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Public Officials Can Still Be Charged
Public Officials Can Still Be Charged
By Georgina Robinson (The Queensland Independent, April 2003)
ONE of Queensland’s most highly respected legal authorities has warned that senior public officials who destroyed documents being sought for legal action a decade ago could still face criminal charges.
Retired Supreme and Appeal Court Judge and author of the text Judicial Ethics in Australia, James Thomas QC, was commenting on a case in which charges were never brought against those who authorised and carried out the destruction of a large collection of records being sought for legal action in 1990.
Mr Thomas said it was incorrect to claim that a person could not be charged because at the time he or she destroyed documents no court action related to those documents was actually under way.
The retired judge specifically rejected the view taken by former Director of Public Prosecutions (DPP) Royce Miller QC who said those involved in the 1990 document destruction could not be charged.
Mr Thomas said action could still be taken against the public officials who took part in that destruction.
“There’s nothing to stop the present DPP from instituting action if there’s a complainant,” Mr Thomas said.
“Any police officer could bring a charge if he or she has reason to believe there’s been a breach of the law,” he said.
In November 1995, Shadow Attorney-General Denver Beanland asked Mr Miller to consider prosecuting the public servants involved in the shredding.
In his reply, Mr Miller said: “It is my view that there must be on foot a legal proceeding before this section (s.129 of the Criminal Code) is capable of application”.
But Mr Thomas said the section was never open to such an interpretation.
“I can’t see how it is even arguable that a legal proceeding be on foot.
“The section itself contemplates that legal proceedings might not be on foot,” he said.
There were some things in the law that were open to different interpretations, but due to the wording of the section, “this clearly isn’t one,” he said.
In the Brisbane Magistrates Court eight weeks ago a man who guillotined some pages of a diary at a time when no court proceedings relating to them had been commenced was committed to stand trial for destroying evidence (s.129) or attempting to pervert the course of justice (s.140).
Section 129 states that any person who renders evidence “illegible or indecipherable”, knowing it is, or may be, required for a legal proceeding, is “liable to imprisonment for three years”.
Former Police Commissioner Noel Newnham said since a member of the public was now facing trial for a similar offence, police should now “consider the wisdom of not laying charges” against public officials who had done the same thing.
Mr Newnham said the duty of the police service was plain.
“Sometimes it may be unpalatable, but that’s beside the point,” he said.
“The police oath says ‘without fear or favour’ and that means without regard to a person’s social or political influence, wealth or power.
“It is simply beyond question that the Commissioner should see the members of his service apply the law,” Mr Newnham said.
He also said the view attributed to the former DPP in relation to s.129 of the Criminal Code was “always nonsense”.
“It’s not what the law states,” Mr Newnham said.
In early 1990 it was revealed that an inquiry into a Brisbane detention centre conducted by former magistrate Noel Heiner was shut down shortly after it began and all the documents it had gathered were shredded in secret.
The Labor Cabinet of the time ordered the destruction of the documents on March 5, 1990, despite the government receiving numerous communications from parties seeking access to them for legal purposes.
Officers of the State Archive and Family Services Department carried out the shredding two-and-a-half weeks later, on March 23, 1990.
Family Services officers carried out a further shredding of related documents on May 23, 1990.
In 1996 the Borbidge Coalition government commissioned an investigation into the matter.
In their report following the investigation, barristers Anthony Morris QC and Edward Howard said among other things it was “open to conclude that Section 129 of the Criminal Code was breached by an officer or officers of the Department of Family Services”.
Cabinet’s role in approving the destruction, despite being aware the documents were being sought by a firm of solicitors wishing to pursue court action, was not revealed until two years after the barristers had submitted their report.
In their report they had recommended the setting up of a public inquiry to fully investigate the shredding matter.
Instead, the Borbidge government sought advice from the Director of Public Prosecutions, Mr Miller.
According to a press statement released several months later by Premier Borbidge, Mr Miller had advised against charges being laid under s.132 (conspiracy) or s.140 (attempt to pervert the course of justice) and he had wondered if the public interest would not be better served if the matter were put rest.
No mention was made in the press statement of Section 129.
Mr Thomas said the legal system was a human system and, therefore, had its share of errors.
“The fact there was no further inquiry seems to have been based on bad advice from a public official,” he said.
The retired judge’s comments also raise serious concerns about the stand taken by the Criminal Justice Commission [now Crime and Misconduct Commission] on the matter.
In 1992 the CJC took advice on the matter from Brisbane barrister Noel Nunan.
Mr Nunan told the CJC a legal proceeding had to be “on foot” (begun) before a charge under s. 129 could be sustained.
Mr Nunan is now a Brisbane magistrate.
Following the Nunan advice, former Misconduct Division Chief Complaints Officer Michael Barnes told a Senate hearing in 1995 and the Sunday program in 1999 that court action had to be under way before a charge of destroying evidence could be sustained.
The organisation has maintained the same position since.
Mr Barnes is currently head of Justice Studies at the Queensland University of Technology. He has just been named as Queensland’s first State Coroner.
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