OFFICE OF CROWN LAW
"No power ought to be above the laws."
Cicero, de domo sua, 57 B.C.
- The proper functioning of the Office of Crown Law in government under a Constitutional Monarchy is central to all precepts and norms that Her Majesty's citizens are all equal before the law. The people are entitled to be confident that Her Majesty's Law officers (and, who, at one and same time, being duly sworn officers of the court to uphold the law), in performing their public duty, will always respect the administration of justice, ascertain the law and ensure that it is complied with faithfully, timely and equally once it is known by all public administration parties from Ministers of the Crown, Departmental Directors-General to base-grade public servants;
- The failure of the Office of Crown Law to properly and impartially state the law and to comply with it at relevant times in this matter assisted and exacerbated the corruption which lies at the heart of the shredding; and by being and/or having a perception of being so compromised in this matter, the Office of Crown Law can no longer offer Parliament requisite impartial advice relevant to this Petition (as might normally occur) or to any final resolution of the matter, as its own conduct cannot reasonably escape public scrutiny; (See Point 193);
- That under equality before the law in our system of justice, the bringing of criminal charges against any person found to have broken the law when found or claimed to have been acting on legal advice is not stayed or prevented by the comfort or existence of such advice but may, upon the subsequent charging and conviction of said person in a court of law, go towards mitigation in sentencing;
- That on 23 January 1990, while (incorrectly) believing that the Heiner Inquiry documents (transcripts, submissions, tapes, computers disks and notes) were Mr Heiner's "private property," Crown Law advised DFSAIA Acting Director-General Ms Matchett that the material could be shredded as long as "…no legal action has been commenced which requires the production of those files" but the destruction did not occur at that stage whereuponafter legal circumstances changed and the Crown Solicitor subsequently reached "…the better view" on 16 February 1990 that the Heiner Inquiry documents always belonged to the Crown and were therefore "public records" within the meaning of section 5(2) of the Libraries and Archives Act 1988;
- That on 26 February 1990, fully cognisant of the legal demands on (a) the Heiner Inquiry documents; and (b) the original complaints, the Crown Solicitor advised Ms Matchett that the matter (ie Mr Coyne's legal demand for access by law) "…cannot advance further from the Department's point of view until Cabinet makes a decision"; and allowed the Executive Government of Queensland to order the destruction of the Heiner Inquiry documents on 5 March 1990 to prevent their use in court without protest (then or afterwards) in order to respect and protect the administration of justice and the Crown's paramount duty of being "the model litigant;"
- That as from 19 March 1990, having been supplied with photocopies of the original complaints (one of which gave prima facie evidence of child abuse) by Ms Matchett, as an agent of the Queensland Government legally bound to care for children held in the control of the Crown, the Office of Crown Law assisted in the concealment of unresolved suspected child abuse conduct in contravention of Article 1 of the United Nations International Torture Convention which defines the term "torture" as:
"…any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such a purpose as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed; or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering, is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising from, inherent in or incidental to lawful sanctions..."
- That on 19 March 1990, DFSAIA Acting Director-General Ms Ruth Matchett informed Crown Law of Cabinet's 5 March 1990 decision to destroy the Heiner Inquiry documents without any reaction from Crown Law [notwithstanding its overriding duty to the courts and the administration of justice] to preserve the records from actual destruction (which took place four (4) days later on 23 March 1990) when Crown Law knew it was evidence for court;
- That on 19 March 1990, DFSAIA Acting Director-General Ms Ruth Matchett, already aware of (a) Cabinet's 5 March 1990 decision to destroy the Heiner Inquiry documents; and (b) a legal claim dated 8 February 1990 on parts of the Heiner Inquiry transcripts relating to Mr Coyne by his solicitors, wrote to the solicitors that she was seeking on-going legal advice (re his legal claims on the material without any qualification [ie (i) the Heiner Inquiry document; (ii) the original complaints]) and would inform them once she had the final advice. She failed to inform the solicitors that (a) the evidence being sought by them was about to be shredded to prevent its use in court; and (b) she already had the so-called "final" advice of 23 January 1990 - which would be used retrospectively (by the Goss Cabinet, Ms Ruth Matchett and the CJC) as justification to shred and an exculpatory shield to criminal charges because it advised that the material could be shredded providing "…no legal action had commence" without any consideration as to whether it was (i) wrong at law; (ii) based on incomplete evidence; (iii) based on a false premise over the true legal status of the material, (iv) redundant within days because of changed legal circumstances - all of which applied. According to the CJC, its mere existence was enough to clear everyone associated with the Heiner document shredding of official misconduct. Acting in good faith - even on bad advice - became superior to the law;
- That on 19 March 1990, DFSAIA Acting Director-General Ms Ruth Matchett sought Crown Law advice on the disposal of the original complaints. She enclosed photocopies of them thereby providing the Office of Crown Law with firsthand knowledge that allegations of suspected child abuse rested at the heart of activities at JOYC; and that they (the allegations) remained unresolved by Ms Ruth Matchett's decision to terminate the Heiner Inquiry. Crown Law must have known (or by the application of constructive knowledge under its duty of care and obligation to uphold the law), that supporting evidence of that suspected abuse against children was contained in the Heiner Inquiry documents about to be shredded, having been so ordered by the Goss Government Cabinet on 5 March 1990 to (a) prevent its use in court; and (b) to protect the careers of the public officials concerned. The Office of Crown Law failed to intervene to preserve the evidence of suspected criminal conduct when a clear opportunity existed and legal obligation required it;
- That on 18 April 1990, Crown Law advised DFSAIA Director-General Ms Ruth Matchett that Mr Coyne enjoyed a legal right of access to the original complaints under Public Service Management and Employment Regulation 65. Crown Law advised that it would be artificial to contend that, even though they were not on his personal file, that they were not departmental records held on Mr Coyne and therefore not accessible. Crown Law advised that Public Service Management and Employment Regulation 65 was applicable as Mr Coyne's solicitor and his union always said it was. The photocopies ("public records" within the meaning of section 5(2) of the Libraries and Archives Act 1988) were physically returned to the department with the 18 April 1990 advice, being mentioned in the final paragraph of the said advice;
- That on 18 May 1990, with knowledge that Mr Coyne had a right to access the original complaints (which he was wishing to exercise) and that they were evidence for impending court proceedings, and acting in response to DFSAIA Acting Director-General Ms Ruth Matchett's brief of not wanting to comply with the law (as known and defined on 18 April 1990 between solicitor and client), the Office of Crown Law provided (a) compliant advice; and (b) deceitful draft letters to achieve that illegal purpose; and has thereby undermined its public trust, integrity and advice ever since in this matter by becoming party to an unlawful act. At the very least, it gives rise to the existence of a reasonable suspicion of official misconduct in this matter;
- That on 21 March 1995 in response to a submission by my counsel (now High Court of Australia Justice) Mr Ian Callinan QC on 23 February 1995 to the Senate Select Committee on Unresolved Whistleblower Cases, Mr O'Shea, the Crown Solicitor, composed a memorandum to then Attorney-General and Minister for the Arts the Hon Dean Wells MLA addressing various legal points made by Mr Ian Callinan QC in his criticism of the shredding and the CJC's submission and handling of the matter. In addressing the shredding and the State Archivist's role, Mr O'Shea said:
"…The Libraries and Archives Act 1988 reposes a wide discretion in the Chief Archivist to authorize destruction of "Public records" (which is what the Crown's ownership of the Heiner Documents made them). Cabinet clearly had the right to seek their destruction and, although I did not advise her on the question, the Chief Archivist was clearly within her rights in authorizing their destruction. In a free society, a person (and this includes the Crown) does not need to find an enabling law to enable that person to destroy his or her own property.
In a free society a person (which, as I said, includes the Crown) may do what he likes with his property, including destroying it, unless there is some positive law preventing its destruction.
Had the Heiner Documents been the property of Mr Heiner, and not the Crown's, he could have destroyed them without the Chief Archivist's permission but, because we ultimately came to the conclusion that the property in them was in the Crown, the Chief Archivist's permission was necessary and, in my opinion, she was quite entitled in the circumstances to grant this permission."
- That in offering his defence to Mr Callinan QC's submission, Mr O'Shea, the Crown Solicitor, failed to address the deception embodied in the information supplied by the Goss Cabinet on 23 February 1990 to the State Archivist upon which she approved the destruction. He failed to address the fact that section 55(1) of the Libraries and Archives Act 1988 does not and was never meant to override section 129 of the Criminal Code (Qld) - Destruction of evidence - and legally permit evidence which "is or may be required in a judicial proceeding" to be wilfully destroyed to prevent its use in court, up to the very moment a of Writ being lodged or served when the party in the possession of the relevant records has been already properly informed by a solicitor (an officer of the court) that the records in question should not be destroyed and will be required as evidence in impending court proceedings; (See Morris/Howard Report pp96-106 & Point 195)
- That in offering his defence to Mr Callinan QC's submission, and having been previously made aware on no later than 19 March 1990, if not as early as October 1989, that the accusations against Mr Coyne involved suspected criminal conduct of child abuse, Mr O'Shea, the Crown Solicitor, said this in respect of granting access to the Heiner Inquiry documents:
"…whilst the 37 witnesses who gave their evidence to Mr Heiner (many of whom, as I said, would doubtless have seen themselves as Whistleblowers) would certainly have been protected by such retrospective legislation against Defamation proceedings, it would not have protected Mr Coyne (for whom Mr Lindeberg was acting) and others from the odium of whatever accusations were made against them, and these may have been quite defamatory. In short, Mr Callinan's submission was that the incoming Government should have adopted a course which was in my submission impractical and, in fact, had it been followed, could have led to considerable injustice."
- That on 21 March 1995, the Crown Solicitor - a central agent in upholding the Crown's duty to be the perpetual Fountain of Justice - defended, in a statement tabled in the Queensland Parliament on 30 March 1995 by then Attorney-General the Hon Dean Wells MLA, the shredding of "…odious accusations" which the Office of Crown Law knew, from the earliest time, involved suspected child abuse. The odious accusations, more than nine years later, were found to be criminal conduct by Mr Peter Coyne in the report the Forde Commission of Inquiry into the Abuse of Children in Queensland Institutions (pp172-174) but the passage of time prevented prosecution;
- That in another statement on 23 May 1995 in response to a submission by my then junior counsel Mr Roland D Peterson to the Senate Select Committee on Unresolved Whistleblower Cases in Parliament House Brisbane on 5 May 1995, Mr O'Shea, the Crown Solicitor, with the aforesaid state of knowledge, informed then Attorney-General the Hon Dean Wells MLA that
"…Had the Heiner Documents not been destroyed, it would probably have been a very different story and, quite apart from the need to keep faith with retired Magistrate, Mr Heiner and the other witnesses, I can hardly believe Mr Coyne would have wanted them published.
I don't propose to go over again my arguments for saying that the destruction of the Heiner Documents was lawful, I would simply say that my advice was proper
and ethical, and involved no departure from proper democratic principles."
- That in failing to apply the law impartially "…a very different story" was concealed for nearly a decade by the active involvement of Her Majesty's Queensland Office of Crown Law and, at the very least, a reasonable suspicion must now exist that official misconduct was engaged in by it which cannot be dismissed or overlooked. Had Her Majesty's Queensland Office of Crown Law acted otherwise, it would have shown obstruction of justice, destruction of evidence, unaddressed abuse of children in a Crown Institution, illegal use of public monies to buy the silence of a public official found to have engaged in criminal conduct (notwithstanding whatever defences Mr Coyne may have for his conduct), inappropriate use of Crown Deeds of Settlement, and abuse of office touching all the major arms in Queensland's public administration to cover up that "…very different story."
