Meissner v The Queen

[1993] HCATrans 292

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl49 of 1992

B e t w e e n -

JOSEPH LADISLAUS MEISSNER

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

MASON CJ
DAWSON J

TOOHEY J

Meissner 1 8/10/93

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 8 OCTOBER 1993, AT 2.56 PM

Copyright in the High Court of Australia

MR I. BARKER, QC: If the Court please, I appear with

MR P. BYRNE for the applicant. (instructed by

De Rubeis & Associates)

MR K. MASON, QC, Solicitor-General for New South Wales: I

appear with my learned friend, MR P.J.P. POWER, for

the respondent. (instructed by S.E. O'Connor,

Solicitor for Public Prosecutions (New South

Wales))

MASON CJ:	Mr Barker.
MR BARKER:	If Your Honours please, I hand up a one-page

precis of the points to be argued, together with a

short chronology to put matters into context for

Your Honours. Your Honours, the evidence in the

case travelled far beyond the events in the
chronology but it is not necessary to traverse it
for present purposes. Could I just say this,
however, that preceding the charge against Virginia

Perger, she had made a long statement to the Daily

Telegraph concerning alleged sexual adventures with

several people well known in public life on a boat

owned by the applicant.

That statement was affirmed by statutory declaration and the Daily Telegraph printed the

story. She subsequently recanted and was then

charged with making a false declaration. The other

relevant thing is that the applicant and Ms Perger

had at some previous stage, probably ending about

the end of 1979, lived together as man and wife.

There was no such relationship between them after

1979 but he did from time to time assist her

financially.

The charge against the applicant is set out at

page 256 of the appeal books, volume 2, in the

first page of the judgment of the Court of Criminal

Appeal. That is:
"That between 4 February 1985 and
23 April 1986 at Sydney ..... did attempt to
pervert the course of justice in that he did
improperly endeavour to influence
Virginia Perger ..... to enter a plea of
guilty -
to the charge.	The case was put this way, that by

what was called bribery and by the course of

conduct which was said to amount to intimidation

capable of definition - by that process he induced but which was undefined - and on the evidence not previously she had indicated she was going to plead not guilty.

Meissner 2 8/10/93

The case rested almost exclusively upon

evidence of some things said by the applicant which

were secretly recorded by the police, listening

devices having been put in his premises for some other reason. The case sought to be made by the

Crown was that she did in fact plead guilty and the

jury were asked to infer that she pleaded guilty

because of the improper conduct of the applicant,

and there therefore was an actual perversion of

justice.

If I might briefly in that regard refer

Your Honours to the Crown's opening at page 373 of

the appeal books.

MASON CJ: But the charge was "attempt to pervert".

MR BARKER:  The charge was "attempt" but, according to the

Crown, the evidence was an actual perversion, that

is she pleaded guilty and she pleaded guilty, it

was said, because of the inducement. That was said

to be evidence of the attempt. At page 373, about

line 6, of the appeal book, the third sentence, the

Crown prosecutor said:

What happened the Crown says is just about the time when the matter was going to come to

trial an amount of money was paid into a bank

account by the accused. Miss Perger changed

her solicitor. She changed her plea. The

Court was advised that instead of defending

the matters now going to plead guilty and that

is exactly what happened. The money had been

deposited, the Crown will suggest by calling

evidence, just about that time just prior to

that by Mr Meissner with Miss Perger at a bank

in Kings Cross

At page 380, at the top of the page, the prosecutor

said:

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.

At 387, line 25, he asserted that:

What the Crown says ..... Mr Meissner made

comments squarely in line with this fact that

he had made her plead guilty, that Virginia,

using his own words, "was a bit pissed off by

doing it because she didn't want to do it, but

everything in effect would come undone if she
didn't want to do it". It is that the Crown

relies on -

Meissner 8/10/93

The whole case in the end seemed to come down to a

construction of the words "I made her do it".	I
will deal with that in the context of the

deficiency of evidence. However, only one person

in the world could say why this woman pleaded

guilty, and she was not called.

Deficiencies in the evidence are one thing, but the first point we argue is this, that in this

case the offence of attempting to pervert the
course of justice has been extended to

impermissible limits. As previously perceived, in

my submission, the offence simply did not

accommodate what the Crown says happened here. We

submit that the learned trial judge and the Court

of Criminal Appeal have impermissibly extended the

law in breach of the principle referred to by

Justice McHugh in Rogerson's case at page 304, that

is that courts do not make laws.

Let me say, Your Honours, that our

researches - and I understand the Crown's
researches - lead to the conclusion there is no
reported case of an inducement leading to a plea of

guilty, or a plea of not guilty for that matter,

which has been held to be perverting the course of

justice, or been held to amount to perverting the

course of justice, before this case.

TOOHEY J:  Mr Barker, what about the situation that two

persons are in a motor vehicle, police are

uncertain as to who the driver was following an

accident or the commission of some offence and they

happen to charge the wrong person who is persuaded

by the real driver to plead guilty to some traffic or criminal offence, so that in the end on record,

a person who was not the driver of the vehicle

appears to have been the driver and to have

committed a criminal offence. Do you say that a

charge of attempting to pervert the course of

justice would not be available there?

MR BARKER:  No, we do not, Your Honour, because that would

be for the purpose of entirely misleading the

court as to the identity of the guilty party.

TOOHEY J: Yes, I understand that, but I gave you that

illustration really to try to point up what is the

principle. When you say that here the bounds of perverting the course of justice were pushed too far, in what respect were they pushed too far? I

do not mean in an evidentiary sense but as a matter

of a proposition of law.

MR BARKER: 

The gravamen of the offence, according to the

decision in Rogerson, is an interference with the
ability of the court to exercise its jurisdiction.

Meissner 4 8/10/93

All the cases to date relate to such matters as bribing a witness, intimidating a witness, conspiracy to deceive the court by producing false

evidence or concealing true evidence, obstructing

an inquiry, such as in Rogerson, which might lead

to curial proceedings. She was entitled to plead

guilty and she did so lawfully.

In doing so, there was no obstruction of any

inquiry on foot, there was no deception of the

court, there was no illegality in what she did.

Having pleaded guilty, she gave evidence before the

district court when she entered the plea in which

she said the allegations she made were untrue.

This perhaps bears more directly on the next point,

but there is no suggestion - and never was any

suggestion - that the evidence she gave was the

product of any pressure applied by Mr Meissner, the

applicant.

So that in answer to Your Honour, I am really

saying that the extension is that here no relevant

course of justice has been interfered with in the

sense that in all the other reported cases, that

mischief has been perpetrated or the conduct

complained of has the potential to cause such

mischief.

DAWSON J:  Why is it not first a course of justice if she

pleads guilty - and this is a question - when she

was not guilty and knows she was not guilty?

MR BARKER:  It is something she is entitled to do,

Your Honour.

DAWSON J: And you may want to do it for a variety of

reasons. A man may say, "Well look, it's cheaper

and quicker to get this over .... "

MR BARKER: Yes, quite. For the same reason, a guilty

person may plead not guilty - by the same sort of

reasoning. The fact of the plea in no way was misleading or calculated to deceive the court.

DAWSON J:  The whole process of plea bargaining may be based

on the fact that - - -

MR BARKER:  Indeed. This is the problem with this case,

Your Honour:	the touchstone is said to be
impropriety.	Just what the impropriety was that
the applicant	was guilty of has never emerged.

MASON CJ: There is one element of it; there is a financial

inducement offered to her.

MR BARKER:  Yes, but that itself, Your Honour, when examined

comes to nothing. It was consistent entirely with

Meissner 8/10/93

honourable conduct. The only benefit she received

from it was the payment of some bills she owed at

the bank. The money was put into a joint deposit.

$500 of it was paid on account of a debt she owed

to the bank and the rest of it went back to

Mr Meissner, which is entirely consistent with his

version of events, which is that it was there in
order that it would be available to her if she were

sent to gaol - - -

MASON CJ: But that is a factual response really to the

question that you raised and drew my observation.

What I was saying was in a sense that it is said

here that it amounts to an attempted perversion of

justice to either bribe someone or to intimidate

someone to plead guilty when they did not want to

plead guilty.

MR BARKER:  The problem with it, Your Honour, is that if it

was a bribe that did the work, then presumably she

herself would be guilty of conspiring to pervert

the course of justice but, none the less, in

offering a plea of guilty she was in no way

obstructing or perverting the course of justice.

If, on the other hand, it was the intimidation

so-called - and that seems in the end to be the

Crown case - the test, so it is said, is

impropriety. If the present judgment stands, the law is entirely uncertain as to the definition of

what conduct might amount to relevant conduct in

order to be criminal in the context under

discussion. The whole thing is highly elusive.

It was put to the jury - and I am conscious of

the time - by the learned trial judge that if he
acted improperly in a criminal sense intending to

overbear her will so that she would plead guilty,

intending that the course of justice would be

perverted, he would be guilty of the attempt. I

refer to pages 23 to 25 of the appeal books. It

was said by the learned trial judge elsewhere at	page 34, which is perhaps more important to my
argument, that if the inducement was for a purpose
extraneous to the proceedings, that is for some reason other than assisting - - -

MASON CJ:	To protect other people from attack, and there is that suggestion about it.
MR BARKER:	Yes, but, Your Honour, if the touchstone is

impropriety, it would not matter what his motive

was. It would not matter what the relationship was

between the person doing the inducing and the
person being induced. If the pressure applied went

beyond the bounds of what was proper, then it would

become improper. Then it is said that inducement

Meissner 6 8/10/93

would amount to the crime of perverting the course

of justice.

When the Court of Criminal Appeal essayed a

definition of this conduct, they appear to have

confused intention with motive and the criminal

offence of attempting to pervert the course of

justice with the tort of abuse of process. I refer

Your Honours to page 282 of volume 2 of the appeal

books where Mr Justice Allen dealt with our

argument at point 10:

It is contended for the appellant, however,

that no matter how much pressure is brought to

bear upon an accused person to plead guilty, the bringing to bear of that pressure cannot found the crime of attempt to pervert the

course of justice - unless, possibly, where

the means of applying the pressure themselves

constituted a crime. It is urged that the law
affords adequate protection against injustice

arising from an overbearing of the will of the
accused so as to lead to him pleading guilty.

If there has been such an overbearing of his

will the plea is a nullity and

conviction ..... will be set aside. To the

countenance pressure to plead guilty being

treated as criminal would be, it is put, to

place at jeopardy persons who have acted not

criminally but merely ill-advisedly - because

no precise line could be drawn which would

mark the boundary between criminality and

conduct falling short of it.

Over the page at line 10 His Honour said:

There was no evidence from which it could be

inferred that -

he believed that she was not guilty. There was no

evidence -

MASON CJ:  The real proposition is at page 284, is it not,

at line 17:

In my judgment these arguments fail -

MR BARKER:	Yes, in my submission, that is simply wrong.
MASON CJ:	- - -

but to serve some extraneous collateral

purpose.

Not used to serve the purposes for which it exists.

Meissner 7 8/10/93

MR BARKER: That, Your Honour, confuses two principles.

Spautz v Williams was not a perverting the course

of justice case at all; it was an application for a stay of some prosecutions upon the ground that they

were conducted for an ulterior motive. His Honour

seems to be saying here that if you apply the

pressure for an extraneous motive, then that is

criminal. Presumably if you apply pressure,

however improperly, for some motive which is not

extraneous to the proceedings, then it is not

criminal. That simply cannot be, and leaves the

law in a state of confusion.

In that regard might I refer Your Honours to

two English cases, Barnes and Inns. If pressure

which goes beyond the bounds of what is proper is

criminal, that is pressure upon a litigant to act

in a certain way, the consequences could be quite

startling. Could I refer Your Honours firstly to

Barnes, (1971) 55 Cr App R.

MASON CJ:	We do not have it.
MR BARKER:	I am sorry, Your Honours; it was on our list of

authorities.

MASON CJ:  It was on part B of your list and, of course,

that is the part of the list which is not

photocopied.

MR BARKER:  I am sorry, Your Honours. Let me tell you very

briefly what it is about. It is about a judge who

said to counsel that it was outrageous that people

waiting for their trials had to be delayed because

people who were guilty were pleading not guilty and

his client should do something about that and he

should change his plea. That led to a change of

plea. The Court of Appeal said that the trial

judge's conduct was wholly improper and the

conviction was set aside. In a similar case of

Inns, (1974) 60 Cr App R, a young man was charged

with stealing wire from a railway yard. The judge

called his counsel in, wanted to know why he was

pleading not guilty. The judge said:

I was virtually standing counsel to the railways for about 20 years ..... ! take a very

dim view -

of people stealing signalling wire from the railway

yards and "I can tell you now that if he pleads not

guilty, he'll be sent away." Again, not

surprisingly, the Court of Appeal held that the
subsequent plea was made under pressure and was "in

our judgment a nullity".

Meissner 8/10/93

The point of citing those cases is that if the

Crown is right here, both those judges were guilty

of attempting to pervert the course of justice.

Motive is irrelevant, I would respectfully submit,

but their motives were no more ignoble - to put it

another way, Meissner's motive was no less noble

than theirs. His was to protect people from what

he said was unjustified scandal. The judge in the

first case was to clean up his list at whatever

cost to the accused. The judge in the second case

was simply applying pressure based upon his

preconception of the gravity of the offence.

In the same way, from time to time the

Professional Standards Board and the Legal

Professional Disciplinary Tribunal in New South

Wales have made findings of impropriety against

barristers who apply pressure to clients to take a

course of conduct one way or the other. Where you draw the line is always very difficult, but if the

line is drawn so that the barrister's conduct was

improper, then it logically follows that he has

committed a criminal offence if this case be right.

The second point is this, Your Honours, that

there was in any event no case to answer and - this

is my submission - there could not be, without the

assistance of Ms Perger, to make the Crown case if

there was one to make. We would argue that the

jury were left to do no more than speculate about the meaning of words. It is quite clear from the

summing up that the case stood or fell - - -

MASON CJ:  On the tapes.

MR BARKER:  On the tapes. It could not be, I respectfully

submit, that - it would not be possible for a jury,

acting reasonably, to exclude the hypothesis that

he was acting innocently. Given for the moment, for the purposes of argument, that there could be	such an offence, on the state of the evidence, when
we have words such as "I made her plead guilty",
which is the highest point of the Crown case, it
would simply not be reasonable to say one can conclude from that that he was acting criminally
with the intention of improperly overbearing her
will no matter what, to the exclusion of the
hypothesis that he had merely applied vigorous pressure in a perfectly proper way.

It is significant, Your Honours, that

according to the evidence there was a lapse of time

between when she told her first solicitor she

wanted to plead guilty, which was 27 February, and

when in fact she pleaded guilty, which was in the

district court on 19 March. During that time she

was advised, it seems, by an experienced criminal

Meissner 9 8/10/93

lawyer, Mr Murphy, who was well equipped to advise

her about the issues she was facing. There was

absolutely no evidence about what happened during

that month and there was no evidence, not the

slightest evidence, suggesting that what she said

when she gave evidence on her plea before

Judge Muir was in any way induced by any pressure

applied by Mr Meissner.

MASON CJ:  By the way, was there more recorded on the tape

as admitted into evidence than appears at pages 19

to 21 of the judgment? That is pages 274 to 276 of

the application book.

MR BARKER:	Yes, there was a lot more, Your Honour.
MASON CJ:	What context did that provide?
MR BARKER:	None, except to the extent that there are a

number of people in a room talking about other

things.

MASON CJ:  One of whom was Camilleri, an employee of the

applicant.

MR BARKER:	Yes.
MASON CJ:	And a number of topics were discussed.

MR BARKER:  Yes. The place of the discussion and the other

subjects discussed lent nothing to proof of - - -

MASON CJ: Did they relate to the applicant's business,

because the conversation took place on his business

premises apparently?

MR BARKER:  I think that is right.

MASON CJ: What was his business?

MR BARKER:  He is an importer and a wholesaler. There was

discussion about that. There was discussion about

a card game that was going on. If she pleaded

guilty under such pressure that her will was

overborne, then her plea, it would seem, was a

nullity. If she were to seek a declaration that
the plea was a nullity, it is impossible to

imagine, I submit, that she could succeed without going into the witness-box to say why she pleaded

guilty. Here, however, in a criminal trial the

jury were invited to find that she changed her plea

because of pressure applied by the applicant which

overbore her will.

DAWSON J:  Did the Crown say why it did not call her?

Meissner	10	8/10/93
MR BARKER:	Yes.	In the first instance the learned Crown

prosecutor advanced one reason. That was that two
years before she had refused to speak to him at a
conference. Those reasons during the course of the

trial were expanded to five, and they were these, that - His Honour recited them at page 307. This

is in the Court of Criminal Appeal:

(1) "Perger has sworn on oath both that her

allegations are true and that they are untrue,

making her a suspect witness incapable of

belief";

(2) If she gave evidence in the present trial

that the allegations were true she would

expose herself to perjury because, on the plea

of guilty, she had sworn that they were
untrue .....

(3) Perger is "in the accused's camp" in that

she refused even to speak to the Crown

prosecutor ..... when the meeting was set up to

investigate whether she would be prepared to

give evidence -

that was two years before the case -

(4) It would not be ethically proper for the

Crown to call Perger in order simply to have

her declared hostile .....

(5) "There has been a very long standing, at

times intimate, and continuing, association

for some years between Perger and the

accused."

Could I draw Your Honours' attention to page 336

which is a transcript of a discussion in the

absence of the jury before the case started, where

at line 20 the learned Crown prosecutor said this:

As I did indicate previously, the Crown does

not intend to call Miss Perger for the simple

reason Miss Perger declined to speak to me

when I tried to have a conference two years

ago in the committal proceedings. I believe

she is in Sydney and there is no objection to

my learned friend calling her if he chooses to

do that.

That is relevant to our Jones v Dunkel argument

but, in my respectful submission, there was never a

case to answer, which is our second point.

Our third point is that if there was a prima

facie case, the Crown's failure to call

Virginia Perger rendered the trial so unfair to the applicant as to have caused a miscarriage of

justice in the sense referred to by Justice Deane

in Whitehorn at page 664. In any event, in the

Meissner 11 8/10/93

absence of her evidence, the conviction was

rendered unsafe and unsatisfactory for much the

same reasons as were considered by Your Honour

Sir Daryl Dawson in Whitehorn.

So the question may be posed: could this jury

acting reasonably have rejected as a rational

hypothesis the possibility that the applicant did

not intimidate or try to intimidate Perger so as to

overbear her will? In my respectful submission,

the answer can only be no, that the jury could not

have excluded that hypothesis, the hypothesis

consistent with innocence. As in Knight, (1992)

175 CLR, it was not possible to exclude the

hypothesis that the applicant acted innocently.

Your Honours, point 4 is the Jones v Dunkel

point, and it raises really two questions:

firstly, the relevance of Jones v Dunkel in a

criminal trial - and there seems to be no direct

authority in this Court on the point.

MASON CJ:  Except in Petty and Maiden, did we not proceed on

the footing that a Jones v Dunkel direction had

been given and that there was in effect nothing

wrong with it?

MR BARKER:  Petty and Maiden was the case where the accused

had said nothing and raised a defence at a late

stage. As I recall Petty and Maiden, it was not a

Jones v Dunkel point. Rather it served - - -

DAWSON J:  Your point is that you can assume that the

evidence would have been unfavourable to the Crown,

is that the point? That is the Jones v Dunkel

point.

MR BARKER:  Yes, but what happened here was that not only

did the Crown not call her; His Honour then gave

very long directions to the effect that the jury	could determine - firstly he said the defence could
have called her. The jury should determine whether
she should have been called by the defence or the
Crown. The jury should consider reasons advanced
by the party they think should have called her and
the jury might then be in a position to infer from her absence that she would not have assisted the case of the party who should have called her.

This, in my respectful submission, was wrong

in law, it was prejudicial to the defence, it

effectively reversed the onus of proof and caused a

miscarriage of justice. It was, with respect to

His Honour, a lethal direction because -

DAWSON J:  It must be wrong in the circumstances, must it

not, because if the Crown gave the reason that she

Meissner 12 8/10/93

was unreliable, and that was why they did not call

her, in a sense that means that her evidence may

have been unfavourable to the Crown, but you cannot

take it any further than that.

MR BARKER:  No.

DAWSON J: But that certainly does not suggest that the

other side should have called her.

MR BARKER:  No, it does not, Your Honour. It is just that

to even suggest that the accused should have called

her or to leave that issue open and to tell the

jury that they could find that she would not have

assisted the accused was loaded entirely against

him because, firstly, he advanced no reasons for
not calling her, whereas the Crown did, and,

secondly, the judge said that they could consider

the relationship between the witness and the

parties in determining which one should have called
her, and there was no relevant relationship ever

between Ms Perger and the Crown but there certainly

was once between the applicant and Ms Perger. May

I take you to the directions commencing at the foot of page 92:

There is an important direction which I

want to give you now before I move on to deal
with the aspects of the accused's case other
than the tapes. That direction relates to

what is the effect of the failure by a party

to call a witness; what are the

responsibilities of the Crown Prosecutor in that respect. Now much has been said about

this, constant remarks have been made.

He was referring there to counsel for the defence.

At line 10 he said:

Standing like a Colossus over all of

this, of course, is the absent figure of

Virginia Perger. As you heard me say a number

of times when these matters came up, there is

no property in witnesses. By that I mean that

any witness in any criminal trial may be

called:

a) By the Crown in the course of attempting

to prove the guilt of the accused;

b) By the accused in his defence, though it

must be always remembered that he bears no

onus to prove anything; and

c) By the Crown in the discharge of its

duties to fairly present to the jury all

evidence relevant .....

Meissner 13 8/10/93

Clearly Virginia Perger was a person who

could have given relevant evidence ..... After

all it was she who was allegedly bribed and/or

otherwise improperly influenced. It was she

who would know, or is she, who would know, why

she pleaded guilty.

Then His Honour went on to explain the Crown

prosecutor's duty. On page 96, just above line 20:

In this case, the learned Crown Prosecutor has

not called a person who could have been a

central witness, Virginia Perger; neither has

the defence.

The Crown Prosecutor suggests to you that

although this is an unusual course, in this

particular case, he had valid reasons for not
calling -

her. Then he went through the reasons which were repeated in the judgment of the Court of Criminal

Appeal.	On page 99, line 10, he gave the last
reason:

that there has been a very long standing, at

times intimate, and continuing association,

for some years between Perger and the accused.

Then he went on to say:

The Crown has suggested to you that in all

those circumstances it had valid reasons for
not calling Perger.

As I have said, the defence could have called Miss Perger. The defence gave no reasons for

not calling Miss Perger, although you might

think that it is pretty obvious that she would

be what might be described as "a loose

cannon", that you would not know what she

would say.

Well, Your Honours, of course that expression

usually denotes that the "loose cannon" will be

destructive, and the jury here were left with a

very clear implication, in my respectful

submission, that it was open to them to find that

she would have been destructive of his case, and I

put it as high as that when I come to the

direction.

It is for you to decide what you make of the

reasons for failing to call Perger given by

both the Crown on the one hand, and any

reasons for the defence.

Meissner 14 8/10/93

Well, the Crown has given five, the defence none.

Then on page 100, line 10:

If Perger was a person whom you feel should have been called by (A) the Crown or (B) the

accused, and if you feel that the party whom

you think should have called her has not

satisfactorily accounted for not doing so, it

would be open to you to infer from the failure

to call Perger by that party that nothing

which she could say would assist the case of

the party you feel should have called her.

The significance of this inference differs

according to the closeness of the relationship

of the absent witness with the relevant party;

however, you must clearly understand that the

failure to call her cannot be used to support

any positive inference that had she been

called her evidence would have been damaging

to the case of the party who should have, but

omitted to, call her.

It is for you to decide which if either party

you fele, bearing in mind the matters I have

referred to, should have called her, and

whether you are satisfied that a satisfactory

explanation has been given for failing to do

so and if not, whether you feel that the

available inference that the calling of the

witness would not have assisted that party,

should be drawn, and if it is, how much weight

this should be given.

He repeated it again the same day, at page 102,

line 15:

But you are certainly entitled to draw the inferences which I have described to you from

the failure to call witnesses -

this is after there is a discussion about other

witnesses -

for which failure no acceptable reason has

been given. If you wish to draw those

inferences then you may, but do remember that

it does not go beyond drawing the inference

that the witness would not have assisted the

case for the party who failed to call him or

her, and it does not go so far as showing that

it would have harmed or damaged the case of

the party who failed to call Perger.

Now, Your Honours, that was the end of the day.

Meissner 15 8/10/93

In my submission, that was entirely loaded

against the accused because the Crown has

effectively exculpated, in the sense that the Crown

had given all the reasons, and there was no

relationship, so the party being pointed at was the

accused. To say that she would not have assisted

the accused was the same as saying she would have

damaged him because she could hardly be expected to
be neutral; either she would have helped the

accused or she would have hurt him. Her evidence

would not have related to some specific issue

amongst a matrix of issues, her evidence would have

gone to the heart of the case, the whole issue and,

in the circumstances of this case, in my

submission, it is merely playing with words to

assert that the expressions, such as "She would not

have assisted the appellant" means any less than

she would have given evidence unfavourable to him.

Now, all of that, I respectfully submit, also

had the effect, or at least the potential, to

reverse the onus of proof. What His Honour was

doing was following the formula of words in

Buckland, (1977) 2 NSWLR 452, which is on our list

of authorities. But what seems to have been

overlooked is that where - this formula was

articulated by Sir Laurence Street at page 457 of

the judgment:

There are three alternative bases -

et cetera. But what His Honour said was that the

matter should be approached with considerable

caution in a criminal trial. At the top of

page 459, he said:

The foregoing comments were made in the

context of civil litigation. In criminal

trials, there are some situations in which

comment is expressly precluded by statute. In

general, however, this rule of practice applies equally in criminal as in civil proceedings. In criminal proceedings,

however, the making of a comment or the

indication of the available inference will be

attended by a marked degree of caution,

inasmuch as in many cases the absence of a

witness either for the Crown or the accused

might well be explicable upon grounds not

readily capable of proof.

In my respectful submission, it would logically

follow that if that sort of direction in that sort

of case is right, it could have been given in

Whitehorn. The jury could have been told that,

although the Crown did not call the little girl, he

could have called her. He claimed to be her

Meissner 16 8/10/93

father, there was a continuing relationship between

them.	The jury were entitled to consider why he
had not called her.	Now, that would have been

unthinkable and, in my submission, it is

unthinkable here that the accused should be put in

that position of having to, in fact, demonstrate

why he did not call the person said to have been

overborne by his conduct.

The Court of Criminal Appeal judgment deals

with the matter, pages 304 to 311, and approved the direction, apparently on the basis that counsel for the defence had made a great deal of the absence of

Miss Perger from the witness box. His Honour,

Mr Justice Allen said, at page 304, line 1, in relation to the failure to call Perger:

The force of this objection is greatly attenuated by the fact that the Crown was

correct in its stance that it did not have to

prove that the appellant's conduct caused her

to plead guilty.

Of course, they set out to prove just that. They

might not have had to prove it, but that was how

the case was presented.

The elements of the offence of attempting to

pervert the course of justice are directed

solely to what the appellant did and the

purpose with which he did it. It is not

directed to what Perger did or why she did it.

The jury, of course, might well have been

assisted by evidence from Perger as to

precisely what it is that the appellant said

to her. It does not follow that the jury were

not entitled to -

MASON CJ: This is not directed to the Jones v Dunkel point?
MR BARKER:	I am sorry, Your Honour, that follows on. At

page 304, line 20, the ground of appeal is set out,

and he then dealt with Buckland and the direction
given by His Honour is set out at the foot of page

307.      He said:

I do not consider that in that combination of circumstances the Crown was in breach of its duty.

Page 308, line 10:

It is argued for the defendant, however, that

even if Perger was not in the third of the

categories stated by Street CJ, his Honour

Meissner 17 8/10/93

should not have given a Jones v Dunkel

direction.

He cited the passage during caution, and at

page 311, line 5, His Honour said:

I see no unfairness in the direction in which

his Honour gave. It was entirely appropriate. In my submission, that is simply wrong. This man

was denied a fair trial, and one of the reasons was

the direction concerning Miss Perger and the

problem, of course, arising from her absence. The

Canadian position, or at least the British Columbia

position, we find in a case, R v Rooke, (1940),

40 CCC, (3d), page 484.	I might hand to
Your Honours copies.

MASON CJ: What does it decide on this point?

MR BARKER: There is quite a lot said, but at page 520,

Your Honour, in the judgment of Mr Justice Esson,

the second part of the second passage:

The basis for drawing an adverse inference

must be found in the conduct of the accused in

not calling a particular witness. It is not

enough to justify drawing an inference, and

therefore not enough to justify a comment,

that it appears that some witness might have

been able to throw some light on some issue.

Comment on the failure of an accused to call a

witness should only be made if the evidence

discloses circumstances which a reasonably

competent defence counsel, considering the

matter before closing his case, would
recognize as providing logical grounds for

drawing an adverse inference. There may be such circumstances if the witness is one to

whom the accused can reasonably be said to	have had greater access than the Crown, and if
the person appears to be in a position to
corroborate the defence on an issue in a
significant respect, and if no reason appears
from the evidence why the accused cannot call
him or would not be acting reasonably in
calling him. I do not intend that as an
exhaustive list. The point is that, where
circumstances of that kind exist, the accused
and his counsel have reasonable notice that
the Crown may invite the jury to draw an adverse inference, and that the court may
instruct the jury that it may do so.

DAWSON J: What is the adverse inference? One that would

supply a gap in the Crown case?

Meissner	18	8/10/93
MR BARKER:	Yes, that is not, and never has been, the law in Australia.	I am drawing Your Honours' attention to

it. But what it does do is point out the need for

considerable caution and point up this, that what

is to be examined is not the - - -

DAWSON J:	When the onus is on the Crown to prove it.
MR BARKER:	Yes, not whether we deny it was said, but

that -

MASON CJ: That seems to me to have been the real problem

with this direction. It must necessarily have

diverted attention away from the necessity of the

Crown to prove its case beyond reasonable doubt.

MR BARKER:  Yes, that is the heart of our submissions,

Your Honour. I submit that it is inconsistent with

the view of this Court as expressed in the Petty
and Maiden as to the rights of an accused person to remain silent. Now, Petty and Maiden were directed to that issue but it is relevant, in this context

also, that here is an accused who exercises his

right not to call a witness and is then confronted

with the direction which we criticize.

MASON CJ: Well, I just do not see the analogy with

Petty and Maiden and the right of silence.

MR BARKER: Well, Your Honour, if I could briefly refer to

page 99 of Petty and Maiden, near the bottom of the

page:

That incident of the right of silence means that, in a criminal trial, it should not be suggested, either by evidence led by the Crown

or by questions asked or comments made by the
trial judge of the Crown Prosecutor, that an

accused's exercise of the right of silence may

provide a basis for inferring a consciousness

of guilt. Thus, to take an example, the Crown

should not lead evidence that, when charged,

the accused made no reply.

DAWSON J: That is, of course, true but that was a case in

which a statement was made by the accused.

MR BARKER:  Yes, Your Honour. It is not directly analogous,

but -

DAWSON J:  The general principle is there.

MR BARKER: At page 101, for example, .the Court talks about

the:

erosion of the fundamental right should not be

permitted.

Meissner 19 8/10/93

MASON CJ: Yes, I think you have a stronger point,

Mr Barker.

MR BARKER:  Thank you, Your Honour. The remaining ground is

the exercise of His Honour's discretion not

discharging the jury because of the remarkable article which appeared in Sunday's - - -

MASON CJ: But the trial judge could do little more, having

regard to the response made by the jury.

MR BARKER:	I do not wish to be heard beyond what is in our submissions, Your Honour.	I am indebted to the
Court.
MASON CJ:	Thank you.	We need not trouble you on the last

question, Mr Solicitor, otherwise we want to hear

from you.

MR MASON:  Your Honours, as to the nature of the offence,

this case was from start to finish a case based on

attempt, and it was never part of the Crown case,

as opened, or proved or put to the jury, to

establish as an essential part of its case that the

witness Perger was induced by either the bribery or

the intimidation which was put to her. The

evidence in the tape, for example, about "I made

her do it", the real sting of that was in the "I

made her". It is the light that it cast in the

context of the other evidence upon the question of
whether improper pressure was put upon her.

There was the evidence of the money payment which was made on the very day that she - - -

DAWSON J: When does pressure become improper?

MR MASON: Well, it certainly becomes improper when it is in

the form of a bribe or in a form of physical

coercion - to hold a gun at a witness's head or a

party's head - or to bribe them to do that which

they otherwise might not be induced to do, or even,

and this of course was one of the main points put

here, to bribe them with a view to doing what the
briber thinks is the correct thing, is an attempt,
on the authorities, and properly so, to pervert the

course of justice. Because the course of justice

is as much a process as a result and the witness

who, for money, is encouraged to speak one way,

there is such danger that either that witness will

speak improperly, or even if the witness speaks as

he or she originally would have done so, the

discovery of the improper inducement will, itself,

poison the public acceptability of the ultimate

result. At pages 295 and 296 in the - - -

Meissner 20 8/10/93

DAWSON J:  Is it that, I mean, ..... say that sort of pressure

is improper. It is improper because it is an

assault, it is improper because it is a bribe, but

is the point that pressure becomes improper where

it does overbear the will?

MR MASON:  No, in an attempt case it does not have to go

that far. But if it goes beyond, for example, a

persuasion of a lawyer or of a family friend, but

amounts to a threat, "If you go into the

witness-box, I will cross-examine you in such a way

as to show that you have this dark secret" - which

is a New Zealand case that I will refer you to

briefly - or a monetary inducement, or a physical

threat, then whether or not it is to guide the

witness in the way the witness was otherwise

disposed to do, it relevantly interferes with the

course of justice. The attempt to bribe a judge is

an interference, or an attempt at interference,

with the course of justice, whatever the possible

outcome of the exercise.	Your Honours, three
recent - - -

DAWSON J: But that is the difficulty. See, the attempt to

persuade someone to do something which they have a
perfect right to do, when their will is not

overborne, so that they exercise that right, there

is difficulty with that as perverting the course of

justice, is there not?

MR MASON: Well, if one takes the witness who has provided a

statement and is, as it were, waivering on whether

to stick to that statement for a person to come to

them on the day before they give evidence and say,

"Look, I will give you money if you stick to your

story", or "I will give you money if you depart

from your story because we both know it is untrue";

in either event, in my submission, as a matter of

principle and on the authorities, there is an

attempt to interfere with the course of justice

because that involves witnesses who speak free from

any obligation other than the obligation of the

oath that they take. Now, there may be hard cases,

as I say, with the - - -

DAWSON J: But to attempt, by whatever means, to cause a

witness to tell the truth, is that perverting the

course of justice, unless the will is overborne?

MR MASON: Well, to attempt by, to take the example of

money, it is because the relevant act is that which

passes between the defendant and the witness, and

it has a tendency, and the jury of course have to

be satisfied of this, capable of having a tendency

to interfere with the course of justice by that

witness giving evidence untrammelled by anything

Meissner 21 8/10/93

other than the oath, and then there is the need for

the requisite intent - - -

DAWSON J:  Even though as a result the witness of her or his

own free well chooses to tell the truth to the

court?

MR MASON: Well, the offence occurs prior to the witness

entering the witness-box in the example I have

given. The unwilling witness who does not want to

give evidence, that is given a one-way air ticket

to absent himself from the trial -

DAWSON J: Well, that is a different thing, that is the

court not receiving evidence that it ought to

receive.

MR MASON:  But the offence occurs once the, as it were, the

ticket is given to that person, even if it turns

out that the witness ultimately would have done the
right thing, or ultimately did do the right thing.

If the attempt was made to interfere with that

witness's single-minded obligation towards the

court, and to do it by improper means, and this is

where the cases have had to separate between what

are proper and improper methods of persuasion.

Obviously, as I say, the family must be given some leeway to say to the litigant, perhaps even to the

witness, "Look, you really ought to settle this

case", but there must equally, in my submission, be

limits.

Can I just give the Court three recent cases

which have explored this issue. Two of them are

referred to in our outline, one of them has been

delivered since then.	I have indicated with
the - - -

TOOHEY J: Well, our your approach, Mr Solicitor, is it

relevant to look at what in fact took place on the
return of the charge against Miss Perger?	I mean,

to know what she did, or did not do, in relation to

that plea?

MR MASON:  No, not on an attempt case.

TOOHEY J: That is what I - I mean you put it entirely on

the basis of attempt?

MR MASON:  Yes. Here, of course, whilst the charge was

attempting to interfere with her by inducing her to

make a plea, the evidence that she was, in one

sense, a defendant and a potential witness, and she

gave the plea - - -

TOOHEY J: Well, it is part of the background. I can

understand that, but on your approach it is

Meissner 22 8/10/93

strictly not relevant for the jury to be told about

those events?

MR MASON:  Yes, that is correct. I have just marked with

red the key passages. Obviously, I am not going to take the Court through the whole of them, but it is

interesting that this very problem has arisen in

the Federal Court, the Court of Appeal in

New Zealand, and the Court of Appeal in England

within the last couple of years, all in the context of witnesses, but all in the context of a situation
where a party has said, "Well, yes I did that but I

really thought that witness was going to tell a lie

and I wanted to make sure that they did not tell a

lie".

The statement by Chief Justice Black, the

middle of page 440 of the Federal Court Report,

with which the rest of the court agreed, is really

very similar to that adopted by the Court of

Criminal Appeal in the present case, at pages 295

and 296.

The course of justice is none the less perverted if the end result is the conviction of a person who if the truth were known did

commit the crime with which he was charged.

The relevant, perhaps what one might call the key,

direction in the matter, at page 288, made it plain

that the Crown case depended, essentially, upon the
jury inferring from the evidence, mainly the tapes
but also the payment, that the persuasion that the

applicant put upon Perger was improper because it

was either backed up with a bribe or some form of

intimidation, and that was the basis upon which the matter went to the jury and upon which they must be taken to have convicted.

That separates the situation of the lawyer and

the judge, but having said that, it does not follow

that a lawyer may not go so far as to commit the

relevant offence. That is what happened in the

Federal Court case to which reference is made and
in the New Zealand case where a barrister,
believing that his client was innocent, said to a

witness that if he persisted with his evidence, he

would "mince the boy up in court tomorrow, he would

be publicly humiliated as a liar and a homosexual".

Now, unless one says there can no limits to what

are proper means of persuasion, then the

proposition I contend for, I submit, must be

correct and the limits must be passed if bribery or

intimidation are involved.

Meissner 23 8/10/93

MASON CJ:  You would not support, then, the wider statement

that appears at page 284, equating extraneous

purpose with perversion of justice?

MR MASON: Well, that statement is not an essential step in

the reasoning of the judgment, in my submission,

but the proof of a collateral purpose may,

obviously, be a step in showing that there was an

improper means, but whether - - -

MASON CJ: That on its own, without the improper means would

constitute the offence, is another question; you

would not assert that it did?

MR MASON:  No, that would be difficult. Merely because you

are trying to protect your mates would not be

enough, perhaps, but if you do it with money or a

gun, well then, it is enough. I am not saying

there was a gun here, I am using that

argumentatively.

DAWSON J:  I can understand that, if the witness's will was

overborne, because then the court is being mislead,

the person is not really pleading guilty. But a

person has a perfect right to plead guilty for a

variety of reasons, whether or not he or she is

guilty and, if in a situation she or he is induced

to do so, but a will, or his or her will is not

overborne, then the court is not mislead in any

way. All of these cases deal with misleading the

court because if it is just a witness, of course,

the witness should be free to tell his story

according to his own rights?

MR MASON:  But, surely if a person is induced by a bribe or

a gun, then he or she must be overborne,

almost - - -

DAWSON J: Well, there may be a crime which is committed,

but the court is not mislead, assuming that the

will is not overborne.

MR MASON:  That is not of the essence of a perversion of

justice that the court is ultimately mislead

because the risk, or the nasty taste, that the
process of a bribed witness, or a bribed judge,
leaves, or an attempted bribed witness or judge, is

such that the attempt itself is an offence.

DAWSON J:  If a person of her or his own free will pleads

guilty, as he or she has a right to do, whatever

the reasons for doing so, there is no perversion of

the course of justice.

MR MASON: That leads, perhaps, to another point. It was

never part of the Crown case to prove that

Miss Perger was, or was not, guilty of the original

Meissner 24 8/10/93

offence. This was one of the major grounds of

attack launched against the conviction in the

Court of Criminal Appeal, that the Crown eschewed having to prove that matter, but in my submission

the Court of Criminal Appeal was perfectly correct

in saying that that was an irrelevant consideration

and it would be most mischievous, in effect, that

one had to actually enter the mind of the witness,

the party or the judge to say that that person had,

in the end, been moved to fo that which they

otherwise would not have been done. One just does

not know, but if one gets money passing or guns

being held, surely then, in my submission, in a

case based upon an attempt, there is a sufficient

proximity to do that which has a tendency to

interfere with the proper functioning, not just of
the proper results, but the proper functioning of

the process of justice.

DAWSON J: But the proper functioning of the process of

justice is to allow a person to plead guilty if he

or she wants to.

MR MASON:  Yes, but a person who pleads guilty and then

comes up with evidence that says, "I did so because

my mind was overborne" would have that conviction

set aside.

DAWSON J: Well, yes, it does. Well, it is certainly

improper to overbear the will of a witness.

MR MASON: Well, does that not, with respect, establish that

the person who drives at least that party to that

induced state of mind has somehow or other

interfered with the course of justice by giving

rise to a fragile conviction. Now, if the person

who attempts to do that, may they not, under the

principles of attempt, be guilty of that ancillary

offence?

TOOHEY J:  But it is clear in many of these cases that the

will of the person was not overborne.	I mean, they
made the - - -

MR MASON: That is correct, yes.

TOOHEY J: But clearly, quite freely, understanding the

implications of it, and did so in response to a

threat, or to a bribe, or out of a sense of loyalty

to someone else.

MR MASON:  Yes, and all of those means, whether self-induced

or, in some cases, induced from outside may be

within the realm of what is regarded as a proper

pressure, but there must be a line, in my

submission, and in this case, it must have been

passed.

Meissner 25 8/10/93

TOOHEY J: Well, in this case, I mean, may well in the end

turn on the evidence, but all I am suggesting is that overbearing the will of the person is not a necessary step in attempting to pervert the course

of justice.

MR MASON:  Certainly not, because the judge who is offered a

bribe reports it to the police.

DAWSON J:	Oh, yes, but that is because it is an attempt to get him to do something which he has no right to
do.  But I do not understand when you say improper
pressure.  I can understand you saying that an
assault is improper pressure because it happens to
be a criminal offence, or something like that. Where do you draw the line between proper and
improper pressure?

MR MASON: Well, I say that improper includes bribery and

intimidation, and I say that as a matter of

principle, and these cases all establish, at least,

that proposition.

DAWSON J: But they are improper because of themselves they

constitute a criminal offence.

MR MASON: Well, paying someone money, of itself, does not

constitute a criminal offence, but if it is paid in

a particular content it will and, in my

submission - - -

DAWSON J: Well, perhaps so, and that is why, if a father

says to his son, "Now, let us get this over

quickly, I do not want a protracted trial. If you

plead guilty, I will take you on a long holiday to

the Bahamas, and I will pay for everything". Is

that improper?

MR MASON:  Well, the presence of the family context may make

it a bit close to the line.

DAWSON J: Well, that is a monetary advantage.

MR MASON: Well, as I say, that may be one where there is a

mixed series of motives. It may be that it is in

the father's intent that the conviction would fail,

rather than in the actus reus. If it does amount

to a monetary inducement to take a formal step,

then the actus reus has been established, in my

submission.	I say, in any event, this is far
removed from that example.	As well as tainting the

process, it is a situation where the person who

pays the money is the beneficiary of the process,

rather than the accused person and that, surely, is

contrary to the proper functioning of justice.

Meissner 26 8/10/93

The argument that there was no case without

Miss Perger, in part, flows from the earlier

proposition, and misunderstands the way the Crown case was properly put, but the trial judge ruled,

in his judgment, starting at page 7, that there was

a case to go to the jury, and that was upheld by

the Court of Criminal Appeal, in my submission,

properly so.

The only thing approaching the question of

principle that could be involved in the proposition

my friend has put, is that it was not part of the

Crown case to show that Mr Meissner believed that

Miss Perger was not guilty, and the question of

whether it was essential to prove that was debated

as a matter of principle and, in my submission,

correctly found as a matter of principle not to be

of the essence of the offence.

The English case of Toner, which I have given Your Honours, and particularly the passages marked at the back page of that judgment, page 372,

supports the conclusion of the Court of Criminal

Appeal here. There was, clearly, evidence. The

interpretation of the tapes - the main one is, as

Your Honour the Chief Justice pointed out, at

page 275. There is also a further tape at page

281, that has just added a bit. Plus the payment

of money, plus the switch of instructions and
dismissal of earlier counsel were altogether

capable of supporting the conviction, and it really

was a matter for the jury, properly, to determine
whether it did, and they were properly directed.

There was no complaint made about the directions in

any relevant respect. To say that the Crown case,

as it were, fell off the edge because Miss Perger

was not a witness is to confuse two separate

things.

On the Jones v Dunkel aspect, Your Honours, I

submit that it is available in a proper case as a

comment that can be made, either against the Crown

or against an accused person without breach of the

principles of Petty's case or any other relevant
principle. Throughout the whole of this trial the

appellant taunted the Crown with the failure to

call Miss Perger, which was announced at the

beginning of the trial. The Crown explained and

sought to justify its failure to call her in order

to rebut the Jones v Dunkel case that was being put

against the Crown. Some of their reasons the Crown

advanced in justifying its own failure to call

Miss Perger were capable of justifying a Jones v

Dunkel comment against the defence. In particular, the occasion in which she refused to speak to the prosecutor was one when she turned up with

Meissner 27 8/10/93

Mr Meissner's solicitor, and he did the talking and

said she is not going to speak to you.

DAWSON J: But, in relation to the defence, what is the

adverse inference you would draw?

MR MASON:  I do not say there is any adverse inference; I

submit that the direction at pages 100 and 102 to

which you have already been taken, which is

straight from Bucklands, is as far as may properly

be put and as far as it was put, that if you feel

that the person was in the other party's camp and

was available and was not called, then it is open

to infer, from the failure to call it by that

party, that .nothing which she could say would

assist the case of the party you feel should have

called her. Now that is no more than Jones v

Dunkel and Buckland states, in my submission.

DAWSON J: And what does that do?

MR MASON: Well, it does not fill in evidentiary gaps, but

it does allow inferences available on the evidence

to be drawn with a greater confidence, if they are

otherwise available to be drawn or if there is

otherwise evidence. The directions that were there

given were not the subject of any complaint at

trial.

DAWSON J: And you can use the silence of the

accused ..... call evidence, particularly if he has

got facts within his peculiar knowledge which would

explain the Crown evidence, you can use his silence

to strengthen the Crown case.

MR MASON: Well, failure to call a witness is not the same

as the silence of the accused himself.

DAWSON J:  No, but the evidentiary effect of it is the same

and that is what you are putting.	I am not saying
it is wrong; I mean there are many cases which say

you can attack the silence of the accused.

MR MASON:  The law proscribes certain comments upon what the

accused does or does not do -

DAWSON J:  It does in New South Wales, but it does not

elsewhere.

MR MASON: 

- - - but they do not all apply to the calling of

witnesses and the law permits, and it has been
repeatedly upheld at the Full Court/Court of Appeal

stage here and in England and never doubted, as I

understand it in this Court, that a comment that

goes no further then page 100 is permissible in a

proper case against the accused. And, one of the
unusual, or perhaps not unusual facts of this case,

Meissner 28 8/10/93

is each side was accusing the other of being the jury that they were free to decide.

Now, it was said by my learned friend, well

look, there were no reasons advanced by the
applicant for not calling Ms Perger, therefore one
should not have, in effect, put it to the jury, but
the very fact that reasons were not given is the

situation in which, in a proper case, if the evidentiary basis is there, a Jones v Dunkel

comment can be made. In fact, when the judge spoke

about "loaded canon" he was really trying to put

something into the balance to explain what

otherwise was an unexplained failure on the part of

the applicant to call this witness who was

definately in his camp.

It is at page 97, Your Honours, that the

evidence about Ms Perger, at the bottom of that

page, turning up with the applicant's solicitor and

whether that was one year or two years before the

trial, there could be nothing clearer to show, in

my submission, that she was in his camp.

MASON CJ: Yes, Mr Barker.

MR BARKER:  Your Honour, that was two years before the case

and there was no evidence that she was in "his

camp" at all at the relevant time. In my

submission, he should not have been required to

give any explanation about why she was not called by the defence in the circumstances of this case.

Your Honours, as to the nature of the offence and

the evidence called to support the charge, it is

the "somehow or other" expression used by my friend

that is the problem in the case. He says, "The

line must have been passed" but cannot tell us why

and cannot point to evidence which suggests that it

was passed. It is a Nancy Mitford case - sorry,

Your Honour.

DAWSON J:	He says she was bribed.
MR BARKER:	He says she was bribed, but the evidence does

not support that. The details of that payment are

set out in the chronology and it is impossible,

with respect, to reasonably categorize it as a

bribe. This case amounted to an allegation that

there was something nasty in the woodshed, but it

was never exposed and, in my respectful submission,

the criminal law should be attended with more precision than that. Thank you, Your Honour.

Meissner 29 8/10/93

MASON CJ:  The Court will take a short adjournment in order
to decide what course it will take in this matter.

AT 4.18 PM SHORT ADJOURNMENT

UPON RESUMING AT 4.23 PM:

MASON CJ: There will be a grant of special leave to appeal

in this case, limited to the first three grounds

argued by Mr Barker. That means the Jones v Dunkel
point will be excluded, as will the application for

discharging the jury.

AT 4.24 PM THE MATTER WAS ADJOURNED SINE DIE

Meissner 30 8/10/93