Charges against Einfeld quashed

By Legal Eagle

As outlined in a previous post, former Federal Court judge Marcus Einfeld was committed to stand trial on a variety of offences relating to false declarations about who was driving his car when certain speeding fines were incurred. The latest update is that Mr Einfeld has successfully applied to the New South Wales Court of Criminal Appeal to have the first five charges of “perverting the course of justice” quashed (Einfeld v R [2008] NSWCCA 215).

The first five charges were made pursuant to s 319 of the Crimes Act 1900 (NSW), being the offence of perverting the course of justice. Any person who is convicted of such an offence may be imprisoned for up to 14 years. Mr Einfeld was also charged with four charges of making false statements, and it appears that the charges in this regard will proceed.

You may be wondering what “perverting the course of justice” means, and it appears that you are not alone; there has long been some confusion on the matter. The High Court explained the meaning of “the course of justice” in R v Rogerson [1992] HCA 25. In that case, Mason CJ said:

The course of justice relevantly includes the proceedings of judicial tribunals, that is, tribunals having authority to determine the rights and obligations of parties and having a duty to act judicially.

It has been suggested that ‘the course of justice’ and ‘the administration of justice’ include police investigations as such. True it is that some judicial comments are capable of being understood as lending support to that bald proposition. These comments have been made for the most part in cases in which a person has been convicted of an attempt to pervert the course of justice by misleading police in their investigation of a crime or suspected crime.

But police investigations do not themselves form part of the course of justice. The course of justice begins with the filing or issue of process invoking the jurisdiction of a court or judicial tribunal or the taking of a step that marks the commencement of criminal proceedings.

Therefore, a false statutory declaration for the purposes of a speeding ticket is not something which prima facie falls within “the course of justice” because criminal proceedings have not yet been instituted, nor indeed have police investigations been initiated when the allegedly false statements are made.

However, in 1990, the NSW legislature enacted a definition of “perverting the course of justice”, contained in s 312 of the Crimes Act (NSW) which states:

A reference in this Part to perverting the course of justice is a reference to obstructing, preventing, perverting or defeating the course of justice or the administration of the law.

[emphasis added]

Therefore, the question was whether “the administration of the law” was intended to extend the definition to situations such as the swearing of an allegedly false statutory declaration.

The Court of Criminal Appeal held that “the administration of the law” should not be read according to its ordinary meaning (which would extend perverting the course of justice to the swearing of false statutory declarations for the purposes of speeding fines). The court’s decision is essentially a policy decision, on the basis that to read “the administration of the law” widely would create an offence which would encompass all kinds of conduct which should not be subject to such heavy criminal sanctions. So it said at [90] – [91]:

We do not see how the expression “the administration of the law” could be interpreted to apply to the police investigation of crime without also applying to the activities of other public officials whose functions include applying and enforcing the laws of the State. A wilfully false statement made to a State Revenue Transit Protection Officer about the circumstances in which a weekly bus pass was lost would on such an interpretation of the provision be a perversion of the course of justice punishable by a maximum of 14 years’ imprisonment.

McHugh J made the point in Rogerson (at 304):

“Moreover, if, contrary to history and principle, this Court now declared that the common law misdemeanour of attempting to pervert the course of justice was established simply by the making of a wilfully false statement in relation to an alleged, actual or suspected crime, it is difficult to see how the offence could be limited to investigations by police officers. Many government officials, besides police officers, are today charged with the duty of investigating breaches of the law. Indeed, any wilfully false statement made to any person investigating whether curial proceedings should be instituted in respect of an actual or supposed civil or criminal wrong would also be arguably within the ambit of the offence. In the result, conduct which for hundreds of years has not been in breach of the criminal law would become so without legislative authority. Whether conduct which intentionally misleads police officers and other government officials should be punishable as an offence, and, if so, to what extent, must remain a matter for the legislature and not the courts.”

Therefore, the charges against Mr Einfeld were quashed, as on their face, they could not succeed on the reading of the statute advanced by the Court of Criminal Appeal.

A report in The Australian indicates that the NSW government does not intend to appeal the decision to the High Court. The State Opposition is concerned that people who repeatedly use false declarations to avoid speeding fines may take advantage of this ‘gap in the law’ as a result.

Rather than attempting to use the perversion of course of justice offence, I wonder if there should be a specific offence of repeatedly giving false statements in relation to speeding fines and the like. A single instance of giving a statement which is later shown to be false can perhaps be excused on the basis that people are fallible or can be forgetful. But where there is a course of conduct where a person has allegedly repeatedly given false statements to avoid speeding fines, this is not just mere forgetfulness or oversight, but a wilful attempt to avoid legal sanctions. It is particularly regrettable conduct on the part of someone such as Marcus Einfeld, who, if the allegations were true, should have known better. But it seems that we may never know what the truth of the matter is.

Update (31/10/08)

Mr Einfeld has pleaded guilty to two charges of perjury and faces gaol time. I wonder if he would have fared better or worse if he’d taken it on the chin in the first place?


    Posted October 24, 2008 at 8:26 am | Permalink

    Another case of the depravity of the legal profession. When a judge can’t face honesty himself and admit guilt, how can he/she sit in judgement of others. If lawyers were doctors we’d all be dead !!!

  2. Posted October 24, 2008 at 9:19 am | Permalink

    A repeated course of conduct offence sounds like a good idea. Although I imagine it might be hard to frame, if would be a good solution to the difficult problem raised by the NSWCCA. (It was a good judgment I think, even though I share your alarm about Einfeld.)

    As I understand it, Einfeld still faces offences in relation to swearing false documents on oath, attracting significant prison sentences. (I guess these are for the traffic matters that went to the magistrates court, rather than just being dealt with by the fines office. He may still face a perversion charge for one of those too.) The DPP intends to use the earlier (now) uncharged acts as evidence of his later knowledge that his oaths were false. A pretty compelling argument, I would have thought.

    Presumably, all these matters could also be considered at sentencing if he is convicted for those offences. It’s hard to see how he could avoid a jail term if that happens (but if anyone could do it…)

  3. sweeney
    Posted October 24, 2008 at 7:47 pm | Permalink

    The “perception of a lot of the public” was the basis for Einfeld’s previous high standing. By his own conduct, his reputation has been destroyed. He has escaped the criminal justice system where others wouldn’t have, but I think this particular white collar criminal, hoist by his own jabot, has been collared enough.

  4. David Chapman
    Posted October 26, 2008 at 6:29 pm | Permalink

    I suppose it helps if you are a prominent member of the N.SW. A.L.P. as well as an “Australian Icon” whatever that is.

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