some six general propositions applicable to the conduct of criminal trials in Australia.  The learned Crown Prosecutor relied upon the first of those propositions, namely, that he alone bore the responsibility of deciding whether a person will be called as a witness for the Crown.  However, in my opinion, he ought in the circumstances of his case to have had special regard to what the Court in Apostilides said when commenting upon that same proposition, namely:

“A decision whether or not to call a person whose name appears on the indictment and from whom the defence wish to lead evidence must be made with due sensitivity to the dictates of fairness towards an accused person.  A refusal to call the witness will be justified only by reference to the overriding interests of justice.  Such occasions are likely to be rare.  The unreliability of the evidence will only suffice where there are identifiable circumstances which clearly establish it;  it will not be enough that the prosecutor merely has a suspicion about the unreliability of the evidence.  In most cases where the prosecutor does not wish to lead evidence from a person named on the indictment but the defence wishes that person to be called, it will be sufficient for the prosecutor simply to call the person so that he may be cross‑examined by the defence and then, if necessary, be re‑examined.”

Here, the prosecutor chose neither to call this eyewitness, nor to make her available for the accused to cross‑examine.  He was aware from the outset that the defence desired that Goyen be called.

And, he went on at page 437 to say this, at line 4:

The learned trial judge pointed out to the prosecutor that the jury “have effectively got before them the evidence of all but Goyen in one way or another.”

As the High Court said in Apostilides:

“No doubt in the great majority of cases of this kind an appellate tribunal which finds a miscarriage of justice to have occurred will trace that miscarriage to a wrong exercise of judgment by the prosecutor which led to the witness not being called.”

I am of the opinion that the prosecutor was clearly at fault in the present case.

Now, may I also take Your Honours briefly to Whitehorn’s case  ‑ ‑ ‑

TOOHEY J:   Just before you do that, Mr Barker, I am not entirely clear what the proposition is here having regard to the written submission, which speaks of significant gaps in the evidence left by reason of Miss Perger not being called.  Well, I do not suppose the accused can complain about that but if the failure to call a witness leaves the Crown case inadequate, well that is to the accused’s advantage.  It is another thing altogether if there is sufficient evidence, but calling another witness might tilt the balance against the Crown in favour of the accused.  On which of those two footing are you putting this aspect of the appeal?

MR BARKER:   Well, as to the first, we put that in the “no case” part of the submissions, that in paragraph 2(ii)  ‑ ‑ ‑

TOOHEY J:   Well, I was looking at the last page of the summary under II, which is under the general heading of “unsafe and unsatisfactory verdict”, but that paragraph speaks of the gap in the evidence left by the failure to call this witness.  Now that can hardly of itself be something you would complain about.

MR BARKER:   Well, what we mean by that is this, that the accused was put in a position where he was being tried by a jury who were being invited to speculate.  Had she given evidence, these gaps, as we call them, may well have been filled to the accused’s advantage because she was the only one who could fill them.

TOOHEY J:   But if they were gaps that were so serious as to warrant a no case submission and the upholding of that submission, you would not be complaining in that situation?

MR BARKER:   No, I would not be complaining, but that did not work.  That submission was rejected.  So it went to the jury on this basis:  had she been called, one can but speculate about what she might have said.  But at least there was a reasonable chance that she may have given evidence contrary to the propositions being put by the Crown as to what they could infer.  It seems very odd that a jury should be asked to infer, to draw inferences adverse to an accused person, from circumstantial evidence when the one person who could give direct evidence about it all was not called.

As I pointed out earlier, it made the issue of why she pleaded guilty even starker because had she been called she may well have said, “It’s a lot of nonsense.  I pleaded guilty because I wanted to.” and that part of the proof relied on by the Crown would have fallen.  Indeed, the whole case may well have fallen.  We do not know.

TOOHEY J:   But why?  Say she had given evidence and said, “Well, from a fairly early stage after I entered a plea of not guilty I decided that I was going to plead guilty,” but if there was evidence from the accused, or from other witnesses, implicating the accused, in an attempt to endeavour to persuade her to plead guilty for the reason that he wanted to protect his friends, would that be enough to exculpate the appellant?

MR BARKER:   Yes, it would, because the big issue before the jury was the nature of the pressure, and only she and the accused could talk about it.  If she had said, “I was going to plead not guilty, he talked me out of it and I accepted that it was in my interest to plead guilty and I did plea guilty because I made that decision intelligently, having listened to his advice.”  Now, that could hardly be criminal on his part, but that might have been the case.

It is for those reasons, Your Honours, that we respectfully submit that, other matters aside, the trial miscarried because she was not called.  Those are my submissions, Your Honour.

BRENNAN J:   Thank you, Mr Barker.  Yes, Mr Keleman.

MR KELEMAN:   Your Honours, may I hand up a written outline of the respondent’s submissions?

BRENNAN J:   Yes, Mr Keleman.

MR KELEMAN:  Your Honours, may I commence by attempting to put the Crown case into a broad context?  This case was not about what Perger did or what Perger believed.  This case was concerned with what the appellant did and what he believed or intended at the time he did it.

May I proceed directly to our principal submissions in relation to ground 1.  There are, in fact, precedents for the proposition that it is an attempt to pervert the course of justice to influence a person improperly to plead guilty.  My friend referred to the cases of Silverman and Moree as obscure United States authorities but we would respectfully submit that this type of conduct is rare and, rather than being obscure, they do elucidate the way in which another court dealing with similar provisions and similar offences have, in fact, dealt with this precise issue.

May I take the Court to United States v Silverman, 745 F 138 (11th Cir 1984). Now the appellant in that case, Mr Silverman, was an attorney in the United States. He was appearing for a client, Mr Munoz. Mr Munoz had been charged in relation to offences concerning illegal immigration. The actual charge with which Mr Silverman was charged appears at page 1389 of the judgment, and may I just digress for a moment. That specific charge was considered by the Court of Appeal in Reg v Murphy, that is the New South Wales Court of Appeal judgment, (1984) 4 NSWLR 42.

Now, it is the Crown’s submission that that offence is largely analogous to the offence with which this Court is dealing with here.  Now, Mr Silverman offered Mr Munoz an arrangement whereby, if he payed Silverman $25,000, he would arrange for Mr Munoz and his brothers, who are co‑offenders, to receive periods of probation rather than imprisonment.  In that situation, Mr Munoz informed the authorities.  As a result of that evidence was obtained by way of surreptitious recorded conversations, which is not unlike the situation that occurred here, and ultimately Silverman was charged with the offence under the United States Criminal Code, Article 1503 which, as I have already submitted, is largely equivalent to the section that we are looking at here.  

Now, I will get back to Silverman later, but that is principally the factually situation which, we would submit, is an example of the use of improper means to induce a person to plead guilty, irrespective of whether the person is, in fact, guilty.

BRENNAN J:   Where is the passage that deals with it?

MR KELEMAN:   The factual circumstances are set out at 1390  There is no specific mention of the use of improper means.  The court there was simply concerned with whether the factual circumstances came within the terms of the offence, which is what we submit is precisely what is required in this situation.  The court, as I said, indicated the factual circumstances at page 1392 of the judgment in the second column.  The court discussed the three essential elements of the offence at paragraph [2], point 2:

The three essential elements of the type of.....offense presented here are that the accused (1) corruptly or by threats, (2) endeavoured, (3) to influence, obstruct, or impede the due administration of justice.

Then at the bottom of that column at point 9:

In other words, the indictment charged Silverman with corruptly trying to induce his clients to plead guilty under the delusion that their criminal proceedings had been “fixed.”

Then at paragraph [5] on the next page, 1393:

In the present case, the indictment alleged that Silverman attempted to obtain money from Munoz under the pretext of fixing the case, so that he and his brothers, upon entering guilty pleas, would receive sentences of probation and his wife would go free.  The natural and probable consequence, if not the desired consequence, of such conduct would be that the three men would plead guilty without disclosing the fix to the court.

DAWSON J:   That suggests that the essence of the offence is misleading the court.

MR KELEMAN:   Perhaps it is what Justice Deane referred to before, and that was making the court believe that a certain factual situation in relation to the plea existed; that is, that the plea was in fact properly entered rather than perhaps ‑ ‑ ‑

DAWSON J:   Not so much that, but that the plea was entered in the belief that the court would take a certain course.

MR KELEMAN:   Perhaps I can answer that question by going to the ways in which the Appeal Court saw that this conduct had the tendency to pervert the course of justice.  That commences at page 1393, second column, at point 9:

In the case at hand, the foreseeable result of Silverman’s conduct was that each of his clients would tender a plea of guilty upon the mistaken belief that he had been guaranteed probation and thereby obstruct the due administration of justice.  Silverman could anticipate that one of three scenarios would take place once the court placed his client under oath, and commenced to interrogate him ‑

if I can just digress here ‑ a procedure that occurs in the United States in relation to determining whether or not a guilty plea is in fact voluntarily made.  The first scenario is set out at paragraph [7,8]:

In the first scenario, the client, following Silverman’s instructions, lies to the court, stating that his plea is voluntary and that no promises, other than those contained in his plea agreement, were made by anyone to induce it.  The court accepts the plea, adjudges the defendant guilty, suspends the imposition of sentence, and places him on probation.  The defendant satisfactorily completes his term of probation and never discloses Silverman’s fix to the authorities.  Silverman impedes the due administration of justice within the meaning of Section 1503 ‑ ‑ ‑

McHUGH J:   But this case has really got nothing to do with this case.  First of all, it turns on the construction of a statute, and then it turns on a particular procedure whereby the person who pleads guilty is going to be interrogated on oath, and therefore, if you are going to get him to do something and he is going to give evidence on oath which is false, it is clearly an attempt to pervert the course of justice.

MR KELEMAN:   I accept that.

McHUGH J:   But in Australia, as it turned out, Miss Perger gave evidence but she did not have to give any evidence.  Probably a majority of accused do not give any evidence on a plea of guilty.  So it does not seem to me to really touch this particular case.

MR KELEMAN:   No.  But the first and third scenarios do not directly apply.  The second scenario, we say, applies in an analogous sense.  That appears at page 1394, second column, the paragraph commencing, “In the second scenario”:

In the second scenario, the same events as in the first take place, except that Munnoz is sentenced to prison.  He soon realizes that he has been swindled and moves the district court -

pursuant to the relevant legislation -

to set aside his conviction and sentence, alleging that they were the product of an involuntary guilty plea induced by Silverman’s representation that a guaranteed sentence of probation had been purchased for $25,000.  The court holds an evidentiary hearing, concludes that the movant’s allegations are true, vacates his conviction and sentence, and reinstates his not guilty plea.  Here, Silverman has impeded the due administration as he did in the first scenario.

Now, it is accepted that - - -

DAWSON J:   It seems to be clear what they had in mind:

In addition, he has burdened the court’s docket with a section 2255 proceeding and a reinstated criminal prosecution -

et cetera, et cetera.  Forced the grand jury:

to consider perjury, subornation of perjury, and criminal contempt - - -

MR KELEMAN:   Certainly, bBut the principal matter they are focusing on there is the fact that justice was impeded, or the process of justice was impeded, by the court believing that the plea had been entered in accordance with - - -

DAWSON J:   No, no, it was because he had impeded the due administration of justice because he had suborned perjury.  That was the first scenario.

MR KELEMAN:   With respect, the court is not focusing on that, we would submit, in that particular paragraph.  The court was concerned about the circumstances in which the plea was entered and irrespective of whether Munnoz had been guilty or innocent, if the plea of guilty had been entered not in accordance with the United States requirements, the plea would have been quashed, which would have been the situation that, we submit, would have occurred here.  And that is picked up later on in the - - -

McHUGH J:   But is it not one of the problems of this case?  If, for example, the evidence established that the appellant knew that she was going to give false evidence on oath, then that is one thing.  But your indictment relies on nothing but the entering of a plea of guilty.

MR KELEMAN:   Yes, that is part of what the indictment relies upon.  The other part which, we submit, is important is the way in which the plea was sought to be influenced through the use of improper means, and that cannot be ignored in the context of the conduct.

McHUGH J:   What about when somebody pays somebody to plead not guilty, is that an attempt to pervert the course of justice?

MR KELEMAN:   It would depend ultimately on the intent, but it could well, and it would not necessarily result in charges of perjury.  If, in fact, someone pays someone $25,000 to plead guilty and nothing more, we would submit if that was done for an improper purpose with the appropriate intention that would amount to an attempt to pervert the course of justice, and that would not necessarily involve charges of suborning witnesses or perjury at all.

DAWSON J:   Where is the perverting of the course of justice?

MR KELEMAN:   If, in fact, a person was going to plead guilty, in effect it is an improper interference with that person’s right ‑ ‑ ‑

DAWSON J:   Well, a person is entitled to plead guilty even if he is not guilty.

MR KELEMAN:   That is so, but we say the improper interference with someone’s right to plead ‑ ‑ ‑

DAWSON J:   That might to a crime, it might be suborning perjury, it might be bribery, it might be blackmail, it might be all sorts of things, but where is the perverting of the course of justice?

MR KELEMAN:   One has to look at the course and not the result ‑ ‑ ‑

McHUGH J:   Well, I appreciate that, but supposing a wife says to her husband, “Look the family could not stand the publicity of this charge of indecent assault about you, you have got to plead guilty for the sake of the family so that we won’t have to suffer the adverse publicity,” is that a perversion of the course of justice?

MR KELEMAN:   No.  We would say that amounts to, firstly, a legitimate area of persuasion, so there would not be actus reus and there certainly would not be a mens rea in that situation.   So that certainly would not come within the confines of this offence.

BRENNAN J:   What are the confines of the offence?

MR KELEMAN:   We say the confines of the offence are those that are set out by this Court in Your Honour’s judgment and Justice Toohey’s judgment in Rogerson.

BRENNAN J:   They are broad terms, but I mean in this case what are the confines in terms of what is sought to be achieved, namely, an entry of a plea of guilty?

MR KELEMAN:   It was the Crown case that the means used here were crucial.  We say that the improper means used to influence Perger to plead guilty set the perimeters of the offence, the intention being to, in effect, deny Perger of the opportunity of having the matter heard on its merits.

BRENNAN J:   Well, you have gone from means to intention.

MR KELEMAN:   Yes.

BRENNAN J:   Are those two of the elements that have to be established?

MR KELEMAN:   Well, yes.  The Crown has to ‑ ‑ ‑

BRENNAN J:   What means?  Means which are improper, and intention - what is the nature of the intention?

MR KELEMAN:   The nature of the intention being to get Perger to change her plea for his own purposes; his purposes being to effectively put the lid on allegations involving political friends of his ‑ ‑ ‑

BRENNAN J:   We know what that facts of it are, but in terms of the definition of the events, you are saying that it is a criminal offence to attempt to secure a person to plead guilty by means which are - you describe as improper.

MR KELEMAN:   Yes.

BRENNAN J:   Can you be more specific than that?

MR KELEMAN:   Yes, with the relevant intention, but the means in this particular case, we say, amounting to intimidation and/or bribery, come within the accepted description of “improper means”.  There may well be means that do not fit within those accepted ‑ ‑ ‑

DAWSON J:   But the impropriety arises from the fact that these are themselves offences.  If it is not improper to induce someone to change their plea to a plea of guilty, then it does not matter what the means are that achieved that result, unless the means themselves are improper, in which case they constitute a crime and they can be prosecuted.

MR KELEMAN:   In this particular case the actual means used, if one focuses on bribery, would not necessarily amount to an offence of bribery.

DAWSON J:   They may or they may not. 

McHUGH J:   But the improper means, as I understand it, on your argument, is part of the actus reus?

MR KELEMAN:  Yes, it is.  It is the improper means which create the tendency and that is dealt with in paragraph 5 of the respondent’s submissions.

McHUGH J:   But I just do not see how you can distinguish all sorts of cases if you talk about in improper means.  Supposing in this case he said to her, “Look, I will pay for you for a stay in hospital to cure yourself of your drug addiction if you plead guilty to this and get the matter over”.  Would that be an attempt to pervert the course of justice?

MR KELEMAN:   Not necessarily.  That may well be a jury question as to whether or not the means used there are improper, and that is indicated in Kellett.  That would not necessarily fall within that category of conduct that necessarily is tainted or fits within a description of improper means.  That may well be a jury question.

McHUGH J:   I must say, these cases of improper means seem to me to be very much like the socialist countries “crime against the interest of the State”.  They are just vague offences that are seized on to prosecute people for criminal offences and for conduct that the State does not approve of.

MR KELEMAN:   With respect, the decision of the English Court of Appeal in Kellett, (1976) 1 QB 372, has been approved subsequently and recently by - - -

McHUGH J:   But they are all cases where evidence is going to be affected, or may be affected.

MR KELEMAN:   Except Hatty v Pilkinton.  Hatty v Pilkinton was a case in which Mr Pilkinton, a practitioner in the ACT, had allowed a court to believe that the person for whom he was appearing had a name which was, in fact, a false name.  But apart from that, Your Honour is correct, the cases deal with witnesses.  Taffs and Tony certainly fall within that category.  Can I take Your Honours to Kellett.  Can I take Your Honours to page 388 of Kellett at point C.  The court said:

With this authority in mind we would not consider that the offence of attempting to pervert the course of justice would necessarily be committed by a person who tried to persuade a false witness, or even a witness he believed to be false, to speak the truth or to refrain from giving false evidence.

Secondly, with this among other authorities in mind, we think that however proper the end the means must not be improper.  Even if the intention of the meddler with a witness is to prevent perjury and injustice, he commits the offence if he meddles by unlawful means.

That concept is discussed again at page 392 and 393, and particularly, point G at page 392:

There may be cases of interference with a witness in which it would be for the jury to decide whether what was done or said to the witness amounted to improper pressure, and so wrongfully interfered with the witness and attempted to pervert the course of justice, and it would be not only unnecessary and unhelpful but wrong for this court or the trial judge to usurp their function.  The decision will depend on all the circumstances of the case, including not merely the method of interfering, but the time when it is done, the relationship between the person interfering and the witness and the nature of the proceedings in which the evidence is being given.  Pressure which may be permissible at one stage of the particular proceedings may be improper at another.  What may be proper for a friend or relation or a legal adviser may be oppressive and improper coming from a person in a position of influence or authority.  But it is for the judge to direct the jury that some means of inducement are improper and if proved make the defendant guilty, and this was such a case.  A jury should be directed that a threat (or promise) made to a witness is, like an assault on a witness, an attempt to pervert the course of justice, if made with the intention of persuading him to alter or withhold his evidence, whether or not what he threatens (or promises) is a lawful act, such as the exercise of a legal right, and whether or not he has any other intention or intends to do the act if the evidence is not altered or withheld.

If our understanding of the law is correct, there was nothing in the directions of Lord Widgery CJ to the jury of which the defendant can complain.   There was no error in his direction that the truth or falsity of the intended evidence, or the defendant’s belief as to whether it was true or false, was not a material issue.  These would only have been material issues if the defendant had used no threat or other improper means of dissuasion.

Now, in effect, that approach has been approved by the Federal Court in Hatty v Pilkinton ‑ ‑ ‑

BRENNAN J: It has not been followed by the Court of Appeal in England in Reg v Toney, has not?

MR KELEMAN:   Yes, it is, and the New Zealand Court of Appeal in Taffs ‑ ‑ ‑

BRENNAN J:   Not followed, I would suggest, in Toney.

McHUGH J:   It was explained, was it not.

BRENNAN J:   Explained in Toney.

MR KELEMAN:   Well, perhaps so, but if one looks at the ‑ if I can take Your Honours to Toney, and the last page in Toney ‑ ‑ ‑

BRENNAN J: It is (1993) 1 WLR 364.

MR KELEMAN:   Thank you, Your Honour.  Toney concerned, I should say, two appeals, one involving the appellant Toney and the other one involving the appellant Ali, and the Ali appeal commences at page 370 of the judgment.  In relation to that appeal, Ali had been charged with assaulting one, Lines, and he, after being charged, approached Lines through an intermediary to seek for Lines to drop the charges in exchange for a motor vehicle.

Now, in the course of the trial the appellant changed his plea, following a ruling by the trial judge and, at point B, on page 372, the judgment reads:

Thereafter the applicant changed his plea to guilty.  The judge did not give a formal ruling after that discussion.  But in the grounds of appeal the ruling is formulated as follows:

“That any offer by a defendant of money or money’s worth made to a witness in exchange for his agreeing not to give evidence in forthcoming proceedings against that defendant is, without further pressure, necessarily an improper means of interference with that witness, and so constitutes an act tending to pervert the course of public justice, even if the evidence to be given by the witness is or may be false.”

Mr Lowden submits that that ruling is erroneous and that the judge ought to have said that she would leave it to the jury to decide whether there was in fact any pressure on Lines to withdraw the charge notwithstanding the offer of a bribe.

We can find nothing in Kellett to support Mr Lowden’s distinction between bribery and pressure by bribery.  There may of course be cases of pressure falling short of bribery.  But we cannot envisage any form of bribery which does not amount to pressure.  Accordingly we can see no error in the judge’s ruling.

We rely on Toney because it impliedly approves, we would submit, the course taken in Kellett.

DAWSON J:   All it says is that anything that is calculated to alter the course of a trial so that it is not a proper trial may be an offence of attempting to pervert the course of justice.  But the entering of a plea of guilty is not out of the course of a proper trial; it is part of the course of a proper trial.

MR KELEMAN:   But if it is improperly done, we submit, Your Honour ‑ ‑ ‑

DAWSON J:   It can never be improperly done in the sense in which you are speaking of it.  Either a plea of guilty is entered or not.

MR KELEMAN:   But if that were the case ‑ say, for example ‑ ‑ ‑

DAWSON J:   If a person has been overborne to enter a plea of guilty or some circumstances have happened which render it nugatory, then there are other remedies.  But where a person voluntarily enters a plea of guilty, that is it; that is the course of the trial.

MR KELEMAN:   But it is not in a sense voluntary, with respect.  It is entered as a result of the inducement, whether it be by intimidation or bribery.

DAWSON J:   That may be.

McHUGH J:   So what?  It is the same if the wife prevails on the husband to plead guilty to save the family any further publicity.

MR KELEMAN:   We would submit that what becomes important ‑ ‑ ‑

DAWSON J:   It is the same thing as if a person is induced to give true evidence at a trial.  A person may be offered money to give true evidence and does.  You would not say that that is an attempt to pervert the course of justice, would you?

MR KELEMAN:   It would depend on the circumstances in which the money was offered.  It could.  But if I can bring Your Honours back to paragraph 5 of the outline of the Crown submissions, what is ess ential, the Crown says, is to look at the act to determine whether or not the act falls within the principles.  That is, whether or not the act has a tendency to pervert the course of justice.

In paragraph 5 the Crown attempts to set out the ways in which the act can in fact have the tendency, which is, we say, crucial, because it overcomes the difficulty that Your Honour Mr Justice Dawson has been addressing.  Whether Your Honour accepts it ultimately ‑ ‑ ‑

McHUGH J:Wrongfully interfering with a person’s right to plead not guilty, that is a paternalistic view about it.  The person in this particular case has decided to plead guilty, because she prefers to take the money, but, I mean, that may be some other offence, but how does  ‑ ‑ ‑

MR KELEMAN:   We do not know whether in fact she ultimately pleaded guilty pursuant to the inducement; that is something the Crown never sought to establish.  We do not say that the jury had to be satisfied of that at all and the case was never run on that basis.  What we say is that when the appellant sought to influence Perger to plead guilty, he had in his mind the relevant intent, he clearly wanted to ensure that there was no hearing or trial during which these allegations would be ventilated, that was his primary purpose, and he was determined, and we say that tapes demonstrate this, to ensure that that did not happen; that there was, in fact, no hearing.  And we say it is implicit that a person in this jurisdiction has a right to have a hearing if he or she so wishes, and there is a right to plead not guilty even if one is, in fact, guilty, but we say that is not relevant here.  The fact is, she had a right to plead not guilty, she had a right to have this matter heard at a hearing and a trial, and it was no proper function for him to intervene and seek to, for his own purposes, ensure that Perger was denied a full hearing.  He was not concerned with Perger’s interests at all.

DAWSON J:   Can I just take you back to something you said earlier.  The prosecution case is that she may well have entered the plea of guilty of her own free will.  On the evidence that is entirely possible.

MR KELEMAN:   We do not know.  It is possible, yes.

DAWSON J:   But the essence of the offence is attempting to induce her to do by the means which the evidence discloses that which she may well done of her own free will.

MR KELEMAN:   Yes, exactly.  We do not know whether in fact the appellant succeeded.  That is why it was charged as an attempt.

McHUGH J:   I appreciate that, and your case is that it would not have mattered if she pleaded not guilty; the offence would have been completed long before the indictment was read out to her.

MR KELEMAN:   It would have occurred when the acts occurred.

McHUGH J:   I appreciate that.

MR KELEMAN:   Yes, that is right.  But it was not really relevant to look at, ultimately, the conduct that occurred.  The fact is that she did ultimately plead guilty.  That was an objective fact that was relevant in all the circumstances.

McHUGH J:   But as an irrelevant fact.

MR KELEMAN:   No, it was not irrelevant.  It was an objective fact that occurred and it was relevant in that sense.  The fact is she did plead guilty.

McHUGH J:   But it was not relevant to the offence, was it?

MR KELEMAN:   Not ultimately.

McHUGH J:   The offence was complete when she either received the money or when he made a threat or whatever else he was ‑ ‑ ‑

MR KELEMAN:   That is so, and nothing need be proved other than the act and the intention.  But we say the recorded conversations are capable of proving both the actus reus, that is the use of the improper means, with what the Crown says is the requisite intention.  We say the jury were entitled to come to the view that they did on the evidence, but that is another matter.

McHUGH J:   So the same thing must happen in the civil fields then .  If you persuade a plaintiff to sue, or a defendant to withdraw a defence, if you use any unlawful means, it is a conspiracy to pervert the course of justice.

MR KELEMAN:   We would assert that is the case, if improper means such as bribery or threats were used, yes, and in relation to that we would rely on ‑ ‑ ‑

McHUGH J:   But, how do you define “improper means” in this particular case?

MR KELEMAN:   We say certain types ‑ ‑ ‑

McHUGH J:   Supposing some organisation says to a particular party, “Look, we don’t want this particular issue litigated in this particular case, we want to wait until the time is more appropriate, we’ll get a different judge or a different jury, a different court of appeal, so don’t run it.”  Now, can that constitute perverting the course of justice?

MR KELEMAN:   No, that would be a legitimate form of persuasion or discussion, that would not be caught by any criminality.

McHUGH J:   Suppose they say, “And, what’s more, we will pay your costs of running the trial.”

MR KELEMAN:   That is a different situation although, in my view, it would still be lacking criminality.

DAWSON J:   But it seems that it is not the course of justice that is being perverted, it is the commission of the crime that makes the impropriety.

MR KELEMAN:   Well, we would say, with respect ‑ ‑ ‑

DAWSON J:   I mean, it is always wrong to commit a crime, but it does not necessarily result in the perversion of the course of justice.

MR KELEMAN:   That is accepted.  But, we say, in this situation the means used, the financial inducement and/or the intimidation, were clearly within that category of improper means.

McHUGH J:   But the English cases go so far as to say that lawful acts are improper means, do they not - can be improper means?

MR KELEMAN:   They could be if they are accompanied by the appropriate intent and if the acts have a tendency to pervert the course of justice.

DAWSON J:   But the perversion of the course of justice in the English cases is interfering with the course of the trial by interfering with the evidence which will or will not be given.

MR KELEMAN:   Yes, certainly.

BRENNAN J:   Mr Keleman, I am having difficulty with this notion of improper means in the light of what I read in the headnote in Toney’s case.  The way I read it, “The use of such unlawful means was not an essential ingredient of the offence.”

MR KELEMAN:   Not in that particular case because in Toney, that is the appeal of Toney, as opposed to Ali, there was no improper means used.  There was no ‑ ‑ ‑

BRENNAN J:   We are talking about elements of an offence, not the facts of the case.  You are saying that one of the elements of the offence is improper means.  Where is the authority that says that one of the elements of an offence is improper means?

MR KELEMAN:   What Your Honour says is quite correct.  The improper means per se do not, in effect, establish the offence of themselves.

BRENNAN J:   Nobody is suggesting that.  The question is whether or not in a case where there is to be a conviction for attempting to pervert the course of justice it is necessary to show that the accused has endeavoured to pervert the course of justice by the adoption of improper means.  As I read Toney’s case it says the opposite.  Am I wrong?

MR KELEMAN:   With respect, yes, Your Honour.  We say that Toney related to its facts.  The court was concerned to distinguish a situation where improper means had been used and where improper means had not been used, as in Toney.  That is all they were seeking to do because it was asserted ‑ ‑ ‑

BRENNAN J:   In Toney’s case there was a conviction without a finding of improper means.

MR KELEMAN:   Yes, because in that case the relevant act had the tendency to pervert the course of justice and there was sufficient evidence to establish the requisite intention.

DEANE J:   You see, it is the end in view which is the important thing.  You really have to see whether what is done is perverting the course of justice, sending a trial off the rails in some way.  That is the important thing and if what is done is calculated to do that, it does not matter whether it is improper or proper.

MR KELEMAN:   But Your Honour is only looking at the course of justice in terms of whether there was in fact a trial or a hearing.

DAWSON J:   Well it is not a perversion of the course of justice to have a plea of guilty entered - that is the point.

MR KELEMAN:   But the respondent submits ‑ ‑ ‑

DAWSON J:   It is a perversion of the course of justice to have a witness not give evidence or give false evidence.

MR KELEMAN:   Certainly, but we say it is a perversion of the course of justice to interfere with someone’s right to plead not guilty and deny that person a hearing on the merits, and that was the thrust of the Crown case.

BRENNAN J:   We will adjourn until 2.15 pm.

AT 12.48 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.17 PM:

BRENNAN J:   Yes, Mr Keleman.

MR KELEMAN:   Your Honours, may I briefly deal with three matters that arose before lunch?  In relation to the decisions of Kellett and Toney, may I make these submissions.  It is the Crown’s submission that Kellett and Toney are not inconsistent.  Kellett seeks to make the distinction between offences involving conduct which is accepted to amount to a perversion of the course of justice such as persuading a witness to give false evidence or seeking to persuade a witness not to give evidence.

It contrasts that with a situation where the conduct outwardly appears to be proper and lawful.  It says in those circumstances where the means used are improper and if the requisite intent is present, then that conduct amounts to an attempt to pervert the course of justice, although what might be threatened might be, for example in Kellett’s case, a lawful exercise of right to sue.

We say that principle is analogous in this situation.  Here, it is accepted that Perger had the right to plead guilty.  But we assert that what occurred here was that the means used were improper and they were in fact accompanied by the requisite intent, and in those circumstances, on the authority of Kellett, what occurred amounted to an attempt to pervert the course of justice.  So in answer to what Your Honour Justice Brennan asked me shortly before lunch, in this particular case the improper means are an element of the offence, because what was sought to be done was in fact outwardly a lawful thing to do.

So we say that is why Kellett is not inconsistent with Toney.  Toney did not involve the use of improper means; it was not that sort of case.  It was the first type of case that I described; that is, a case where the actual act in that case, being an attempt to dissuade a witness from giving true evidence, was accepted as being an attempt to pervert the course of justice of itself.  In other words, it was an act that was manifestly of that type.

So we say Kellett and Toney sit well together; they are consistent.  All Toney was seeking to do was to confirm that improper means are not essential where the object of the exercise is in fact to pervert the course of justice.  I hope that assists.

BRENNAN J:   It assists, but it raises another question.  If you do not need improper means and the object of the exercise is to produce a perversion of the course of justice, why is it if the object is not to produce a perversion of the course of justice you need improper means?

MR KELEMAN:   On that basic analysis, it would be our submission that the directions of the judge were in fact quite favourable, because here the judge left to the jury the specific questions of actus reus and intent.  If in fact in this particular case what occurred was this, that the appellant sought to improperly deny ‑ no, I withdraw that.  In that situation you would have difficulties with the actus reus.

BRENNAN J:   If in this case what Miss Perger did in pleading guilty was simply to say, “Having regard to all the circumstances, I choose to plead guilty”, is there any perversion in the course of justice in her taking that course?

MR KELEMAN:   If she ultimately decided to do that, looking at what she did herself.

BRENNAN J:   Yes.

MR KELEMAN:   No, that would not be a perversion of the course of justice.

BRENNAN J:   Well now, how is it that if somebody procures her to do that, it becomes an attempt to procure the perversion of the course of justice.

MR KELEMAN:   Well, the first submission I make is, firstly one has to look at, not her conduct, but the conduct of the person seeking to influence.  What becomes relevant is, then, what that person’s intention was.  So that, it does not really matter, in that situation, what, in fact, Perger ultimately did, or the reasons why Perger did what she did.  They are really quite irrelevant for consideration.

BRENNAN J:   Well, the act that must be done by the accused in the charge of attempt is an act which must have a tendency to produce a miscarriage of justice.

MR KELEMAN:   Well, with respect, a perversion of the course of justice.

BRENNAN J:   A perversion of the course of justice.

MR KELEMAN:   Yes, well, we say it has that effect, in the way we have outlined in paragraph 5.  The matters listed in paragraph 5, each individually and in combination, we say, are ways in which such an act has a tendency to pervert the course of justice.  The first situation is that it brings into disrepute and undermines the integrity of the criminal justice system by wrongfully interfering with a person’s right to plead not guilty.

McHUGH J:   Now, if I could just stop you there; that seems to me to throw up a problem which may reflect on the theoretical basis of your argument.  It is well established in the law of contempt that there can be contempt in a particular case, or contempt of the administration of justice generally, but Archbold, for example, says that perverting the course of justice is just contempt of court under another name. 

Now, it may be that what is involved in a case like this is not perverting the course of justice in a particular case, but interfering with the course of the administration of justice generally.  Just as it is a contempt of court for an employer to dismiss from his employment a person because that person served on a jury, it may well be the case that you have got to look at these cases in a different light, and some of the problems that you seem to be getting into may be because of this difference of what is the true theoretical basis of your real case.
MR KELEMAN:   With respect, Your Honour, if in fact the conduct ‑ ‑ ‑

McHUGH J:I draw attention to that because your first point is that it brings into disrepute the integrity of the criminal justice system, which is a general concept; it is not a particular case.

MR KELEMAN:   I accept that but if, in fact, it generally does bring the process of justice into disrepute, we would say that comes within one of the ways in which this Court said in Rogerson, justice could be impaired.  I will take you to that reference briefly now.  That was in the judgment of Justices Brennan and Toohey at page 280 at about point 4, the sentence commencing “The course”:

The course of justice is perverted (or obstructed) by impairing (or preventing the exercise of) the capacity of a court or competent judicial authority to do justice.  The ways in which a court or competent judicial authority may be impaired in (or prevented from exercising) its capacity to do justice are various.  Those ways comprehend, in our opinion, erosion of the integrity of the court - - -

DAWSON J:   It does not erode the integrity of a court if someone does something wrongful.  If it is wrongful and punishable, then you are punished, but when you concentrate entirely on the means, as you do, and not the end, which seems to be the more important factor in perverting the course of justice, you really raise the question if the means are wrongful, then the law provides a remedy - in relation to those means - if they are not wrongful, then well so be it.

MR KELEMAN:   We would submit that the practice ‑ ‑ ‑

DAWSON J:   But, the fact that people commit bribery or blackmail and so on does not erode the integrity of the court.

MR KELEMAN:   With respect, bribing people to plead guilty, we would say, must undermine the perception of the way in which our judicial process operates if, in fact, it was acceptable for people to bribe people who may well be innocent to plead guilty and that may well be the perception.  Now, that must undermine the whole criminal justice process.

DAWSON J:   Not if there is a punishment for bribery and can be prosecuted in that form.

MR KELEMAN:   But there is no actual offence of bribing in this situation because at common law bribery only arises where there is a duty and what duty ‑ ‑ ‑

DAWSON J:   But it may be intimidation, it may be various other things, but - ‑ -

MR KELEMAN:   Yes, but if we focus on bribery, in this situation, if that is all that is done, if someone gave an accused person $20,000 to plead guilty, there is no offence of bribery, and if they did not intimidate or do anything else there is no other offence.  So, it is not as if there is another offence with which this person can be charged.  In this situation where, in effect, what we are looking at is financial inducement, there is no offence and, we say, this sort of conduct properly falls within ‑ ‑ ‑

DAWSON J:   No, you see if, in fact, the bribery causes a plea to be made which is not a true plea and one which could be set aside, then that is another thing.  So the course of justice in those circumstances is not perverted and there is a remedy for that, but if the person chooses of his own free will to plead guilty and the inducement does not amount to a wrongful act, criminally or otherwise, so be it.

MR KELEMAN:   But Your Honour is focusing on the result, with respect.  The process is important.  If in fact someone has ‑ ‑ ‑

DAWSON J:   Yes, I am because the result which you have in mind is the perversion of the course of justice.  That is what you have got to focus on.  You focus entirely on the means.

MR KELEMAN:   If in fact someone is paid money to plead guilty, that of itself forms a basis whereby the integrity of the plea is undermined.

McHUGH J:   It may or may not be.

MR KELEMAN:   Yes, but we are looking at tendencies, when - - -

McHUGH J:   Your argument says it does not matter whether she would have pleaded guilty or not.  The fact is, as long as the means are used, and they are unlawful means or improper means, that is sufficient.  Then you go so far as to say, if you give somebody money to plead not guilty it is a perversion of the course of justice.

MR KELEMAN:   On reflection over lunch, may I withdraw that assertion, because quite frankly it seems to me that in a factual situation you really could not contend, in that scenario, that there was a perversion of justice because all that would simply occur would be that there would be a hearing, and no one is deprived of anything.   So, I would actually seek to withdraw that, with Your Honours’ permission.

DAWSON J:   But it is the question whether the court is misled, whether the course of justice is different because of what occurred or is not.  That is the question. 

MR KELEMAN:   With respect, it is the tendency that the acts have - - -

DAWSON J:   A tendency to cause the course of justice to veer off its right course.

MR KELEMAN:   But there does not need to be an actual misleading.  There does not have to be any prospects of success.  If the act has the tendency, then that is sufficient.  There ultimately does not have to be a miscarriage of justice, a perversion - - -

DAWSON J:   There is no tendency to pervert the course of justice in the court dealing with a plea of guilty which is made voluntarily.

MR KELEMAN:   We say there are two ways in which it has that tendency, specifically.  We say totally there are four, but in relation to No (iii)that is listed here in paragraph 5, the authorities that I have listed there - Chiron, (1981) NSWLR 218, Sagiv, (1986) 22 A Crim R 73, and Jupp, unreported NSW CCA 23/11/93 - we say that those cases demonstrate that where a plea is found to have been improperly induced - and I will take Your Honours to those passages briefly - that is a basis for the withdrawal of a plea and/or the quashing of the conviction.

DAWSON J:   It might be.

MR KELEMAN:   But we are talking about tendency, and we say this is a way in which a plea entered in a court pursuant to a bribe has a tendency to impair the course of justice.

DAWSON J:It may or may not have a tendency according to the circumstances.  In the circumstances of this case we cannot say.  Imagine that a plea of guilty is entered and then someone says to the trial judge, “Look, this person was paid a sum of money” and he turns to the accused and said, “Well, you have pleaded guilty, is that what your plea is?”  The course of justice is the same, he just goes on.

MR KELEMAN:   With respect, the judge would not ask that question.  With respect, one would hope the judge would ask the person pleading whether that was true or not, and if the person said, “Yes it was, I am pleading guilty because I was paid $20,000”, one would hope that one of two things would happen.  Firstly, one would hope that the judge would reject the plea in those circumstances or, secondly, one would hope that someone would make an application for the withdrawal of plea ‑ ‑ ‑

DAWSON J:   He should test it by rearraigning the accused and asking how he pleaded in the circumstances, and the plea would be guilty if the person wanted to plead guilty.

MR KELEMAN:   Yes, but if the person said, “I am pleading guilty because I’ve been paid $20,000”, how could the court - - -

DAWSON J:   It would not make any difference.  The person has got to be tried on the charge and if they were rearraigned and pleaded guilty that would be it.

MR KELEMAN:   With respect, Your Honour, that would make a farce of the judicial process.

DAWSON J:   What, the person goes free then?  The charge is dropped?

MR KELEMAN:   No, because a person would be entering a plea of guilty in circumstances where the court is aware of an active impropriety that could well have induced the plea - - -

DAWSON J:   As I say, the course to take would be to rearraign the person and assume the person then pleads guilty again.

MR KELEMAN:   See, the American system has a good - - ‑

DAWSON J:   Just stop for a minute.

MR KELEMAN:   I am sorry.

DAWSON J:   What do you do in those circumstances, if the person is bent on pleading guilty?  The person has to be tried, you cannot make them plead not guilty.

MR KELEMAN:   You can, you can reject the plea if you are aware of those circumstances.

DAWSON J:   Why should you?

MR KELEMAN:   It would be entirely proper if you did, with respect.  This would be a situation where effectively the plea would be tainted - - -

DAWSON J:   Then you would be denying the right to the person to plead guilty.

MR KELEMAN:   No you would not.  You would be ensuring that justice was done.  How could it be justice - - ‑

DAWSON J:   I know of no case where that has occurred.  Do you have any authority for that?

MR KELEMAN:   No, of course I do not.

DAWSON J:  A person who really wants to voluntarily plead guilty can be prevented from doing so by the trial judge?

MR KELEMAN:   If in fact there are circumstances known to the court which undermine the integrity of the plea, then, yes, it would be - - -

DAWSON J:   Which demonstrates that the plea is not a true plea.  But if it is a true plea of guilty, then a person has a right to enter it.

MR KELEMAN:   If it is a true plea, I accept that.  But if it in fact is tainted - - -

DAWSON J:   And that is the basis on which we are arguing this case.  As far as the evidence goes it does not demonstrate that this was not a true plea of guilty.

MR KELEMAN:   That is where, no doubt, we will have to differ but, with respect ‑ ‑ ‑

DAWSON J:   But is that not so; is that not the basis of it?  There is no evidence to show that this was not a true plea of guilty.

MR KELEMAN:   But Your Honour’s proposition is based upon the assumption that, no matter what occurs pursuant to someone entering a plea of guilty, if someone wants to enter that plea, there is nothing that can occur that can effectively taint that plea.

DAWSON J:   They have a right to do so.

TOOHEY J:   Mr Keleman, your argument must go further than that.  I take your argument to be that if someone is offered money to plead guilty, that is attempting to pervert the course of justice, is that right?

MR KELEMAN:   Yes.

TOOHEY J:   And if that person died the next day and the matter never went to trial, on your argument there would still be an offence of attempting to pervert the course of justice.

MR KELEMAN:   Exactly.  If Perger never pleaded guilty, in fact had died ‑ ‑ ‑

TOOHEY J:   The offence is either committed when the acts which are relied upon take place or it is not.  What happens thereafter may have some evidentiary value but, as I understand your argument, it is not particularly relevant to the elements that go to make up the offence.

MR KELEMAN:   That is precisely right; that is the principal submission.

DEANE J:   It would be a rather unwise expenditure of the money if you were spending $20,000 to pay somebody to plead guilty when he was going to plead guilty in any event, according to your belief.

MR KELEMAN:   Yes.  One would have thought it probably would not occur.  The fourth way in which we say the act of bribery and/or intimidation has a tendency to pervert the course of justice is in this way:  that is, it impairs the court’s capacity to do justice by permitting the court to assume that the plea was properly entered and not improperly induced.

I rely for that proposition generally in what is said in Hatty v Pilkinton, (1992) 35 FCR 433, at 442 to 443 at point 8. That was a case in which a legal practitioner in this Territory had appeared for a defendant, knowing that they were using a false name. The court talked before then about how the course of justice could be perverted by the fact that false records were being generated. They say:

Before turning to consider the possible effect of the ethical problem upon any conclusions that might otherwise be drawn about Mr Pilkinton’s intention, I should refer to another way in which, in my opinion, the course of justice was actually perverted by what, on any view, occurred.  The principle of public justice is seriously offended if proceedings in court are conducted on a false basis as they were in the present case.  The magistrate, and anyone else present in court not privy to the deception and not knowing the defendant or otherwise having special knowledge, would assume that the person who appeared to answer the charge was in fact a person with the name under which she was charged, in this case someone called Rozanne Crawford.  When a legal practitioner announced his appearance for the defendant those present would be entitled to assume and would assume - not that they would ordinarily have any doubt about the matter - that the legal practitioner was not privy to any deception of the court and that, as far as the practitioner was aware, he was appearing for a client in her true name. 

Then perhaps further down at point 3 of that page, which is 443, the sentence:

The due administration of public justice requires that proceedings are what they appear to be, for otherwise the safeguards involved in the principle do not operate or operate in an impaired way.

It is our submission that in this case -and I know Your Honour and I will differ on this - that the Court assumes that the plea being entered has been entered properly and in accordance with established principle.  If the court were to be aware that the plea was in fact being entered as a result of a bribe and/or intimidation, the court in our submission would either reject the plea or in due course the plea would be withdrawn if the appropriate application was made. 

In those circumstances we say where the court is not aware of the circumstances in which the plea is being entered, it is being in fact deceived as to the circumstances in which the plea is being entered.  It is assuming that the plea is being entered into without any improper inducement, whether it be threats, promises or bribes which would normally, we say, undermine the integrity of the plea.

McHUGH J:   The real difficulty I have is with your indictment.  I must say, it seemed to me that the original form of indictment, from your point of view, was much better.  But the indictment alleges it is enough that there was an improper endeavour to influence somebody to plead guilty.  It says nothing about whether it was effective or whether it made any difference to the particular person.

MR KELEMAN:   Because it was an attempt, with respect.

McHUGH J:   But, really, to attempt to influence somebody to plead guilty is not an offence, surely.  Leave aside the word “improperly” for the moment.

MR KELEMAN:   All right.

McHUGH J:   To attempt to influence somebody to plead guilty; do you submit that is a criminal offence?

MR KELEMAN:   When you believe they are guilty, no. 

McHUGH J:   It does not matter whether you believe they are guilty, or not.

MR KELEMAN:   I would accept that that would not amount to a criminal offence.

McHUGH J:   But you say it is sufficient if the person improperly endeavours to do it.  Even though the person intends to plead guilty all the time, it is still an offence.

MR KELEMAN:   Because that focuses, though, on the end result, with respect.  It does not look at the process.

DAWSON J:   But we are talking about the end result, that is, the perversion of the course of justice. 

MR KELEMAN:   Not where improper means are used because Your Honour, with respect, is not looking at the question of tendencies.  It is not, in fact, whether justice was perverted, it is whether the act has a tendency to pervert the course of justice, and that is very different to whether the act will effect a perversion.

McHUGH J:   I can understand that if you attempt to, by improper means, or otherwise, get somebody to change a plea from not guilty to guilty, or even perhaps vice versa, but the amended indictment says, if you endeavour to influence somebody to enter a plea of guilty and you have used some improper means, that is a perversion of the course of justice.  Now, it does not seem to me that that necessarily influences or has a tendency at all.

MR KELEMAN:   Well, we say that it must have.

McHUGH J:   Why?  It might in a particular case, but if it is, surely those facts should be pleaded, and say that the person had no intention of pleading guilty, or the person was not guilty.

MR KELEMAN:   That would only be necessary if we were seeking to prove a perversion of the course of justice.  It would not be necessary in an attempt charge, because all we are looking at is whether or not - if the jury accepted if the appellant committed those acts, whether he did it with the requisite intention; that is, when he either bribed and/or intimidated her, he had the requisite intention.  It does not matter what she believed.  Even if she did not believe ‑ ‑ ‑

BRENNAN J:   Yes, we must try to understand that we are dealing with particular elements of an offence bit by bit.

MR KELEMAN:   I understand.

BRENNAN J:   Now, if we are speaking about the act that is done with the requisite intention, the intention, as I understand your argument, is to procure a perversion of the course of justice.

MR KELEMAN:   Yes.

BRENNAN J:   Consisting in, what?

MR KELEMAN:   Consisting in the appellant depriving the person Perger of the opportunity of having her matter heard on the merits; that is the intent as opposed to the actus reus.  That is what he is seeking to do.

McHUGH J:That is not what the indictment alleges.

MR KELEMAN:   Well, the indictment only has to allege an attempt to pervert the course of justice; you do not have to allege the specific intent in the indictment, in the averment.  I mean, that has all been particularised in the opening and no one is at any loss as to know the basis upon which the Crown is proceeding.  All that has to be averred are the elements, and all you have to aver generally is the attempt to pervert.

BRENNAN J:   Again, let us take it bit by bit.  First of all, what particular act is the provision of money and the application of some innominate pressure?  Is that right?

MR KELEMAN:   Yes.

BRENNAN J:   Now we are looking then to see whether those particular acts have a tendency, that is our first inquiry; and the inquiry as to the tendency and the inquiry as to the intent is the same, is that right?  In other words, it looks to an object to be achieved.  Is that so?

MR KELEMAN:   No, with respect, no.  The tendency can, in fact, be much broader.  For example, in this particular situation, the Crown has listed four ways in which the act has a tendency to pervert the course of justice.  The appellant would have to have at least one of those aims in mind in order to satisfy ‑ ‑ ‑

BRENNAN J:   Could we not confuse intent and tendency at this stage.  Tendency is an attribute of an act.

MR KELEMAN:   Yes.

BRENNAN J:   So, we know what the acts are.  What is the tendency in practical terms which you say those acts have?

MR KELEMAN:   The matters that have been set out in paragraph 5 of the outline.

BRENNAN J:   Right.  What then was the intent which was had?

MR KELEMAN:   The intent was to deprive Perger of the opportunity of having the matter heard on its merits.  That was the intent, and it was for the reason, the motive ‑ ‑ ‑

BRENNAN J:   To deprive her of the opportunity?

MR KELEMAN:   Yes.  He did not want the matter heard before a court.  He did not want the allegations aired.  At all costs he wanted the lid put on the allegations.

DAWSON J:   But really all he was getting her to do was to change her mind.  Now, I can understand that if someone seeks to overbear the will of someone in the making of a plea, you would have a case, because that is seeking them to do something which is not really their act, they are acting under the influence of something else, and if the plea is made in those circumstances it is not a proper plea.  But that is not the case which you have here.  You are not suggesting that he overbore the will of Miss Perger at all; you are just saying that he got her to change her mind.

MR KELEMAN:   Well, with respect, in relation to intimidation, we are talking about overbearing will, it was put to the jury on that basis.

DAWSON J:   It is no part of the Crown case, as I understand it, to say that she involuntary entered a plea of guilty.

MR KELEMAN:   Well, if the jury accepted the intimidation and the force ‑ ‑ ‑

DAWSON J:   It is no part of the case, is it?

MR KELEMAN:   Well it was, it was put to the jury that way, it was, it was part of the ‑ ‑ ‑

DAWSON J:   Well, I understood it to be put that it did not matter at all.

MR KELEMAN:   It did not matter whether she in fact pleaded guilty because of the inducements, it did not matter whether or not she was guilty or not, that is what I was seeking to put.  I was not seeking to establish the other proposition.  At no stage did I seek to do that ‑ ‑ ‑

DAWSON J:   If that is so then it cannot matter whether she entered the plea voluntarily or not of her own free will to the offence which you are trying to describe.

MR KELEMAN:   If, in fact, the appellant had sat down with her and sought to persuade her to change her plea in a legitimate way by arguing the pros and cons or even if he had in the back of his mind or even at the forefront of his mind this concern to put the lid on things, if he would have sought to simply persuade her and she ultimately agreed that she was going to plead guilty, that would not be an attempt to pervert the course of justice because the actus reus, irrespective of what was in his mind, would not have been present ‑ ‑ ‑

DAWSON J:   I think we are going back over the same ground.

MR KELEMAN:   Thank you.   May I take Your Honours to some passages, very briefly, in Hatty v Pilkinton that, in my submission, approve the substance of Kellett.  Hatty v Pilkinton, pages 440 at point 5.

Thus, a person may have the requisite intention to pervert the course of justice even if he also has an intention to prevent perjury and to prevent what he considers to be injustice.  There are obvious reasons why this should be so because the due processes of the law may be just as much interfered with by someone who deliberately acts to interfere with its processes for what he perceives to be a good reason as they are by someone who interferes for reasons he knows to be corrupt.

Similarly, at page 443 at point 7:

There need be no desire or motive to pervert the course of justice for the offence to be committed.  It can be committed even though a person has other considerations in mind or wishes to achieve what he believes to be the prevention of injustice.  The act need not be inherently dishonest or corrupt.

The conclusion that there need be no desire to pervert the course of justice conforms to the policy underlying the offence.  Although the degree of culpability may of course differ greatly from case to case, the course of justice may be diverted just as surely by a person who acts for what he believes are good motives as by a person who acts with corrupt motives.  The requirements of the due administration of justice are surely to be determined by the law and not by reference to the views of the person alleged to have perverted the course of justice.  Even where the motive is corrupt, the essential aim of the person may not be to bring about harm to anyone else, still less to procure an end result that is unjust, but to serve some interest of his own;  the perversion of the course of justice may be merely an incident of his conduct yet, here again, the course of justice may be perverted just as surely as if that were his sole aim.

The reason why a person acts in a particular way may bear upon the intention with which an act is done but in this case a belief that it was ethically correct or even necessary to mislead the court cannot, in my view, affect an otherwise irresistible inference that there was an intention to pervert the course of justice.  In this case I consider that the bona fide belief that the judge found the prosecution had not negated went to reason, desire or motive and not to intention, and I do not consider that such a belief would, in a case such as the present, be incompatible with an intention to pervert the course of justice.

Similarly, in Taffs, [1991] 1 NZLR 69. That was a case in which a legal practitioner, appearing for an accused person, contacted the complainant’s mother and made threats saying that he would “mince the boy up in court tomorrow”, presumably in cross-examination, crucify him and would publicly humiliate him. The barrister in that case was of the view, or at least the Crown could negative it, that the complainant was going to give false evidence and was seeking to ensure that the true evidence, as he believed it, was given.

Now, at page 73 line 30 the court, having considered that Kellett was correct - that is referred to at pages 72 and 73 - said this:

Considering the danger to which a different approach would give rise, it seems to us that the Kellett approach is sound.  On balance we think it right to follow that decision in New Zealand and hold that threats or other improper pressure intended to lead a potential witness not to give evidence or to alter his proposed evidence transgress s117, no matter whether or not the person uttering the threats or applying the other pressure believes that the proposed evidence would be false.  It will always be for the jury or other tribunal of fact to determine whether what was said was meant as a threat or other form of improper pressure.

Now, we say in addition to those passages which we submit are analogous to the situation here, that the cases of United States v Silverman, that I have already referred to, and United States v Moree, 897 F 2d 1329 (5th Cir. 1990). which, we submit, is simply another example of the case where there was an improper interference with someone’s plea of guilty. I do not propose to take Your Honours to any passages in that, but simply rely on it as another example.

I wish to take Your Honours to Attorney General v Times Newspapers Ltd which was a contempt case that dealt with publicity flowing from the public outcry about the use of the drug Thalidomide and particularly the court there, the House of Lords, were concerned with whether or not certain newspaper publications about the case that was then in progress amounted to a contempt.  I am simply taking Your Honours to some passages to show that it is improper in certain circumstances to exercise pressure on litigants.  And while it is accepted that proper persuasion is acceptable and does not give rise to criminality, improper pressure may well do so.

Attorney-General v Times is reported in (1974) AC 273. The first passage I wish to take Your Honours to is at 299B. There Lord Reid said:

The crucial question on this point of the case is whether it can ever be permissible to urge a party to a litigation to forgo his legal rights in whole or in part.  The Attorney‑General argues that it cannot and I think that the Divisional Court has accepted that view.  In my view it is permissible so long as it is done in a fair and temperate way and without any oblique motive.

The next passage I wish to take Your Honours to is at 313D.  There Lord Diplock said:

In my opinion, a distinction is to be drawn between private persuasion of a party not to insist on relying in pending litigation on claims or defences to which he is entitled under the existing law, and public abuse of him for doing so.  The former, so long as it is unaccompanied by unlawful threats, is not, in my opinion, contempt of court; the latter is at least a technical contempt ‑

The next passage is at 318D.  To shorten this, I might take Your Honours to point H, the last line:

Similarly, in general, with any private pressure on a litigant to deter him from exercising his legal rights.  The only difference is that private pressure on a litigant (in contradistinction to violence or bribery or public execration) might sometimes be justifiable, while private pressure on the tribunal or witness never would be so.

Similarly, Lord Cross at page 326B:

To seek to dissuade a litigant from prosecuting or defending proceedings by threats of unlawful action, by abuse, by misrepresentation of the nature of the proceedings or the circumstances out of which they arose and such like, is no doubt a contempt of court; but if the writer states the facts fairly and accurately, and expresses his view in temperate language the fact that the publication may bring pressure ‑ possibly great pressure ‑ to bear on the litigant should not make it a contempt of court.

As I said, the only purpose in citing those various passages is to demonstrate that, while there are acceptable forms of persuasion directed towards litigants, it is not open slather.  There are some limits and the confines are whether or not the pressure is, we assert, improper or not.

I will not take Your Honours to Martin, but Your Honours have that.  Martin is an unreported decision of the Court of Appeal, Queen’s Bench Division, 18 April 1986.  That is an example of a litigant who initiated a private criminal prosecution being subjected to what the court held were improper threats.  In this particular case it related to reporting him to the inner temple for initiating the proceedings.  In that case the court held that that amounted to an improper threat, and in those circumstances the court was satisfied there was a contempt.  That is simply an example of impermissible pressure being placed on a litigant.  We say those cases are of assistance in looking at the issues before the Court at the moment.

The next proposition I wish to assert is that contained in paragraph 4 of the outline of submissions, and that is, it accepted that both bribery or financial inducement and intimidation are improper means of inducement.  I will not take Your Honours to those references but they are there.

BRENNAN J:   Why do you say bribery?

MR KELEMAN:   It is really financial inducement.

BRENNAN J:   Yes, bribery is a very emotive term, is it not?

MR KELEMAN:   It is but I simply refer to it because everyone else did, but I made the point here in the submissions that they are a financial inducement and I think I made submissions earlier to the Court to that effect.  I think bribery is an inaccurate term in the circumstances of this case.  It should have been referred to as financial inducement.

BRENNAN J:   And intimidation is whatever one infers from that passage in the tape, is that right?

MR KELEMAN:   Yes, in both the tapes.  We look at what I might call the “sweetie tape” which was the shorter tape.  That is the tape where - Your Honours have already been taken to that.  It is both tapes exhibit P and exhibit Q, that I refer to later in ground 2.

The first tape is detailed in the appeal book at 331 to 333.  That was the one involving a number of persons, Camilleri and others.  In AB338 is where the, what I term the “sweetie tape” is, which was the shorter conversation with just one person.  I am going to raise those briefly in the second ground, but I think I have covered, whether it be satisfactory or not is another question, but I have covered the matters raised in paragraph 5.  I do not propose to detail that again.  So, I propose to leave ground 1 unless Your Honours have anything you wish me to clarify.

In relation to ground 2, whether or not there was a case to answer, we say that the Crown case included various recorded conversations.  They have been detailed in the summing up at pages 193 to 224.  In addition to the recorded conversations there was the evidence of the deposit by the appellant, the $15,000 into the joint bank account with Perger, on the day after she instructed the solicitor she would be changing her plea from not guilty to guilty.  In addition to that there are admissions made by the appellant to a journalist that he had compromising photographs of politicians taken on his boat and evidence of lengthy conversations entered into by the appellant for the sale of some of those photographs and those matters have been effectively detailed in the Court of Criminal Appeal judgment at pages 314 to 319 of the appeal book.

But, as everyone conceded from the trial judge to the Court of Criminal Appeal, the critical issue was the interpretation of these two recorded conversations which contain statements that the Crown concluded were unequivocal admissions when considered in the context of the evidence in the Crown case of both the actus reus and the mens rea.  I will take Your Honours briefly to those.  They are important, and really the Crown case, on an evidentiary basis, either rises or falls on these calls.

At 331 in the appeal book that call is detailed.  That starts off at 331 with a reference to a speaker called Camilleri:

They did Channel Nine.

They are talking about Perger being on television:

ACCUSED:  She hasn’t said anything bad about me though, but she shouldn’t a brought up -

nd this is important:

she’s a bit pissed off about pleading”.

Then it goes on and they talk about whether someone is investigating.  That takes us through to the bottom of 331.  Then at the top of 332:

It’s all...she’s a bit, she’s a bit pissed off because I made her plead guilty, you know, she reckons she’s not, she’s not guilty.”

We say that meaning it is clear and unequivocal and amounts to an admission that she did not want to plead guilty, and she was concerned and upset about it, but he made her plead guilty.  Remember, we are not looking at this from the point of view of an actual perversion, but whether or not he attempted to pervert her.  Further down at line 10, Camilleri again says:

Someone got in touch with you at all?

ACCUSED:  They won’t get in touch with me, not yet.

VOICE THREE:  That’d be worryin’, wouldn’t it?

ACCUSED:  I reckon, I got plenty to worry about too.  You can understand her position though, like you know, how would you like to bloody well take a rap and then get shitted on, you know” - and then there is a passage which is indecipherable. 

The accused later says:

ACCUSED:  You know, she got paid for it, so all I am interested in is I don’t become fuckin’ undone out off all this ‘cause, you know, to get a person to plead guilty, that’s a conspiracy, you know.

He knows what he is doing is wrong and we say he is clearly intending to interfere with the course of justice.  If there is any doubt about it, that last comment, the Crown says, establishes that.  Then he goes on to say in the next passage:

That’s all I am interested in, to make sure she went on TV tonight again and said, I know, and I gave it to her as a present.  No-one is gunna believe it of course.

They are the principal passages upon which the Crown rely in that conversation.  And then similarly in 338, which was a telephone call on the same day, someone called “sweetie”.  That is at line 7:

“The girl’s a bit pissed off for ever pleading guilty, you know, she wanted to fight it and...careless thing.  But you know I couldn’t let that happen because that would have brought everyone undone for nothing, isn’t it.  On top of that who was gonna pay the legal fees...me, isn’t it.  So I figured this was the best result and all she had to do was keep her mouth shut and say nothing but then she said oh, it wasn’t her fault.”

The Crown case ultimately depended upon the interpretation of those statements in those passages.  Again, as I indicated, in the context of the other evidence, and we say the evidence was capable of establishing the elements in the Crown case.  Unless Your Honours want any further assistance, I will move on to the next ground.

In relation to the next ground, it is the respondent’s case that the decision by the Crown to call Perger was a proper one in the circumstances, for the reasons given in the appeal book in the summing up at pages 147 to 150, and summarised in the appeal book at 364, and they were entirely consistent with the principles enunciated by this Court in Reg v Apostilides.

We say that those reasons given demonstrate identifiable circumstances which clearly raise ‑ not only raise the question, but establish her unreliability to a sufficient degree to warrant the Crown not calling her.  It is also our submission that ‑ and this has been said many times before - that it was not essential for the Crown to call Perger to prove the elements of the offence, the offence being an attempt and not an actual perversion of the course of justice.

It was not necessary for the Crown to prove that Perger was actually induced to plead guilty as a consequence of the appellant’s conduct, or that she was, in fact, guilty or not guilty. There are some references there in the summing up, but if Your Honours need more there are many others that I can refer Your Honours to if Your Honours think that might assist.

The case ultimately depended upon the interpretation of the two recorded conversations which I have read or, at least, in part.  It is important to realise, of course, that Perger was not a party to these conversations.  She was not involved in those at all, and there was no suggestion that she was.  So, it is not as if, for example, she could shed light on what was said.  She was not there.  She was not a party.  It is our contention that, in these circumstances, it was not unfair to call Perger and the evidence in the Crown case was sufficiently cogent for the jury to reject the appellant’s version of events, and be satisfied beyond reasonable doubt of the appellant’s guilt unlike in Knight v The Queen.

We also distinguish this case from the circumstances in Whitehorn, which involved circumstances where there was an unreliable confession as the sole evidence.  In that case the Crown had not called a complainant and had not provided proper reasons for so doing.  We say this is not like that at all.  This is very different.  We did not have unreliable confessional material here, whatsoever, and I cannot take it any further than what is contained really in the last paragraph.  So, unless Your Honours

really need any assistance, that concludes my submission.

BRENNAN J:   Thank you, Mr Keleman.  Mr Barker.

MR BARKER:   Your Honours, it is not surprising to learn, as the jury learnt, that Miss Perger did not want to plead guilty.  Had she wanted to plead guilty there would have been no need for any persuasion.  The need only arose because apparently he sought to change her mind, and the fact that she may have wanted, before the change of mind, to plead not guilty, merely explains why the need for persuasion arose in the first place.  The Crown says if the persuasion was an attempt by legitimate means to get her to change her mind, we would not be guilty.  Well, if I might pose the matter rhetorically, how do we know that he did not use legitimate means to persuade her to change her mind on the state of the evidence in the case.  Seeking to get someone to change her mind about a plea cannot itself be criminal, I submit, no matter what the motive in the case put by Your Honour Mr Justice McHugh, the wife seeking to have the husband or the son plead guilty to avoid embarrassment to the family, even though he might have wanted to plead not guilty, is an example of proper persuasion accompanied by a motive quite extraneous to the ordinary criminal process.  That is, an ulterior motive; the motive being to save embarrassment for the family.  So that, if a motive ulterior to the ordinary court processes is itself sufficient to found the criminal offence, well then, it would take in and encompass the wife exerting pressure upon the husband in that example.

Hatty v Pilkinton really has nothing to do with this case because there was a fraud on the court.  The magistrate was deliberately deceived and, whatever Mr Pilkinton’s motive, he was a party to the deception; that is, the magistrate thought he was dealing with person A when in fact he was dealing with person B.  There was a fraudulent interference with the course of justice, and so in Taffs, which simply gives us an illustration of the traditional sort of interference with the course of justice where you have a witness interfered with.

Your Honour Justice Dawson asked me earlier what His Honour said about the guilt of Miss Perger. That is at page 78 line 4 of the appeal book:

But even if she was in reality guilty, the resulting conviction and punishment might in a sense appear proper, but that end would have been achieved by improper means, which would have involved a significant and improper interference with the course of Justice.

And again at 87 line 7, he says:

You can find the accused either guilty or not guilty regardless of how you find on this issue as to the truth or otherwise of Perger’s allegations, or even if you find that, at the end of the day, that you can come to no firm conclusion about it.

So he treated her guilt or innocence as being irrelevant.

If I may conclude by returning to a matter I spoke about earlier in the light of something my friend said.  It has been repeatedly said that this case was not a case where the Crown alleged the inducement had succeeded.  In my respectful submission there is no other way of reading the prosecutor’s opening, and I took Your Honours to the passage this morning at page 47, at the bottom of the page:

One of the things I think I should just direct I think I said when referring to the actions the Crown suggests that Mr Meissner did was he convinced Virginia Perger to change her plea.  The plea was not entered until some time in March after possibly the money was paid.  What the Crown says up until that period of time she had indicated via her legal representatives that she was going to defend the matter.....suddenly she changed her plea.   What the indictment of the actual charge says is that he did improperly influence her to enter a plea of guilty and the background will reveal up until that time she was going to plea not guilty.

Whether or not that was an essential ingredient of the offence, in my respectful submission it became one because of the way the case was put to the jury.  I am indebted to Your Honours.

McHUGH J:   Mr Barker, what has happened in relation to the accused?  Has he served the sentence?

MR BARKER:   He is on bail, Your Honour.  He was given bail after the Court of Criminal Appeal’s judgment.

McHUGH J:   So he has not served the sentence?

MR BARKER:   No.  He has served some weeks but the sentence ‑ he has served about a month.

DAWSON J:   What, he was given bail pending an application for special leave to this Court?

MR BARKER:   Yes.

DAWSON J:   By whom?

MR BARKER:   Because of the length of the sentence; it was a nine month sentence.

DAWSON J:   Given bail in the Supreme Court?

MR BARKER:   In the Supreme Court, yes, Your Honour, not by this Court.

BRENNAN J:   In the event of the appeal succeeding, of course, then conviction, I presume, would be quashed and the sentence quashed?

MR BARKER:   Yes, Your Honour.

BRENNAN J:   If the appeal is dismissed, then what?

MR BARKER:   There would not be a new trial, with respect.

BRENNAN J:   No, but what happens to the accused if the appeal is dismissed?

MR BARKER:   I am sorry.  He will surrender; he will need to serve the ‑ ‑ ‑

BRENNAN J:   That is covered by the terms of the order for bail, is it?

MR BARKER:   Yes, Your Honour.  He will need to serve the remainder of his sentence.

BRENNAN J:   It is not a matter for concern by this Court?

MR BARKER:   No, Your Honour.  Thank you, Your Honours.

MR KELEMAN:   May I, with the Court’s leave, just make a reference to a page in the opening.  I neglected to pick that up when I had my first opportunity.  It is simply a reference at page 40 to what the Crown asserted about Perger’s position vis‑a‑vis her position as to whether or not she was going to plead guilty or not guilty.  At line 17 at page 40 of the appeal book ‑ this is the Crown opening:

It is not essential for the Crown to prove whether or not in relation to that particular charge that Virginia Perger faces whether or not she was actually guilty.  What the Crown has to prove is that Mr Meissner -

and so on, so I neglected that, I am sorry.

BRENNAN J:   Mr Barker, do you wish to say anything about that?

MR BARKER:   Notwithstanding that, Your Honour, they then set out to prove it and said, “That’s what we are going to do.”

BRENNAN J:   The Court will consider its decision in this matter.

AT 3.16 PM THE MATTER WAS ADJOURNED SINE DIE