A couple of the key elements of the offence created by s 24 of the TSI Act are that:
- the person is reckless as to whether the conduct [in which the person engages] will adversely affect an investigation
- the conduct has the result of adversely affecting [the] investigation.
Section 5.4 of the Criminal Code Act says:
5.4 Recklessness
(1) A person is reckless with respect to a circumstance if:
(a) he or she is aware of a substantial risk that the circumstance exists or will exist; and
(b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk.
(2) A person is reckless with respect to a result if:
(a) he or she is aware of a substantial risk that the result will occur; and
(b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk.
(3) The question whether taking a risk is unjustifiable is one of fact.
(4) If recklessness is a fault element for a physical element of an offence, proof of intention, knowledge or recklessness will satisfy that fault element.
Some scenarios to consider out of that.
If I deliberately destroy or hide or alter some information that is patently relevant to an investigation, believing and intending that my conduct will adversely affect the investigation, but in the event my conduct makes no difference in fact to the course and findings of the investigation, I do not commit an offence under 24.
If I don’t disclose information because I honestly believe the information is not relevant to an investigation, but in the event the non-disclosure of the information in fact results in the investigation taking the wrong course and making substantially incorrect or incomplete findings, I do not commit an offence under 24.
If I honestly believe that it is not necessary to pursue some aspects of an investigation and instead decide to pursue others, and it turns out my decision results in the investigation in fact taking the wrong course and making substantially incorrect or incomplete findings, I do not commit an offence under 24.
I get the impression that the folks pressing for action under s 24 of the TSI Act are alleging that a person or persons withheld information from or provided incorrect information to, or made wrong decisions about the course of, the ATSB’s Pel Air investigation, with the result that the investigation was adversely affected.
Let’s call withholding information from or providing incorrect information to an investigation, or making wrong decisions about the course of the investigation, the “conduct”.
In order for the person/s engaging in that conduct to commit an offence under 24:
(1) the person/s must:
(a)
know that the conduct will adversely affect an investigation, or
(b)
intend that the conduct will adversely affect an investigation, or
(c)
be aware of a substantial risk that the conduct will adversely affect an investigation (and, having regard to the circumstances known to the person/s, it is unjustifiable to take that risk); and
(2) the conduct must have the result of adversely affecting the investigation.
In relation to the special audit report, for example, my understanding from the evidence given to the Committee is that Mr McCormick decided not to disclose the report to the ATSB because he believed that disclosure could ‘contaminate’ the investigation. In other words, I interpret what he said as meaning that he engaged in that conduct so as to
avoid adversely affecting the investigation.
Some people might
disagree with that decision, and some people might not
believe the explanation for the decision. But that does not make the explanation untrue.
In relation to the decisions about what would and would not be done in the course of the investigation, and when, my understanding of the evidence given to the Committee by the ATSB is that the ATSB believes those to have been the correct decisions in the circumstances.
Some people might
disagree with those decisions, and some people might not
believe the explanation for those decisions. But that does not make the explanation untrue.
It will be interesting to read what the Committee’s Report says about these issues. But for those waiting with bated breath (in pprune speak: baited breathe), I think you are going to be disappointed.