Shredding Story Overview
One Law For Us, Another For Them
You cannot have an administration of justice that has to back away from something, either because of the size of it, the cost of it, or the profile of some of the people involved. If you do that , you don't have a community …
West Australian Crown Prosecutor Ron Davies who successfully prosecuted two prominent individuals involved in the Rothwells Bank collapse.
On 5 March 1990, the Queensland State Cabinet authorised the destruction of all evidence taken by an inquiry into a State-run youth detention centre (for some inmates it was a prison, for others, a controlled environment).
The documents involved were all shredded 18 days later.
At the time Cabinet made its decision it was aware that the documents were being sought by a firm of lawyers for legal action. The responsible department had been advised via no less than 13 separate communications that the documents were required by the lawyers (and even advised that the material should not be destroyed). A District Court action was specifically mentioned and indeed there were, potentially, four different kinds of actions that might have been pursued by those seeking access to the documents.
According to one former Minister, at the time the decision was made to destroy the material, Cabinet had been aware "in broad terms" that the documents contained information about child abuse, and because the matter had reached the level of Cabinet, the matters must have been serious.
Indeed we now know they were serious and included, at least, information about the orchestrated pack-rape of a 14-year-old girl in care* and the torture of a 15- year-old girl.
The Premier at the time, the Attorney-General and another member of Cabinet were qualified lawyers.
(Subsequently, another set of related documents, which had escaped the original destruction, were destroyed by senior public officials in secret).
Several years later Queensland's watchdog standing Royal Commission on corruption and crime, The Criminal Justice Commission (CJC), told a Senate Committee inquiring into the shredding that the destruction of the documents had been legal, because at the time of the destruction, no court action relevant to them was actually underway.
Section 129 of the Queensland Criminal Code, Destruction of Evidence, says:
Any person, knowing that any book, document, or other, thing of any kind, is or may be required in evidence in a judicial proceeding, wilfully destroys it or renders it illegible or undecipherable or incapable of identification, with intent to prevent it from being used in evidence, is guilty of a misdemeanour and is liable to imprisonment for 3 years.
The CJC advised the Senate it had contracted a member of the private bar to look into the matter and he had advised that since no legal proceeding had been commenced at the time of the destruction, there had been no breach of the law. The CJC has maintained this position ever since.
This view was subsequently echoed by a former Director of Public Prosecutions who told the Shadow Attorney at the time: … It is my view that there must be on foot a legal proceeding before this section [129] is cable [sic] of application.
Further, the CJC's Chief Complaints Officer at the time (and now State Coroner) reiterated this view in a national television interview.
The reality that the law can be interpreted one way in favour of politicians and senior public officials and in another way for ordinary people emerged in early 2003 when a citizen was committed to stand trial on a charge under s 129 (Destroying Evidence) or alternatively s 140 (Attempting to Pervert Justice).
He had destroyed some pages of a diary. There was no legal action underway at the time. Indeed the relevance of the destruction did not emerge for five years (when another person was brought before the courts).
Others problems emerged. Former Queensland Supreme and Appeal Court Judge James Thomas told The Justice Project he could not imagine how the authroities mentioned above could have reached their interpretations of s 129 since the wording of the law specifically contemplated that a legal action did not have to be underway for that section to operate. Other prominent lawyers agreed with the former judge's view.
So the questions emerge. Firstly, how do politicians and important public officials escape (for doing something much more serious) while an ordinary citizen goes to trial?
For details of the above, and much more, follow the links to the Heiner Affair and The Shredding via The Abuse of Children in Care and The John Oxley Youth Detention Centre links.
* It should be noted that apart from what happened to the Aboriginal girl involved, the place where she was taken and left alone with a group of boys, is, and was, "taboo" to Aboriginal people, and in particular, Aboriginal women, who, custom and culture demand, are not to go there. Our efforts over the years have revealed a number of other "residents" of John Oxley were also victims of rape and sexual assault.
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