Marcus Einfeld

Marcus Richard Einfeld (born 22 September 1938) is most notable as the first Australian former superior court judge to be imprisoned.^[1] In 2009 he was sentenced to three years in prison for perjury and for attempting to pervert the course of justice.^[2] He was a former justice of the Federal Court of Australia and the Supreme Courts of New South Wales, Western Australia and the Australian Capital Territory; a former President of the Human Rights and Equal Opportunity Commission; a UNICEF Ambassador for Children; and a longtime spokesperson both for and against Israeli and Jewish causes.

In 1977, Einfeld was appointed a Queen's Counsel (QC), but his commission was revoked on 26 November 2008.^[3] On 23 July 2009 the NSW Court of Appeal found that he was guilty of professional misconduct, was not a fit and proper person to remain on the roll of lawyers and ordered he be removed from it.^[4] The NSW Bar Association had applied to have him struck from the roll. Einfeld agreed not to apply for re-admission.^[5] His membership of the Order of Australia was also rescinded on 24 April 2009.^[6] Outside the field of the law, Einfeld has been a social activist in Australia and the Pacific region.

Background

Einfeld's parents were the Labor Party politician Syd Einfeld and his wife Billie. He attended Sydney Boys High School from 1951 to 1955, and obtained his Bachelor of Laws degree from the University of Sydney in 1962.^[7]

Legal career

Einfeld is a former Justice of the Federal Court of Australia and of the Supreme Courts of New South Wales, Western Australia and the ACT. He was President of the Human Rights and Equal Opportunity Commission between 1986 and 1990. He retired as a judge in April 2001. He has been named by the National Trust of Australia as a National Living Treasure, although this is no longer acknowledged at their website since his conviction.^[8]

Community and social involvement

Einfeld has served as an executive member of the New South Wales Jewish Board of Deputies and as a Councillor on the Executive Council of Australian Jewry. He also started and served as the first chairman of the Australian Campaign for the Rescue of Soviet Jewry, following his earlier establishment of the London-based National Campaign for Soviet Jewry of the United Kingdom and Ireland.

Einfeld has been a spokesperson for Israeli and Jewish causes and has often confronted Palestinian supporters, the media, the United Nations, universities and other institutions. He was an invited speaker at United Israel Appeal (UIA) functions in Britain, the United States, Europe, Canada and Australia. He is patron of the Australian Association of Jewish Holocaust Survivors and Descendants and of the Sydney Jewish Museum.

Einfeld has served as Austcare's "Ambassador for Refugees"^[9] and as an "Ambassador for Children" for UNICEF. In 2002, he was presented a United Nations Association of Australia Founder's Award for his contribution to justice and human rights.

Controversies

In a March 2006 address on the war on terror and civil liberties at the University of Western Sydney, he stated that Western powers, including Australia, had supported terrorist regimes financially, and that new sedition laws showed that Australia was "leaning towards an autocratic framework".^[10]

Einfeld was the President of Australian Legal Resources International, a non-profit independent group of lawyers that supported democracy, human rights and the rule of law in developing countries. In August 2006, this organisation collapsed, leaving creditors, including AusAID, the Australian Taxation Office, and St.George Bank "thousands of dollars out of pocket."^[11]

Criminal conviction

In August 2006, Einfeld contested a A$77 speeding ticket by claiming he had lent his car to an old friend, Professor Teresa Brennan, at the time it was caught by a speed camera. He gave evidence under oath in the Local Court and he also signed a statutory declaration to that effect. However, it was later revealed that Professor Brennan had been killed in a road accident in the United States in February 2003, and that Einfeld was aware of it. This was the basis for Einfeld's conviction for knowingly making a false statement under oath.^[12][16]

When challenged by a journalist concerning Brennan's death, Einfeld claimed that he had lent his car on that day to a different Teresa Brennan, whom he claimed also lived in the USA, and who had also died. In August 2006, Einfeld produced a detailed 20-page statement describing the fictitious second Teresa Brennan and his supposed dealings with her. This was the basis for his conviction for attempting to pervert the course of justice.^[16] Angela Liati, a woman unknown to Einfeld, came forward and claimed that she had met and driven in Einfeld's car with "Theahresa Brennan" on the day in question. Liati was subsequently charged with perverting the course of justice. She claimed that she was only endeavouring to make contact with Einfeld through her admission. Liati was found guilty on 12 February 2009 and was subsequently sentenced to 200 hours' community service;^[17] later changed to a 12-month good behaviour bond.

In September 2006, Einfeld gave the NSW Police leave to search his Woollahra home as part of their investigation of his evidence in the speeding case. They removed part of his home computer for forensic examination.^[18] On 29 March 2007, Einfeld was arrested by the NSW police. He was charged with 13 offences, including perjury, perverting the course of justice and making and using false statutory declarations.^[13]

Einfeld's committal hearing was held in December 2007. The prosecution suggested the reason he lied under oath was that, had he gained the demerit points for the speeding offence, he would have been close to losing his licence. However, Einfeld denied he was aware his points were so high. One charge (hindering an investigation) was dropped; Einfeld was committed to stand trial on charges of perjury, perverting the course of justice and traffic offences.^{[14][19][20][21][22]} In October 2008 the Court of Criminal Appeal dismissed another five of the charges against Einfeld.^[23]

On 31 October 2008, Einfeld pleaded guilty to perjury and to perverting the course of justice just before his trial was to commence. It was also revealed that he had been battling prostate cancer for several months.^[24] Since his speeding fine case came to the attention of the Australian media, Einfeld has been the subject of ongoing media reports alleging various other improprieties, including padding his curriculum vitae,^[25] purchasing doctorates from US diploma mills,^[26] and plagiarism.^[12]

On 5 November 2008, the President of the New South Wales Bar Association applied to the Court of Appeal to withdraw Einfeld's commission as Queen's Counsel, on the basis that his conduct has brought shame upon the legal profession as well as on himself.^[27] On 26 November 2008 Einfeld's commission as a Queen's Counsel was revoked.^[3] On 20 March 2009, Einfeld was sentenced to three years in prison for knowingly making a false statement under oath and for attempting to pervert the course of justice, with a non-parole period of two years. Supreme Court Justice Bruce James found Einfeld had committed "deliberate, premeditated perjury" that was "part of planned criminal activity".^[2][28] However, Einfeld denies being dishonest, saying: "I don't think I'm the slightest bit dishonest. I just made a mistake."^[29] He served two years and was released on parole on 19 March 2011.^[15]

Removal from the Roll

On 23 July 2009, the New South Wales Court of Appeal made declarations that Einfeld was guilty of professional misconduct and that he was not a fit and proper person to remain on the roll of lawyers and ordered that his name be removed from the Roll.

On 28 August 2009, the Court of Appeal delivered its reasons for making those declarations and orders.^[4]

The Court found proven allegations that, in addition to the 2006 statutory declaration in respect of which he had been convicted, Einfeld had also sworn a series of statutory declarations in 1999, 2003 and 2004 falsely nominating other persons as the drivers of his car who he knew had not been driving the car so as to avoid traffic infringements.^[30]

The Court of Appeal also considered the circumstances in which Einfeld had produced the 20 page statement describing the fictitious Teresa Brennan, with respect to which he had been convicted of attempting to pervert the course of justice, and found that:^[31]

"This statement reflects a studied, careful and premeditated attempt through a series of direct lies to influence the outcome of the administration of justice. It involves not a passing mistake, not an unfortunate and apparently uncharacteristic lapse but a studied and deliberate attempt to avoid the consequences of his actions and to deflect and pervert the course of justice. It may well be that the course of justice was in relation to a minor matter, standing alone. That, however, is not the point."

The Court of Appeal concluded, on the question of whether Einfeld was a fit and proper person to remain on the roll of lawyers:^[32]

"All these facts proved by the plaintiff which we have recounted when taken as a whole reflect deeply on the character of the defendant. Some of his falsehoods were committed at a time when he held high judicial office in the administration of justice in this country. Some were committed when he held the position as a practitioner involved in the administration of justice. Some of the falsities involved innocent people, including Ms Benjamin, Ms Marks and Dr Oliver, in his conduct. These matters, having taken place over a period of some seven years and being of a character and in circumstances eliminating the possibility of mistake, reveal a clear unfitness to remain on the Roll of Local Lawyers."

Personal life

Marcus Einfeld has four children, two from each of two marriages.^[33]

Honours

• Queen's Counsel (QC): Letters Patent granted 1977. Revoked 26 November 2008 by the Governor of NSW.
• Officer of the Order of Australia (AO): June 1998, "for service to international affairs and to the promotion and protection of human rights".^[34] Terminated by the Governor-General on 24 April 2009.^[6]
• Australian Sports Medal: November 2000, as "Chairman of Fundraising Committee for 1988 Paralympic Team; President of APC 1990-1992".^[35] Subsequently terminated.
• Centenary Medal: January 2001, "for service to the Centenary of Federation celebrations".^[36]

Literature

• Harari, Fiona (2011). A Tragedy in Two Acts: Marcus Einfeld and Teresa Brennan. Carlton: Melbourne University Publishing. ISBN 978-0-522-85810-5. 

References