26 June 2007

Destroying evidence

Andrew Calvin
Director – Practice Support
DLA Phillips Fox


June 2007

This document is a brief outline accompanying a speech given at a seminar in June 2007. This document is not legal advice. It is a broad outline of legislation. Do not rely on it in making decisions that affect anyone.

Introduction

Victoria enacted legislation in 2006 - the Crimes (Document Destruction) Act 2006 (VIC) - which created a new offence of destroying, damaging or concealing a document or other thing of any kind that is reasonably likely to be required as evidence in a legal proceeding. Victoria also enacted the Evidence (Document Unavailability) Act 2006 which deals with the consequences of documents not being available.

What does the Act say?

254. Destruction of evidence


(1) A person who—

(a) knows that a document or other thing of any kind is, or is reasonably likely to be, required in evidence in a legal proceeding; and

(b) either—

(i) destroys or conceals it or renders it illegible, undecipherable or incapable of identification; or

(ii) expressly, tacitly or impliedly authorises or permits another person to destroy or conceal it or render it illegible, undecipherable or incapable of identification and that other person does so; and

(c) acts as described in paragraph (b) with the intention of preventing it from being used in evidence in a legal proceeding—

is guilty of an indictable offence and liable to level 6 imprisonment (5 years maximum) or a level 6 fine or both (3000 penalty units (about $330,000) for a body corporate).

(2) This section applies with respect to a legal proceeding, whether the proceeding is one that is in progress or is to be, or may be, commenced in the future.

...

255. Corporate criminal responsibility for offence against section 254

...

(2) If an officer of a body corporate contravenes section 254, the body corporate must be taken to have also contravened that section and may be proceeded against and found guilty of an offence against that section whether or not the officer has been proceeded against or found guilty of that offence.

What sort of things does it cover?

Any “document or other thing”. Anything. Any record of information. Photographs, labels, discs, hard discs, floppy discs, audio tapes, computer tapes, USB flash drives, films, microfilm, slides, animals, furniture, plans, drawings, electronic files, braille documents, paintings ... Again - any record of information.

What is a legal proceeding?

A criminal hearing, a civil claim, an inquiry, an arbitration, a court reference or any proceeding before a court or person acting judicially.

Does the proceeding have to be on foot?

No. It can be in progress, or is to be, or may be, commenced in the future.

How broadly should I interpret “is to be, or may be, commenced in the future”?

That's not answered by the legislation, but there are some cases around that may be of use, such as British American Tobacco Australia Services Limited v Cowell (as representing the estate of Rolah Ann McCabe, deceased) [2002] VSCA 197 (6 December 2002). The court suggested that the test may be similar to that used for the offence of perverting the course of justice.

In a very litigious industry, such as tobacco sales or other frequent product liability areas, this should probably be read more broadly than, say, sales of tea biscuits.

What if part of the document only is affected?

It's still covered by the Act.

What is evidence?

Evidence is anything that a court or other judicial proceeding might use in making a decision.

I understand “destroy”, but what is damaging or concealing?

The relevant conduct is to destroy, conceal, render illegible, undecipherable or incapable of identification. Perhaps it could include cutting off access to an external data storage site (such as a web site).

Who does it apply to?

Both people and companies in, or doing business in, Victoria, including those who expressly, tactily or impliedly authorise or permit another person to engage in the relevant conduct (so long as the person actually does actually engage in the conduct), with the intention of preventing it being used in a legal proceeding.

What's the penalty?

A person: 5 years imprisonment and about $30,000 fine.

A corporation: about $330,000 fine.

How does a conviction affect the legal proceeding that needed it as evidence?

It doesn't. However, the Evidence (Document Unavailability Act), 2006 (VIC) has a lot to say about the consequences of unavailability of documents.

Are there other related laws?

The main related laws are from the common law, mainly being contempt of court and perverting the course of justice. These can both result in fines and imprisonment.

The courts have long held that destruction of documents gives rise to a strong presumption that they were adverse to the interests of the destroying party.

The Evidence (Document Unavailability) Act 2006 (VIC) also allows the tribunal to draw adverse inferences, assume proofs and reverse burdens of proof.

Why did we need this law?

It was largely inspired by a case where a tobacco company destroyed many documents that a plaintiff in later litigation wanted access to (McCabe v British American Tobacco Australia Services Limited [2002] VSC 73 (22 March 2002)). The court struck out the tobacco company's defence. There was an appeal from this case which held that that was not the appropriate remedy.

What does this law do that existing laws didn't?

The penalty of imprisonment and major fines for individuals and corporations is made clearer.

What do I or my organisation need to do?

To quote the Public Record Office of Victoria (Advice 18 to government agencies):

“All agencies will be most likely to avoid liability under the Act if:

1. they create effective, comprehensive records management systems and policies, supported by a corporate culture that does not countenance the illegal destruction of records, and

2. they provide training for all staff involved in records disposal. Agencies in particularly litigious areas of business may need to exercise even greater caution in destroying records related to activities that may potentially give rise to lawsuits. “



-oOo-


© 2007 Andrew Calvin, Sydney, Australia.

This document is not legal advice. It is a broad outline of legislation. Do not rely on it in making decisions that affect anyone.

1. Assented to 4 April 2006, commenced 1 September 2006. Creates Division 5 of Part I of the Crimes Act 1958