Darrell Robinson v Michael Murphy

In committal proceedings for false statements verified by statements of truth, the applicant must prove beyond reasonable doubt that the respondent knew the statements were false. Recklessness or failure to check the truth is insufficient. The court must assess the whole evidence and may rely on circumstantial evidence, but the inference of knowing falsity must be inevitable or one that no reasonable person would fail to draw. If a reasonably credible alternative explanation remains, or the respondent’s explanation may be true, the application fails. Professional status may make dishonesty inherently less probable and require more convincing evidence, although it does not confer immunity. Evidence from witnesses who do not attend for cross-examination may be admitted, but normally carries reduced weight and may justify only limited adverse inferences.

Michael Murphy applied under Civil Procedure Rules 1998 rule 81.3(5) to commit Darrell Robinson for contempt of court. The allegation concerned two statements verified by statements of truth: a settlement pack submitted for James Gibson’s personal injury claim and a response to a request for further information stating that Gibson had been an occupant of a taxi involved in a road accident.

Gibson accepted that he had not been in the taxi and had made a false claim. The issue before the court was whether Robinson knowingly made false statements, rather than merely acting recklessly or failing to make sufficient enquiries.

1. Application dismissed. The alleged contempt was not proved to the criminal standard.
2. Under Civil Procedure Rules 1998 rule 32.14, the applicant had to prove that Robinson made or caused false statements to be made in documents verified by statements of truth, without an honest belief in their truth. It was also necessary to establish the relevant interference with the administration of justice and Robinson’s knowledge of that likelihood, although those matters were not disputed if knowing falsity were proved.
3. Recklessness was not sufficient. The issue was whether Robinson knew the statements were untrue when he made them. The burden remained on Murphy throughout and the standard was beyond reasonable doubt.
4. The court could draw conclusions from circumstantial evidence. However, where more than one reasonable inference could be drawn, and one was inconsistent with contempt, the application had to fail. An essential mental element could not be inferred unless the inference was one that no reasonable person would fail to draw. Robinson’s explanation that intoxication, later memory reconstruction, photographs and Gibson’s conduct led him honestly to believe Gibson had been in the taxi remained reasonably credible.
5. Robinson’s professional status was relevant. Dishonesty by an experienced legal executive was inherently improbable in the circumstances and required particularly convincing evidence, though the consideration was not conclusive. The court also treated documentary evidence and the unreliability of memory with caution.
6. Affidavits from witnesses who did not attend for cross-examination could be considered flexibly, but their evidence generally carried less weight. Limited adverse inferences were drawn from the unexplained absence of some witnesses. Gibson’s non-attendance was treated differently because Robinson had taken steps to secure his attendance.
7. The evidence raised substantial concerns and disclosed a strong prima facie case, but it did not establish the irresistible inference that Robinson knew the statements were false. The application to commit him to prison was dismissed. Consequential matters, including costs and any application for permission to appeal, were adjourned.