Monday, July 25, 2011

Shot in the Foot

Politicians lie.

We know it, we expect it.  We all know that anything we hear from a politician is as likely as not to be a lie.

We've had core and non-core promises.  We've had Tony Abbott saying that only his scripted comments should be relied upon, and who could forget the endlessly tiresome JuLiar drama?

One of the few times when politicians suddenly take lying very seriously is when a politician is alleged to have misled parliament.  Carl Scully springs to mind - he was sacked as Police Minister after misleading Parliament over the preparation of a report on the Cronulla riots. 

Carl Scully looking remorseful. Photo from SMH
Election promises come under scrutiny as well.  Already we have had O'Farrell being criticised for breaking an election promise to introduce an offence of "Drunk and Disorderly".

Some allegations of lying, however, have far more concrete consequences.

Today the SMH and ABC online published a story about a lie that could have devastating consequences for a NSW politician.

Shooters and Fishers Party MLC Robert Borsak has received some of the most strident criticism you are likely to see from a judge after a Supreme Court hearing about a commercial dispute.

S&F MLC Robert Borsak. Photo from SMH
The case had nothing directly to do with the performance of his duties in the Upper House, but nonetheless must cast a shadow over his credibility and honesty in that role.

The full judgment (from McDougal J in the NSW Supreme Court) is available here.

In short, the case arises out of a commercial dispute over the the sale of a business.

Some of the most strident criticisms of Mr Borsak can be seen below:

And, further on:

For those of you not fluent in legalese, the judge found the following:

  • Rather than telling the truth. Borsak gave evidence that advantaged his case;
  • Despite being confronted with very clear evidence to the contrary, he continued to insist that his original evidence was true, and 
  • There is no reason to believe he was just mistaken.
The above criticism is about as close to "Liar Liar Pants on Fire" as you are likely to see in a judgment. Whilst it is not uncommon to see a judge make adverse comments about a witnesses credibility, the certainty with which the Judge asserts that Mr Borsak was "knowingly untrue" is striking, to say the least.

The Judge doesn't at any time use the word perjury, but the lawyer for Mr Borsak's opponent was more than happy to do so, having written to the DPP asking that the Director consider bringing perjury charges.

He even goes so far as to say that, if the DPP declines to prosecute, his client wishes to launch a private prosecution.

It is unclear from the articles exactly who has leaked this intention to the press.  The DPP would have no reason to leak the letter, and neither would Mr Borsak's lawyers.

But there is also nothing to be gained by the writer of the letter leaking the document - this is not a civil dispute where a cash settlement can be reached.

It is hard to resist the conclusion that the letter has been leaked by someone who wants to damage Borsak politically. It would be inappropriate for me to speculate who that might be, although I will note that lawsuits can cause incredible bitterness between parties.

In any event, this situations would be very concerning for Mr Borsak, because if he was to be convicted of perjury, he would lose his seat in the Upper House.

The offence of perjury can be found in the Crimes Act 1900:

Section 13A of the Constutition Act 1902 reads as follows:

In short: if he is convicted of perjury then he will lose his seat in the Upper House.

A few important points - perjury is difficult to prove, and is seldom prosecuted.  In circumstances where the referral to the DPP has come from an opposition lawyer (rather from the judge, which does happen in the most reprehensible examples) the DPP is unlikely to prosecute.

Further, there are very significant financial costs and financial risks involved in Mr Borsak's opponent launching a private prosecution.

Finally, even if he was convicted and lost his seat, the Shooters and Fishers would still be able to chose his successor, meaning that the balance of power would not shift.

But, nonetheless, it is interesting to see a politician's honesty assessed by a judge - and to see that politician come up wanting.

I don't know how much truth there is in the maxim that you have to lie to succeed at politics.  It saddens me that the statement is at least partly true - and it saddens me even further that the practice is rewarded with votes.

Voters are fickle and, for the most part, have very short memories.  

We should expect a higher standard from our representative, but, as the saying goes, they'll stop doing it when it stops working.

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