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.

Peter Fray

Get your first 12 weeks of Crikey for $12.

Without subscribers, Crikey can’t do what it does. Fortunately, our support base is growing.

Every day, Crikey aims to bring new and challenging insights into politics, business, national affairs, media and society. We lift up the rocks that other news media largely ignore. Without your support, more of those rocks – and the secrets beneath them — will remain lodged in the dirt.

Join today and get your first 12 weeks of Crikey for just $12.

 

Peter Fray
Editor-in-chief of Crikey

JOIN NOW