Friends of a backpacker who died on a Whitsundays scuba trip claimed that the staff for the company operating the dive deleted photos taken of the deceased on the boat shortly before she died.
The claims have not been addressed by the operator, nor verified by media.
Bethany Farrell, aged 23 and from Essex, United Kingdom, died on a scuba trip time place operated by Wings Diving Adventure.
Queensland police are currently investigating the incident.
Ms Farrell’s friends on board the boat at the time claimed via a user review on TripAdvisor that the operators deleted photos they had taken of the deceased after it became apparent that she was in trouble and attempts were made to resuscitate her. It is understood that the photos were taken for promotional purposes.
Would this constitute an offence in NSW?
If the claim is true, it could give rise to criminal proceedings against the staff member who deleted the photos. In NSW, such conduct could be considered a public justice offence under the Crimes Act 1900.
The general offence of perverting the course of justice under s 319 of the Crimes Act could apply, for which the maximum penalty is 14 years’ imprisonment.
Perverting the course of justice has been considered to mean: “the doing of some act which has the tendency and is intended to pervert the administration of public justice”: R v Vreones  1 QB 361. It is conduct which may lead and is intended to lead to a miscarriage of justice: R v Selvage  QB 372. It is considered that there is no requirement that the acts done have the tendency to pervert the course of justice provided that the accused had the intention to bring about that result.
In order that there can be an intention to pervert the course of justice, the accused must either know that judicial proceedings are on foot, or that they are imminent or might occur: R v Selvage.
While expressed in general terms, it is possible on the claimed facts that a person committed what would constitute the offence of perverting the course of justice in NSW, if the person did the act of deleting the photos with the intention of peverting the course of judicial proceedings which are imminent or which might possibly occur.
A more specific, but less serious offence, is tampering with evidence, which is punishable by a maximum of 10 years’ imprisonment under s 317 of the Crimes Act.
A tampering offence is made out where a person, relevantly, conceals or destroys anything knowing that it is or may be required in any judicial proceeding with intent to mislead any judicial tribunal in any judicial proceeding.
This offence clearly covers conduct connected with events which might not be the subject of criminal proceedings. That is, even if the dive company can be found to not have committed a criminal act, if any judicial proceedings are on foot, such as civil proceedings in negligence, or a coronial inquiry, this can form the basis of the “judicial proceeding” element in the offence.
It would be a defence if it could not be disproved that the person who deleted the video did so not intending to mislead a judicial tribunal, that is, if the person did it not in contemplation of judicial proceedings and therefore not with the intent to pervert the course of justice. The prosecution would also need to particularise the manner in which the person interfered with the evidence, that is, conceal or destroy, in light of what they actually did regarding the pictures on the camera.
As stated, these events have not yet been substantiated. However, taken at its highest, these claims could ground a criminal prosecution for a public justice offence had they occurred in NSW. Further police investigations will of course uncover the veracity of these claims, and whether criminal charges should be laid in respect of them.
Read more: http://www.dailymail.co.uk/news/article-3036230/What-camera-Friend-British-backpacker-drowned-diving-Great-Barrier-Reef-reveals-staff-DELETED-photos-taken-young-woman-moments-entered-water-time.html
Image credit: Daily Mail
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