Destruction of Evidence (Qld)

In Queensland, there are a number of offences that a person can be charged with that involve the wilful destruction of evidence. Actions that may constitute destruction of evidence include moving items at an active crime scene, tampering with or altering relevant documents or deleting relevant electronic documents. This article outlines the criminal offences that involve the destruction of evidence in Queensland.

Damaging evidence with intent

The offence of damaging evidence with intent is outlined in section 129 of the Criminal Code. Under that provision, a person is guilty of an offence if, knowing something is or may be needed in evidence in a judicial proceeding, they damage it with intent to stop it being used in evidence. This offence carries a maximum penalty of 7 years imprisonment.

In order to convict a defendant of damaging evidence with intent, the prosecution must prove the following elements:

1. That the defendant knew that the relevant thing may be needed in evidence in a judicial proceeding; and
2. That the defendant damaged the relevant thing; and
3. That the defendant did so with the intent of stopping the relevant thing being used in evidence

What is a judicial proceeding?

‘Judicial proceeding’ is defined in section 119 of the Queensland Criminal Code as any proceeding had or taken in or before any court, tribunal or person, in which evidence may be taken on oath. The courts have previously determined that it is not necessary to prove that the person charged with a destruction of evidence offence was aware that the relevant thing would definitely be required in evidence in proceedings, nor is it necessary for such proceedings to be current. It is sufficient to prove that the defendant believed that there is a realistic possibility that the relevant thing might be required in evidence in future proceedings.

In the 2005 decision of R v Ensbey, His Honour Jerrard JA states:

“A more difficult matter for appropriate application of the section is where, as in this case, not even criminal proceedings are on foot or foreshadowed, let alone judicial proceedings, at the time the potential evidence is destroyed. There is authority at the common law, however, approving the application of the associated offence of fabricating evidence, provided by s 126 of the Code, to a situation in which there was no judicial proceeding on foot, and only the reasonable possibility, foreseen by and which arose out of facts known to the accused, that one might occur in the future.”

The courts have further determined that it is not necessary to prove that physical harm has been done to the relevant thing. Any interference with the relevant thing which would render it incapable of being used for its ordinary functions may constitute damage. In the 2005 Court of Appeal decision of Prime Infrastructure (DBCT) Management Pty Ltd v Vero Insurance Limited it was determined that property is damaged ‘when it is rendered imperfect or inoperative’. The damage does not need to be permanent or irreparable.

In relation to whether the act was committed with the intent of stopping the relevant thing being used in evidence, an inference or deduction can be drawn from facts established by the evidence. A defendant’s intention can be inferred from the circumstances in which a specific act was done.

In many cases, police are able to recover destroyed electronic evidence, such as text messages, search histories and emails.

Other destruction of evidence offences

Other charges that may be brought by police in relation to the destruction of evidence include conspiring to defeat justice or compounding an indictable offence.

Conspiring to defeat justice

Under section 132 of the Criminal Code, a person is guilty of conspiring to defeat justice if they conspire with another person to obstruct, prevent, pervert, or defeat, the course of justice. This offence is punishable by a maximum of seven years imprisonment.

Compounding an indictable offence

Under section 133 of the Criminal Code, a person is guilty of compounding an indictable offence if they ask for, receive, or obtain, or agree or attempt to receive or obtain, any property or benefit of any kind for themselves or another person, upon an agreement or understanding that they will compound or conceal an indictable offence, or will abstain from, discontinue, or delay, a prosecution for an indictable offence, or will withhold any evidence thereof.

Jurisdiction for destruction of evidence offences

The above three offences are all indictable offences and are finalised in the District Court.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.