By Bruce Grundy (January 2003)
In the space of ten minutes just after noon on Wednesday 22 January, 2003, the fundamental notion that Queenslanders are all equal before the law and that there is only one law which applies to all of us, was alarmingly and starkly revealed to be otherwise.
What was finally revealed that day, after 13 years of denial, is that there is one law for the ordinary citizens of Queensland and quite another, much more lenient and accommodating, for public officials – particularly senior public servants and politicians.
On that Wednesday at a committal hearing in a Brisbane magistrates court a prosecutor from the Office of the Director of Public Prosecutions spelled out the charges being laid against a citizen of this state – charges under Section 129 or alternatively Section 140 of the Criminal Code. In essence the charges alleged that the citizen had destroyed evidence, or had attempted to pervert the course of justice, by guillotining material likely to be needed in a legal proceeding. At the time of the alleged offence there was no legal proceeding underway – that did not occur until many years later.
What is significant about this case is the fact that the citizen was charged – because in laying those charges and proceeding with them the Director of Public Prosecutions dropped a bomb into the middle of our legal system.
For more than a decade the agencies and authorities that administer the law in Queensland (the Office of Crown Law, the Office of the Director of Public Prosecutions and the Criminal Justice Commission, now the Crime and Misconduct Commission, for instance (see link to: CJC and destroying evidence) plus any number of Ministers, former Ministers and Members of Parliament, have relentlessly maintained in an untold number of circumstances that unless a legal proceeding has been actually commenced, destroying material that may be needed in such a proceeding is not an offence against the law (in particular Section 129 of the Criminal Code).
In the case against the citizen mentioned above, no legal proceeding had been commenced. But the case against him went ahead.
The matter of the citizen in court that day is in chilling contrast to what happened when a group of Ministers and senior public servants shredded (rather than guillotined, and dumped rather than returned) hundreds of hours of recordings and transcripts and other documents (rather than just a few pages) gathered by an inquiry into a youth detention centre.
The public officials were never charged. There was no legal proceeding underway it was said.
And what had happened in the case of the public officials was even more serious. What the public officials did was to destroy material that might not just have been needed in a legal proceeding, but material that was in fact required for a legal proceeding (see link to: Morris and Howard report extract).
Indeed, in their report to parliament two barristers who examined the matter said there were no less than 13 communications made to senior officials placing them on notice that the material was needed for potentially no less than four kinds of legal proceedings. The record also shows that the Cabinet Ministers of the day were informed that solicitors were seeking the material and that it was a matter of “urgency” that a decision be made as to the fate of the material.
Cabinet agreed, the State Archivist approved, and the material (what was going on in a youth detention centre) was shredded.
And, we have been told over and over, no one did anything wrong. Of course, it has been chorused, the material may have been needed for a legal proceeding, but as there was no proceeding actually underway, destroying the material was not a problem.
At the time the Director of Public Prosecutions (the same agency that brought the charges against the citizen four weeks ago) spelled out the law quite clearly – in writing.
In a letter dated 28 November,1995, to the shadow Attorney-General at the time, the Director of Public Prosecutions, Royce Miller QC, said: It is my view that there must be on foot a legal proceeding before this section [Section 129] is cable [sic] of application. The closing words of the body of the section namely “ with intent thereby to prevent it being used in evidence” clearly indicates that there must [be] at the time the action is undertaken by the alleged culprit an impending proceeding ...
This position had earlier been taken by former Crown Solicitor Ken O’Shea and has been supported any number of times by the-then Criminal Justice Commission and others.
The basis for their view, it appears, is the wording of the Supreme Court form (Number 83) relevant to the application of Section 129.
Other lawyers have said anyone who would suggest that the wording of the law passed by parliament should be subordinate to the wording of an administrative legal form created by the judiciary would never pass first year law.
What is more, legal sources have said, the former DPP’s view is even more difficult to understand since the Criminal Practice Rules (Chapter Two, Section 15) make it clear that the statement of an offence in an indictment in a case such as that raised by Mr Beanland may be in the words of the form or in the words of the Code or other Act creating the offence.
And since the citizen was charged alternatively with an offence under Section 140 of the Criminal Code (attempting to pervert justice) it is as well to remember that the two barristers who reported on the shredding said: … we are of the opinion that it is open to conclude that offences were committed under s. 132 [conspiring to defeat justice] and/or s. 140 of the Criminal Code, in connection with the destruction of the Heiner documents …
In this case, whether legal proceedings are underway or not is not an issue.
For instance, six judges of the High Court of Australia unanimously agreed in The Queen v. Murphy that … at common law, and under the statutory provisions of Queensland, New Zealand and Canada, an attempt made to pervert the course of justice when no curial proceedings of any kind have been instituted, is an offence … A similar position was taken by the High Court in The Queen v. Rogerson.
Which would appear to mean that the law is as the current DPP applied it in the case of the citizen four weeks ago. It’s just that it wasn’t applied that way a decade ago when politicians and high-level bureaucrats were involved.
What is also troubling about this matter is the reality that almost no one, apart from one whistleblower and a couple of brave souls at QUT, did anything about it.
Now a citizen is before the courts.
So who do you believe? Is it OK to destroy material up to the point of a legal proceeding being on foot, or isn’t it?
Do you believe the High Court? Or the former DPP? Or the present DPP?
It would be as well to know because the penalty for getting it wrong could land you a few years in jail.
See:
Public Officials Can Still Be Charged
