: A Tragedy in Two Acts: Marcus Einfeld & Teresa Brennan

A Tragedy in Two Acts: Marcus Einfeld & Teresa Brennan

Kath Hall

A Tragedy in Two ActsFiona Harari; Pan Macmillan, 2011; 272pp; $34.99 (paperback)

We can be sure that Fiona Harari’s book is not one that either of these two Australians would have wanted written about them. With Marcus Einfeld, Harari has used her journalistic background to gather facts and details that shed light on how this former Federal Court judge came to be imprisoned for perjury and attempting to pervert the course of justice. For the most part, the details of this story are well-known. In 2006, Einfeld contested a $77 speeding fine by claiming that he had lent his car to Teresa Brennan, an academic from the United States. He later gave similar evidence under oath in the Local Court and signed a statutory declaration to the same effect. A journalist who was in the court on the day wrote a small story for the Daily Telegraph that was later checked by the assistant editor, at which point it became clear that Teresa Brennan had been killed in a car accident in early 2003. When confronted by the journalist, Einfeld claimed a second (ficticious) Teresa Brennan had been driving his car and later produced a 22-page statement describing the events of that day. All of this information was false and Einfeld was charged with perjury and perverting the course of justice. In sentencing him to three years imprisonment, NSW Supreme Court Justice Bruce James considered that Einfeld had committed ‘deliberate, premeditated perjury’. He found that Einfeld’s lengthy written statement had contained ‘a number of knowingly false assertions’ and concluded that there was ‘planned criminal activity’ by Einfeld in implicating another person as the driver of his car.

For many, questions about this incident have remained unanswered. It seems incongruous that a man who had such a stellar legal career — a Queen’s Counsel, who had sat on the bench of the Supreme Courts of NSW, WA and the ACT, as well as being a Judge of the Federal Court of Australia, Human Rights Commissioner and Officer of the Order of Australia — could have ended up in such a predicament. As one of the Federal Court judges noted at the time the scandal broke:

Gobsmacked is the word that was used; dismay, shaking of heads, concern over the reputation of the court … It was shattering. We could hardly believe that it has happened … because it was so stupid (p 146).

This book is Harari’s attempt to consider not only how Einfeld ended up in prison but also why he never explained the reason for his dishonesty. It contains details and extracts from interviews with friends and colleagues, although it is clear that many people declined to talk about the incident or their connections to Einfeld. Despite this, Harari weaves the information she does elicit into an interesting tale and in the process adds her own insights into Einfeld’s conduct. Indeed, some of the best chapters in the book come at the end when Harari writes about the days surrounding Einfeld’s court cases, his reaction to going to prison and what she could learn about his experience there.

With Teresa Brennan, however, Harari’s focus is very different. Whilst she weaves Brennan’s story alongside Einfeld’s, it becomes clear that their connection was quite limited. Brennan met Einfeld in 1979 when he was acting in a legal case involving her mother’s real estate firm, and he later had a relationship with her cousin. Brennan left Australia the following year and over the following two decades Einfeld kept in occasional contact with Brennan, catching up with her briefly on two occasions when he visited the United States. When Brennan died, her family notified Einfeld by email, knowing that he was one of her many high profile friends. However Einfeld did not attend her funeral or the memorial service held for her in Sydney.

As a result, at times, Brennan’s story sits oddly against Einfeld’s. Unlike Einfeld, Brennan never committed any great public act of dishonesty, although there are suggestions in the book that she could be free and loose with the truth and that she loved to exaggerate details to make a good story. Also, unlike Einfeld, Brennan was not well known in Australia, having left in 1980 to pursue an academic career overseas. To the extent that there was a scandal in Brennan’s life, it was that she was injured in a late night hit-and-run accident in Florida in 2002 that left her in a coma and ultimately took her life. There were also minor scandals in her professional and personal life that clearly arose from her strong personality and unconventional lifestyle. This is part of what drew Harari to Brennan (as she noted in an interview on ABC local radio, Brisbane), as she had originally only intended to devote one chapter to Brennan. Instead, Harari spends nearly half the book discussing Brennan’s professional controversies and personal dramas. What emerges is a very human tale of an intelligent (some say brilliant) yet unstable academic who often failed to live up to the personal and professional expectations of others. Interspersed throughout this story is also evidence of Brennan’s paranoia, turmoil and distress. These details often come across as an unwarranted intrusion into Brennan’s otherwise successful academic life. Indeed, although Brennan wrote a number of well-cited academic books on feminist and psychoanalytic philosophy,1 in A Tragedy in Two Acts her academic work remains in the background, with the greatest attention being given to her unstable lifestyle and personality. As her cousin notes:

What is tragic about this whole thing is that the Australian public regards Teresa as a footnote in Marcus’s life … For many people Teresa is a figure of fun. She is a joke … She is the dead person who was supposed to be driving his car (p 211).

Yet most readers will buy this book to learn more about Einfeld’s story and it is in this context that Harari is clever in calling the book a tragedy. For what emerges is a tale in which Einfeld was clearly brought down by his own actions and, some would say, a deep character flaw. Before his downfall, Einfeld was a heroic figure. He was the only boy born into a successful and well-known family, his father having been a member of both federal and NSW parliaments, a minister in Neville Wran’s government and a champion of consumer rights. His grandfather, Reverend Marcus Einfeld, had been a minister of Sydney’s Great Synagogue in the early 1900s. Coming from this background, Marcus Einfeld developed both a strong sense of communal responsibility and an expectation of achievement. Indeed, his life developed a larger than life quality, with his professional and community achievements growing to the point that in 2005 he was named a ‘Living Australian Treasure’.

Harari notes that ‘[f]or Marcus, ego was not a dirty word’ (p 89). Yet most of the people she interviewed saw Einfeld as overly confident and arrogant. Former High Court Justice Michael Kirby, for example, noted that ‘[a] lot of people didn’t like him because they felt he was very ego-driven, bossy and arrogant’ (p 12). Furthermore, Harari considers that Einfeld’s ’healthy ego’ blinded him to his own failings and gave him a sense of being invincible. Indeed, much of the information presented in this book leaves open the question of whether Einfeld was narcissistic or just highly egocentric. He exaggerated his own achievements and talents, and seemed to need the attention and reinforcement of others. He did not react well to criticism or to any challenge of his integrity. Whether all of this was the result of his strong self-esteem or self-delusion is something that Harari ultimately does not pass judgement upon. However, the picture that develops is of a man who considered himself to be important, invincible and who persistently responded to any slights on his character with defiance and denial (eg, pp 167–8).

What also emerges from Harari’s research was that Einfeld had a well-recognised tendency towards exaggeration and dishonesty. For example, a number of his friends did not seem surprised that he lied to the police about the speeding fine 
(pp 198–9). One of his oldest friends, John Fischer, admits that he had known Einfeld to be untruthful in the past. But what upset him most about Einfeld’s actions was his refusal to admit that he had been dishonest. Yet the facts confirm that the extent of Einfeld’s deception could be quite staggering. For example, the 22-page statement he issued to police was ‘verbose and intricately detailed’ and included false conversations involving his mother and the second Teresa Brennan, who he claimed he had met in a refugee camp in Bangladesh over 15 years prior and had also died. That Einfeld actually thought anyone would believe this story is extraordinary. Equally surprising is that later, when interviewed on ABC’s Four Corners program, he claimed to think of himself as an honest man who had made a mistake: ‘I don’t think I’m the slightest bit dishonest. I just made a mistake’, he claimed.

However, this view continues to be at odds with the majority of public opinion and also with the findings of the NSW Supreme Court and Court of Appeal. Both courts concluded that Einfeld’s actions were premeditated and reflected poor character. In removing his name from the legal roll, the Court of Appeal considered he had engaged in:

[A] studied, careful and premeditated attempt through a series of direct lies to influence the outcome of the administration of justice. It involves not just a simple mistake, not an unfortunate and uncharacteristic lapse but a studied and deliberate attempt to avoid the consequences of his actions and to deflect and pervert the course of justice (p 192).

The prosecution alleged Einfeld’s main motive was to avoid losing demerit points on his driver’s licence. Harari suggests that Einfeld lied to protect his reputation (which of course he lost) and because he had deluded himself that what he was doing was not wrong.2 This is consistent with psychological research that suggests that highly egocentric people often believe they are more competent, deserving and moral than the average person, and that this image can interfere with their ability to recognise their own errors or dishonest behaviour. Ford, for example, argues that the most important reason that people lie is that it facilitates self-deception.3 People not only lie to themselves, but they encourage others to also lie to them to reinforce their chosen self-image. Through selective memories, self-deception and impression management, they form a personal myth that enables coping and ensures success. Whilst psychic mechanisms such as these are normal (everyone functions to some extent in these ways) this process can also become side-tracked so that a distorted self-image emerges.4 Psychological theory also confirms that Einfeld may never have considered the serious consequences that could flow from his conduct. While we may never know if Marcus Einfeld truly learnt from his mistake or understands why he acted dishonestly, this book does show the humiliation that he and those around him experienced as a result of his very public downfall. When ultimately asking if Einfeld’s story is one that engenders compassion, for this reader, the answer is no. This is because to feel sympathy we must feel empathy. We must be able to put ourselves in another’s shoes and feel and think as they do. I find this difficult to do despite the additional discussion provided in this book. It is hard to understand why Einfeld allowed his lies to escalate, implicated innocent others or continues to maintain his innocence. Of course, not everyone feels this way and former Justice Michael Kirby and Prime Minister John Howard both express their willingness to remember the good things about Einfeld. But, for me, it is ironic that a man, who throughout his career spoke to others about the importance of high standards of behaviour, failed so spectacularly in this regard himself. We must all practice what we preach or change the message we give to others. Indeed as Einfeld once said:

People do not expect leaders to be without error or to get everything right. Like with judges and everyone else in society, we accept fallibility and trust our leaders to be guided by the best of motives, even when they fall into manifest mistake. But we do expect the tone, the social parameters and the sense of values to be right. We expect mistakes to be corrected, not persisted with (p 190).

KATH HALL is a Senior Lecturer at the ANU College of Law. In 2011, she completed her doctorate on psychological jurisprudence and the regulation of lawyer dishonesty.

REFERENCES

1. Teresa Brennan’s books included The Transmission of Affect (Cornell University Press, 2004); Globalization and its Terrors: Daily Life in the West (Routledge, 2003); Exhausting Modernity: Grounds for a New Economy (Routledge, 2000); History after Lacan (Routledge, 1993); The Interpretation of the Flesh: Freud and Femininity (Routledge, 1992); Between Feminism and Psychoanalysis (Routledge, 1989).
2. The police found that he had given at least three false statutory declarations in the past in relation to other traffic offences and gotten away with it.
3. Charles V Ford, Lies! Lies! Lies! The Psychology of Deceit (American Psychiatric Pub, 1996) 35–45.
4. Ibid 275.

(2012) 37(3) AltLJ 212
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