SQH v Scott

Case [2022] QSC 16

SUPREME COURT OF QUEENSLAND

CITATION:

SQH v Scott [2022] QSC 16

PARTIES:

SQH
(applicant/appellant)
v
MICHAEL JOHN SCOTT
(respondent)
ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND
(first intervenor)
QUEENSLAND HUMAN RIGHTS COMMISSION
(second intervenor)

FILE NO/S:

BS No 11211 of 2020

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

23 February 2022 (restricted);  4 March 2022 (public)

DELIVERED AT:

Brisbane

HEARING DATE:

26 May 2021;  18 June 2021

JUDGE:

Williams J

ORDER:

The Court orders that:

1.   Leave to appeal is granted.

2.   The appeal is dismissed.

I will hear further from the parties in respect of costs and as to whether any further orders are required.

CATCHWORDS:

CRIMINAL LAW – FEDERAL AND STATE INVESTIGATIVE AUTHORITY – QUEENSLAND –APPEAL – GROUND OF APPEAL – ERROR OF LAW – where the respondent, as the presiding officer at a Crime and Corruption Commission hearing, made a decision to require the applicant to answer the question “what is your knowledge of the involvement of [names of alleged co-offenders] in the trafficking of dangerous drugs”, after ruling that the applicant did not have a reasonable excuse, pursuant to section 194 of the Crime and Corruption Act 2001 (Qld) (CC Act) – where the applicant applies for leave to appeal under section 195(1) of the CC Act and, if leave is granted, an order setting aside the respondent’s decision – where the Attorney-General for the State of Queensland and the Queensland Human Rights Commission have intervened pursuant to sections 50 and 51 of the Human Rights Act 2019 (Qld) (HR Act) – where the applicant claims a reasonable excuse because compulsory examination would lock the applicant into a version of events from which the applicant cannot depart at trial, especially when that version would include details about co-defendants – where the respondent claims that the fact of the applicant’s existing charge is not capable of constituting a reasonable excuse – whether the respondent erred in finding that the applicant did not have a reasonable excuse under section 194(1) of the CC Act because the coercive hearing occurred after the applicant had been charged and therefore had the capacity of constraining the applicant’s legitimate forensic choices in the future conduct of the applicant’s trial and, in the circumstances of this case, constituted a reasonable excuse

CRIMINAL LAW – FEDERAL AND STATE INVESTIGATIVE AUTHORITY – QUEENSLAND –APPEAL – GROUND OF APPEAL – RELEVANT CONSIDERATIONS – FAILURE TO CONSIDER – where the applicant submits that the applicant’s answers can be made available to the legal representatives for each co-defendant, which would limit the applicant’s forensic choices at trial – where the respondent claims that the applicant has not advanced any factual or legal basis, beyond assertion, for why section 201 of the CC Act is relevant to a claim of reasonable excuse – whether the respondent failed to have regard to a relevant consideration, namely section 201 of the CC Act and the impact that the availability of the coerced material to the…

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AGLC
SQH v Scott [2022] QSC 16
Case
[2022] QSC 16
Decision Date

CaseChat Overview and Summary

The matter of SQH v Scott involved an application for leave to appeal against a decision made by the respondent, who was the presiding officer at a hearing held by the Crime and Corruption Commission (CCC). The applicant sought to challenge the decision to compel him to answer a question regarding his knowledge of alleged co-offenders' involvement in drug trafficking, claiming that this decision infringed on his reasonable excuse under section 194 of the Crime and Corruption Act 2001 (Qld). The applicant also argued that the decision was not compatible with his human rights under the Human Rights Act 2019 (Qld). The Attorney-General for the State of Queensland and the Queensland Human Rights Commission intervened in the proceedings.

The legal issues before the court were whether the respondent erred in finding that the applicant did not have a reasonable excuse under section 194(1) of the CC Act and whether the respondent failed to consider relevant factors, such as section 201 of the CC Act. Additionally, the court had to determine whether the respondent acted unlawfully under section 58(1)(a) of the HR Act by making a decision that was not compatible with the applicant's human right protected by section 32(2)(k) of the HR Act.

The court found that the respondent did not err in finding that the applicant did not have a reasonable excuse because the coercive hearing occurred after the applicant had been charged. This meant that the hearing had the capacity to constrain the applicant's legitimate forensic choices in the future conduct of the applicant's trial. The court also found that the respondent did not fail to consider relevant factors, such as section 201 of the CC Act, as the applicant did not provide any factual or legal basis beyond assertion for why this section was relevant to the claim of reasonable excuse. Lastly, the court held that the respondent did not act unlawfully under section 58(1)(a) of the HR Act because the decision was compatible with the applicant's human right protected by section 32(2)(k) of the HR Act, as the compatibility test required balancing the public interest in combating and reducing major crime against the private or personal concerns of those with information that may assist with the investigations.

The court granted leave to appeal but dismissed the appeal, finding that the respondent's decision was justified under the relevant legislative schemes and compatible with human rights. The court will hear further submissions from the parties regarding costs and any further orders required.

Orders

Orders of the court

The Court orders that:

1. Leave to appeal is granted.

2. The appeal is dismissed.

I will hear further from the parties in respect of costs and as to whether any further orders are required.

Background

Background to the litigation

This is subject to ss 106 and 107 but those sections are not relevant to the current application.Factual background The background facts will only be referred to in these reasons in general terms and to the extent necessary. The background facts are not controversial between the parties. The applicant and the applicant’s partner were charged in relation to a number of offences. The charges followed police officers executing a search warrant at the residence of the applicant and the applicant’s partner, during which certain items were located. Subsequently, an attendance notice was issued by the Commission pursuant to s 82(1)(a) of the CC Act requiring the applicant to attend to be examined in relation to the applicant’s knowledge of offending in a specified geographical area. The applicant attended in accordance with the attendance notice. The respondent was the presiding officer for the purposes of the hearing. The full transcript of the hearing is in evidence. The hearing proceeded as a closed hearing pursuant to s 178(3) of the CC Act and a non-publication order was also made pursuant to s 180(3) of the CC Act. The respondent also ordered a “blanket” self-incrimination protection pursuant to s 197(5) of the CC Act.[5][5]The parties were requested to provide further submissions on the relevance of this order to the issues raised in the application and appeal. No party considered there were any additional issues that needed to be considered arising out of the respondent’s order pursuant to s 197(5) of the CC Act. Further, pursuant to s 60(2) of the CC Act, the respondent informed the applicant that the Commission may, in effect, share information with other entities. The applicant was represented by Counsel and a solicitor at the hearing. Following the applicant being sworn, the respondent asked the applicant “what is your knowledge of [Co-accused#1][6] and [Co-accused#2][7]’s involvement in the trafficking of dangerous drugs?”.[6]The applicant’s partner and co-accused in respect of the offences arising out of the execution of the search warrant.[7]The evidence does not identify what offence Co-accused#2 was charged with (though reference was made to the applicant being charged) and it is not clear whether Co-accused#2 was a co-offender with the applicant. However, Co-accused#2 was alleged to be involved with Co-accused#1. The applicant declined to answer the question and claimed to have a reasonable excuse not to answer the question. The applicant indicated “this question touches on my current charge” and that answering the question “has an impact on [the applicant] receiving a fair trial.” The respondent then indicated that he “provisionally require[d] [the applicant] to answer that question”. The applicant confirmed that despite being required to answer the question the applicant claimed a reasonable excuse not to answer the question. Counsel on behalf of the applicant then made submissions to the respondent in respect of the applicant’s claim of a reasonable excuse. These submissions included:(a)The applicant had been charged together with Co-accused#1.(b)The risk of derivative evidence being obtained.[8](c)The right protected by s 32(2)(k) HR Act: “not to be compelled to testify against themselves or to confess guilt”.[9][8]Particularly as considered in X7 v Australian Crime Commission (2013) 248 CLR 92.[9]As considered in DAS v Victorian Human Rights & Equal Opportunity Commission [2009] VSC 381 and also X7 v Australian Crime Commission (2013) 248 CLR 92.

Evidence

Evidence Before The Court

Section 202 of the CC Act provides other protective features and states as follows:“202 Publication of names, evidence etc.(1) A person must not, without the commission’s written consent or contrary to the commission’s order, publish— (a) an answer given, or document or thing produced, at a commission hearing, or anything about the answer, document or thing; or (b) information that might enable the existence or identity of a person who is about to give or has given evidence before the commission (witness) at a hearing to be ascertained.Maximum penalty—85 penalty units or 1 year’s imprisonment.(2) A person does not contravene subsection (1) if any of the following applies to the publication— (a) the answer given, or document or thing produced, was given or produced at a public hearing and the publication is not contrary to the commission’s order; (b) the witness appeared at a public hearing and the publication is not contrary to the commission’s order; (c) the publication is made—(i) for the purpose of defending a charge of an offence and is relevant to the defence; and (ii) to a person charged with the offence or a lawyer representing a person charged with the offence;(d) the publication is made for the purpose of making a submission to the parliamentary committee about the conduct of the commission’s investigation; (e) the publication is made for the purposes of a disciplinary proceeding or to start a prosecution for an offence.(3) Also, a person does not contravene subsection (1)(b) if— (a) the person is the witness, or the publication is made with the witness’s implied or express consent; or (b) the information mentioned in the provision has been generally made known by the witness or by the commission.(4) The commission may apply to a Supreme Court judge for an order prohibiting a publication mentioned in subsection (2)(e). (5) In this section— publish includes publish to a single person, whether the publication is made orally or in writing.”Statutory scheme – HR Act The HR Act commenced in Queensland on 1 January 2020. Section 3 of the HR Act states the main objects as follows:“3 Main objects of Act The main objects of this Act are— (a) to protect and promote human rights; and (b) to help build a culture in the Queensland public sector that respects and promotes human rights; and (c) to help promote a dialogue about the nature, meaning and scope of human rights.” Section 4 of the HR Act outlines how the objects are to be primarily achieved as follows:“4 How main objects are primarily achieved The main objects are to be achieved primarily by— (a) stating the human rights Parliament specifically seeks to protect and promote; and (b) requiring public entities to act and make decisions in a way compatible with human rights; and (c)requiring statements of compatibility with human rights to be tabled in the Legislative Assembly for all Bills introduced in the Assembly; and (d) providing for a portfolio committee responsible for examining a Bill introduced in the Legislative Assembly to consider whether the Bill is compatible with human rights; and(e)providing for Parliament, in exceptional circumstances, to override the application of this Act to a statutory provision; and (f) requiring courts and tribunals to interpret statutory provisions, to the extent possible that is consistent with their purpose, in a way compatible with human rights; and(g) conferring jurisdiction on the Supreme Court to declare that a statutory provision can not be interpreted in a way compatible with human rights; and (h)providing for a Minister and a portfolio committee to report to the Legislative Assembly about declarations of incompatibility; and (i) providing for how to resolve human rights complaints; and (j) providing for the Queensland Human Rights Commission to carry out particular functions under this Act, including, for example, to promote an understanding and acceptance of human rights and this Act in Queensland.”

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The Attorney-General adopts the respondent’s submission that the limits on human rights are justified at the second stage of the analysis under ss 8(b) and 13. The Attorney-General raises a further reason in addition to that referred to by the respondent in relation to deference which is discussed below.Consideration In respect of the compatibility test pursuant to s 13, this is a balancing exercise requiring a consideration of the various competing interests in respect of each factor. Ultimately here the compatibility considerations largely come down to balancing the public interest in combating and reducing major crime and the private or personal concerns of those with information that may assist with the investigations. In respect of some of the factors, there is not much of a difference between the parties. The divergence really is the factor in (d) (other less restrictive and available ways) and the balancing exercise in (e), (f) and (g). While it is submitted that there are other less restrictive available ways of achieving the purpose, this does not address the “code of silence” that is often present in respect of organised crime. Theoretically there may be other less restrictive options available. However the reality, as discussed in the explanatory material quoted above, is that due to the nature of organised crime the objects and purpose of the CC Act would be undermined if evidence derived from coerced examinations could not be used by the Commission in undertaking its statutory task. The protections put in place in accordance with the legislative scheme provide direct use immunity and confidentiality in respect of the identity of the witness and any evidence given. A further protective order requires limited disclosure of the evidence to prevent it from being given to the prosecution. The Court still has a supervisory role to play under s 31 of the HR Act at the ultimate trial and also has a discretion in respect of admissibility of evidence under s 130 of the Evidence Act 1977 (Qld). Parliament in passing the amendment to include s 197(7) of the HR Act intended that derivative use immunity was not to be available in the context of coercive examinations, including of charged persons being asked about the subject matter of the charges. In all of the circumstances, while the decision of the respondent limited the applicant’s human rights in ss 31 and 32(2)(k) of the HR Act, the limit was justified under ss 8(b) and 13 of the HR Act and it was substantively compatible with human rights under s 58(1)(a) of the HR Act. The respondent’s compatibility analysis was not as extensive as the analysis and submissions at the hearing of the application for leave and the appeal. However, it is largely consistent with the approach contended for by the respondent and the Attorney-General at the hearing of the application for leave and appeal. No error is made out in respect of the respondent’s reasoning and decision. Accordingly, Ground Three is not established.Deference