Mick Clifford: Who cares about the truth any more?

Mick Clifford: Who cares about the truth any more?
Lauren Pineda, whose €60,000 claim for what she
said were injuries received in a road traffic accident
was dismissed last week at Cork Circuit Court. The
judge said there are great credibility issues arising
from her evidence. Costs were awarded to the
insurance company. Picture: Cork Courts

During the week, there was a report of a court case that featured jaw-dropping evidence. Cork Circuit Court heard that Lauren Pineda went to the gym 10 days after she sustained what she claimed was a serious back injury in a road traffic accident. She did a vigorous workout and filmed it for social media. She was claiming up to €60,000 for injuries allegedly sustained in the 2018 accident.

The court heard that Ms Pineda did not tell her GP about the alleged injury for nine months after the accident, despite making a number of visits for other health issues. She didn’t tell the doctor for the insurance company that she had a history of back injury, dating from 2013 when she was a back seat passenger in a car involved in an accident. She received €21,000 for her troubles on that occasion.

This evidence was put to her under cross-examination.

“I am not lying against the Bible or whatever,” she said. “I am telling you exactly how I feel.”

When conflicts in her evidence were highlighted to her, Ms Pineda replied: “I am so confused now.”

Judge James O’Donoghue saw serious problems with her testimony.

“There is a complete conflict between her evidence,” the judge said. “She has been the author of her own misfortune. She posted photos of herself engaged in vigorous exercise. There are great credibility issues [arising] from her evidence. She has left herself wide open on this.”

He dismissed the claim and awarded costs to the insurance company. The evidence the court heard would suggest that, somewhere along the line the truth, the whole truth, and nothing but the truth went missing.

The truth is but a casual visitor to the courts. In theory, failing to observe a duty to be fully truthful in court is an offence. In reality, there is impunity for the multitudes to opt not to observe the law in this respect.

“You are a liar and you’ve been caught out,” barrister Shane English told a plaintiff in Dublin Circuit Court 10 days ago. David Keane, of Castlegrange Avenue, Clonee Co Dublin was claiming injuries from an accident in a carwash. He failed to disclose other claims and awards he had received.

Mr English put it to him that he had deliberately misled the court from beginning to end, lied under oath, and committed perjury. Mr Keane denied it, but Judge Jacqueline Linnane mused on whether the matter would be of interest to the criminal justice system.

“I see little point in referring this case to the Director of Public Prosecutions,” she said. “They have enough to deal with and none of these referrals are pursued.”

That’s a shocking indictment of the system. A judge is saying there is no point in investigating a suspected crime because it will lead nowhere. Few could argue with her assessment, which is based on experience.

The widespread disregard for the truth in the legal system is not confined to personal injuries.

During the Disclosures Tribunal in 2018, Judge Peter Charleton was moved at one point to declare in some exasperation: “I’m not an idiot. I have sat here for nearly 90 days and I know that an awful lot of people haven’t told me the truth.”

The preponderance of evidence at the tribunal was tendered by gardaí, journalists, and care workers.

Last year in the Seanad, in a contribution to the Perjury and Related Offences Bill, Michael McDowell noted that everybody was talking about the lies peddled in personal injuries.

“Perjury is a wider issue than that,” he said. “People can tell appalling lies in commercial and matrimonial cases and many other areas and do great damage to others, either personally or financially, or they may amass substantial gains for themselves by their behaviour.”

One feature of the family law courts when break-ups become acrimonious is allegations of child neglect or abuse. Anecdotally, some of the allegations are patently untrue and sometimes shown to be so. Yet there is no record of anybody ever being prosecuted for perjury in the family law courts.

Last July, in a significant judgement, the High Court ruled that the gardaí can investigate claims of perjury emanating from in-camera proceedings. This will, theoretically, have an impact on family law and childcare proceedings. It came about after an individual challenged the law all the way to the Supreme Court and was ultimately successful.

A question might arise as to why he or she was forced to do that. Is there simply little stomach within the criminal justice system to go after perjury, and if so, why?

Undoubtedly the nature of the crime makes it difficult to prosecute. But as things stand there is absolutely zero incentive for anybody to observe the law by telling the truth in legal proceedings.

One element of this farrago that is particularly ludicrous is the continued use of the Bible on the witness stand. This feature was introduced centuries ago when there was a general belief that lying on the holy book would lead to eternal damnation. Today, it’s a prop that is offensive surely to anybody who subscribes to a Christian religion.

In the case cited at the start of this column, Ms Pineda referenced the presence of the Bible as reinforcing her contention that she was telling the truth. She may well be a religious person in this respect, but for many witnesses it is a prop to hide behind, rather than a carrot or stick to tell the truth, the whole truth and nothing but the truth.

That’s bad enough, but the Bible is actually presented to a witness as a matter of routine, rather than asking the witness whether or not they wish to swear on it.

Mr McDowell referenced this in his speech on the Perjury Bill last year.

“If someone opts to affirm rather than swear, the judge is obliged — some judges forget about this — to put statutory questions to the witness and to ask him or her whether his or her unwillingness to swear is based on the absence of religious belief or the presence of religious belief which prohibits that witness from swearing.

“It is an embarrassing process for witnesses to have to go into their religious beliefs in court when it is not necessary.”

The swearing of oaths is governed by a separate act from perjury but a revamp is long overdue.

The Perjury and Related Offences Bill, initiated by Independent senator Pádraig Ó Céidigh, fell with the dissolution of the Oireachtas last January. In all likelihood, it will be revived in the current Dáil term. Whether or not it can play any kind of a serious role in tackling a crime that is routinely broken with impunity remains to be seen.

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