Date
To: (All Members of the House of Assembly,
Electorate Office Addresses).
Dear ………………………….. ,
We are seeking responses to the following matter from all members of State Parliament and would appreciate an opportunity to speak with you about it. On the other hand, you may prefer to respond by replying to this message.
On Thursday 13 March, 2003, a man was committed by a Brisbane magistrate to stand trial on a count of destroying evidence that might be required in a judicial proceeding (s. 129 of the Criminal Code) or alternatively for attempting to pervert the course of justice (s. 140). See The Courier-Mail, 13.03.03, p6.
The charges were brought by the Director of Public Prosecutions.
The court heard that the man had guillotined pages of a diary written by the victim of a sexual molestation. Some years later a man (not the person referred to above) was convicted of an offence in relation to the matter mentioned in the diary.
At the time the pages were guillotined, no legal proceeding relevant to them was underway.
In 1995, the-then Director of Public Prosecutions advised the Shadow Attorney-General that a charge under s. 129 could only be sustained if at the time material likely to be needed in a judicial proceeding was destroyed, a judicial proceeding was on foot.
Over the years the Criminal Justice Commission has expressed a similar view.
Before proceeding, we note the words of High Court Chief Justice Murray Gleeson contained in an address he gave a little over a year ago in which he said: … The first of the three aspects of the rule of law … regularity as opposed to arbitrariness or unconfined discretion, and equal subjection of all, the governors as well as the governed, to law, also reflect a view of the nature of law. Judgments of the High Court of Australia contain numerous assertions of practical conclusions said to be required of the principle of the rule of law. They include the following … . that citizens are equal before the law(19); and
. that the criminal law should operate uniformly in circumstances which are not materially different (20) …
Courts and the Rule of Law,
The Rule of Law Series,
Melbourne, 7 November, 2001.
Other eminent jurists have made similar remarks, including the Chief Justice of New South Wales, Hon. James Spigelman AC, who said only a few weeks ago: The basic proposition that government officials and other powerful figures in society are not exempt from the application of the law, is part of the core content of the rule of law.
The Rule of Law and Enforcement,
ICAC - Interpol Conference,
Hong Kong, 22 January, 2003.
Given that we have already received comments relating to the committal proceedings mentioned above, which have questioned the credibility of the legal system in Queensland [see TQI April 2003] and which have also expressed concern about the effect the above matter might have on public confidence in the law, we ask:
Do you have any comment to make on the circumstance in which, on the one hand, a former Director of Public Prosecutions says a court action must be underway to sustain a charge under s.129, and on the other, a prosecutor from that same office now advises a magistrate that a court action does not have to be underway to sustain such a charge?
Do you support the view expressed by Chief Justice Gleeson that the rule of law applies to all and that it should be applied consistently and not arbitrarily?
Do you support the view of the Chief Justice Gleeson and the Chief Justice of New South Wales that the law applies equally to "the governors" (or "powerful figures") and to "the governed" (or those without power in society)?
What action, if any, do you intend to take in relation to this matter? We note that no charges have ever been brought against individuals who in 1990, destroyed material concerning a youth detention centre despite that material being sought for legal action (refer to Morris and Howard Report, 1996, p51 and p95).
Yours etc,
On behalf of The Queensland Independent, Bruce Grundy and student participants in the JOUR2201 and JOUR7201 Justice Project, School of Journalism and Communication, The University of Queensland.
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