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13 December, 2007  
A good prosecution case

After a few last desperate legal throes the National Living Treasure Marcus Einfeld is committed to stand trial for perjury and other falsities. The Greek toenail clipper Angela Liati also to be tried over a botched alibi

Marcus Einfeld was today (Thursday, Dec. 13) committed to stand trial on 13 charges – six of perverting the course of justice, two each of making and using a false instrument, and three of perjury – alleged offences going back to 1999.

The 14th charge relating to hindering the investigation of an indictable offence was dropped in the course of the hearing today after Deputy Chief Magistrate Helen Syme pointed out to the Crown that the relevant provision, s315(1)(a) of the Crimes Act, referred to the investigation of an indictable offence committed “by another person”.

imageThe allegation is, of course, that he was covering up for an offence that he committed himself.

In dealing with the issue, Syme appeared to be trying to hurry-up proceedings by preempting lengthy submissions from Ian Barker for Einfeld.

Earlier in the morning, Magistrate Syme committed Angela Liati (pic) to stand trial over her false statement to police that “Theahresa” Brennan was driving Einfeld’s Lexus the day it was snapped by a traffic camera speeding in Mosman.

After a 20-minute delay while the court waited for Liati to arrive on her train from Riverwood, the Magistrate noted there were many things in the statement which were demonstrably untrue, including claims she received phone calls from Brennan, that she purchased jeans in Chatswood when she was actually in Bondi, and that she was in Mosman when mobile base station records showed she was in Rozelle.

Syme said it would be “very open” to a jury to conclude the statement contained a large number of inaccuracies or untruths. She will appear in the District Court on February 1, 2008 and her bail conditions were extended.

Liati’s counsel expressed concern about the media’s possible misreporting of the Magistrate’s remarks, and Syme responded by saying she was sure the media were “aware of the rules of contempt and accurate reporting”.

After a short break, Einfeld and his legal team, family and supporters, including Martin Einfeld QC, filled the small room to overcapacity. Liati and her counsel also remained to watch.

Einfeld tapped his feet and occasionally exchanged words with his counsel.

Barker began his final submissions by disputing whether the statutory declaration form filled out by Einfeld in relation to the speeding offence was really a statutory declaration.

imageAt this point Einfeld’s mobile phone sounded with a hip ringtone, leading to smirks from the press crowd but no visible reaction from the Magistrate.

Having established that the stat dec was not a stat dec under the Statutory Declarations Act, but rather was made pursuant to the Traffic Act, Barker argued Einfeld (pic) should not be charged under the criminal code because the offences were contained in the Traffic Act and were punishable by a modest fine.

Barker argued the Crown “comes along years after” and relies on the same intention (to avoid paying a fine) to show an attempt to pervert the course of justice.

This, it was claimed, exceeded the intention of the Road Transport (General) Act 2005 and this contention was apparently supported by the second reading speech from Hansard.

“Most lawyers would instinctively recoil,” he said.

Prosecutor Wayne Roser replied that the case for perverting the course of justice was supported by the NSW Court of Criminal Appeal in R v Subramanian, a case in which Einfeld acted for the accused in the High Court at a time when the NSW Bar Association was trying to get the National Living Treasure to take out a practising certificate.

Barker said the Crown’s continued reference to a “systematic course of criminality” was irrelevant. “If the legislation wanted to penalise repeat offences, it could have done so.”

Barker also disputed whether the “false instrument” referred to in the charges was actually caught by the statutory definition of “instrument” in the Crimes Act.

He argued the evidence, such as the timing of the lunch and the mobile base station records, was not capable of proving Einfeld was driving the car. Given this, he said, “the rest [i.e. perjury charges] is not material”.

After ejecting standing court watchers and several reptiles on OH&S grounds Syme gave her decision.

“It would appear on the entirety of the prosecution evidence that it’s not the case that the persons so nominated were the drivers of the motor vehicle… It would appear to be a good prosecution case that the defendant was in fact the driver of the car on each of these occasions or at the very least was in the motor vehicle on each of these occasions.”

Einfeld will join Liati at the District Court on February 1, 2008 with his bail conditions extended.

See Justinian’s previous missive on Einfeld

See Crown’s opening in DPP v Einfeld