DESTROYING DISCOVERABLE documents could land lawyers and corporations in jail if Victorian Attorney-General Rob Hulls is able to gain support for his proposals to introduce a new law making that a criminal offence.
The Bracks Government last week announced its principled support for the new law, which would take into consideration recommendations made in the Sallmann report, Document Destruction and Civil Litigation in Victoria, released earlier this year.
A-G Hulls said the new offence of misuse of evidence could carry a maximum sentence of seven years imprisonment. “The destruction of discoverable documents raises fundamental questions that go to the heart of the integrity of our legal system,” he said.
The new offence is one of a number of recommendations from the Victorian Parliament Law Reform Committee’s final report into administration of justice offences.
The Sallmann report, commissioned by the Victorian Government, was prompted by court action brought by cancer sufferer Rolah McCabe against British American Tobacco.
Conducted by Victorian crown counsel, Professor Peter Sallmann, the report suggests creating a new criminal offence covering destruction of documents before and after the start of legal proceedings.
“The statute would deal with the worst and most blatant instances of the destruction of material relevant to civil litigation and would cover highly negligent destructions as well as intentional ones,” Sallmann stated in the report.
Sallmann also called for judges to be given discretionary powers to strike out all or part of a claim where a document has been destroyed.
Another key proposal in the report is that there should be a new professional conduct regulation, as there is in NSW. This would apply when advice is given by lawyers about document retention and destruction as well as where lawyers themselves are in possession of relevant material. ‘
It seemed “wrong and rather odd”, Sallmann said, that an organisation or individual would destroy material that could be relevant to anticipated litigation and then “get away with it”.