Ms. Rolah McCabe, big tobacco & the ACC

In Australia there had been no successful individual actions against local tobacco companies until the successful case of lung-cancer sufferer Ms. Rolah Ann McCabe who was awarded $700,000 against British American Tobacco (BAT) in the Supreme Court by Justice Geoffrey Eames in 2002. The judgement, however, was overturned by the Court of Appeal 8 months later, a couple of months after Ms. McCabe died.

In his original judgement Mr Justice Eames found that the destruction of key internal tobacco company documents had denied her a fair trial. The Appeals Cort claimed there was no evidence that this was true. Maybe but it seems that the processes of law may have been corrupted by events that occurred during the Appeals Court hearing - in particular by BAT and its agents destroying internal company documents that may have had a bearing on the outcome of this case.

Indeed, Victoria’s Director of Public Prosecutions, Mr. Paul Coghlan QC, has referred allegations of criminal behaviour of BAT and its former Australian lawyers Clayton Utz to Australia’s top crime fighting body, the Australian Crime Commission. Mr. Coghlan, in a letter to Victorian Attorney General Rob Hulls, refers to allegations of perjury and conspiracy to pervert the course of justice against BAT and a number of parties associated with BAT. The ACC has powers to examine witnesses under oath and to obtain documents.

This referral followed the sensational revelation by former senior BAT executive Mr. Fred Gulson that the document policy was ‘to get rid of all the sensitive documents but do so under the guise of an innocent housekeeping arrangement’.

This referral also follows an internal investigation by a senior partner of Clayton Utz, Mr. Christopher Dale, which found that two of its lawyers (Mr. Glenn Eggleton, Mr. Richard Travers) had engaged in serious professional misconduct. Mr. Eggleton had given evidence at the trial that was ‘potentially perjurious’. Mr Dale leaked the findings of his inquiry to The Sunday Age last October.

The Dale internal inquiry suggested to Mr Coghlan that:

‘...the destruction of thousands of apparently relevant documents suggests that in addition to the offence of perjury, possible criminal offenses include a conspiracy to pervert the course of justice...

In particular the destruction of thousands of apparently relevant documents by BAT when litigation was apprehended in Australia may warrant national investigation'.

Mr Coghlan went on to say a compulsory examination of Mr. Dale would be ‘especially beneficial to the investigation’. BAT has taken action to prevent the use of the internal Dale documents by the McCabe family. If this material can be used as evidence in a court of law the judgement of Justice Eames can be reinstated and some measure of fairness restored to the case of Ms. McCabe.

Let us get to the bottom of what BAT and its attorneys did. Otherwise the presumption will be, as The Sunday Age surmises, Big tobacco - you are not acting fairly.