Destruction of evidence

– section 254 of the Crimes Act 1958

destruction of evidence
This offence is when you destroy or prevent documents from being used as evidence in a legal proceeding.

Examples of Destruction of Evidence
  • An employee at a company destroys documents that are likely to be required in a trial for fraud against the company
  • Someone destroys letters they received by someone else who is on trial and the letters are relevant to the trial
  • Someone marks a relevant document in a way that it is no longer decipherable
What are possible defences to a Destruction of Evidence charge?
  • No documents were destroyed
  • There was no way of knowing the documents destroyed would be required in legal proceedings

There are other possible defences, depending on the circumstances surrounding the alleged offending. Each matter is unique and requires an individual approach and strategy.

Questions in cases like this
  • If any documents were destroyed, how and when were they destroyed?
  • What was the purpose for destroying the documents?

Maximum penalty and Court that deals with this charge

The maximum penalty for this offence is level 6 imprisonment (5 years) or a level 6 fine or both.

This is an indictable offence but it may be heard summarily. This means that it may be heard in the Magistrates’ Courts.
 

“Did you destroy or render illegible a document required in a legal proceeding?”

 

What is the legal definition of Destruction of Evidence?

Knowing a document was likely to be required in a legal proceeding, the accused destroyed the document; or rendered the document incapable of being identified. With the intention of preventing it from being used as evidence.

Legislation

The section that covers this offence is section 254 of the Crimes Act 1958.1

Elements of the offence

For an accused to be proven guilty, the prosecution must establish the following elements beyond reasonable doubt:

  • The accused knew that a document or other thing of any kind is, or is reasonably likely to be, required in evidence in a legal proceeding; and
  • The accused destroyed or concealed it or rendered it illegible, undecipherable or incapable of identification; or
  • The accused expressly, tacitly or impliedly authorised or permitted another person to destroy or conceal it or render it illegible, undecipherable or incapable of identification and that other person did so; and
  • The accused performed the actions specified above with the intention of preventing the document or other thing of any kind from being used in evidence in a legal proceeding.

Imprisonment

What can you be sentenced to for this charge?

In severe cases, if you are found guilty, you could serve a term of imprisonment. However if the document is not particularly significant you are more likely to face a fine or a Community Corrections Order.

 


[1] Crimes Act 1958 – Section 254

(1) A person who—
(a) knows that a document or other thing of any kind is, or is reasonably likely to be, required in evidence in a legal proceeding; and
(b) either—
(i) destroys or conceals it or renders it illegible, undecipherable or incapable of identification; or
(ii) expressly, tacitly or impliedly authorises or permits another person to destroy or conceal it or render it illegible, undecipherable or incapable of identification and that other person does so; and
(c) acts as described in paragraph (b) with the intention of preventing it from being used in evidence in a legal proceeding—
is guilty of an indictable offence and liable to level 6 imprisonment (5 years maximum) or a level 6 fine or both.
Notes:
1 Document is defined in the Evidence Act 2008 .
2 The maximum fine that may be imposed on a body corporate found guilty of an offence against this section is 3000 penalty units: see Sentencing Act 1991 s. 113D.
(2) This section applies with respect to a legal proceeding, whether the proceeding is one that is in progress or is to be, or may be, commenced in the future.