Queensland Child Protection Commission of Inquiry News and Updates
WHISTLEBLOWER KEVIN LINDEBERG’S 8 AUGUST 2013 COMMENTARY RE POST-CARMODY INQUIRY’S 1 JULY 2013 FINDING OF PRIMA FACIE BREACH OF SECTION 129 OF THE CRIMINAL CODE RE SHREDDING OF THE HEINER INQUIRY DOCUMENTS AND TAPES
On 1 July 2013 the Carmody Inquiry’s investigation into ‘the shredding of evidence’ element of the Heiner Affair was handed to the Newman Government. During the course of his inquiry, Commissioner Tim Carmody established that sufficient evidence existed to find that the shredding was a prima facie offence under section 129 of the Criminal Code in respect of Cabinet Decision 162 0f 1990.
At page 83 of the Carmody Report, it advises that “…“….the case against the cabinet ministers is arguably stronger than that faced by Mr Ensbey”.
Whistleblower Kevin Lindeberg – Former public sector trade union organiser
On or about 19 July 2013, the Queensland Attorney-General, the Hon Jarrod Bleijie, referred these findings to the Queensland Director of Public Prosecutions, Mr Tony Moynihan QC, to decide whether it was in the public interest to mount a prosecution against all members of the 5 March 1900 Queensland Cabinet.
It is the first time in the political/jurisprudential history of the Commonwealth of Australia for such a consideration to be placed before any DPP. No statute of limitations can be applied to this type of crime.
Those who have followed closely the evolutionary developments of the Heiner Affair over many years as new evidence has gradually emerged will know that this is the simple but serious offence which Lindeberg first took to the CJC in 1990. The child abuse was not discovered by Lindeberg until later 1997/98.
The foundation crime of the Heiner Affair is the destruction of “evidence”. That is, the continuing existence of the Heiner Inquiry documents and tapes as a definable entity as “evidence” – being legally defined as “departmental public records” – was and remains its core legal issue.
This is alleged prima facie criminal counts 1 and 2 in the Rofe QC Audit.
This alleged central crime of the Heiner Affair is of universal importance to the rule of law. It is especially important because the alleged wrongdoer is the most powerful organ of government – i.e. the Cabinet. Consequently, it gives rise to this vitally important question: Are cabinets above the law, including even if and when they act on erroneous Crown Law advice?
Ignorance of the Law is not an excuse
In 2004, the High Court of Australia in Ostrowski ruled that ignorance of the law was no excuse for a Western Australian crayfisherman, Jeffrey Palmer. He was caught fishing in the wrong place when doing so on advice he had obtained from WA Fisheries Department. He was found guilty. Callinan and Heydon JJ ruled inter alia that:
“…A mockery would be made of the criminal law if accused persons could rely on, for example, erroneous legal advice, or their own often self-serving understanding of the law as an excuse for breaking it…”
Well, do Cabinet Ministers and senior bureaucrats stand differently in the eyes of the law to a crayfisherman, or, for that matter, a man of religion and reputation, Pastor Douglas Ensbey?
As the retired Judges declared in their August 2007 public statement to Premier Beattie, this alleged shredding offence was a fundamental attack by the Executive on the Judicial arm of government by deliberately denying the Judiciary its constitutional right and ability to do justice according to law with all known available “evidence.” The judges said that it was an attack which could not be permitted to stand if government by the rule of law mattered.
Why?
If and when governments can claim acting in good faith and being ignorant of the law as excuses when breaking the criminal law when ordinary citizens can’t do so, and those excuses are accepted as being sufficient for not prosecuting Cabinet, it must fundamentally change the democratic principle of equality before the law, and place governments above the law.
There’s a common name for this. It’s called tyranny.
So this is where the Heiner Affair now sits since 1 July 2013.
- Listen to Kevin Lindeberg’s recent interview on Radio 4BC on 23 July 2013:
http://www.4bc.com.au/blogs/2013-4bc-mornings-audio-blog/the-heiner-affair/20130723-2qfvu.html
The Al Capone Factor of the Heiner Affair
Many have described this shredding offence as the “Al Capone Factor” of the Heiner Affair. Just as everyone is expected to pay their taxes (as Al Capone found out over his tax evasion in 1931 by being charged and prosecuted), everyone, including governments, is expected to preserve “evidence” when known to be required for a pending or a realistically possible future legal action.
If these core obligations are not scrupulously upheld without fear or failure civilised society will crumble into chaos.
In the initial instance, what the contents of the Heiner Inquiry documents and tapes were was always a secondary issue except their being “departmental public records” which permitted certain public servants a legal right to access them. This legal right of access was being tested when the documents went through the shredder on 23 March 1990, as well as the known threatened prospect of a future defamation action being a consideration.
The relevant Cabinet submissions show that the Goss Cabinet on 12 February 1990 indemnified Mr Heiner and his witnesses for legal costs in respect of any future legal action in defamation, and then, on 5 March 1990, ordered the destruction of the evidence centrally relevant to that future defamation legal action to reduce the risk of it occurring. The Goss Cabinet also knew that lawyers were seeking access to the Heiner material but, at that point in time, they had not yet commenced legal action.
Reasonable People Ought to be treated equitably
Lindeberg argued that those facts ought to have plainly triggered in the mind of any reasonable person the likelihood of a “realistically possible future judicial proceeding” in which these public records might be required as evidence, and therefore, ought to have preserved them, not ordered their destruction. Lindeberg suggested that Cabinet Ministers were “reasonable” people, and that it was reasonable to expect that they read and understood their Cabinet submissions before making decisions.
Ms Warner assured the Carmody Inquiry that before ordering the destruction of the evidence, she read and understood the relevant passages in her Cabinet submissions regarding the documents being sought by lawyers and that formal legal action hadn’t yet commenced to gain access.
In other words, if Pastor Ensbey deemed by the police, DPP and the courts to be a reasonable and reputable man was expected know that the girl’s diary might be required as evidence in a ‘realistically possible future judicial proceeding” at the time he attempted to destroy it, why should the Cabinet Ministers be seen or treated any differently if equality before the law meant anything?
Read his final submission to the Carmody Inquiry:
Admissions on the Floor of Parliament
On the floor of State Parliament on 6 November 1994, Minister Warner made it perfectly clear why the Goss Cabinet destroyed the documentation, an action, to repeat, which took place after the Queensland Cabinet had indemnified Mr Heiner and his witnesses on 12 February 1990 for legal costs which might accrue out any ‘future judicial proceedings’ in defamation. Hansard records the following:
Mr BORBIDGE: In directing a question to the Minister for Family Services, I refer to a letter from legal firm Rose Berry Jensen acting on behalf of Mr Peter Coyne dated 15 February 1990 — which I now table — which indicates that Mr Trevor Walsh of the Minister's department was aware on 14 February of that year of impending court proceedings, and I ask: why then on 23 March, more than a month after being advised of impending proceedings, did Mr Walsh, in company with the senior archivist, destroy the Heiner documents, when it was clear that to do so was an obstruction of justice?
Ms WARNER: As I have explained at length to the House previously but will explain again, the issue with the documents was that, once the inquiry was closed down because it was improperly set up and because it had no function, no purpose and no status, it meant that any documents that were collected in the process of that inquiry — that is, the statements made to Mr Heiner by the individuals who in good faith thought they had indemnity — would become irrelevant and null and void, because we had closed down the inquiry because the National Party did not set it up properly.
Having done that, obviously no court proceedings could logically take place as a result of documents which no longer existed and had no existence in terms of any decisions that were made by the Government or any individuals connected with the Government. There was no possible legal action that would require the production of those documents, except for legal action that would be taken between the individuals about what they had said about each other, which was defamatory and libellous. That is why the documents were destroyed.
I would also like to use this opportunity to correct a statement made in the Courier-Mail on Saturday by Ed Southorn that we destroyed the documents because we were fearful of defamation action against the Government. At no stage were we concerned about defamation action against the Government, because the Government had never said anything to defame anybody. All of the documents related to individuals before the inquiry, and we were concerned that they would sue each other and would be at risk of suit from each other. That was the reason.” (Bold and underlining added)
The simple fact is that while governments may indemnify their agents and public servants for costs which might accrue out of legal action taken against them during the course of performing their public duties, there is no legal entitlement to shred the evidence to prevent such a known and realistically possible course of justice from commencing.
In fact, the law positively prohibits such obstruction of justice by any person, including governments.
In recent years the secondary issue (i.e. “child abuse and/or child sexual abuse”) has subsumed the primary issue of deliberately destroying identifiable and known “evidence” (i.e. the Heiner Inquiry documents and tapes).
Section 129 of the Criminal Code doesn’t define what “the document or thing” is other than (by its continuing existence at the time) if “the document or thing” is “evidence” which “is or may be” required as evidence in judicial proceedings, it cannot be destroyed to prevent its use as evidence in legal action.
A serious crime
Destroying evidence is always viewed as a potentially serious crime. In Ensbey, Williams JA said at 39:
“…The destruction of evidence is, in my view, a serious offence which calls for a deterrent sentence and that would usually necessitate the offender serving an actual period in custody.”
In other words, the Heiner Affair’s foundation crime never relied on evidence of child abuse or child sexual abuse being in the shredded documents for the alleged criminality under section 129 to stand; rather, it only made this foundation offence against the administration of justice arguably more heinous.
Child Sexual Abuse and Child Abuse at the Centre
Commissioner Carmody found that evidence of “child sexual abuse” wasn’t in the Heiner Inquiry material. However, he did hear that evidence of “child abuse” was and yet he made no clear reference to this fact in his Report, probably because his brief concerned “child sexual abuse”. That said however, it is strongly open to suggest that once his term of reference was amended on 4 April 2013 to include “industrial dispute”, it ought to have captured “child abuse” (i.e. the unlawful handcuffing of children for excessive periods of time) because such conduct prima facie impacted on codes of conduct for the public officials concerned.
One of the so-called “industrial complaints” that Mr Heiner was commissioned to investigate against the management was the notorious 26 September 1989 prolonged handcuffing incident.
However, for him to find that any suggestion of “child sexual abuse” being in the documents was “scandalous, disingenuous and groundless” is, on the weight of evidence adduced, curious in the extreme.
Two witnesses before the Carmody Inquiry, in their differing ways, testified that Mr Heiner was either told about the “child sexual abuse” incident – the 24 May 1988 Harding Incident – or that he (Heiner) asked questions about it. One key witness was called back to be re-examined over what she told Mr Heiner on this point. She recalled when and where she told him (before she was married and in the Children’s Court at North Quay), and even described the building’s internal furnishings, and how the court had to be entered.
It is incontestable that Mr Heiner was the only person to have ever used the Children’s Court at North Quay when inquiring into the management of the Centre.
Another key witness testified that when he, along with the departmental director-general met with Mr Heiner to draw up the terms of reference, Mr Heiner was forewarned that the Harding Incident would probably come up in evidence during the course of his inquiry because its handling had been “…abominable.”
And yet, Commissioner Carmody wasn’t convinced about the issue of “child sexual abuse.”
As a general observation, common decency would suggest that it is a perverse exercise to have to differentiate between physical/emotional child abuse and child sexual abuse because, either way, it is totally unacceptable and any evidence of either forms of abuse ought not to have been destroyed but kept for the police or other law enforcement authority to review.
In the Heiner Affair, the situation is made worse because all governments should always act in the public interest to ensure that all forms of child abuse are addressed especially when it has been inflicted on children placed into their care by our courts.
Last year, after the 24 July 2012 Recusal Hearing, we put certain questions to whistleblower Kevin Lindeberg in the public interest.
Now that the Carmody Inquiry has vindicated his long stand that the shredding was a serious alleged prima facie crime and as the alleged offence has been referred to the DPP by the Newman Government, we have approached him again with another bracket of pertinent questions to find out the what, when, where and whys to resolving this long-running scandal once and for all.
Q: DOES THE CARMODY INQUIRY’S INVESTIGATION INTO THE HEINER AFFAIR MEET THE NEWMAN GOVERNMENT’S 2012 PRE-ELECTION PROMISE TO REVIEW THIS SCANDAL?
KL: No, it plainly doesn’t. The Heiner Affair is much more than just the alleged illegality surrounding the shredding. Its greater part is about the two-decade systemic cover-up after the shredding. That alleged cover-up is set out in detail in the public 9-volume Rofe QC Audit which I encourage everyone to examine now that it is lawfully available under the protection of the Commissions of Inquiry Act 1950.
Commissioner Carmody strictly limited himself to the period 1 January 1988 to 31 December 1990. He also strictly limited himself to what “the political executive” did by narrowly defining what the term “government” should mean under term of reference 3(e). These restrictions alone mean that this promise isn’t yet delivered in full.
Q: SO THE COVER-UP REMAINS UNTOUCHED?
KL: Sadly, yes. When the public gets to see in an open forum what happened inside the CJC, CMC, police and other agencies when they handled my complaints, they will be simply horrified.
The Rofe QC Audit’s findings make it starkly clear that this prima facie crime now found by Commissioner Carmody was covered up inside the CJC for years. If public confidence in government matters, then those responsible should be held to account.
Queenslanders should stop and think that had the law been properly upheld in 1990/91, this matter could have affected the entire governance of Queensland.
Instead, the CJC/CMC has portrayed to the public over the years that my complaint was thoroughly investigated and that no wrongdoing could be found. This portrayal was completely false.
In the meantime, Queensland taxpayers have paid some $650M to run that corruption-fighting body since 1990, and yet, it couldn’t find this simple but serious prima facie crime by the Executive and certain senior bureaucrats always staring it in the face.
Q: WHAT EFFECT DID THESE DECISIONS BY COMMISSIONER CARMODY HAVE DURING THE INQUIRY?
KL: As a matter of whether or not the law was breached, his narrow definition of “government” left the complementary conduct of the bureaucrats and other political advisers untouched in respect of their involvement in the shredding. The members of Cabinet never acted in a vacuum. Those other public officials knew as much, if not more, than the members of Cabinet did.
Q: BUT IT WAS THE CABINET WHICH ORDERED THE SHREDDING, NOT THE BUREAUCRATS?
KL: That’s true. There’s no doubt that there is sufficient evidence in the relevant Cabinet submissions to sustain a prima facie offence under section 129 against the Ministers, but others procured and aided in the same enterprise, and any thorough application of law under section 7 of the Criminal Code must fairly speak to that involvement.
Q: WHAT IS SECTION 7 OF THE CRIMINAL CODE?
Section 7 concerns parties to offences. It’s always applied whenever a crime has been discovered because its purpose is to bring all potential wrongdoers associated with the crime to justice. This is done at the investigatory stage and in preparing a brief for the DPP.
The evidence shows that these public officials had firsthand dealings with the lawyers and unions who were seeking access to the Heiner documents. They had firsthand knowledge about the foreshadowed judicial proceedings in which these public records were the central item of “evidence.” One of them actually assisted in shredding the evidence with that state of knowledge having spoken directly with the lawyers, and then shredded the “evidence” while the lawyers and unions were being assured that it was safe from destruction.
Q: ARE YOU SAYING THAT COMMISSIONER CARMODY’S NARROW DEFINITION OF ‘GOVERNMENT’ EVENTUALLY CAUGHT UP WITH HIM IN TERMS OF HIS FINDING OF A PRIMA FACIE CRIME BY THE LAW NOT BEING ABLE TO BE FULLY APPLIED?
KL: That’s correct. He said at the Recusal Hearing that if he defined the term “government” to mean “whole of government”, that is, departments and statutory authorities, then he would have to stand aside because it would logically mean that he’d have to investigate himself when he was the Queensland Crime Commissioner in 2001 when I saw him about the Harding Incident. He accepted that the law does not permit a party to an allegation to investigate himself.
In other words, after setting the parameters, he couldn’t apply the full scope of section 7 to the prima face shredding crime without breaching his own narrow definition of “government” to just mean “the political executive” because once the floodgates opened, it flooded everywhere and everything.
The Rofe QC Audit, to all intents and purposes, is the systemic cover-up flooding roadmap.
Q: AND WHAT DOES THIS NOW MEAN IN PRACTICAL LEGAL TERMS?
KL: Well, my lawyers say it means that the Carmody Report finding in respect of 3(e) is not a full and proper brief for any DPP to consider. On senior counsel’s advice, it should be immediately returned to the Attorney-General for further investigation until it is.
Morally speaking also, Cabinet Ministers should not carry the responsibility alone under the circumstances. To suggest otherwise, would be an outrageous and morally bankrupt act, let alone it being contrary to law.
Q: DOESN’T THIS ALSO BRING INTO PLAY AGAIN WHAT HAPPENED BACK IN 1996 WHEN THE BORBIDGE GOVERNMENT SENT THE MORRIS/HOWARD REPORT TO THE DPP AFTER IT FOUND SIMILAR BREACHES OF THE LAW THE HEINER AFFAIR?
KL: Yes, it does. Sadly, it looks like history may be repeating itself with the Newman Government. In 1996, importantly, barristers Tony Morris QC and Eddie Howard recommended an immediate public inquiry into my allegations. Instead of doing that, the Borbidge Government mistakenly sent their incomplete Report to the DPP for advice on certain matters. In strict legal terms, it wasn’t a full and proper brief to send to the DPP because Messrs Morris and Howard were strictly limited in their investigation of my allegations to an “on the papers” review of them.
They didn’t interrogate certain witnesses like Commissioner Carmody did. They could only look at what the departmental bureaucrats knew and did “on the papers” because then Leader of the Opposition, Peter Beattie, refused them access to the relevant Cabinet submissions.
But, of course, the alleged wrongdoing pertaining to the Heiner Affair in 1996 has accumulated over the intervening years and got far worse.
But nevertheless, 16 years later, the roles have been reversed. Commissioner Carmody had the relevant Cabinet submissions. He found that they contained sufficient incriminating material to sustain his prima facie finding of criminality. But, he limited himself by the way he interpreted the term “government” and hence couldn’t make findings against the bureaucrats – even if he wanted to.
It’s a matter of record that my lawyers argued on 24 July 2012 that to fully review “the Heiner Affair” the term “government” had to mean “whole of government.”
Commissioner Carmody’s narrow interpretation coloured, if not nearly crippled, everything during the course of his inquiry. And again, I repeat, the Heiner Affair is much more than just the shredding. It’s about the cover-up after the shredding in “post-Fitzgerald Queensland” which went on for two decades.
Q: SO 16 YEARS APART ALLEGED CRIMINALITY HAS BEEN FOUND ON BOTH SIDES OF THE SAME COIN BUT THEY CAN’T BE MARRIED TOGETHER BECAUSE OF THE LIMITED TERMS OF REFERENCE OF BOTH INQUIRIES?
KL: In both cases, the briefs either were or are seriously incomplete. My lawyers have pointed out this serious legal impediment to DPP, Mr Tony Moynihan. It is important to note that the DPP is not an investigator.
Q: COMMISSIONER CARMODY FOUND THAT THE INTERPRETATION OF SECTION 129 WAS NOT UNREASONABLE IN 1990. DO YOU HAVE A VIEW ON THAT PROPOSITION?
KL. Yes, I do. It stands stark naked in his Report without explanation. Given its centrality to this scandal, I believe that he should have clothed it with a full explanation showing how he could have reached such a view.
It was my view, and that of highly eminent judges, including the Queensland Court of Appeal in R v Ensbey, that section 129 was always an unarguable law in its clarity of wording and purpose going back to 1899 when it was first enacted.
This is very important because the alleged cover-up stems, in large measure, from this misinterpretation of section 129 first perpetrated by the CJC in 1993. It was this misinterpretation which I wouldn’t cop and which drove me down this road for 23 years.
It’s a critically important law. It sits at the centre of the administration of justice, the right to a fair trial, equal justice, and open and accountable government.
The point of legal argument can only be about the extent of “the future reach into time” when a relevant item of evidence must be preserved to serve the ends of justice. The provision always required a “futurity” element in its consideration by the words “is or may be required.”
The CJC’s interpretation of section 129 - which Commissioner Carmody appears to find ‘not unreasonable’ back in 1990 - was that all evidence known to be required for judicial proceedings could be knowingly and lawfully destroyed just so long as the anticipated judicial proceeding had not commenced.
The Queensland Court of Appeal in Ensbey ruled that the relevant judicial proceeding only had to be “a realistic possibility in the future” in order to preserve a relevant item of evidence.
Q: ISN’T IT CORRECT THAT RETIRED JUDGES AND QC’s HAD ADVISED THAT THE CJC’S INTERPRETATION WAS UNTENABLE?
KL: Indeed they had. Mr Callinan QC back in 1995 publicly advised that its misinterpretation was too significant to ignore. But Queensland’s “post-Fitzgerald system” of checks and balances did. The CJC knew as early as 1992 that there was the prospect that the entire Goss Cabinet might have to face a criminal charge that Commissioner Carmody has now also found.
Instead, the CJC’s twisted view of section 129 held sway for years despite my constant public call that it was incorrect. For my troubles, I was ridiculed by the CJC, and people like Premiers Beattie and Bligh in Parliament.
Logic and reasonableness plainly suggest that section 129 couldn’t be otherwise interpreted as the court ruled in Ensbey, and moreover, this particular law didn’t need Ensbey for its clarification, only its confirmation.
If it were as the CJC suggested, it would invite the lawful wholesale shredding of everything in sight up to the moment of a foreshadowed and foreseeable judicial proceeding commencing. Far from being ‘not unreasonable’, the CJC’s interpretation reduced this vital law to a complete and utter nonsense because it actually encouraged and legitimised unfettered attacks on the administration of justice.
That’s why I find Commissioner Carmody’s naked claim so extraordinary.
If it has anything to do with the passage of time being understandable and acceptable as to legitimise a claim of “staleness”, then that would be scandalous.
This misinterpretation lies at the heart of the alleged cover-up.
No competent lawyer could reasonably support such a view. I think it’s an interpretation which any lawyer or barrister simply could not dare advise his or her client to do if respect for the rule of law matters, let alone their first duty to the courts and to maintain and preserve the administration of justice.
Besides, if it was not unreasonable for the Goss Cabinet in 1990, why did it suddenly become reasonable for Pastor Ensbey in 2003 even though the law itself remained unchanged? Was he just unlucky? Perhaps he should have been a Minister of the Crown instead of a minister of religion?
When the Pastor Ensbey was ordered to stand trial by the DPP in 2003, the DPP knew that section 129 had been applied in a contrary manner in the Heiner matter.
In that sense also, the Queensland Office of the DPP is too gravely conflicted to now consider the Heiner matter in 2013.
Q: SO WHAT NEXT?
KL: The Newman Government has got to realise the enormity of this scandal. Its breadth is unprecedented in our political history. It must come to grips with what the law requires regarding how the allegations should be properly reviewed, especially as it involves sitting judicial officers named in the public Rofe QC Audit whose contents and authorship are protected under the Commissions of Inquiry Act 1950.
There are other very serious matters to attend to, and I would urge the caring public to write to the Newman Government and insist that it honour its 2012 pre-election promise to review the Heiner Affair in full and not just stop at its beginning point as Commissioner Carmody did, namely the prima facie unlawful shredding of evidence.
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