Government “naked” over legal about-face
By Susann Kovacs, Siddartha Tripathy and Bruce Grundy
(The Independent Monthly, June edition)
In a controversial legal backflip, the Attorney-General has overturned the view of successive Labor administrations and lodged an appeal against the leniency of a sentence handed down to a man who destroyed evidence in a child abuse case.
For over a decade authorities in Queensland have claimed that destroying evidence prior to a court action being commenced was not an offence.
However, in March a Baptist pastor was convicted of such an offence.
He was given a six month suspended sentence.
On March 31, Attorney-General Rod Welford lodged an appeal against the man’s sentence on the grounds that it was “manifestly inadequate”.
Former Queensland Solicitor for Prosecutions and current Adjunct Associate Professor of Law at Bond University, David Field, said Mr Welford was “shooting his Labor colleagues in the foot” by appealing the leniency of a sentence handed down to the Baptist minister.
Professor Field said Mr Welford was drawing attention to decade-long claims by the State’s legal establishment that the offence could not be prosecuted.
“It’s one thing to stand there with no clothes on, but it’s another to paint yourself pink,” Professor Field said.
Baptist Minister Douglas Roy Ensbey was convicted in March this year of destroying evidence that might have been required in a judicial proceeding.
He was accused of guillotining pages of a diary detailing sexual abuse against a minor, and received a six-month wholly suspended jail sentence for the offence.
The Attorney’s appeal claims the sentence was “manifestly inadequate”, it failed to reflect the “gravity of the offence generally”, and was not a sufficient deterrent.
Professor Field, a former Head of the Law School at Napier University, Edinburgh, a former magistrate and author of several legal textbooks , said Mr Welford was “condemning his Labor colleagues by implication".
Mr Ensbey’s conviction negated a decade of claims by Queensland’s legal establishment that a court proceeding had to be underway before a charge of destroying evidence could succeed.
No court proceeding related to the destruction of the diary involved in the Ensbey case took place for five years.
It was only when the victim turned 18 and pressed charges that the issue of destroying evidence arose.
A similar circumstance, but with different results, occurred in 1990 after an inquiry into the running of a Brisbane youth Detention centre was shut down.
All documents gathered by the Heiner Inquiry, some of which included evidence of abuse of children at the centre, were subsequently shredded.
At the time those who authorised the destruction were aware the documents were being sought for legal action.
Unlike the Ensbey case, no one was ever charged.
For a decade various chairmen and senior officers of the Criminal Justice Commission, a serving magistrate, a former Director of Public Prosecutions and the current State Coroner have all said those who shredded the documents could not be prosecuted.
During Mr Ensbey’s trial, both the Crown Prosecutor and Defence Counsel sought rulings from the presiding judge, Mr Justice Samios, on the issue of a legal proceeding having to be on foot for s.129 of the Criminal Code – destroying evidence – to apply.
His Honour agreed with the Crown Prosecutor’s argument, indicating unambiguously that a legal action did not have to be underway at the time evidence was destroyed for such destruction to be an offence.
According to Professor Field the Attorney- General was already bound by the Crown Prosecutor’s argument that it was not necessary for a proceeding to be underway for the charge to succeed.
But, Mr Field said, by appealing the sentence Mr Welford was drawing attention to the 1990 shredding.
Queensland’s document shredding scandal, or the Heiner Affair as it has become known, is currently the subject of inquiries by both Houses of the Federal Parliament.
A special Senate Select Committee established to look into matters associated with the shredding is expected to begin hearings in Brisbane in the second week of June.
And the mystery surrounding the Heiner Affair deepened last month when Mr Heiner appeared before the House of Representatives Legal and Constitutional Affairs Committee of Inquiry into Crime in the Community.
Evidence he gave appeared to contradict information available on the public record for many years.
Nanango Independent Dorothy Pratt told The Independent Monthly she backed the recently established Senate committee getting to the bottom of the matter.
The Heiner Inquiry issue had been raised in the Parliament on a number of occasions but the Beattie government had always “used its numbers to override any investigation into the matter”, Mrs Pratt said.
“Neither side of politics seems interested in forwarding a matter in which both sides are tainted,” she said.
Mrs Pratt said the Premier’s reluctance to pursue the Heiner affair – in contrast with his attitude towards the Anglican Church inquiry into the abuse of children and the role of the former Governor-General – was “a case of righteous indignation and hypocrisy”.
Fellow Independent MP Chris Foley said he supported the Senate’s decision to set up a committee of inquiry into the shredding affair.
“All matters should be investigated,” Mr Foley said.
“Cover-ups, whether perceived or real, undermine public confidence in justice,” he said.
Mr Foley said he agreed with federal MP Bronwyn Bishop’s view that there had been “one rule for those people who are in power, and exercise power, and a different law for ordinary citizens”.
In April, the man involved in the destruction of evidence case, Douglas Ensbey, lodged an appeal against his conviction on the grounds “that the verdict of the jury was unsafe and unsatisfactory”.
