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Richard Ackland
March 20, 2009
Shortly after 10 o’clock this morning Marcus Einfeld should know his punishment for two criminal offences: perjury and perverting the course of justice.

The case has attracted a considerable amount of excitement, and even some splenetic commentary.

Many people may have only dim memories of what happened, so for a moment let’s go back to the very heart of the former judge’s crime. It can be broken into what loosely might be described as Plan A and Plan B, which the Crown characterised as “cunning, elaborate and premeditated”.

Plan A was to protect himself from a speeding offence committed on January 8, 2006. Einfeld made a false statutory declaration after receiving the speeding penalty notice – he knew that he was the driver of his car when he nominated Professor Teresa Brennan as the person “in control” of the vehicle.

Further, he knew when he elected to have the matter heard by the Local Court that he was the driver of the car. He knew he was lying when, to the written notice of pleading, he attached a letter addressed to the presiding magistrate. It said: “My plea of not guilty is because I was not the driver of the car at the time and place stated … I am happy to come to court on a convenient day to swear to these facts if required.”

On August 7, 2006 he gave sworn evidence before a magistrate, Ian Barnett. He used his status as a “justice” when he perjured himself, saying he had left Sydney on January 6, 2006 and went to Forster; that he had lent his car to an old friend, Professor Brennan; that he was not driving his vehicle on January 8, 2006; and he did not know Macpherson Street, Mosman, the place where the offence took place.

The magistrate dismissed the charge against Einfeld.

After the hearing, journalists from The Daily Telegraph discovered that Professor Brennan had died in a car accident in Florida on February 3, 2003.

Questioned by a journalist, Viva Goldner, about this, the former judge said that he knew two Teresa Brennans, both were professors, both were Australians and both had died in motor accidents in the United States. The one he was referring to in court earlier that day was not the one who died in 2003.

You would have thought that at that point he would have detected a terrible storm was gathering. Yet on he pressed.

Two days later he told Channel Nine news: “I categorically deny that I was the driver of my car on January 8, 2006 in Mosman. On January 8 I was out of Sydney … I again unequivocally and categorically deny any suggestion of wrongdoing on my part.”

A day later – August 10, 2006 – the police began investigating whether Einfeld had committed perjury.

Time for Plan B. This plan was doubly complicated. He sought not only to extricate himself from the speeding fine but also from perjury.

To this end his barrister, Winston Terracini, SC, handed the police four signed statements, including one from Einfeld, one from his mother, Rosa Einfeld, 94, and one from a former journalist, Vivian Schenker.

The story had shifted again, significantly. There was no mention of being in Forster. Instead there was an elaborate scenario about how he had lent his car to Brennan, that his girlfriend Sylvia Eisman was taking his mother to see a play called Menopause, that he “suddenly remembered” he had an arrangement to meet Schenker for lunch at Pilu restaurant in Freshwater. He borrowed his mother’s car for this expedition. In her original statement to the police, Schenker falsely stated that she was in Mrs Rosa Einfeld’s car on the lunch trip.

Both Plan A and Plan B were sheer and utter concoctions, as he admitted on October 31 last year, when he entered a plea of guilty to the allegations of perjury and perverting the course of justice.

The Crown said in its sentencing submission: “In his endeavour to escape his criminality he struck at the very heart of all aspects of the justice system and the administration of the law.” He did so using his standing as a “justice” in giving his perjured evidence.

Einfeld’s counsel, Ian Barker, QC, submitted that Justice Bruce James, the sentencing judge, should take account of the proposition that the offender is a “beacon of light … a living treasure … [and] a man of honour”. Further, “society owes him a debt, and he’s entitled to call it in”. Already he has suffered a “terrible fall from grace” and was “tormented” by the shame he had visited upon his family name.

The fall from grace happened because step by chilling step Einfeld ensnared himself in a web of lies – to avoid a lousy $77 speeding fine. That’s the story. It only blew up in his face because Einfeld took it to court. A fool for a client.

justinian@lawpress.com.au

The Sydney Morning Herald
http://www.theage.com.au/opinion/einfeld-drove-his-fate-and-reputation-over-a-cliff-20090319-938v.html?page=-1

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