Meissner v The Queen

High Court of Australia|1995-08-16|Before: McHugh JJ, Deane J

High Court of Australia Brennan, Deane, Dawson, Toohey and McHugh JJ Meissner v The Queen [1995] HCA 41

Joseph Ladislaus Meissner (the appellant) was convicted by a jury in the District Court of New South Wales of attempting to pervert the course of justice by improperly endeavouring to influence Ms Virginia Perger to plead guilty to a charge of making a false statutory declaration. The Crown alleged that the appellant had improperly influenced her by either bribing her or intimidating her or both. The New South Wales Court of Criminal Appeal unanimously dismissed an appeal to that Court against the conviction. Pursuant to a grant of special leave, the appellant now appeals to this Court.

The first question in the appeal is whether the crime of attempting to pervert the course of justice can be proved by evidence which establishes that the accused has attempted to influence a person by improper means to plead guilty to an offence but fails to establish that that person was not guilty of the offence to which he or she pleaded guilty. If that question is answered in the affirmative, the second question in the appeal is whether there was evidence in this case of an attempt to pervert the course of justice and, if so, whether upon the evidence the conviction of the appellant was unsafe or unsatisfactory. On the second question, the main issue is whether the Crown satisfactorily proved that the appellant had attempted to influence Ms Perger by intimidation or bribery to plead guilty to the charge of making a false statutory declaration.

In our opinion, it was not necessary for the Crown to prove that Ms Perger was not guilty of the offence to which she pleaded guilty, there was evidence to support the conviction of the appellant, and the conviction was not unsafe or unsatisfactory.

The appellant also raised two matters which he contended entitled him to a new trial even if the first two questions were answered adversely to him. These matters are dealt with in the judgment of Deane J, and we agree with his Honour's reasons for concluding that they do not require a new trial.

For a number of years until 1979, Ms Perger lived with the appellant in a de facto relationship. After that time, the appellant maintained contact with her and, from time to time, gave her financial support. She was a drug addict and worked as a prostitute. In April 1985, she told a freelance journalist that she had photographs of a number of politicians that showed them in sexually compromising positions. She claimed that the photographs had been taken on the appellant's cruiser, " Kanzen ". Subsequently, the journalist contacted the appellant who confirmed that he had photographs of politicians that had been taken by a deckhand while the appellant was skippering the " Kanzen ". He said that one of the photographs showed a former Minister in a State Labor Government and Ms Perger naked. The journalist then arranged a meeting between officers of News Ltd, the publisher of the Sunday Telegraph, and the appellant. At the meeting - which took place on 4 May 1985 - News Ltd offered to pay the appellant $100,000 for the photographs. Also present at the meeting was Ms Perger. At some stage that day, she signed a statutory declaration, an annexure to which contained statements by her that she had been a "political whore" and that the appellant had arranged for her to be photographed in sexually compromising situations with a number of persons on board the " Kanzen ". During the meeting, the appellant was shown that declaration. He became angry and said that her allegations were "bullshit". Nevertheless, during the meeting, he said that he was prepared to sell a photograph of the former Minister because he "didn't have much time for him" but he was not prepared to sell photographs of the other politicians because they were his mates. No agreement concerning the sale of the photographs was reached. But the appellant said that he would consider an offer of $60,000 from News Ltd for the photograph of the former Minister.

On the following day, the Sunday Telegraph published a front page story under the heading "MPs Set Up In Sex Photos". The story was accompanied by a photograph of Ms Perger and contained details of her allegations.

Subsequently, the appellant was interviewed by police officers. He denied that he had provided the " Kanzen " to politicians for sexual activities. He also told the police officers that, to his knowledge, there was no "basis of truth in the suggestion that sex photographs of Miss Perger with leading ALP members were taken on a [boat] owned by [him] between 1978 and 1982". In a subsequent interview with police officers in June 1985, however, he said that he had had in his possession a photograph of Ms Perger and the former State Minister sitting "[o]n the Kanzen in the nude". He said that he no longer had possession of the photograph and declined to say where it was.

On 11 September 1985, Ms Perger was charged under the Oaths Act 1900 NSW with making a false statutory declaration on 4 May 1985. On 19 September, she retained Mr D Sankey, a solicitor, to defend the charge. Proceedings in respect of the charge came before the Local Court on 2 October. Ms Perger was represented by senior counsel who told the Court that she intended to defend the charge. She appears to have maintained that intention until at least Christmas time 1985. According to the evidence of the appellant, just before Christmas 1985 Ms Perger indicated that she was thinking about pleading guilty. They discussed the case at some length. The appellant said that he told her that even with the photograph of the Minister "she would have no hope of winning the case and all she would do was create a lot of embarrassment and a lot of heartache and cause agitation amongst the legal system and other people, and it would do no good in the long run". He also told her that "if she fought this and lost she would go to gaol". The appellant also gave evidence that in January 1986 he told her "that if she pleaded guilty and told the truth about the matter, like, for example, she was on heroin at that stage and was put up to say these things, she - which she told me she was - and publicly apologised to the people she caused embarrassment to and hurt to, I suggested that would be in her favour and I couldn't see how she would be gaoled for that". Victor Camilleri, an employee of the accused, gave evidence corroborating these conversations. Another employee, Phillip Fernando, gave evidence corroborating the second conversation. The jury were, of course, not bound to accept the appellant's evidence concerning these conversations. But whether this evidence was or was not true, Mr Sankey knew nothing about a change of plea until about 22 February 1986 when he heard a rumour that Ms Perger was going to plead guilty. On 27 February, she instructed Mr Sankey that she now wanted to plead guilty. He told her that he could no longer act for her and asked for $5,000 on account of his costs. Subsequently, Ms Perger went to another firm of solicitors.

On the following day, the appellant and Ms Perger opened a six month term deposit account in their joint names with the National Australia Bank. On the same day, the appellant deposited $15,000 in cash in the account. In evidence, the appellant said that he had taken that money from his safe. He said that the $15,000 was to pay for the costs of an appeal if Ms Perger received a prison sentence and to pay for the upkeep of her daughter if that happened. Later that day, he paid Mr Sankey $5,000 on account of Ms Perger's costs. On 2 September 1986, all moneys deposited in the joint account were disbursed. Approximately $3,679 was disbursed for the benefit of Ms Perger; the balance went to a company controlled by the appellant.

Notwithstanding the charge against Ms Perger and the appellant's alleged statement to her at Christmas time 1985 that, if she pleaded not guilty to the charge of false swearing, she would "create a lot of embarrassment and a lot of heartache", he continued to negotiate with News Ltd to sell the photographs as part of "a package of material". In February 1986, Mr Keller, a solicitor acting for News Ltd, sent a draft agreement of the proposed sale to Mr Sankey. Later that month, the appellant handed to Mr Sankey a document that listed the photographs to be sold. At the trial, that document was no longer available. But Mr Keller had taken a note of its contents. His notes referred to "particulars of five photographs, including negatives, black and white, 35mm taken on MV " Kanzen " ". They also recorded that the appellant's document had listed a photograph of the former State Minister and Ms Perger as "nude" and a photograph of another politician and Ms Perger as "nude". This politician was a person who the appellant conceded had been on the " Kanzen " for a fishing trip and who was one of his "mates".

During January and February 1986, the appellant also negotiated with representatives of the Liberal Party for the sale of the package. The appellant showed a number of photographs to one of those representatives. The representative saw two photographs which appeared to him to be photographs of the former State Minister and Ms Perger, naked. He described the photographs of other politicians as social photographs. They were of a non-scandalous, non-sexual nature.

No sale of the photographs to News Ltd or the representatives of the Liberal Party took place. Nor, according to the appellant, was a sale made to any other person.

In evidence, the appellant said that there was a photograph that purported to show the former State Minister and Ms Perger in a compromising position, but that he had doubted its authenticity. He was not aware of any other photographs purporting to show politicians in compromising positions with Ms Perger.

On 22 April 1986, Ms Perger appeared in the District Court and pleaded guilty to the charge of making a false declaration. On 14 May she told the sentencing judge that she had made the allegations in the statutory declaration while under the influence of drugs. On 15 May, she was given a deferred sentence upon her entering into a recognisance to be of good behaviour for two years.

Central to the case against the appellant were recordings of conversations between him and other persons that had been taped as the result of a warrant lawfully obtained in May 1988. Two of these conversations were of critical importance to the Crown case.

In the first of them, the appellant is recorded as saying:

They're using her, you know what I mean the thing is like ah 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, isn't it. On top of that who was gunna pay the legal fees me, isn't it. So I figured 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.

In evidence, the appellant said that the reference to "using her" was to a Channel 9 transmission the previous evening that showed an interview with Ms Perger that had been made many months previously and for which she had received $5,000. The reference to her being "pissed off for ever pleading guilty" referred to her being ridiculed by people in the media after her initial statement. The appellant said that he "couldn't let that happen" because if she fought the charge, using the photograph of the former State Minister, "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". He said that the "best result" was the "best result for her in the long run".

The second conversation took place on 12 May 1988. After a reference to an investigation by "The National Crime Squad" and to newspaper articles, the appellant is recorded as saying:

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. After some further conversation, the following conversation was recorded: Camilleri: Someone got in touch with you at all?

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 (indecipherable passage)

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

Accused: 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's gunna believe it of course

Accused: I fixed it on Channel 10, I even picked her up and made sure she went to Channel 10.

In his evidence, the appellant said that the reference to Ms Perger being "paid for it" referred to the payment that she received for the Channel 9 interview and for telling her story to the newspapers. He said that the reference to her taking "the rap" merely referred to her pleading guilty and that he had not meant that she had pleaded guilty to something that she had not done. The appellant explained his statement that he had "plenty to worry about" as a reference to "the other matters that were referred to in the package".

A person is guilty of attempting to pervert the course of justice when that person engages in conduct that has the tendency to pervert the course of justice and does so with the intention of perverting the course of justice [1] . Attempting to pervert the course of justice is a substantive offence [2] . Whether or not conduct succeeds in perverting the course of justice is irrelevant. It is the tendency of the conduct that is decisive [3] .

R v Vreones [1891] 1 QB 360 at 369; R v Rogerson (1992) 174 CLR 268 at 275-276, 279, 297. 2. R v Machin [1980] 1 WLR 763 at 766-767; [1980] 3 All ER 151 at 153-154; (1980) 71 Cr App R 166 at 170; Rogerson (1992) 174 CLR 268 at 279, 297. 3. Rogerson (1992) 174 CLR 268 at 277, 280, 298.

There appears to be no reported authority in the British Commonwealth to the effect that a person who improperly influences an accused to plead guilty to an offence is guilty of attempting to pervert the course of justice. But two cases in the United States [4] accept that it is an attempt to pervert the course of justice to use improper means to secure a plea of guilty. Principle and the nature of the criminal prosecution under the common law system make this conclusion inevitable.

United States v Silverman (1984) 745 F 2d 1386 and United States v Moree (1990) 897 F 2d 1329.

The two elements of the offence of attempting to pervert the course of justice are conduct which has the proscribed tendency and an intent that the course of justice be perverted. Clearly enough, it is not sufficient for the prosecution to prove merely that the conduct of an accused had a tendency to induce a person charged with an offence to plead guilty to that offence. A person charged with an offence is at liberty to plead guilty or not guilty to the charge, whether or not that person is in truth guilty or not guilty. An inducement to plead guilty does not necessarily have a tendency to pervert the course of justice, for the inducement may be offered simply to assist the person charged to make a free choice in that person's own interests. A court will act on a plea of guilty [5] when it is entered in open court by a person who is of full age and apparently of sound mind and understanding, provided the plea is entered in exercise of a free choice in the interests of the person entering the plea. There is no miscarriage of justice if a court does act on such a plea, even if the person entering it is not in truth guilty of the offence. The principle is stated by Lawton LJ in R v Inns [6] :

The whole basis of a plea on arraignment is that in open court an accused freely says what he is going to do; and the law attaches so much importance to a plea of guilty in open court that no further proof is required of the accused's guilt. When the accused is making a plea of guilty under pressure and threats, he does not make a free plea and the trial starts without there being a proper plea at all. All that follows thereafter is, in our judgment, a nullity. It may not be strictly accurate to describe what follows as a nullity, but it is certainly liable to be set aside and a new trial ordered. If a plea of guilty is entered by the person charged in purported exercise of a free choice to serve that person's own interests, but the plea is in fact procured by pressure and threats, there is a miscarriage of justice. In such a case, the court is falsely led to dispense with a trial on the faith of a defective plea. The course of justice is thus perverted. 1. There was a practice of refusing a plea of guilty in capital cases and a discretion to refuse a plea of guilty still remains when the trial judge regards the charge as being of such seriousness that condign punishment should be imposed only if the charge is proved to the satisfaction of a jury. 2. (1974) 60 Cr App R 231 at 233.

The course of justice consists in the due exercise by a court or competent judicial authority of its jurisdiction to enforce, adjust or declare the rights and liabilities of persons subject to the law in accordance with the law and the actual circumstances of the case [8] . 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 or competent judicial authority, hindering of access to it, deflecting applications that would be made to it, denying it knowledge of the relevant law or of the true circumstances of the case, and impeding the free exercise of its jurisdiction and powers including the powers of executing its decisions. An act which has a tendency to effect any such impairment is the actus reus of an attempt to pervert the course of justice. 1. (1992) 174 CLR 268 at 280. 2. R v Todd [1957] SASR 305 at 328.

If conduct has the tendency to induce a person to plead guilty when that person would have pleaded not guilty had he or she exercised a free choice in his or her own interests, the actus reus of an attempt to pervert the course of justice is established. In R v Toney [9] , Lloyd LJ, speaking for the Court of Appeal, held that the offence of attempting to pervert the course of justice might be committed by a person who seeks to secure a legitimate end (for example, the persuading of a false witness not to commit perjury) by unlawful means and that "unlawful means" includes a threat to do an otherwise legal act or exercise a legal right. With respect, we do not think that observation is right in principle. If the conduct of the alleged offender is no more than a threat to do what he might lawfully do in order to secure a legitimate end, we are unable to detect conduct which has a tendency to pervert the course of justice. But, accepting that that is so, it is not a legitimate end to persuade a person to plead guilty otherwise than in the exercise of a free choice in his or her own interests.

[1993] 1 WLR 364 at 370; [1993] 2 All ER 409 at 414, explaining R v Kellett [1976] QB 372.

Any conduct designed to intimidate an accused person to plead guilty is improper conduct and necessarily constitutes an attempt to pervert the course of justice even if the intimidator believes that the accused is guilty of the offence with which he or she is charged. A plea made as the result of intimidation has not been made freely and voluntarily, and the court that acts on the plea has been misled and its proceedings have been rendered abortive, whether or not it ever becomes aware of the impropriety. For similar reasons, improper conduct of any kind that has the tendency to interfere with an accused person's right to make a free and voluntary decision to plead not guilty to a charge must be regarded as having a tendency to pervert the course of justice. If that conduct is accompanied by an intention to pervert the course of justice, the person engaging in the conduct will be guilty of attempting to pervert the course of justice.

It will often be difficult to determine whether conduct that falls short of intimidation but which has the tendency to induce an accused to plead guilty is improper conduct that interferes with the accused's free choice to plead guilty or not guilty. Argument or advice that merely seeks to persuade the accused to plead guilty is not improper conduct for this purpose, no matter how strongly the argument or advice is put. Reasoned argument or advice does not involve the use of improper means and does not have the tendency to prevent the accused from making a free and voluntary choice concerning his or her plea to the charge. As long as the argument or advice does not constitute harassment or other improper pressure and leaves the accused free to make the choice, no interference with the administration of justice occurs.

Conduct is likely to have the tendency to interfere with a person's free choice to plead not guilty, however, when the conduct consists of a promise or benefit that is offered in consideration of the accused pleading guilty. The difficulty in such cases is to draw the line between offers of assistance that improperly impact on the accused's freedom of choice and offers of assistance that are legitimate inducements. In most cases, that difficulty can be resolved by determining whether, in all the circumstances of the case, the offer could reasonably be regarded as intended to protect or advance the legitimate interests of the accused having regard to the threat to those interests that arises from the institution of the criminal prosecution. Thus, to offer to pay an accused person's legal expenses if he or she pleads guilty is not improper conduct for this purpose if the advantages in pleading guilty can reasonably be regarded as outweighing the consequences to the accused that might flow from a conviction after a plea of not guilty and the offer is made only for that reason. On the other hand, to pay the accused's legal expenses in consideration of the accused changing his or her plea to a plea of guilty when the payment is made for the purpose of protecting the interests of the payer or some other person is an interference with the course of justice. Such an offer has the tendency to interfere with the accused's freedom of choice and seeks to serve an interest other than those interests of the accused that are threatened by the prosecution. When the offer of assistance is actuated by several purposes, one of which is to protect the interests of the accused, liability must depend on whether or not the latter purpose was the real purpose that actuated the offer.

However, even when the conduct in question has tended to interfere with the administration of justice by tending to deprive the accused of the free choice to plead not guilty to a charge, the offence of attempting to pervert the course of justice is not established unless the conduct was also accompanied by an intention to pervert the course of justice. This does not mean that a person cannot be guilty of attempting to pervert the course of justice unless he or she has the concepts of "perverting" and "the course of justice" in mind while engaging in the conduct. It is sufficient proof of intention that the person intended to engage in conduct for a purpose that in law constitutes the actus reus of an attempt to pervert the course of justice. Thus, a person commits that offence if he or she pays money to an accused to plead guilty to a charge for the purpose and with the intention of protecting the reputation of others who might be damaged by the publicity arising from a trial of the charge even though the payer has never heard of the phrase "perverting the course of justice".

In the present case, we are concerned with the entry by Ms Perger of a plea to the charge of making a false declaration. The course of justice that was put at risk by the alleged conduct of the appellant was not the entry of a plea of guilty by someone who was not guilty but the entry of a plea of guilty otherwise than by exercise of a free choice in the interests of the person entering the plea. If the conduct of the appellant had the tendency to produce that result, the actus reus was established. The mens rea was simply an intention to induce the entry of the plea of guilty when Ms Perger would not or might not have entered that plea if she had exercised a free choice in her own interests. The motive of the appellant - to protect his political associates, for example - is not an element of the offence, but it is material to the ascertainment of the intention with which he engaged in the conduct he did. If his motive was purely to assist Ms Perger, it would be hard to conclude that he intended that she should enter a plea otherwise than in exercise of a free choice in her own interests. But if his motive was to protect his political associates, it is a short step to the inference that he intended to procure her to plead guilty when she would not or might not otherwise have done so. Moreover, if that was his motive - in the sense that that was what he hoped to achieve - it would be open to the jury to infer more readily that the likely tendency of what he said to Ms Perger and what he provided to her was the tendency to pervert the course of justice.

The evidence established the offence and the conviction was not unsafe or unsatisfactory

The Crown did not seek to prove that Ms Perger was not guilty of the offence to which she pleaded guilty. But, for the reasons that we have given, proof of Ms Perger's innocence was not an essential element in proving that the appellant had attempted to pervert the course of justice. It was the tendency of the conduct proved against him that was critical. Whether Ms Perger was guilty or innocent of false swearing did not affect the question of the appellant's guilt, irrespective of the evidentiary importance of his knowledge of or belief in her guilt or innocence. If the evidence established that the appellant had attempted to induce her to plead guilty to that offence by means of bribery or intimidation, he was guilty of attempting to pervert the course of justice even though she was in fact guilty of the offence. Accordingly, the first question in the appeal must be answered against the appellant.

Whether or not there was evidence of an attempt to pervert the course of justice and whether or not the conviction of the appellant was unsafe or unsatisfactory are more difficult questions. But in our opinion, not only was there evidence upon which the jury could convict the appellant but his conviction cannot be regarded as unsafe or unsatisfactory, notwithstanding the very plausible answers that he made to much of the Crown case.

From the evidence of the tapes and part of the sworn evidence of the appellant at the trial, the jury, acting reasonably, were entitled to conclude beyond a reasonable doubt that he had engaged in conduct that had the tendency to cause Ms Perger to change her plea against her will, notwithstanding his evidence that she initiated a discussion about pleading guilty just before Christmas 1985. The statements recorded on the tapes in 1988 that "she wanted to fight it but you know I couldn't let that happen", "she's a bit pissed off because I made her plead guilty, you know, she reckons she's not guilty", "how would you like to bloody well take a rap and then get shitted on" and "to get a person to plead guilty, that's a conspiracy, you know" were themselves sufficient to justify that conclusion. In addition, in evidence, the appellant explained his use of the words "I couldn't let that happen" as meaning that "if she was to let the case run on the [Minister's] photographs alone it would have involved bringing all these other people forward, some mud would have stuck to it I thought it would be damaging for her case and she couldn't win, she would surely go to gaol for it". Whether or not the appellant's purpose was to protect Ms Perger, the jury were entitled to conclude that this explanation of why he "couldn't let that happen" acknowledged, whether intentionally or not, that he had attempted to induce her to change her plea against her will.

The jury were reasonably entitled to reject the evidence of the appellant and his witnesses that he had had conversations with Ms Perger in the period December 1985 to January 1986 during which she stated that she was thinking about pleading guilty to the charge. The conduct of the appellant in seeking to sell "the package of material" in January and February 1986 was quite inconsistent with his professed concern in the alleged conversations in December and January for the embarrassment and heartache that publicity would cause the politicians. It was equally inconsistent with a belief on his part that it would be contrary to her interests to plead not guilty. The credibility of his corroborating witnesses was also strongly attacked by the Crown.

The jury were also entitled to conclude that there was a connection between (i) the sudden loss of interest in selling the package towards the end of February, (ii) the statement by Ms Perger to Mr Sankey on 27 February that she was now pleading guilty although she had earlier briefed Queen's Counsel to defend the charge, and (iii) the lodging of the cash deposit of $15,000 and the payment of $5,000 for past legal costs on 28 February. The contemporaneous occurrence of those events together with the statements that the appellant couldn't let her fight the case "because that would have brought everyone undone for nothing" and that he had "made" her plead guilty allowed the jury, acting reasonably, to conclude that something occurred towards the end of February that made the appellant decide that he could no longer pursue the sale of "the package" and that Ms Perger could no longer be allowed to plead not guilty to the charge of false swearing. Whether that "something" was a desire to protect his "mates" or some offer in return for preventing further publicity concerning the allegations or some other motive is immaterial.

Once the jury concluded, as they were reasonably entitled to do, that the appellant had induced Ms Perger to plead guilty and that, in doing so, he was actuated to protect an interest other than hers, it was a short step to the conclusion that the lodging of the deposit and the payment of her outstanding legal fees were payments made in consideration of her pleading guilty. Very strong support for that conclusion came from the appellant's statement that "she got paid for it". In his evidence, the appellant asserted that the "it" was the television interview with Ms Perger about which he had been speaking earlier in the conversation. But the context indicated otherwise. The words immediately following that statement were "so all I am interested in is I don't become fuckin" undone out of all this "cause you know, to get a person to plead guilty, that's a conspiracy". A few recorded lines later, the appellant said: "That's all I am interested in, to make sure she went on TV tonight again and said I gave it to her as a present." In that context, the jury acting reasonably were entitled to conclude that, when the appellant said that "she got paid for it", he was admitting that the disbursement on behalf of Ms Perger from the term deposit and the payment of $5,000 to Mr Sankey were made in return for her agreement to plead guilty to false swearing.

The fact that the term deposit was for a six-month period also supported the conclusion that the promise to use the proceeds of that deposit to meet her expenses was a bribe in return for her pleading guilty. The six month term inevitably meant that she could not get any benefit from the deposit before her plea of guilty had been processed.

In our opinion, therefore, the jury, acting reasonably, were entitled to conclude that the deposit and the payment of Ms Perger's outstanding legal costs were a bribe paid in return for her pleading guilty.

Moreover, we think that the jury, acting reasonably, were entitled to conclude that the appellant had intimidated Ms Perger into pleading guilty. Once the jury concluded that she always wished to defend the charge, the appellant's statements that he "made" her plead guilty and that he "couldn't let that happen" enabled the jury, acting reasonably, to conclude that the plea had been brought about wholly or partly by some form of intimidation. In addition, the jury had the advantage of seeing the appellant give evidence for several days. That gave them an opportunity denied to an appellate court to form a judgment as to what the appellant meant when he said that he "couldn't allow that to happen" and that he "made" Ms Perger plead guilty. It is not without significance that in his sentencing remarks the learned trial judge said that the appellant was "a very formidable man and capable of inspiring fear in Perger". If the jury reached the same conclusion - as they were entitled to do - they would have had no hesitation in concluding from the evidence that he had "made her plead guilty" by some form of intimidation.

In these circumstances, it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the offence [10] . His conviction was therefore neither unsafe nor unsatisfactory.

M v The Queen (1994) 181 CLR 487 at 492-493, 501.

The background of this appeal and the detailed facts involved in it are set out in other judgments. I would reject the appellant's submission that subjecting an accused person to pressure to plead guilty can never constitute the common law offence of attempting to pervert the course of justice [11] . I would also reject the appellant's submissions that the evidence led against him on his trial was, in any event, inadequate to sustain a conviction of the offence of attempting to pervert the course of justice and that his conviction was unsafe and unsatisfactory. In my view, the jury's verdict that the appellant was guilty was fully justified by the evidence.

The appellant was charged with, and convicted of, the common law offence, the relevant conduct having taken place before the commencement of s 319 (creating the statutory felony of perverting the course of justice) and s 341 (abolishing the common law offence of attempting to pervert the course of justice) of the Crimes Act 1900 NSW.

The offence of attempting to pervert the course of justice has been authoritatively defined, in this Court and elsewhere, as "the doing of some act which has a tendency and is intended to pervert the administration of public justice" [12] . That definition has the advantage that, while stressing the mental element of the offence (as one would anticipate in any definition of an "attempt" offence) [13] , it makes plain that the offence is not committed unless the act which is done with the necessary intent can be objectively said to have a tendency to pervert the course of justice. The definition is, however, arguably too restrictive in that it would seem not to cover the situation where what is involved is an attempt to do, rather than "the doing of", "some act" having the requisite "tendency" [14] . Moreover, the definition is essentially unhelpful in explaining what satisfies the strong language in which the central notion of the offence is expressed, namely, "to pervert" the course of justice. Attempts have been made - some helpfully, others "somewhat confusingly" [15] - to elucidate that central notion by the use of synonym. In my view, the most that can usefully be said is that the notion of "pervert[ing]" the course of justice involves no more than an adverse interference with the proper administration of justice.

See R v Vreones [1891] 1 QB 360 at 369. See also R v Murphy (1985) 158 CLR 596 at 609; R v Rogerson (1992) 174 CLR 268 at 275-276, 279, 297. 2. Even one which has been said to be a "substantive", as distinct from "inchoate", offence: see R v Rogerson (1992) 174 CLR 268 at 279, 297-298; R v Andrews [1973] QB 422 at 425; R v Machin [1980] 1 WLR 763 at 766-767; [1980] 3 All ER 151 at 153-154; (1980) 71 Cr App R 166 at 170. 3. Unless one extends the notion of an act having a certain tendency so that it encompasses an incomplete act which would, if completed, have that tendency (cf Foord v Whiddet (1985) 6 FCR 475; R v Foord (1985) 20 A Crim R 267; R v Graham (1986) 20 CCC (3d) 210 (affirmed on appeal: Graham v The Queen [1988] 1 SCR 214)) or unless a surprising consequence of the view that attempting to pervert the course of justice is a "substantive" offence (see n 30 (above)) is that there is an "inchoate" common law offence of attempting to attempt to pervert the course of justice. 4. R v Murphy (1985) 158 CLR 596 at 609.

The proper administration of criminal justice is, to no small extent, dependent upon the ability of courts to proceed on the basis that a plea of guilty or not guilty, with all that it entails, is made by an accused in the exercise of his or her own free choice. To endeavour, by intimidation, inducement or other means, to overbear the free choice of a person to plead not guilty and thereby bring about a tainted plea of guilty is clearly to attempt to pervert the course of justice in the sense of attempting adversely to interfere with the proper administration of justice. And that is so even in a case where the person whose free will is sought to be overborne is, or is thought to be, guilty [16] . Obviously, in such a case, circumstances may arise in which the borderline between what constitutes legitimate persuasion of an accused person to plead guilty and what constitutes the offence of attempting to pervert the course of justice will be difficult to discern. When those circumstances arise, the relationship between the parties and an overall perception of real criminality are likely to be of particular significance. Thus, for example, a degree of pressure which would be quite legitimate if exerted by an accused's own lawyer acting solely in the accused's interests [17] may be completely unacceptable if exerted by a stranger acting for a collateral and selfish purpose of his or her own.

cf R v Kellett [1976] QB 372 at 388. 2. eg in a "plea bargaining" or "sentence indication" situation.

The evidence in the present case established that Ms Perger had intended to plead not guilty to a charge of making a false statutory declaration. It was common ground that the appellant, who had initially sought to profit from a sale to the press of certain material which was, if genuine, supportive of at least some of Ms Perger's allegations, sought to persuade her to change her plea to guilty. It is clear that the appellant was, at least in part, motivated by a new-found concern to protect the interests of those whose reputations would be damaged if Ms Perger either contested her guilt by maintaining the truth of the statements in the statutory declaration or, in mitigation of a plea of guilty, gave or led evidence aimed at establishing the truth of some of those statements. The evidence also established that, on the day following that on which Ms Perger informed her then solicitor that she was changing her plea to one of guilty, the appellant paid $5,000 to that solicitor on account of Ms Perger's past legal costs and also paid $15,000 into an account in the joint names of the appellant and Ms Perger. Part of the money in that account was subsequently applied to Ms Perger's benefit. In addition, the appellant paid the subsequent legal costs associated with her plea of guilty. It was in the factual context provided by those matters that the evidence of the taped conversations fell to be assessed by the jury.

The learned trial judge carefully explained to the jury the ingredients - both actus reus and intent - of the offence of attempting to pervert the course of justice. The overall effect of his directions, when applied to the circumstances of the particular case, was that the jury were entitled to convict the appellant if they were satisfied beyond reasonable doubt that the appellant had intentionally attempted to cause Ms Perger to plead guilty by bribery and/or intimidation. It was made clear in the summing up that his Honour's references to "bribery" were intended to designate a corrupt or improper financial inducement and that his references to "intimidation" were intended to designate an improper interference with an accused's freedom to decide to enter or maintain a plea of not guilty. His Honour expressly directed the jury that the charge would not be made out unless it was proved that the accused's acts were improper and added:

By "improper", in this context, is meant wrongful in a real criminal sense, not merely ill-mannered, foolish, misguided or indiscreet. What is required is true criminal behaviour. You must be satisfied that he, the accused, deliberately acted in a wrongful way and that he did so intending to interfere with the proper course of criminal Justice; that is, to pervert the course of Justice. His Honour's directions to that overall effect were neither unfair to the appellant nor erroneous. They attracted no objection or request for further direction from his counsel at the trial.

Clearly, the critical question in the case was whether there had, in fact, been "bribery" or "intimidation", in the sense in which his Honour used those words, which had the tendency, and which was intended, to interfere with Ms Perger's free choice of a plea by effectively preventing her from pleading not guilty and making her plead guilty. On that aspect of the case, the taped conversations were, in my view, unambiguously damning. The most important extracts from them are set out extensively in the judgments of other members of the Court. I regard as of particular significance the following statements of the appellant which can be seen in their immediate context in those other judgments:

So, who's going to crack? I'm certainly not going to jump up and say "Yeah, that was a bribe."

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.

So I figured 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.

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.

how would you like to bloody well take a rap and then get shitted on, you know

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

The jury were, in my view, entitled to conclude that the plain cumulative effect of those statements, read in the context of the conversations in which they occurred, was that the appellant was asserting that he had "bribe[d]" Ms Perger to plead guilty when she wished to plead not guilty and that he had "made" her plead guilty when she "wanted to fight" the charge. In the context of his other statements, the appellant's remark that he "couldn't let" Ms Perger fight the charge "because that would have brought everyone undone for nothing" constituted a clear admission that the appellant had acted for some collateral purpose when he prevented Ms Perger from pleading not guilty. If it were needed, the appellant's reference to "conspiracy" in one of the above extracts (and elsewhere in the recorded conversations) is, in the context of his other statements, a confirmatory admission of the impropriety of the steps which he had taken to prevent Ms Perger from pleading not guilty and to make her plead guilty.

There are two further matters which should be mentioned. The first is that it was submitted on behalf of the appellant that the Crown's failure to call Ms Perger as a witness gave rise to unfairness to the appellant and undermined his conviction. In the circumstances of this case, that submission cannot be sustained. Ms Perger had declined to be interviewed by the Crown as a prospective witness. The evidence was to the effect that the appellant's solicitor at the trial had, acting as solicitor for Ms Perger, informed the Crown that she would not answer any questions and that any contact by the Crown with her was to be made through him. It was expressly stated by counsel for the appellant at the trial that "it was likely that Ms Perger would", if called by the Crown, "be a hostile witness". That would mean that, if called and declared hostile, she would have been liable to be cross-examined by the Crown. There is no suggestion that the Crown failed to communicate to the defence that it was not calling Ms Perger as a witness or that circumstances existed in which Ms Perger was unavailable to be called as a witness by the defence. Nor does the material before the Court suggest that any unambiguous request was made on behalf of the appellant that the Crown call Ms Perger. Indeed, the transcript indicates that no dissent was expressed at the trial on behalf of the appellant at the time when the learned trial judge expressed a view to the effect that it would, in circumstances where Ms Perger would be a hostile witness, be inappropriate for the Crown to call her. Clearly, the circumstances were such that it was open to the Crown Prosecutor, in the proper discharge of his duties in accordance with traditional standards of fairness [18] , to decide to refrain from calling Ms Perger as a witness. The second further matter is that, at one stage of the argument, it was suggested on behalf of the appellant that the framing of the charge was inadequate for the reason that it did not sufficiently identify the elements of the offence. There is no force in that suggestion.

See, generally, Whitehorn v The Queen (1983) 152 CLR 657 at 663-665.

On 17 March 1992, the appellant was convicted upon a charge that he "did attempt to pervert the course of justice in that he did improperly endeavour to influence Virginia Perger, otherwise known as Rebecca Dupont, to enter a plea of guilty to a charge of make false declaration".

For a number of years in the late 1970s until about the end of 1979 Virginia Perger was the appellant's de facto wife. She was a prostitute and a heroin addict. After the de facto relationship between the appellant and Perger ceased, the appellant maintained contact with her and from time to time gave her financial assistance.

According to evidence led by the prosecution, Perger told a journalist that photographs had been taken of her and various politicians in compromising situations on a boat owned by the appellant and called the " Kanzen ". The journalist contacted the appellant and met him several times. The appellant told the journalist that he did in fact have a number of photographs of politicians taken on the boat and that one photograph in particular was of a former New South Wales Minister together with Perger in which both were naked. The appellant told the journalist that the photographs were for sale. A meeting was arranged for 4 May 1985 at the offices of News Ltd in Sydney.

Before that meeting took place, another journalist taped a series of interviews with Perger in which she claimed she had been a "political whore" and the appellant had arranged for photographs to be taken of her in compromising situations with politicians she was entertaining on the " Kanzen ". The contents of these interviews formed the basis of an annexure to a statutory declaration which she made before a solicitor acting for News Ltd when the meeting arranged for 4 May took place. Also at that meeting was the editor of the Sunday Telegraph. The appellant arrived at the meeting carrying a long white envelope and was told by the editor that he was authorised to pay $100,000 for the photographs. The appellant said that he would sell the photographs of the former Minister because he "did not have much time for him" but that he would not sell the photographs of the other politicians because they were his "mates". The appellant was made aware of the statutory declaration made by Perger and, while reading it, became angry and swore at her saying that the allegations were "bullshit" and that she was a "stupid moll". No agreement was reached at the meeting for the sale of any photographs. The following day the Sunday Telegraph ran a front-page story with a photograph of Perger under the headline "MPs Set Up In Sex Photos". The allegations made by Perger of what happened on the appellant's boat were set out, the boat being described as the "Love Boat".

Subsequently the police interviewed the appellant. He denied letting Perger use his boat for prostitution although he acknowledged that she had access to the boat for some purposes. He denied providing the boat to politicians or others for sexual activity.

Perger was thereupon charged with an offence under the Oaths Act 1900 NSW of knowingly making a false statement in her statutory declaration with respect to the conduct of a number of persons, mainly politicians. When her case was mentioned in the Local Court on 2 October 1985 and again on 6 November 1985, counsel appearing for Perger announced that the charge would be defended. The case was listed for a return of subpoenas on 3 March 1986 on which day counsel announced that he was withdrawing from the case. The matter was adjourned to 7 March 1986. Previously, Perger had instructed her solicitor that she would be pleading guilty to the charge and he had told her that he would no longer act for her. On 7 March 1986 a different solicitor appeared for Perger in the Local Court and advised that she would be pleading guilty.

On 19 March 1986, Perger was committed for sentence to the District Court. On 22 April 1986, she pleaded guilty to the charge in that court. On 14 May 1986, she gave evidence before the sentencing judge in which she retracted the allegations which she had made in her statutory declaration. She said that she had been under the influence of drugs when she made them. She also said that she had received threats to induce her to plead not guilty. Sentence was deferred and she was placed on a recognisance to be of good behaviour for two years.

On 27 February 1986, when Perger's former solicitor told her that he would not act for her if she pleaded guilty, he sought payment of costs of $5,000. On 28 February 1986, the appellant paid those costs. On the same day, the appellant and Perger went to the Kings Cross branch of the National Australia Bank where the appellant paid $15,000 in cash into a six month fixed term interest bearing deposit in the joint names of himself and Rebecca Dupont, an alias of Perger. Eventually $3,000 of the money deposited was applied to pay an amount owing to the bank by Perger and a further $500 was applied to reduce her Bankcard debt. The balance of the deposit was paid to the appellant. He paid Perger's legal expenses arising from the charge against her and her subsequent plea of guilty.

There was considerable ongoing publicity, both in the press and on television, given to the allegations made by Perger and the subsequent withdrawal of them at the time she pleaded guilty to the charge against her. Apparently there were references to the deposit of $15,000 and suggestions were made that it was a bribe. There was evidence that on various occasions Perger was paid for providing stories to the newspapers and appearing on television.

Between 3 May and 28 June 1988, the police implanted listening devices in the appellant's home and business premises pursuant to warrants which were lawfully obtained. Various conversations were tape recorded. Subsequently, the appellant was charged with attempting to pervert the course of justice. Evidence of the conversations recorded was given at the appellant's trial. It is unnecessary to set out all of the conversations because it appears that only certain of them were regarded as critical.

I've had a belly full of that bloody woman, fair dinkum, can't even contact her, how that constitutes a conspiracy, Willy, just because you ah do a joint account. It's only to protect her interests, that's all. Maybe if I do a joint account with you they'll think it's some sort of shady deal. The appellant was recorded as saying subsequently: I can't deny the fact that I banked it because my signature's on it. and later: Could be anything, maybe it's the reason, I put it in a joint account because she's a heroin addict and I didn't want her to shoot it up her arm.

On another tape a conversation between the appellant and someone he called "Pinhead" was recorded as follows:

There's only one problem you see, Pinhead, she used to be my girlfriend going back 10 years ago. And ah, the fact is like, you know with your ex-wife, if she came to you with a problem, wouldn't you help? Well, there you are. The same situation, so they can go and get fucked for all I'm concerned. Of course. Well, it's only innuendo. So, who's going to crack? I'm certainly not going to jump up and say "Yeah, that was a bribe." The next thing I'll be facing charges, ha, ha, ha. Crazy people. On another tape a conversation between the appellant and a person referred to as "Sweetie" was recorded as follows: I've been doing some paperwork here, I've got a heap of work to do, it's this bloody Virginia thing upset me Well, she spoke with me today I um I had a chit chat with her and she's hopeless but this thing was done apparently a long time ago and they just decided to air it, they gave her plenty of money for it too Mmm but ah well, that's right, she's paid her rent and ah 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 thing is like ah 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, isn't it. On top of that who was gunna pay the legal fees me, isn't it. So I figured 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.

A further tape, which the trial judge described as "the linchpin of the whole prosecution case" and as relied upon by the prosecution "more than any other evidence in the case", recorded a conversation between the appellant and a man named Camilleri. Two other persons were involved in the conversation. It was, so far as it was decipherable, as follows:

Accused: She hasn't said anything bad about me though, but she shouldn't a brought up she's a bit pissed off about pleading

Accused: Ah no no not really, all they did was say what they are going to do.

Camilleri: So who's going to be investigating, The National Crime Squad?

Accused: It's been in the front page of 3 [sic] for the last three days. 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.

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

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

Accused: 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's gunna believe it of course

Accused: I fixed it on Channel 10, I even picked her up and made sure she went to Channel 10.

Voice Four: Certain material she gave for what's her name

The appellant gave sworn evidence at his trial that he had never told anyone that he had sexually compromising photographs of anyone other than the former Minister. He said that at the meeting with representatives of News Ltd where the sale of the photographs was discussed, he had become angry when he read Perger's statutory declaration because he believed the allegations concerning other politicians were untrue.

The appellant gave evidence that before Christmas 1985 Perger had told him that she was thinking of pleading guilty. He said that he expressed concern that she would go to gaol if she persisted in her untruthful allegations and indicated that, even though she had the photographs of the former Minister, she had no hope of winning the case. He said that he told her that if she fought and lost she would go to gaol because it would mean that she persisted in her story that "she asked other people to be on the boat when they were not". The appellant said that Perger was concerned about the welfare of her daughter if she did go to gaol.

The appellant said in evidence that he placed the $15,000 in a term deposit to meet the costs of an appeal if Perger received a gaol sentence upon pleading guilty. He said that he put the money into a joint account to prevent Perger having access to the money for the purpose of purchasing drugs.

The appellant gave evidence explaining the conversations which were recorded. He said that the statement "You know she got paid for it" was a reference to Perger's appearance on television. The reference to her being "pissed off" was, he said, in relation to her being told that she would not win the case. He gave evidence that the expression "taking the rap" did not have the meaning that she had pleaded guilty even though she was not guilty.

The common law misdemeanour of attempting to pervert the course of justice was recently examined by this Court in R v Rogerson [19] . It consists in "the doing of some act which has a tendency and is intended to pervert the administration of public justice" [20] . The offence is a form of contempt of court under another name [21] . The use of the word "attempt" is misleading; the offence is substantive and not inchoate [22] . It is the tendency of conduct to pervert the course of justice coupled with the intention to do so which provides the substance of the offence and it is immaterial whether any interference with the administration of justice actually occurs [23] . There is no comprehensive definition of the means by which the course of justice may be perverted, but one of the ways in which that may occur is when a court is denied knowledge of the true circumstances of the case [24] .

(1992) 174 CLR 268. The common law offence of attempting to pervert the course of justice was abolished by s 341 of the Crimes Act 1900 NSW as amended by Sch 1 to the Crimes (Public Justice) Amendment Act 1990 NSW. 2. R v Vreones [1891] 1 QB 360 at 369; R v Rogerson (1992) 174 CLR 268 at 275-276, 279, 297. 3. Archbold, Pleading, Evidence and Practice in Criminal Cases, 44th ed (1992), vol 2, par 28-118. 4. R v Rowell [1978] 1 WLR 132 at 138; [1978] 1 All ER 665 at 671; R v Machin [1980] 1 WLR 763 at 766-767; [1980] 3 All ER 151 at 153-154; (1980) 71 Cr App R 166 at 170; R v Rogerson (1992) 174 CLR 268 at 297. 5. R v Rogerson (1992) 174 CLR 268 at 298. 6. R v Rogerson (1992) 174 CLR 268 at 280.

The appellant contends that endeavouring to persuade a person charged with an offence to plead guilty cannot constitute the offence of attempting to pervert the course of justice because an accused person has a right to enter a plea of guilty and to do so whether or not that person believes himself to have committed the offence with which he is charged. It is true that a person may plead guilty upon grounds which extend beyond that person's belief in his guilt. He may do so for all manner of reasons: for example, to avoid worry, inconvenience or expense; to avoid publicity; to protect his family or friends; or in the hope of obtaining a more lenient sentence than he would if convicted after a plea of not guilty. The entry of a plea of guilty upon grounds such as these nevertheless constitutes an admission of all the elements of the offence and a conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred. Ordinarily that will only be where the accused did not understand the nature of the charge or did not intend to admit he was guilty of it or if upon the facts admitted by the plea he could not in law have been guilty of the offence [25] . But the accused may show that a miscarriage of justice occurred in other ways and so be allowed to withdraw his plea of guilty and have his conviction set aside. For example, he may show that his plea was induced by intimidation of one kind or another, or by an improper inducement or by fraud [26] .

R v Forde [1923] 2 KB 400 at 403; R v Murphy [1965] VR 187 at 188; R v Chiron [1980] 1 NSWLR 218 at 235; R v Liberti (1991) 55 A Crim R 120 at 121-122; R v Ferrer-Esis (1991) 55 A Crim R 231 at 232-233. 2. Pilkington v The Queen [1955] Tas SR 144; R v Murphy [1965] VR 187 at 190; R v Barnes (1970) 55 Cr App R 100 at 106; R v Inns (1974) 60 Cr App R 231 at 233; R v Chiron [1980] 1 NSWLR 218 at 235.

In this case, the appellant was charged not merely with having endeavoured to influence Perger to enter a plea of guilty, but with having done so improperly. The prosecution case was that the improper means were intimidation or bribery or both. Whilst it is not an attempt to pervert the course of justice to endeavour to persuade an accused person to plead guilty - even if he be not guilty - by means which are not improper, it is otherwise where improper means are employed. Thus, merely to reason with the accused, pointing out the advantages of pleading guilty and the disadvantages of pleading not guilty - even if the advantages or disadvantages extend beyond the legal consequences - will not amount to an attempt to pervert the course of justice. On the other hand, to employ improper means - and they include intimidation and bribery - in an endeavour to induce the accused to plead guilty must amount to an attempt to pervert the course of justice. Whilst there is little by way of direct authority [27] , it is apparent that an attempt to induce a plea of guilty by improper means is an attempt to deny to the court knowledge of the true circumstances of the case, for the court must assume in the absence of any indication to the contrary that a plea is freely made. Moreover, there is a close analogy to be drawn with the cases which deal with attempts to have witnesses alter their evidence or refrain from giving it.

cf United States v Moree (1990) 897 F 2d 1329 at 1333 (5th Cir); United States v Silverman (1984) 745 F 2d 1386 at 1393-1395 (11th Cir).

Whatever the means used, any attempt to induce a witness to give false evidence on oath or to refrain from speaking the truth must amount to an attempt to pervert the course of justice for then the end is improper [28] . However, in R v Kellett [29] the Court of Appeal held that it would not necessarily be an attempt to pervert the course of justice for a person to endeavour to persuade a false witness, or even a witness that person believed to be false, to speak the truth or to refrain from giving false evidence. But the use of improper means for those purposes will always amount to that offence for however proper the end, the means must not be improper. As the Court in R v Kellett, in speaking of improper means, put it [30] :

Threats and bribery are the [improper] means used by offenders in the cases, and any pressure by those means - or by force, as for example by actually assaulting or detaining a witness - would, in our opinion, be an attempt to pervert the course of justice by unlawfully or wrongfully interfering with a witness. If he alters his evidence or will not give it "through affection, fear, gain, reward, or the hope or promise thereof" (in the words of the oath which used to be administered to the foreman of a grand jury), the course of justice is perverted, whether his evidence is true or false and whether or not it is believed to be so by him who puts him in fear or hope. 1. R v Toney [1993] 1 WLR 364 at 370; [1993] 2 All ER 409 at 414. 2. [1976] QB 372. 3. R v Kellett [1976] QB 372 at 388.

R v Kellett was applied by the Court of Appeal in New Zealand in R v Taffs [31] , Cooke P expressing the ratio of the former case as being that [32] :

there may be an intention to pervert or defeat the course of justice if, once legal proceedings are in motion, they are not allowed to flow unobstructed and undiverted: perjury should be exposed and truth ascertained only by examination and cross-examination of witnesses in open Court, and justice should be administered in the way which is ordinarily pursued: it is lawful to try to dissuade a witness from committing perjury by reasoned arguments supported by material facts and documents, but threats or other improper pressure take the interference across the line and into criminality. And in R v Silverman [33] , a decision of the Ontario Court of Appeal cited in R v Kellett, MacLaren JA said [34] : The end does not justify the means. Even the most desirable end cannot justify the employment of corrupt means. The fountain of justice should be kept pure and not be corrupted at its source. Where improper means are used, the fact that the defendant believed the intended evidence to be false is no answer to a charge of attempting to pervert the course of justice. This is only a material issue "if the defendant had used no threat or other improper means of dissuasion" [35] . 1. [1991] 1 NZLR 69. 2. R v Taffs [1991] 1 NZLR 69 at 72. 3. (1908) 14 CCC 79. 4. R v Silverman (1908) 14 CCC 79 at 83. 5. R v Kellett [1976] QB 372 at 393. See also Hatty v Pilkinton [No 2] (1992) 35 FCR 433 at 439-440.

The persuasion of an accused person to plead guilty may not be an end which is in itself improper even where that person is not guilty or believes himself to be so. Where, however, the means by which the persuasion is attempted extend beyond reasoning with reference to the consequences, legal or personal, of pleading otherwise and amount to improper pressure, then the offence of attempting to pervert the course of justice is committed. The use of improper means hinders or prevents the exercise of a free choice by the accused in deciding upon his plea. That is a corruption of the legal process which denies to the court knowledge of the true circumstances in which the plea is made.

The intention required to constitute the offence of attempting to pervert the course of justice is an intention to pervert the course of justice, that is to say, an intention to do something which, if achieved, would pervert the course of justice. The act required is an act which has the tendency to pervert the course of justice. The motive with which such an act is done is irrelevant except to the extent that it may throw light upon the requisite intent. Thus, the fact that the appellant's persuasion of Perger to plead guilty may have been motivated by a desire to protect others could not, of itself, establish an intention on his part to pervert the course of justice. It would not have been a perversion of justice if Perger had decided, without persuasion, to plead guilty in order to protect others. An attempt to persuade her to do so for that purpose could not in my view, in the absence of any improper means, amount to an attempt to pervert the course of justice.

Accepting the offence of attempting to pervert the course of justice to be as I have stated it, the appellant submitted that the verdict of guilty in this case was nevertheless unsafe and unsatisfactory. The question which must be asked in order to test that submission is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty [36] .

Perger was not called as a witness by either the prosecution or the defence and it appears to have been common ground that, without the tape recordings, the evidence was insufficient to sustain a conviction. Because the prosecution case depended upon the tape recordings, the credibility of witnesses was not a significant issue. The jury must have disbelieved the appellant, but the rejection of his evidence was not capable of supplying the deficiencies in the prosecution case [37] , which in the absence of any evidence from Perger, was largely circumstantial. The trial judge quite properly [38] instructed the jury that before they could convict the appellant on the basis of the tapes, they had to be satisfied that the bribery or intimidation of Perger, or both, were the only reasonable inferences to be drawn from that material. He continued:

That material must be not only consistent with bribery and/or intimidation, it must be inconsistent with any other reasonable or rational conclusion. If there is any reasonable hypothesis consistent with the innocence of the accused, he must be acquitted. 1. M v The Queen (1994) 181 CLR 487 at 500; Whitehorn v The Queen (1983) 152 CLR 657 at 691. 2. See Shepherd v The Queen (1990) 170 CLR 573 at 579.

There was in addition to the evidence of the tapes, the term deposit of $15,000. But apart from the references to it in the tapes, the making of that deposit was reasonably explicable upon a number of grounds which did not involve it being a bribe. The relationship between the appellant and Perger was such as to make it possible that he would assist her financially to meet expenses which she could not meet herself including, if necessary, legal expenses. The amount was not paid to Perger but placed in their joint names in a deposit for a fixed term of six months. In the event, it was not paid to Perger, but a relatively small part of it was used to pay her debts and to meet her legal expenses. Without any evidence from Perger about the reason for which the deposit was made, the mere fact that it was made at the time she decided to plead guilty was insufficient to exclude the reasonable hypothesis that it was made for a purpose consistent with the appellant's innocence.

The prosecution appears to have accepted this, since it acknowledged that, without the tapes, it could not have succeeded in establishing guilt. The prosecution therefore relied upon the statement by the appellant upon the critical tape that "she got paid for it". But that remark was made in the course of a discussion about statements made in the press or on television by Perger and it was at least equivocal as to the subject matter of the payment. It was unlikely in the face of denials by the appellant elsewhere on the tapes to have been a reference to a payment to Perger to induce her to plead guilty. It was more likely to have been a reference to payment for her then current activities. Other references by the appellant in the tapes to bribery were explicable as a reaction on his part to allegations made in the press that the deposit of $15,000 was by way of a bribe.

The statement by the appellant in the critical tape that "she's a bit pissed off because I made her plead guilty, you know, she reckons she's not, she's not guilty", whilst consistent with Perger's having been forced to plead guilty, is equally consistent with her having been merely persuaded by the appellant to take that course. No form of intimidation is identified and it is as possible to "make", that is, induce, someone to do something by legitimate persuasion as it is to do so by improper pressure. And if Perger were really convinced of her innocence, no doubt she may have been "a bit pissed off" at being persuaded, albeit legitimately, to plead guilty. Moreover, it is reasonably possible to use the expression "take a rap" as referring to an assumption of responsibility regardless of the true situation. In his summing up the trial judge said:

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". If that statement is capable of an innocent explanation, as suggested, the force of the tapes is seriously undermined.

In my view, even taking into account the evidence constituted by the tapes, there were reasonable hypotheses open which were consistent with mere persuasion of Perger by the appellant to plead guilty and which were inconsistent with the use of improper means. An explanation by Perger may have dispelled any doubts raised by the evidence as it stood, but neither side chose to call her as a witness and the onus was on the prosecution to prove its case beyond reasonable doubt.

Even if the jury thought it less probable that the appellant's remarks on the tapes bore an innocent construction than one which pointed to guilt, the fact that they were capable of bearing an innocent construction ought to have raised a sufficient doubt to have entitled the appellant to an acquittal. As was remarked by the majority in Knight v The Queen [39] :

There are not, as Dixon CJ observed [in Martin v Osborne [40] ] 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. 1. (1992) 175 CLR 495 at 503. 2. (1936) 55 CLR 367 at 375.

In my view, having regard to the equivocal nature of the remarks made by the appellant on the tape recordings and having regard to the critical importance of those tape recordings, it was not open to a reasonable jury to be satisfied beyond reasonable doubt that the appellant was guilty. I would allow the appeal and quash the conviction.

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Judgment (121 paragraphs)

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Cases Cited (9)