The McCabe v British American Tobacco Australia Services Ltd (BAT) case signalled a significant change in the management of records required for evidence. In this landmark case, the Supreme Court of Victoria ruled that BAT had destroyed the records that would have helped Rolah McCabe’s case. It found that although legal proceedings were not current, BAT’s policy of destroying records that they could foresee being used as evidence in a lawsuit – even if it had not yet started – was an illegal action directed specifically at preventing the litigant from having a fair trial.
While this finding was overturned on appeal (British American Tobacco Australia Services Ltd v Cowell), it signalled a potential shift in the court’s view on records management requirements, and may be taken up in other jurisdictions, including the Commonwealth. Specifically, the court ruled that records documenting actions where it would be reasonable to assume that there may be litigation, should be kept whether or not a legal action has commenced. This replaces the previous requirement that destruction of records cease only after the announcement of litigation.
The issue in the original McCabe ruling was correspondence between BAT and Clayton Utz, BAT’s lawyers in Australia, advising BAT to destroy certain records. The Supreme Court of Victoria ruled that ad hoc destruction of records for the purpose of hampering a case against a company, even though the action had not yet been commenced, was a criminal action.
When BAT appealed the decision, they established that the destruction of records was neither in contempt of the court nor a deliberate attempt to pervert the course of justice by convincing the court that the purpose of advice from Clayton Utz was to use records storage space more economically.
In R v Ensbey (2004); ex parte A-G (Qld), the Supreme Court of Queensland Court of Appeal considered the provisions of section 129 of the Queensland Criminal Code which provides for an offence when a person knowing that a document may be required in evidence in a judicial proceeding wilfully renders it illegible or indecipherable with intent to prevent it from being used in evidence. In that case, the court found that it was sufficient to prove the offence if a person believed that the document may be required in evidence in a possible future proceeding, that they rendered them illegible or indecipherable with the intent to prevent them being used for that purpose.
There is a similar offence provision set out in section 39 of the Crimes Act 1914 (Cth). This provision provides that:
Any person who, knowing that any book, document, or other thing of any kind, is or may be required in evidence in a judicial proceeding, intentionally destroys it or renders it illegible or undecipherable or incapable of identification, with intent to prevent it from being used in evidence, shall be guilty of an offence.
However, the effect of certain provisions of the Criminal Code 1995 (Cth) is to make the state of knowledge under a Commonwealth offence stricter. The meaning of ‘knowledge’ is defined in s5.3 of the Criminal Code 1995 (Cth) as:
A person has knowledge of a circumstance or a result if he or she is aware that it exists or will exist in the ordinary course of events.
These provisions have been considered by the Supreme Court of NSW in R v Selim (2007). In that case, the court distinguished the decision in Ensbey on the basis of the differing legislative provisions and found that it must be established, at the time when the document was destroyed that the person was aware, in the sense that they had a reasonable contemplation, that there was a possibility of judicial proceedings being initiated in the future.
These cases signal a change in judicial consideration of records disposal. In the past, destruction has been permitted if there were no current legal proceedings, but it has become important for agencies to consider the potential legal cases associated with the records that they generate, and whether their destruction might pervert the course of justice.
The Archives Act provides that Commonwealth records are normally not to be destroyed without the permission of the National Archives, in the form of a records authority issued by the National Archives. Records authorities are based on a thorough analysis of the legal delegates, business activities and stakeholder requirements at the time of issue. Destruction of records in accordance with records authorities is systematic, rather than ad hoc, and records authorities take into consideration all foreseeable uses of the records.
As long as there is no change in context, it is unlikely that records destroyed pursuant to a valid records authority would be considered to be destroyed with the intention of spoiling a litigant’s case.
Agencies are not required to keep every record just in case they may one day be needed in a future judicial proceeding. However, agencies are advised to retain and maintain records in an accessible form if the agency knows it is reasonably likely that the record may be needed as evidence in a:
A valid records authority does not exempt Commonwealth Government agencies from this obligation.
It is likely that other jurisdictions may have differing provisions. If it is likely that Commonwealth Government agency records will be required as evidence for offences under State legislation or if there are additional questions, agencies should seek legal advice.