How the mighty may fall

By Legal Eagle

I’ve never received a speeding ticket. Indeed, until this year, I was such a goody-two-shoes that I had never even received a parking fine, but the exigencies of working, mothering and studying forced me to take parking risks that I would never have previously taken, and I have received 2 parking fines in 2007. It’s depressing when you get the fine. But I paid each off immediately, so that the slate was wiped clean and I didn’t have to think about it any more. Better to get rid of it immediately.

Hence, I have been following the allegations against former judge Marcus Einfeld with interest. Put shortly, the allegations are that in order to get out of paying a speeding fine, he falsely swore statutory declarations that he was not driving his car at the time. The speeding offence was alleged to have occurred on 8 January 2006. He nominated one Teresa Brennan, a US law professor, as the driver of the car, but she had died in January 2003 in a car accident. Clearly she could not have been driving the car at the time.

I understand that he is an intelligent man and was a very good judge. If the allegations are found to be correct, I cannot quite understand how someone who seems to have done so much good as a judge and as an advocate of human rights law could get into such a mess. The prosecution case is that Mr Einfeld was concerned that he might lose his licence as a result: but surely that’s better than being convicted of perjury. Even if he does not stand trial or is not convicted, his name has been tarnished by the allegations.

I tend to take a dim view of speeding because when I was 15, my younger sister was hit by a car when I was standing just behind her. If the driver had been driving 5km faster, she would have been dead. As it was, her leg was broken and she was concussed. That moment when she flew into the air and landed in a crumpled heap on the road still sticks with me today. I think that’s why I’ve never gotten a speeding fine.

The same law applies to all of us, and if we break the law, we should wear the consequences, no matter who we are. Isn’t that a fundamental principle of the rule of law? Perhaps it’s silly of me, but if the allegations against Mr Einfeld are established, I will feel rather cynical about his professed championship of human rights and the rule of law. To err is human: but on the other hand, you have to practice what you preach, even in small matters like speeding fines.


Mr Einfeld has been committed to stand trial.


  1. Posted December 13, 2007 at 11:37 am | Permalink

    There is no question that Einfeld’s conduct was wrong.

    But I wonder what role the public perception of the judiciary, as advanced by the media, played? He would have been well aware that were he to lose his license for speeding, the media would have absolutely ripped him to shreds with articles along the lines of “how can this man presume to judge others when his own conduct is so terrible?”

    In other words, what may be a mere fine to most of us could have been career-threatening to him (of course perjury was even more career threatening).

    With due sensitivity to your personal experiences, to me the situation would perhaps have been further amplified in his mind by the relative hysteria surrounding traffic offences. When you have average punters driving 1-2 tonne lumps of metal around at even moderate speeds on shared roads, people ARE going to get hurt and people ARE going to die. Despite this we are subjected to an endless propaganda campaign about how anyone who drives 5 km/h over the (arbitrary, incidentally) speed limit is a dangerous maniac with a reckless disregard for others’ safety and with the implication that all traffic accidents are the fault of somebody behaving irresponsibly.

    What I am saying (without getting into a full debate about speeding) is that it surely wouldn’t have helped the Judge’s perception of the likely consequences of losing his licence for speeding that there is such an aggressive propaganda campaign when it comes to speeding, and that a speeding offence would have automatically opened the door to the media linking him with reprehensible, irreponsible and dangerous behaviour.

    As I say, I am not trying to justify what he did – just to understand how someone in his position could do something so foolish.

    And for what it’s worth, I personally think that this situation has absolutely no bearing on his legal record, which should be considered on its own merits.

  2. Posted December 13, 2007 at 1:54 pm | Permalink

    Paul, I think that you are very perceptive in analysing why Mr Einfeld did what he did. Nonetheless, surely this is far worse than losing his licence? It would be a 5 second storm compared to this. In fact, I think everyone would have forgotten it after a few days. Perhaps he was just not thinking rationally. Perhaps he is an instinctive “denier” when it comes to wrongdoing (see post for explanation). I’m an instinctive “justifier”, so perhaps that’s why I feel less sympathy.

    I agree that speeding does not provide the be all and end all as a cause of road accidents. I’ve spoken in an earlier post about how drivers who drive vastly below the speed limit for no reason may also be just as dangerous. I also think that dangerously designed roads, badly signed intersections, railways crossings, and just plain human error contribute a lot. Sometimes I think the government’s emphasis on speed covers up the role of lack of road maintenance and shoddy road design in accidents.

    And the “cut off 5” campaign annoys me. I think it’s based on the fact that people think going 5km over the limit isn’t “real” speeding. But it doesn’t mean drivers should cut 5km off the normal speed limit if there’s no need to do so: that is actually dangerous!

    In some ways, I do feel sorry for Mr Einfeld, because it’s such an ignominious fall, and he did not actually harm anyone through his driving. As I say, I have heard that he’s done good things, although I’ve never met him or appeared before him personally.

    Perhaps I don’t think less of him as a judge or a lawyer (he’s handed down some good judgments). But if the allegations are proven at trial, I do think less of him as a human being. As far as I can see, he has no way of arguing that he did not understand that swearing a false statutory declaration was perjury. We’ll just wait until the trial to see what happens.

  3. marcellous
    Posted December 13, 2007 at 8:04 pm | Permalink

    Einfeld may have been often on the side of the angels, but you have to wonder at his tendency to sanctify himself by wrapping himself in their flags (does this metaphor hold together still?).

    Reports of his conduct as a judge, an advocate, and a former judge who was rather too willing to hold himself as out as still being a judge, are mixed. And that is entirely leaving aside the speeding fine issue, where at this stage the jury hasn’t even gone in, so obviously isn’t even “out” yet.

  4. pete m
    Posted December 17, 2007 at 10:22 am | Permalink

    What about the fake degree?

    It has nothing to do with potentially losing his licence, and everything to do with his ego, imho.

    And how stupid using a dead woman as an alibi. Surely that calls into question his state of mind!

  5. Posted December 18, 2007 at 11:24 am | Permalink

    I suppose I’ve always been a little suspicious of “do-gooders”. How much do they “do good” to make themselves feel better, or to raise their status in the eyes of others? I have met some genuinely selfless “do gooders”, and some “do gooders” who are more interested in their own reputation than actually doing good for others. This latter type is dangerous, because they can wreak great harm. I don’t know enough about Mr Einfeld to know which category he falls into.

    Marcellous, I take your point that the jury hasn’t even gone “in” yet – so presently, Mr Einfeld is innocent until proven guilty. I wonder what his defence will be.

    Pete, I forgot about the fake PhD. Definitely a sign of ego. And something that annoys me because I’m doing a real one and it’s bloody hard work! 🙂

  6. marcellous
    Posted December 18, 2007 at 10:51 pm | Permalink

    I walked past ME this afternoon in the shopping concourse beneath the building where I work. I’m afraid I gave him an unfriendly walk-past gaze. I regret this now, because surely he must be getting quite a lot of those at present.

    New Year’s Resolution: to radiate sympathy (or at least an amiable kind of pity) rather than self-righteousness if I see him next year.

  7. Posted December 20, 2007 at 9:47 am | Permalink

    Oh well, the man is probably innured to such glares by now.

    I am told that I have a very open face. Sometimes, I congratulate myself for hiding what I am thinking, because I haven’t actually said it. Then I catch sight of my face in a mirror or a window, and there it is, writ large for the world to see.

    So I probably would have intended to hide my thoughts if I’d seen ME, but my opinion would have been readable from my face.

    When I was an associate and we handed down judgments, I would never look at the litigants until judgment had been handed down, just in case my face gave it away (with a glare, or pity, or a smile). I’d take off my glasses so I couldn’t see anyone (I’m long sighted) and focus on a far point on the wall.

4 Trackbacks

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