A corporate lawyer has commenced proceedings in the Federal Circuit Court after he was terminated from his position as a senior legal adviser with Meriton Property Services for allegedly refusing to lie in an affidavit.
Sydney lawyer Joseph Callahan is claiming $556,500 in compensation and costs after being terminated from his $350,000 a year position in February 2020.
He claims that during a meeting on 3 February 2020, his employer, billionaire property developer Harry Triguboff, demanded that he falsely state in an affidavit that Sydney Council had taken three years to approve a development application.
According to his statement of claim, the lawyer responded by stating, "I'm a solicitor and can't include something in an affidavit which I know isn't true".
He says his employer then said, "Listen my friend, you write it my way or you can f* off", and "F* you. I pay you to win cases, do you understand?".
Mr Callahan says he then told his employer, "I understand I am here to win cases, but it did not take three years to get the building approved, so I can't give evidence to the Court that it did", to which Mr Triguboff responded, "Enough crap from you. Write it my way or you are no good to me".
The lawyers says he stood his ground, telling his employer "Harry I won't do it. It's a lie".
He says his employer emailed him on 13 February 2020 to advise that his position had been terminated.
Meriton Property Services refutes the allegations, filing a defence which states:
"All allegations that suggest otherwise are strongly denied. Meriton disputes the sequence and nature of the events set out in the court filing".
The case is listed for hearing on 17 June 2020.
The offence of swearing a false affidavit
Swearing a false affidavit is a crime under Section 29 of the Oaths Act 1900.
The offence carries a maximum penalty of 10 years in prison.
For the offence to be established, the prosecution must prove beyond reasonable doubt that:
- The defendant swore or affirmed an affidavit,
- The affidavit was affirmed or sworn before a person authorised to do so,
- The affidavit was false in any respect, and
- The defendant knew the affidavit was false in that or those respects.
In addition to this, section 33 of the Oaths Act 1900 prescribes a maximum penalty of 10 years in prison for the offence of making a false statement in an affidavit.
To establish that offence, the prosecution must prove beyond reasonable doubt that the defendant:
- Swore or affirmed an affidavit,
- Made a false statement within that affidavit, and
- Knew the statement was false.
Swearing to false information in an affidavit may also amount to perverting the course of justice, which is an offence under section 319 of the Crimes Act 1900 carrying a maximum penalty of 14 years in prison.
To establish that offence, the prosecution must prove beyond reasonable doubt that the defendant:
- Engaged in an act or made an omission, and
- Did so with the intention of perverting the course of justice.
'Perverting the course of justice' is defined as 'obstructing, preventing, perverting or defeating the course of justice or the administration of law'.
Defendants have been found guilty of the offence for the following conduct:
- Falsely swearing or declaring that another person was responsible for an offence,
- Attempting to bribe a police or judicial officer to avoid being prosecuted or punished,
- Using a victim's phone or email in an attempt to create a defence to a crime,
- Encouraging or bribing another person to plead guilty to an crime they did not commit, to provide a false alibi and to give false testimony in court.
Where it is alleged that a false affidavit was used in connection with judicial proceedings – such as court proceedings – a person can be charged of perjury, which is an offence under Section 327 of the Crimes Act 1900 carrying a maximum penalty of 10 years in prison.
To establish the offence, the prosecution must prove beyond reasonable doubt that:
- The defendant made a false statement under oath or affirmation,
- The statement was in, or in connection with, judicial proceedings,
- The statement concerned a matter that was material to those proceedings, and
- The defendant knew the statement was false or did not believe it was true.
The maximum penalty increases to 14 years in prison where the prosecution proves that the defendant intended to procure the conviction or acquittal of a person for a 'serious indictable offence', which is one that carries a maximum penalty of at least 5 years in prison.
Defences to the charges
In addition to prove each 'element' (or ingredient) the charges, the prosecution must disprove beyond reasonable doubt any legal defence which a defendant validly raise in court.
Legal defences which apply to these offences include:
- Duress
- Necessity, and
- Self-defence
Professional obligations
In addition to obligations under the general law, a solicitor or barrister who falsely swears to information in a legal statement such as a statutory declaration or affidavit is liable to disciplinary action by the Law Society of New South Wales, including being 'struck off' for professional misconduct.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
