Council of the New South Wales Bar Association v Einfeld

Court of Appeal (NSW)|2009-07-23|Before: Allsop P, Giles JA, Hodgson JA

Background 3 The defendant, Marcus Richard Einfeld, was called to the Bar of New South Wales on 27 July 1962. He was appointed Queen's Counsel on 24 November 1977. He was appointed a Judge of the Federal Court of Australia on 19 December 1986, retiring on 16 April 2001. Between 1986 and 1990 he was the President of the Human Rights and Equal Opportunity Commission. After retiring from the Federal Court, the defendant was appointed to a number of State Supreme Courts as an Acting Judge. He also returned to practice at the Bar of New South Wales. He was issued with a practising certificate from 3 April 2001 and held a practising certificate until 30 June 2004. He was again issued with a practising certificate from 24 March 2006. He held the practising certificate until 30 June 2007. 4 On 31 October 2008, the defendant pleaded guilty in the Supreme Court of New South Wales to two charges namely:

(a) On 7 August 2006 at Sydney in the State of New South Wales in the hearing of R v Marcus Einfeld before the Downing Centre Local Court he made a false statement on oath knowing the statement to be false concerning a matter material to the proceedings namely that he was not the driver of vehicle AJR-16F on 8 January 2006 when a traffic offence was committed.

(b) On or about 23 August 2006 at Sydney in the State of New South Wales he did make a false statement with intent to pervert the course of justice. 5 The first charge was one of perjury under the Crimes Act 1900 (NSW), s 327 for which the maximum penalty is imprisonment for 10 years. The second charge was one of perverting the course of justice under the Crimes Act, s 319 for which the maximum penalty is 14 years. There is no standard non-parole period for either sentence. 6 After a sentence hearing conducted over three days on 25, 26 and 27 February 2009 a Judge of the Court (James J) sentenced the defendant as follows:

(a) On the charge of perjury, to a non-parole period of imprisonment of one year two months commencing on 20 March 2009 and expiring on 19 May 2010 and the balance of the term of seven months commencing on 20 May 2010 and expiring on 19 December 2010.

(b) For the offence of perverting the course of justice, to a non-parole period of imprisonment of one year three months commencing on 20 December 2009 and expiring on 19 March 2011 and a balance of the term of one year commencing on 20 March 2011 and expiring on 19 March 2012.

(See R v Einfeld [2009] NSWSC 119.) 7 By these sentences the defendant will be available for release on parole on 19 March 2011. 8 By letter dated 18 November 2008 to the President of the New South Wales Bar Association, the defendant stated: "I sincerely regret and am deeply ashamed of my serious offences and readily accept my conduct was entirely inconsistent with that expected of a barrister and Queen's Counsel. I am very sorry that in committing the offences I have tarnished the image of the legal profession and acknowledge that I can no longer practise law. I will not oppose an application to strike my name from the roll of legal practitioners or the withdrawal of my commission as Queen's Counsel and will willingly take any steps needed to facilitate those consequences of my offences." 9 The Bar Association, as plaintiff, moved the Court for the declarations and orders that have been made, not merely upon the admission of guilt of the offences to which we have referred, but also upon facts surrounding those offences and also evidence of the commission of other like offences before 2006. 10 The defendant through his solicitor, Mr Tassell, gave an undertaking to the Court in the following terms: "The undertaking is that the opponent [the defendant] undertakes to the claimant [the Council of the Bar Association] and [to] the Court that he will not make any application for readmission to the roll of local lawyers." 11 The defendant in written submissions made admissions, but only as to the offences to which he pleaded guilty last year. He made no admissions as to the further facts sought to be proved by the evidence tendered by the plaintiff. He led no evidence in the proceedings in this Court. He did not come forward to explain his conduct, either by way of exculpatory evidence or by way of further admissions.

The Court's approach 12 One way of dealing with the application of the Bar Association would be to deal with the facts underlying the two charges in respect of which the defendant pleaded guilty and assess whether those matters, taken alone, and about which there is no dispute, would be sufficient to justify the orders. The Bar Association submitted that this was not the appropriate course. It has sought to go beyond these facts as justification for the declarations and orders, notwithstanding that the defendant conceded that the declarations and orders should be made on a more restricted basis based on his admissions. 13 It is clear that the Court must satisfy itself that it is appropriate to make orders removing the defendant's name from the Roll, even if the defendant concedes that the orders should be made: Council of the New South Wales Bar Association v Power [2008] NSWCA 135; 71 NSWLR 451 and Prothonotary of the Supreme Court of New South Wales v McCaffery [2004] NSWCA 470 at [12]. That does not, however, answer the question whether the Court should range beyond the facts which are admitted if those facts are adequate to support the making of the declarations and orders. 14 In Bridges v Law Society of New South Wales [1983] 2 NSWLR 361 Moffitt P quoted what he had said in Law Society of New South Wales v Seymour; Prothonotary v Seymour (Court of Appeal 14 April 1982 unreported, with which passage Hutley and Mahoney JJA agreed), as follows: "Any one of four of the five matters alleged, if established, would call for an order removing the name of the solicitor from the roll. The only purpose of basing the court's order on more than one such matter is because the conduct of a solicitor is a matter of public concern and when allegations against him alleging professional misconduct have been made they should be openly and fully dealt with. This the Court has proceeded to do today. Moreover the totality of the matters constituting misconduct should be dealt with and recorded on the basis that they could be relevant to any future application for readmission." 15 Two purposes for dealing with the totality of the alleged matters can be seen to be referred to by Moffitt P in Seymour: the general public interest and the assistance in relation to any future application for readmission. The latter has been reiterated on a number of occasions: Prothonotary of the Supreme Court of New South Wales v Ritchard (Court of Appeal 31 July 1987, unreported) at 4-5 (Kirby P); New South Wales Bar Association v Cummins [2001] NSWCA 284; 52 NSWLR 279 at 285 [24] and [25] (Spigelman CJ, with whom Mason P and Handley JA agreed); and Council of the New South Wales Bar Association v Power at 459 [10]-[11] (Hodgson JA, with whom Beazley and McColl JJA agreed). 16 The former, the public interest, should not be lost sight of. The roles of the Bar Association (and the Law Society) and this Court in the maintenance of public confidence in the administration of justice and the legal system are to be recognised and appreciated. When, as happens from time to time, a member of the profession so conducts him or herself as to bring disrepute on to the profession, the administration of justice and the legal system, procedures (such as this hearing) should be unquestionably complete in examination of relevant conduct. To do less may lead to a view (even if misguided) that the system operates without a full opportunity for the public examination of such wrongful conduct. This is not part of any process of punishment; rather, it is as an aspect of protecting the public and fostering the public interest by maintaining full accountability of those in the profession and involved in the administration of justice. 17 Quite apart from this question of public interest, here, it is important to understand, by reference to the evidence before the Court, the full context and history of the defendant's conduct in order that its seriousness be understood. The commission of an untruth in relation to a mundane and everyday event such as dealing with a speeding offence is the subject of consideration. No one is perfect. People make mistakes, including ones that involve a degree of dishonesty. Sometimes, these mistakes can be made in circumstances where they can be viewed as stupid and, perhaps, uncharacteristic; such mistakes may not, when examined in all their circumstances, reflect profoundly on the overall character of the person involved. Conversely, when placed in context what occurred may be seen as not involving mistake, but as bearing a much more serious character. Thus, it is necessary, here, given the background of the defendant and the immediate nature of the offences, to understand the full context of the material to appreciate the seriousness of what was done and (unfortunately, it must be said) the reflection on the character of the defendant leading to the clear necessity to make the orders for the protection of the public. 18 Because we have come to the view that this is the appropriate approach, we will deal with the evidence as a whole, not separating the facts underlying the offences in respect of which the defendant pleaded guilty and other facts. Rather, the facts will be examined chronologically, in order that they be seen as a coherent whole.

The October 1999 statutory declaration 19 On 4 September 1999, a camera-detected traffic offence was committed by the driver of a vehicle allocated to Mr Einfeld for his personal use by the Federal Court of Australia. A penalty notice for the offence was issued by the Infringement Processing Bureau (the "IP Bureau"). This fact was proved by a penalty infringement notice issued by the IP Bureau to the Federal Court of Australia. 20 On 20 October 1999, the defendant made a statutory declaration in which it was stated that the driver of the vehicle at the time was one Professor N D Levick of Florida Atlantic University, Florida, USA. The statutory declaration was signed by the defendant and in the space for the witness signature was a signature "Violette Benjamin". A person by that name was a Justice of the Peace and was the defendant's personal assistant in circumstances described below. 21 The evidence disclosed from a statement of Airisha Awang of the Department of Immigration and Multicultural Affairs (the "Department of Immigration") that Professor Levick departed on 27 June 1999 and did not return to Australia until 21 November 1999. The evidence before the Court included a statement by a Mr Goodman-Jones who was an electronic evidence specialist with the State Electronic Evidence Branch. He had downloaded information from the defendant's Palm Pilot, being a personal electronic diary, including some personal contact details of the defendant. In a section of the Palm Pilot under the heading "Friends" he downloaded the personal contact details of Nadine Levick. No evidence was adduced by the defendant in relation to these matters by the defendant. 22 The plaintiff submitted that it should be inferred that the defendant knew that Professor Levick did not use his motor vehicle on 4 September 1999 because of the proved relationship through the Palm Pilot and the fact that Professor Levick was not in the country. Given that only a month had passed from the commission of the traffic offence at the time of the making of the statutory declaration we are prepared to draw the inference as more probable than not that the defendant was aware that Professor Levick was not in Australia. 23 The defendant did not come forward with evidence on these matters which were peculiarly within his knowledge. In examining the conclusions which can be drawn from the fact that the defendant has not come forward in evidence, we refer to what Hodgson JA said in Power at 459-467 [9]-[29]. The fundamental common law right to the privilege against self incrimination must be recognised. However, if the defendant chooses not to come forward to assist with the disciplinary proceeding the failure to provide an exculpatory statement or explanation means that inferences from proved facts can be drawn more safely because the defendant failed to give any explanation of matters peculiarly within his knowledge. This kind of inference is available even in a criminal trial: Azzopardi v The Queen [2001] HCA 25; 205 CLR 50 and Weissensteiner v The Queen [1993] HCA 65; 178 CLR 217; and see also Australian Competition and Consumer Commission of Universal Music Australia Pty Ltd [2001] FCA 1800; 115 FCR 442 at 456-457 [33] and Power at 463 - 467 [20]-[29]. 24 The plaintiff also tendered a statement of Violette Benjamin. Ms Benjamin provided this statement in the criminal proceedings against the defendant. Ms Benjamin commenced work with the Federal Court in March 1998. She worked from that date as the defendant's personal assistant. Her duties involved the day to day running of the defendant's chambers, typing and other duties when called upon to do so. Ms Benjamin ceased working for the defendant on 30 April 2001 when he retired. Ms Benjamin's statement is clear in its terms that the witnessing signature on the statutory declaration signed by the defendant was not hers. This statement is confirmed by the appearance of the signature as compared with the genuine signature of Ms Benjamin, and the Court accepts it as true. The Bar Association submitted that it was an inescapable inference that the defendant caused Ms Benjamin's signature to be forged either under his hand or otherwise. In the light of the absence of any exculpatory evidence it can be inferred either that the defendant knew his signature had not been witnessed or that he knew that the witnessing signature was not that of Ms Benjamin. Both are serious matters. 25 The available conclusions about the falsity of the witness' signature to which we have just referred assist in reinforcing the inference that the defendant knew that Professor Levick was not in Australia at the time of the offence. 26 The evidence reveals through correspondence with the State Debt Recovery Office that by 13 January 2000 the Federal Court was being pressed for payment of the fine. 27 On 17 January 2000, the District Registrar of the New South Wales District Registry of the Federal Court sent a memorandum to the defendant. The memorandum reminded the defendant of the matter and the extension of time that had been given by the police until 13 December 1999. 28 On the same day the same District Registrar wrote to the State Debt Recovery Office. He sought an extension of time to deal with the matter until late in February 2000. 29 This request for an extension was rejected by the State Debt Recovery office on 31 January 2000. 30 On 14 February 2000, the District Registrar once again wrote to the State Debt Recovery Office. The letter indicated that the District Registrar had spoken to the defendant. The District Registrar attached a copy of a statutory declaration completed by the defendant on 20 October 1999 which declared that the actual driver was Professor Levick. The letter then continued on the assumption that this statutory declaration had been sent shortly after being made. We infer that this reflected what the defendant had told the District Registrar. 31 A little over a week later the State Debt Recovery wrote to the Federal Court advising that the matter had been withdrawn at the direction of the IP Bureau. We infer that this course was taken by reason of the form of the statutory declaration or a copy of it which had been sent to the State authorities. 32 We would therefore conclude that the defendant made a statutory declaration which to his knowledge was sent to the IP Bureau in which he asserted falsely that Professor Levick had been driving the car at the time of the offence and that the defendant made the statutory declaration knowing either that his signature had not been witnessed or had been verified as witnessed by a false or forged signature.

The May 2003 statutory declarations 33 On 4 February 2003 a camera detected traffic offence was committed by the driver of a vehicle owned by Mr Einfeld. By this time it was almost two years since the defendant had left the Federal Court. A penalty notice was issued by the IP Bureau. 34 On 4 May 2003, the defendant made a statutory declaration in which it was stated that at the time of the offence the vehicle was being driven by "Theresa Brennan, Florida Atlantic University, Florida, USA". The assertion by the Bar Association was that this was a knowingly false statement by the defendant. This was sought to be proved as follows. 35 First, it was submitted that the defendant and Professor Theresa Brennan, who was an academic from Florida Atlantic University in the United States were friends. This was not admitted. The plaintiff proved the fact by the tender of a letter the defendant wrote to Professor Brennan on 17 December 1998 expressing his condolences upon Professor Brennan's father's death. It is unnecessary to set the letter out in full. It is sufficient to note that the defendant addressed Professor Brennan as "Dear Theresa" and signed the letter "With Fondest Wishes Sincerely Marcus [the name by hand]." 36 Also placed in evidence was an email sent by Mr David Brennan (Professor Brennan's cousin) to the defendant in January 2003. Professor Brennan was the victim of a hit and run car accident. The letter informed the defendant of this. Mr Brennan explained that he was writing to the defendant because he believed that the defendant was a friend of his cousin, Theresa Brennan "now a professor at Florida Atlantic University in the USA". (The letter in the exhibit bears a date 22 October 2006 but from the balance of the exhibit it can be inferred that this date was a reference to some step in the prosecution process. It is clear that Mr David Brennan wrote to the defendant in January 2003.) The terms of the response by the defendant to Mr David Brennan by email of 30 January 2003 assist in the inference that the defendant and Professor Brennan were friends. 37 On 3 February 2003 Professor Brennan died as a result of her injuries sustained during the accident to which we have referred. The defendant learned of her death by email shortly thereafter. The news was sent to the defendant by email to the address being the same address to which the news of her injuries had been sent. 38 Therefore, we would find comfortably proved the fact that shortly after 4 February 2003 the defendant became aware of the death of his friend Professor Brennan. Coincidently this was close to the day of the camera offence detected being 4 February 2003. 39 On 10 February 2003 the defendant was informed by email by Mr David Brennan of Professor Brennan's funeral in Florida. An email exchange then took place with the defendant as to a service in Australia. This further reinforces the inference of the friendship between the defendant and Professor Brennan. 40 There was evidence before the Court that a memorial service for Professor Brennan was held in Melbourne on 28 February 2003. The defendant was not able to attend. However, the evidence revealed that by email on 28 February 2003 the defendant gave his apologies for not having been able to be in Melbourne for the service. 41 On 4 May 2003 a little over two months after sending his apologies for not attending the service for Professor Brennan on 28 February 2003 the defendant made a statutory declaration in which he asserted that at the time of the offence, 4 February 2003, the vehicle in question was being driven by "Theresa Brennan, Florida Atlantic University, Florida USA". 42 The plaintiff submitted that from the surrounding facts to which we have referred the assertion was knowingly false. That inference is clearly open and is made stronger by the absence by any exculpatory evidence within the knowledge of the defendant. 43 Later in the month, on 21 May 2003, the defendant made a further statutory declaration, apparently on the reverse of a penalty reminder notice dated 13 May 2003, in which he again asserted that at the time of the offence, 4 February 2003, the vehicle was being driven by the same Theresa Brennan of Florida Atlantic University, Florida, USA. 44 The plaintiff once again submitted that this statutory declaration was made knowingly falsely. For the same reasons, that factual conclusion is made out, and those findings should be made. 45 It is not clear why a second statutory declaration was required. It is not clear that the first was sent to or at least was received by the IP Bureau. Nevertheless, the IP Bureau on receiving at least one of the statutory declarations acted on the basis that the information in the declaration or declarations received was genuine and the defendant escaped the conviction, the monetary penalty and loss of any demerit points and the offence was not placed on his traffic record. The evidence revealed that the infringement summary for the offence was made out to Theresa Brennan at Florida Atlantic University.

The February and April 2004 statutory declarations 46 The evidence revealed that on 29 November 2003 a further camera detected offence was committed by the driver of a vehicle owned by Mr Einfeld. A penalty notice for the offence was issued by the IP Bureau on 23 January 2004. 47 On 10 February 2004 (a little over six weeks after the infringement) the defendant made a statutory declaration in which he asserted that at the time of the offence the vehicle was being driven by "Dr Tim Oliver, Derbyshire, England". The statutory declaration was witnessed by a Ms Marks who was an employee of a firm of solicitors used by the defendant. 48 The evidence established that from the records of the Department of Immigration a Dr Timothy Oliver with the relevant middle names and born on a date in 1944 made a single trip to Australia arriving on 5 March 2001 and departing 19 March 2001. These records were tendered to establish that Dr Oliver was not in Australia on 29 November 2003. Evidence was led from a Mr Colin Chong of the Department of Immigration attesting to the system of recording movements across Australia's borders and the searching of the records of the Department for a Timothy Oliver. Also in evidence was an email from Mr Oliver to a Detective Sergeant about the subject "Re Marcus Einfeld". The letter included a statement that he had visited Sydney on a number of occasions and "had often been lucky enough to drive one of [the defendant's] cars". It stated that he did have a number of speeding convictions in the UK and therefore did not wish to comment as whether or not he could have been the driver on the occasion mentioned in the email from the Detective Sergeant. 49 When one examines all the Department of Immigration records from the searches that were made an inference does arise from them that a Timothy Oliver with the relevant middle names and date of birth in 1944 only came into Australia once. Ms Adamson who appeared for the plaintiff made clear that the police brief from which the material tendered was taken revealed that there were many Timothy Olivers in the Department's records, but only one with the relevant middle names of the person with the relevant passport number and the relevant date of birth. The relevant date of birth was obtained from the UK drivers licence application which also contained a passport number and a day time telephone number. The daytime telephone number was found adjacent to the name Tim Oliver in the defendant's Palm Pilot in the category "Friends". The email address for Mr Oliver in the Palm Pilot corresponded with the email address from the Tim Oliver who responded to the police enquiry. 50 Given the sole response to the name Tim Oliver with the relevant date of birth and middle names identified in the UK drivers licence application and the link between that application through the telephone number on it with the defendant through his Palm Pilot we are prepared to infer on the basis of the correctness of the Department of Immigration records that Mr Oliver was not in Australia at the time of the traffic offence. 51 On 10 April 2004 the defendant made a further statutory declaration in which he asserted that at the time of the offence the vehicle was being driven by "Tim Oliver, Hampton Court, Derbyshire England". 52 This second statutory declaration in relation to the offence was made, we would infer, in response to a letter of 20 February 2004 from the IP Bureau to the defendant in which it was stated that the statutory declaration received by the office could not be accepted because details were omitted being the given names and surname of the person in charge of the vehicle. 53 From this letter one can infer that the defendant sent the first declaration to the State authorities with a view to avoiding the consequences of the driving offence. 54 The signature of the defendant on this second statutory declaration in relation to this offence was purportedly witnessed by the same Ms Marks. The evidence contained a statement by Ms Marks that this signature on the April 2004 statutory declaration was not hers. This statement is confirmed by the appearance of this signature as compared with the genuine signature of Ms Marks, and the Court accepts it as true. 55 As with the false signature of Ms Benjamin, one can therefore infer that either the defendant was aware that his signature to the statutory declaration had not been verified as witnessed by a false or forged signature. 56 The falsity of the witnessing of this second statutory declaration makes more comfortable the drawing of the inference in relation to both statutory declarations that they were made in the circumstances of their being knowingly false in that Dr Oliver was not in Australia at the time of the offence.

The 2006 offences and the committed perjury 57 It was admitted that on 8 January 2006 a camera detected offence was committed by the driver of a vehicle owned by Mr Einfeld and that a penalty notice for the offence was issued by the IP Bureau. On 12 March 2006 the defendant signed "a court election notice". 58 Thereafter the defendant was issued with a court attendance notice and the matter was listed for hearing at the Downing Centre Local Court on 16 May 2006, on which date the matter was adjourned for hearing to 7 August 2006. This is established by the evidence. On 6 May 2006 the defendant wrote a letter to the Presiding Magistrate, Downing Centre Local Court in which he stated that his plea of not guilty was because he was not the driver of the car at the time and place stated. He stated in the letter that on that day the car was in the control "of a visiting friend from the Untied States to whom I lent it for a couple of days". 59 At the hearing of the offence on 7 August 2006 the defendant's sworn evidence included the following:

(a) On 7 January 2006 (one day before the offence) he left his home for a holiday at Forster.

(d) Professor Brennan had use of his vehicle while she was on holidays in Australia.

(e) Sometime after 8 February he received a notice advising of the offence and he completed a statutory declaration nominating her as the driver of the vehicle and sent it to the relevant address.

(f) He was not the driver of the car. 60 The evidence given in Court was purportedly supported by electronic diary which it can be inferred was falsely amended to provide the alibi for the offence. This electronic diary was examined by Mr Goodman-Jones the electronic evidence specialist and it showed that the defendant had left for Forster by the time of the day of the offence. 61 Relying on this evidence the Magistrate dismissed the case against the defendant. 62 The sworn evidence of the defendant was perjured in three respects. First, it was false in that on 8 January 2006 he had in fact been the driver of the vehicle when he swore that he was not. Secondly, it was false in that he said that he had lent the vehicle to Theresa Brennan. He plainly had not. She had died some years before of which he was aware and we infer could not have been mistaken about. Thirdly, it was false in that on 8 January 2006 he not had been in Forster. 63 We conclude that these statements were false to the knowledge of the defendant at the time they were made. 64 On 31 October 2008, the defendant pleaded guilty in the Supreme Court to the first charge to which we have referred earlier in these reasons. 65 Shortly after 7 August 2006, the New South Wales Police commenced an investigation into whether or not the defendant had committed perjury when he gave his evidence 7 August 2006. On 23 August 2006, Mr Einfeld signed a statement which was prepared for the purpose of being given to the police in this investigation. The statement is some 17 pages long. It was undoubtedly prepared by the defendant and signed by him. It contains detailed and careful self-exculpation in relation to the circumstances of the last driving offence which he blamed on a "Teresa Brennan" whom he said was a philosophy professor he met in Bangladesh in 1992, being (it was to be asserted) someone different to the Professor Teresa Brennan who had died in 2003. 66 James J in his remarks on sentence recounted the context of this invention of the second Professor Brennan at [97]-[99]: "[97] The second offence was clearly premeditated. At the sentence hearing counsel for Mr Einfeld objected to the parts of the Crown statement about the conversations between Mr Einfeld and Ms Goldner on 7 August 2006 on the grounds that that evidence was irrelevant. However, in my opinion, this evidence was clearly relevant as showing the genesis of the false assertions made in the statement of 23 August 2006. In the first conversation Mr Einfeld was made aware that Ms Goldner, a journalist, had discovered that Professor Teresa Brennan of Florida, who had been identified as such in the evidence he had given on 7 August 2006 as having been the driver of the vehicle on 8 January 2006, had died in February 2003. The idea immediately occurred to Mr Einfeld to change his version of events and to assert that the person to whom he had lent his car was a different person. [98] It is true that as at 7 August 2006 no police investigation had yet been commenced into whether Mr Einfeld had committed perjury in giving his evidence. However, such an investigation did commence on 10 August 2006 and the statement Mr Einfeld made and handed over to the police on 23 August 2006 was in accordance with what he had said in his conversations with Ms Goldner. It is obvious from the detailed contents of the statement of 23 August 2006 that preparation of the statement would have taken some time. [99] I find that considerable planning went into the preparation of the statement of 23 August 2006 so as to present a version of events which, if accepted, would show that the evidence given by Mr Einfeld on 7 August 2006 had not been perjured." 67 The statement included the following assertions which were accurately set out in the plaintiff's written submissions (explaining the use of the third person):

(a) In late December 2005 or early January 2006 (the second) Professor (Teresa) Brennan rang the defendant again and said she was in Australia. She asked if they could get together for coffee and he said that he would try. She also asked if there was any chance of him lending her his car. He replied that he may be able to lend her his car, depending on when it was for. She said she would let him know when/if she needed to borrow it.

(b) At some stage between the end of the SCG Test Match and 7 January 2006 the defendant again received a call from Brennan.

(c) Brennan asked him if she could borrow his car on Sunday 8 January 2006. She said that she wanted to go out with some friends to see a bit of Sydney.

(d) The defendant agreed to lend her his car but told her that she would have to come and collect it. They agreed that she would collect the car from his address the following day, 8 January 2006, at 11:00 am. He gave her his address.

(e) At around 11 am on Sunday 8 January 2006 the defendant drove to his elderly mother's unit in Grafton Street, Bondi Junction, using his vehicle, AJR-16F, the silver Lexus.

(f) The defendant picked her up and drove her back to his own premises.

(g) When the defendant arrived back home with his mother he saw Brennan outside his house.

(h) Although the defendant had not seen her for many years he realised who she was when she said "Hello Marcus".

(i) The defendant introduced his mother to Brennan. He then walked his mother into the house. As he was doing this his mother asked about the woman Brennan. He told his mother that she was an old friend from overseas to whom he was lending his car for the day. His mother chastised him for lending the car to people.

(j) The defendant then showed Brennan how to use his car, and may have driven her around the block.

(k) Brennan told him she would have the car back before dinner. Brennan left with his car.

(l) Sylvia Eisman, Sylvia's daughter and his mother left to see a play just after 12.00 pm. They drove in Sylvia's VW Golf.

(m) Shortly thereafter the defendant suddenly remembered that he had a prior arrangement to meet friend named Vivian Schenker for lunch.

(n) As the defendant had given his Lexus to Brennan, he had to go and get his mother's vehicle which was at her unit at Grafton Street, Bondi Junction.

(o) The defendant walked to his mother's unit and retrieved her vehicle. He then drove to Vivian Schenker's premises at Cremorne Point.

(p) [On the way home from lunch] the defendant took the main road across the Spit Bridge, up the Spit Hill joined Military Road before turning left towards Cremorne Point.

(q) After dropping Schenker off the defendant drove back to his mother's unit in Bondi Junction, dropped off the car, then returned home on foot.

(r) The defendant arrived back at this house at around 5.30 pm and noticed that his Lexus was parked outside. The car keys had been put through the letter opening in the door to his house along with a thankyou note which he later discarded. 68 On the instructions of the defendant a copy of the statement was handed to the police by his barrister on 24 August 2006. 69 On 31 October he pleaded guilty to a charge that or about 23 August 2006 he did make a false statement with intent to pervert the course of justice. 70 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. 71 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. 72 It was for these reasons that we made the declarations and orders on 23 July 2009.

31/08/2009 - Typographical errors. - Paragraph(s) 13, 49

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

CITATION: Council of the New South Wales Bar Association v Einfeld [2009] NSWCA 255 This decision has been amended. Please see the end of the judgment for a list of the amendments.

Australian Competition and Consumer Commission of Universal Music Australia Pty Ltd [2001] FCA 1800; 115 FCR 442 Azzopardi v The Queen [2001] HCA 25; 205 CLR 50 Bridges v Law Society of New South Wales [1983] 2 NSWLR 361 Council of the New South Wales Bar Association v Power [2008] NSWCA 135; 71 NSWLR 451 CASES CITED: Law Society of New South Wales v Seymour; Prothonotary v Seymour (Court of Appeal 14 April 1982 unreported) Prothonotary of the Supreme Court of New South Wales v McCaffery [2004] NSWCA 470 Prothonotary of the Supreme Court of New South Wales v Ritchard (Court of Appeal 31 July 1987, unreported) New South Wales Bar Association v Cummins [2001] NSWCA 284; 52 NSWLR 279 R v Einfeld [2009] NSWSC 119 Weissensteiner v The Queen [1993] HCA 65; 178 CLR 217

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