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NS v Scott

NS v Scott

Case [2017] QCA 237 13 October 2017

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SUPREME COURT OF QUEENSLAND

CITATION:

NS v Scott [2017] QCA 237

PARTIES:

NS
(appellant)
v
M J SCOTT
(respondent)

FILE NO/S:

Appeal No 12153 of 2016
SC No 9032 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane – [2016] QSC 286 (Douglas J)

DELIVERED ON:

13 October 2017

DELIVERED AT:

Brisbane

HEARING DATE:

20 June 2017

JUDGES:

Holmes CJ and Philippides JA and Flanagan J

ORDER:

Appeal dismissed with costs.

CATCHWORDS:

PROCEDURE – CONTEMPT, ATTACHMENT AND SEQUESTRATION – CONTEMPT – REASONABLE EXCUSE – where the appellant was required to give evidence at an investigative hearing of the Crime and Corruption Commission relating to drug offences – where the appellant had been charged with trafficking as a result of alleged supplies to another person named in the terms of reference – where an officer involved in the investigation of the charge against the appellant was present at the Crime and Corruption hearing – where the appellant argued that he had ‘reasonable excuse’ not to answer questions under s 190 of the Crime and Corruption Act 2001 (Qld) because derivative evidence obtained as a result of his answers could be used against him at trial – where the presiding officer, taking into account the closed hearing, the direct use immunity provided for in the Crime and Corruption Act 2001 (Qld), and his proposed order prohibiting publication of the evidence to any prosecutor ruled against the appellant’s claim of reasonable excuse – where the appellant’s application for leave to appeal to the Supreme Court was refused on the basis that the orders made by the presiding officer in relation to publication were sufficient to limit the use of the information obtained from the appellant – whether the Crime and Corruption Act 2001 (Qld) has abrogated the fundamental principle that the onus of proof rests on the Crown, and the companion rule that an accused cannot be compelled to assist it in meeting that onus – whether the prospective obtaining of derivative evidence against a person charged amounts to reasonable excuse under s 190(1) – whether the judge at first instance erred in failing to find that the appellant had a reasonable excuse for refusing to answer questions at the Crime and Corruption Commission hearing

Crime and Corruption Act 2001 (Qld), s 4(1)(a), s 5(2), s 176, s 180(3), s 190, s 194, s 195, s 197, s 202(1), s 331
Evidence Act 1977 (Qld), s 130
Supreme Court of Queensland Act 1991 (Qld), s 62

Crime and Misconduct Commission v WSX & EDC (2013) 229 A Crim R 286; [2013] QCA 152, cited
Hammond v The Commonwealth (1982) 152 CLR 188; [1982] HCA 42, cited
Lee v New South Wales Crime Commission (2013) 251 CLR 196; [2013] HCA 39, considered
Lee v The Queen (2014) 253 CLR 455; [2014] HCA 20, considered
R v Seller (2013) 273 FLR 155; [2013] NSWCCA 42, considered
Sorby v The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading NS v Scott

Details

AGLC: NS v Scott [2017] QCA 237
Case: [2017] QCA 237
Decision Date: 13 October 2017

CaseChat Overview and Summary

The appeal in NS v Scott involved the appellant, who had been required to give evidence at an investigative hearing of the Crime and Corruption Commission concerning drug trafficking offences. The appellant was charged with trafficking as a result of alleged supplies to another individual named in the terms of reference of the hearing. An officer involved in the investigation of the appellant's charge was present at the hearing, leading the appellant to argue that he had a reasonable excuse not to answer questions under section 190 of the Crime and Corruption Act 2001 (Qld). The appellant contended that derivative evidence obtained from his answers could be used against him at trial, and therefore, he should not be compelled to testify.

The presiding officer considered the closed nature of the hearing, the direct use immunity provided by the Crime and Corruption Act 2001 (Qld), and the proposed order prohibiting the publication of the evidence to any prosecutor. The presiding officer rejected the appellant's claim of reasonable excuse, and the appellant's subsequent application for leave to appeal to the Supreme Court was denied. The court held that the orders made by the presiding officer in relation to publication were sufficient to limit the use of the information obtained from the appellant. The court also held that the Crime and Corruption Act 2001 (Qld) did not abrogate the fundamental principle that the onus of proof rests on the Crown and that an accused cannot be compelled to assist it in meeting that onus. Furthermore, the court found that the prospective obtaining of derivative evidence against a person charged does not amount to a reasonable excuse under section 190(1). The judge at first instance did not err in finding that the appellant had no reasonable excuse for refusing to answer questions at the Crime and Corruption Commission hearing.

The appeal was dismissed with costs, and the decision of the presiding officer was upheld. The Supreme Court ruled that the appellant was required to give evidence at the hearing, and the orders made by the presiding officer in relation to publication were sufficient to limit the use of the information obtained from the appellant. The court further held that the Crime and Corruption Act 2001 (Qld) does not abrogate the fundamental principle that the onus of proof rests on the Crown and that an accused cannot be compelled to assist it in meeting that onus. The court also found that the prospective obtaining of derivative evidence against a person charged does not amount to a reasonable excuse under section 190(1). Finally, the court held that the judge at first instance did not err in finding that the appellant had no reasonable excuse for refusing to answer questions at the Crime and Corruption Commission hearing.

Orders

Orders of the court

Appeal dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

NS v Scott [2017] QCA 237

Most Recent Citation

R v Leach [2018] QCA 131

Cases Citing This Decision

R v Leach; R v Leach; Ex parte [2022] QCA 23
Citation 1

…FCR 1; [2020] FCAFC 100, cited Lee v The Queen (2014) 253 CLR 455; [2014] HCA 20, cited NS v Scott [2018] 2 Qd R 397; [2017] QCA 237, cited R v Leach [2014] QDCPR 1, considered R v Leach [2019] 1 Qd R 459; [2018] QCA 131, considered R v Seller (2013) 232 A Crim R 249; [2013] NSWCCA 42, cited Stergis v Boucher (19…
R v Leach; R v Leach; Ex parte [2022] QCA 7
Citation 2

…7 FCR 1; [2020] FCAFC 100, cited Lee v The Queen (2014) 253 CLR 455; [2014] HCA 20, cited NS v Scott [2018] 2 Qd R 397; [2017] QCA 237, cited R v Leach [2014] QDCPR 1, considered R v Leach [2019] 1 Qd R 459; [2018] QCA 131, considered R v Seller (2013) 232 A Crim R 249; [2013] NSWCCA 42, cited Stergis v Boucher (…
Hurley v Detective Sergeant Newton [2020] QDC 49
Citation 3 (Para 13)

…e appellant’s compelled answers, the respondent argued, that did not necessarily produce an unfair trial. The respondent referred to NS v Scott [2017] QCA 237 where the Court of Appeal considered whether the prospect, that answers given to the Crime and Corruption Commission might lead to the securing of derivati…
CDirector of Public Prosecutions v Leach (No 3) [2020] QDC 42
Citation 4 (Para 1)

…claims made by the defendant. [60](2013) 273 FLR 155 at [102]; [2013] NSWCCA 42. [61](2015) 257 A Crim R 317; [2015] QCA 273. [62][2018] 2 Qd R 397; [2017] QCA 237.…
PRS v Crime and Corruption Commission [2019] QCA 255
Citation 5 (Para 25)

…pelled to answer even if the result may be the obtaining of further evidence in relation to a charge against him .” [61] NS v Scott [2017] QCA 237 at [34], [37]-[39]. [62] NS v Scott at [6]. [63] NS v Scott at [9]. [64] NS v Scott at [34] per Holmes CJ, Philippides JA and Flanagan J concurring; emphasis added; in…
R v Leach [2018] QCA 131
Citation 6

…5] HCA 70, cited McMunn v The Queen [2007] VSCA 149, cited NS v Scott [2017] QCA 237, cited Piche v The Queen (1970) 11 DLR (3d) 700; [1971] SCR 23, cited Potter v Minahan (1908) 7 CLR 277; [1908] HCA 63, cited R v B [2000] 1 Qd R 28; [1998] QCA 423, cited R v Cowan; Ex parte Attorney-General (Qld) [2016] 1 Qd R…
R v Will [2017] ACTSC 356
Citation 7

…th Wales Aboriginal Land Council v Minister Administering the Crown Lands (Consolidation) Act and the Western Land Act (1988) 14 NSWLR 685 NS v Scott [2017] QCA 237 Osborne v Smith (1960) 105 CLR 153 Pathways Employment Service v West [2004] NSWSC 903; 186 FLR 330 Potter v Minahan (1908) 7 CLR 277 Pyneboard Pty L…
SQH v Scott [2022] QSC 16
Citation 8

…161 CLR 513; [1986] HCA 17, considered NS v Scott [2018] 2 Qd R 397; [2017] QCA 237, considered PJB v Melbourne Health [2011] VSC 327; (2011) 39 VR 373, considered Re Application under Major Crime (Investigative Powers) Act 2004 (2009) 24 VR 415; [2009] VSC 381, considered Strickland (a pseudonym) v Director of…

See all citing cases →

Cases Cited

Witness G v Scott [2016] QSC 286
Citation 1 (Para 15)

…inal offence, left no room for there to be an excuse for the appellant to refuse to answer the questions posed to him. [15] Witness G v Scott [2016] QSC 286 at [26]. The submissions in this Court…
R v Independent Broad-based Anti-corruption Commissioner [2016] HCA 8
Citation 2 (Para 6)

…idence, and adducing evidence, according to the answers given at the examination. [21]In R v Independent Broad-based Anti-corruption Commissioner (2016) 256 CLR 459,the High Court made it clear that the principle that an accused person could not be compelled to assist the prosecution to discharge its onus of proof ap…
Witness J A v Scott [2015] QCA 285
Citation 3 (Para 1)

…nce. [2]He has the right to appeal that refusal to this court under s 62 of the Supreme Court of Queensland Act 1991: Witness J A v Scott [2015] QCA 285.…
Lee v The Queen [2014] HCA 20
Citation 4

…New South Wales Crime Commission (2013) 251 CLR 196; [2013] HCA 39, considered Lee v The Queen (2014) 253 CLR 455; [2014] HCA 20, considered R v Seller (2013) 273 FLR 155; [2013] NSWCCA 42, considered Sorby v The Commonwealth (1983) 152 CLR 281; [1983] HCA 10, cited Taikato v the Queen (1996) 186 CLR 454; [1996…
Lee v New South Wales Crime Commission [2013] HCA 39
Citation 5

…he Commonwealth (1982) 152 CLR 188; [1982] HCA 42, cited Lee v New South Wales Crime Commission (2013) 251 CLR 196; [2013] HCA 39, considered Lee v The Queen (2014) 253 CLR 455; [2014] HCA 20, considered R v Seller (2013) 273 FLR 155; [2013] NSWCCA 42, considered Sorby v The Commonwealth (1983) 152 CLR 281; [198…
X7 v Australian Crime Commission [2013] HCA 29
Citation 6

…016] QSC 286, related Witness J A v Scott [2015] QCA 285, cited X7 v Australian Crime Commission (2013) 248 CLR 92; [2013] HCA 29, considered COUNSEL: J W Fenton for the appellant M J Copley QC for the respondent SOLICITORS: A W Bale & Son for the appellant Crime and Corruption Commission for the respondent…
Crime and Misconduct Commission v WSX & EDC [2013] QCA 152
Citation 7 (Para 12)

…clusion, on the balance described in WSX & EDC , that the appellant did not have a reasonable excuse for refusing to answer the question. [13][2013] QCA 152. [14]At [41].…
R v Seller [2013] NSWCCA 42
Citation 8

…13] HCA 39, considered Lee v The Queen (2014) 253 CLR 455; [2014] HCA 20, considered R v Seller (2013) 273 FLR 155; [2013] NSWCCA 42, considered Sorby v The Commonwealth (1983) 152 CLR 281; [1983] HCA 10, cited Taikato v the Queen (1996) 186 CLR 454; [1996] HCA 28, considered Witness G v Scott [2016] QSC 286, relat…
R v Seller [2007] NZCA 422
Citation 9 (Para 8)

…rial judge had a discretion to exclude evidence and a power to control any use of it amounting to an abuse of process. [22]At page 123. [23](2013) 273 FLR 155.…
Taikato v The Queen [1996] HCA 28
Citation 10

…onsidered Sorby v The Commonwealth (1983) 152 CLR 281; [1983] HCA 10, cited Taikato v the Queen (1996) 186 CLR 454; [1996] HCA 28, considered Witness G v Scott [2016] QSC 286, related Witness J A v Scott [2015] QCA 285, cited X7 v Australian Crime Commission (2013) 248 CLR 92; [2013] HCA 29, considered COUNSEL:…
Sorby v the Commonwealth [1983] HCA 10
Citation 11

…considered R v Seller (2013) 273 FLR 155; [2013] NSWCCA 42, considered Sorby v The Commonwealth (1983) 152 CLR 281; [1983] HCA 10, cited Taikato v the Queen (1996) 186 CLR 454; [1996] HCA 28, considered Witness G v Scott [2016] QSC 286, related Witness J A v Scott [2015] QCA 285, cited X7 v Australian Crime Comm…
Hammond v The Commonwealth [1982] HCA 42
Citation 12

…ommission v WSX & EDC (2013) 229 A Crim R 286; [2013] QCA 152, cited Hammond v The Commonwealth (1982) 152 CLR 188; [1982] HCA 42, cited Lee v New South Wales Crime Commission (2013) 251 CLR 196; [2013] HCA 39, considered Lee v The Queen (2014) 253 CLR 455; [2014] HCA 20, considered R v Seller (2013) 273 FLR 155…
Potter v Minahan [1908] HCA 63
Citation 13 (Para 17)

…compelled to answer even if the result may be the obtaining of further evidence in relation to a charge against him. [24] Potter v Minahan (1908) 7 CLR 277 at 204.…

Legislation Cited

Crime and Corruption Act 2001 (Qld) 4(1)(a)
2 mentions (from Para 1)
Evidence Act 1977 (Qld) 130
2 mentions (from Para 3)
Supreme Court of Queensland Act 1991 (Qld) 62
2 mentions (from Para 1)
Criminal Assets Recovery Act 1990 (NSW)
1 mention (from Para 9)

CITATION:	NS v Scott [2017] QCA 237
PARTIES:	NS (appellant) v M J SCOTT (respondent)
FILE NO/S:	Appeal No 12153 of 2016 SC No 9032 of 2016
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane – [2016] QSC 286 (Douglas J)
DELIVERED ON:	13 October 2017
DELIVERED AT:	Brisbane
HEARING DATE:	20 June 2017
JUDGES:	Holmes CJ and Philippides JA and Flanagan J
ORDER:	Appeal dismissed with costs.
CATCHWORDS:	PROCEDURE – CONTEMPT, ATTACHMENT AND SEQUESTRATION – CONTEMPT – REASONABLE EXCUSE – where the appellant was required to give evidence at an investigative hearing of the Crime and Corruption Commission relating to drug offences – where the appellant had been charged with trafficking as a result of alleged supplies to another person named in the terms of reference – where an officer involved in the investigation of the charge against the appellant was present at the Crime and Corruption hearing – where the appellant argued that he had ‘reasonable excuse’ not to answer questions under s 190 of the Crime and Corruption Act 2001 (Qld) because derivative evidence obtained as a result of his answers could be used against him at trial – where the presiding officer, taking into account the closed hearing, the direct use immunity provided for in the Crime and Corruption Act 2001 (Qld), and his proposed order prohibiting publication of the evidence to any prosecutor ruled against the appellant’s claim of reasonable excuse – where the appellant’s application for leave to appeal to the Supreme Court was refused on the basis that the orders made by the presiding officer in relation to publication were sufficient to limit the use of the information obtained from the appellant – whether the Crime and Corruption Act 2001 (Qld) has abrogated the fundamental principle that the onus of proof rests on the Crown, and the companion rule that an accused cannot be compelled to assist it in meeting that onus – whether the prospective obtaining of derivative evidence against a person charged amounts to reasonable excuse under s 190(1) – whether the judge at first instance erred in failing to find that the appellant had a reasonable excuse for refusing to answer questions at the Crime and Corruption Commission hearing Crime and Corruption Act 2001 (Qld), s 4(1)(a), s 5(2), s 176, s 180(3), s 190, s 194, s 195, s 197, s 202(1), s 331 Evidence Act 1977 (Qld), s 130 Supreme Court of Queensland Act 1991 (Qld), s 62 Crime and Misconduct Commission v WSX & EDC (2013) 229 A Crim R 286; [2013] QCA 152, cited Hammond v The Commonwealth (1982) 152 CLR 188; [1982] HCA 42, cited Lee v New South Wales Crime Commission (2013) 251 CLR 196; [2013] HCA 39, considered Lee v The Queen (2014) 253 CLR 455; [2014] HCA 20, considered R v Seller (2013) 273 FLR 155; [2013] NSWCCA 42, considered Sorby v The…