In Sydney yesterday, the New South Wales Court of Criminal Appeal dismissed five charges of perverting the course of justice which had been laid against high profile human rights campaigner and former Federal Court judge, Marcus Einfeld. Why? Because, the Court of Appeal said, using this serious offence, which carries with it substantial jail term if a conviction is recorded, in cases where someone allegedly lies or misleads a road transport or any other government official, is inappropriate.
Mr. Einfeld is facing the court over his allegedly, in order to avoid being penalized for speeding, falsely swearing statutory declarations about who was driving his car. But instead of being charged with falsely swearing a declaration under the relevant road traffic laws, the prosecutors decided to lay the more serious offence of perverting the course of justice which carries a maximum of 14 years imprisonment.
It was a step too far, the Court of Criminal Appeal said yesterday. As it noted, to allow people who lie or fudge the truth to public servants like road transport officials, to be charged with perverting the course of justice, would be draconian. It gave the example of a person who lies to an inspector about why they haven’t got a bus ticket to illustrate its point. The Court said:
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.
In Hobart yesterday, the Tasmanian Commissioner of Police Jack Johnson was charged with divulging secret information about a politically sensitive investigation in a briefing note he gave to his Minister. Mr Johnson could have been charged on summons but instead attended the Hobart Police Station where he was strip searched by police, placed in a cell and taken before the courts — the same procedure that applies in a murder case.
And in Melbourne, a senior Brumby government minister Theo Theophanous has stepped aside pending the outcome into an investigation into allegations made by an individual about alleged an alleged incident which occurred a decade ago. The Age saw fit this morning to publish what it says is a statement from the alleged complainant in the matter.
The Age’s decision to run this interview with the woman is grossly unfair. It taints an innocent man and it reduces his right to a fair trial. The veracity of what the woman says has never been tested in any court, the allegations she makes have never been put to Mr. Theophanous, and we have no idea about the background of the woman so that we can make an assessment of the accuracy or otherwise of her statement.
There is a common thread to each of these separate cases — they all involve high profile individuals. In each case public reputation is easily lost through the way in which the law enforcement authorities and the media handle their cases. This is not to say that high profile individuals should be treated any differently by the law or the media in reporting their cases, but we need to ensure that the procedures used in the cases of such people is not different to that which would apply to the average anonymous citizen in a similar position.
In the case of Mr. Einfeld, the damage to his reputation as a result of the very public investigation and laying of charges against him, despite his victory yesterday, has probably been considerable. And while the investigation and charging of Mr. Einfeld was front page news, his important and comprehensive victory yesterday did not attract the same attention.
In the case of Mr. Theophanous, The Age has ensured his political career is at best stalled for a considerable period, and at worst, finished. Either way that is not fair.
Fair go! How many people – you know, real people – can even afford a decent lawyer, let alone the phalanx of lawyers that the rich do. Unless I missed a great deal, poor old Einfield went to extraordinary lengths to avoid paying minor traffic fines that he had incurred fair and square. Maybe the charge was over the top, but so were his incredible defences. He should have just paid up and shut up.
I hate trial by media, so I’m a bit torn on this, but too often the rich and/or powerful abuse their power and privilege, including weasling out of prosecutions. I feel a lot more pity for the small fry crucified by the media than the odd big shot given a rough ride.
I would also like to compliment Crikey and the journalists involved on this article. It is so true and clearly visible but no one is interested other than the Court of Appeal. How many injustices get to that avenue? Todays news and tomorrows fish and chips. By publishing this article I feel my annual subscirption has been well worth it and it is good to know there are media outlets which are not afraid to print the truth.
Seriously, the article is a very fair and concise summing up of what has is and has been happening within Australia and Crikey should be congratulated on reporting these events.
Good article. Well said Greg Barns.
The dropping of the Einfield charges came as a complete shock to me but a pleasing one. It’s quite clear from the beginning that certain powers were out to do in Marcus Einfield out of pure vindictiveness. In that sense it was a political and media witchhunt against a man because of his high profile. There needs to be a thorough investigation into why the prosecution went so far and how many times they may have done this previously with people who don’t have the recourses to fight back. I myself once faced 2 charges and only that I could afford a good barrister he quickly pinted out that one was a complete farce and it was dropped immediately. The prosecution were trying it on as they do and as the police always do-bung on as many charges as they can.
A point of clarification. The Tasmania Police deny that they carried out any strip search of Mr Johnson. It was apparently done by the Department of Corrections before remanding Mr Johnson.