Clowns Heiner affair

Continued from Part 3

As previously mentioned:

At the time of the shredding of the Heiner Inquiry documents in early 1990, section 129 of the Criminal Code 1899 (Qld) stated: (Quote)

“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, wilfully destroys it or renders it illegible or undecipherable or incapable of identification, with intent thereby to prevent it from being used in evidence, is guilty of a misdemeanour, and is liable to imprisonment with hard labour for three years.” (Underlining added)

This section has remained unchanged since 1899.

What makes the misinterpretation of this section in the Heiner affair’s factual circumstances so significant and universally important is that those involved held positions of great responsibility and power in ‘the system’ at the time – and some still do.

They were supposed to be learned in law, highly ethical, and were all ‘officers of the court’.

So, how could a law, which is so fundamentally important and so unambiguously clear and purposeful, be misinterpreted by so many in high office for so long and how could they get away with it?

Were they all just honestly incompetent? Were they just clowns, hopelessly stumbling around in the dark and honestly ignorant of basic laws concerning the administration of justice?

Perhaps it had something to do with who the alleged wrongdoers were? That is, an entire State Cabinet just elected to power after 32 years in the political wilderness, along with certain senior bureaucrats.

Surely not!

The Hon James Spilegman AC

(Former) NSW Chief Justice, the Hon James Spigelman AC, speaking to the ICAC/Interpol Conference in Hong Kong on 22 January 2003 perhaps best summed up the situation relevant to the Heiner affair when he told his audience: (Quote)

“…Legal institutions are interdependent. In the area of criminal justice, the police force, the prosecution and the judiciary have a symbiotic relationship in which the performance and the functions of each depends to a substantial degree on the capacity and integrity of each of the others. The same kind of relationships exist in other areas of the law, involving the broad range of regulatory authorities and adjudicating bodies, including tribunals. If the powers given to any participant in this process are abused by being exercised improperly e.g. to serve the interests of those who wield the power, the whole system is distorted, indeed perverted.”

The Hon James Spilegman AC

The thought that actual criminal conduct might lay at the heart of this matter was hidden from day one behind the Cabinet’s façade of respectability and the honourable status of its members.

To find the truth, required intellectual honesty and a preparedness to let the facts and laws speak for themselves.

So, in whom should the public place its confidence regarding where the truth lies in this affair? 

Is it those who postulated the ridiculous interpretation of section 129 of the Criminal Code 1899 (Qld) in the first place, then relied on it for decades?

Or was it those in positions of power in the legal profession, media or high public office who, on becoming aware, failed to call it out as unadulterated nonsense?

Right from the start, they made the claim that lawyers can never agree on anything. This was a checkmate move – or so they thought!

The authorities claimed that just because there was a disagreement regarding section 129’s proper meaning, didn’t mean any dishonourable conduct or improper purpose on their part if they happened to get it wrong.

At first blush, this appears to be a fair proposition. However, when seen in context, a very different picture emerges.

Our Westminster system of government specifies, under the doctrine of the separation of powers, that independent courts are the final arbiter on what a law means.

In these courts and tribunals, lawyers contest their version of the law to obtain a ruling which must be obeyed. They do so under the protection of privilege, not expecting retribution if their argument fails.

This is another fair proposition, but context can change things.

In this matter, it was “the Crown” opposing me (i.e. the guardian/standard bearers of the law’s integrity and majesty, including its application).

In this mix, the courts have the solemn, constitutional authority and duty to strike down “the Crown’s” position, if an overreach occurs which is unlawful, invalid, or unconstitutional.

Significantly, the Queensland authorities, and in particular the CJC, was not just a disinterested party with an opinion about section 129’s true meaning.

As an oversight “Crown” agency in the administration of criminal justice matters, the CJC spoke with massive authority and widespread influence.

Indeed, there was no obligation for the CJC to expend the immense public funds that they did (i.e. taxpayers’ hard-earned money) in publicly defending its version of what section 129 meant in this matter.

While making their checkmate move, however, the authorities forgot about another cardinal legal principle. It was that their version, being so true and reliable, must be applied in materially similar circumstances should it occur again.

This principle was to become highly relevant and incriminating later on, when these very same circumstances did unexpectedly reoccur.

In that later case, the law was applied properly. Yet its application was directly contrary to what occurred in the case of the Heiner evidence shredding.

As time passed, not only was the Australian Senate expected to believe the CJC’s version of the true meaning of section 129, but so too was I, the legal fraternity, the police, the media, and the general community.

This “meaning” was underpinned by the fact that the ‘shredding’ was ordered and executed by an all-powerful government and standard bearer.

As the whistle-blower, this matter brought me to the door of ‘the Holy of Holies’ of the legal profession. An “Old Boy’s Club” of the most revered legal professionals, bureaucrats and politicians in the State.

When extraordinary events show a pattern of conduct, which leads to suspicion of a cover-up (as in the Heiner affair), this ‘Holy of Holies’ cannot be left to its own devices.

It cannot be treated like an impenetrable and unchallengeable select club which may enforce its own rules. In a democracy, wherever power in public office exists, there must be accountability.

Section 61 of the Constitution of Queensland 2001 holds the key to the accountability demands of this affair in 2020 as it details the process under which judges can be removed from office.

Former WA Chief Justice the Hon David Malcolm AC QC CitWA

I was not alone in my concerns about the interpretation of the Queensland Criminal Code by these people.

Similar gravitas was expressed in an August 2007 Public Statement of Concern by a number of this nation’s most esteemed jurists, including the former Western Australia Supreme Court Chief Justice, the late Hon David K Malcolm AC QC, who informed then Queensland Premier, Peter Beattie, among other things that: (Quote)

“…Compelling evidence suggests that the erroneous interpretation of section 129 of the Criminal Code (Qld) used by those authorities to justify the shredding of the Heiner Inquiry documents may have knowingly advantaged Executive Government and certain civil servants.”

This unprecedented warning by some of our nation’s foremost retired senior judges was ignored in Queensland.

My reward for public dissent and persistence, was to be tagged with the insulting and derogatory label of ‘conspiracy theorist’

The system, with all its power and influence, including allies within the media, can get very personal very quickly when they are caught out by a persistent whistle-blower. So, label and ridicule me, they did.

Thanks to the alliance with parts of the mainstream media, the term ‘conspiracy theory’ became the currency-of-explanation in this affair.

Myth and dogma became their facts. The real facts and the law, even when expressed by eminent retired judges, did not matter.

Those in power were expected to honestly examine the glaring facts in front of them showing who might be culpable. Yet to them, this was a secondary matter of no consequence.

On the other hand, they saw fit to tag me as being obsessive, or a right-wing extremist.

Truth was the first casualty in this dirty war. The authorities claimed that nothing in law was certain or beyond argument, even when their argument and application led to undeniably perverse outcomes and displays of gross double standards.

The law was permitted to be shown up to be a complete ass, so that heinous outcomes could be either excused or trivialised whenever it suits.

So, this question arises. Are we, the Australian people, truly so gullible as to believe anything?

Is truth always so unknowable, and words so malleable that they can mean the very opposite to what they are plainly saying?

Are we now finally living in the age forewarned of by Orwell?

Continued in Part 5