SQH v Scott

The primary issue in this case was whether the presiding officer of a Crime and Corruption Commission coercive hearing erred in deciding the applicant (a co-accused) did not have a reasonable excuse pursuant to s 194(1) Crime and Corruption Act 2001 (“the CC Act”) to refuse to answer the question “what is your knowledge of the involvement of [names of alleged co-offenders] in the trafficking of dangerous drugs?” The applicant raised three grounds of appeal: (1) that the presiding offer erred by failing to give appropriate weight to the principles regarding what constitutes a “reasonable excuse”; (2) that the presiding officer erred by failing to take into account the effect of s 201 of the CC Act on “inchoate prejudice”; and (3) that the presiding officer erred in finding the compulsion was compatible with the right not to be compelled to testify against oneself or to confess guilt and right to a fair trial. Williams J granted leave to appeal, but dismissed the appeal on all grounds.

Williams J

4 March 2022

Background

The applicant sought leave to appeal a decision of the respondent, made pursuant to s 194(3)(b) Crime and Corruption Act 2001 (“the CC Act”) as presiding officer of a Crime and Corruption Commission hearing. [1]–[2]. The subject decision was that the applicant did not have a reasonable excuse not to answer a question from the respondent, namely “what is your knowledge of the involvement of [names of alleged co-offenders] in the trafficking of dangerous drugs? [2].” The applicant had refused to answer the question on the basis it related to the applicant’s current charge and to answer would therefore impact on a fair trial due to the risk of derivative evidence where there were co-accused, and the human right against being compelled to testify against oneself. [54]–[56].

The respondent found that the applicant did not have a reasonable excuse not to answer the question and required the applicant to answer. [64].

The applicant appealed on three grounds. The Attorney-General (Qld) and Queensland Human Rights Commission joined as intervenors in respect of ground 3. [4]–[6].

Ground 1

First, that the respondent erred in finding the applicant did not have a reasonable excuse to answer the question because the coercive hearing occurred after the applicant had been charged, and therefore could impact the “legitimate forensic choices in the future conduct of [the] trial.” [3]. On this point, the applicant argued the decision of Strickland (a pseudonym) v Director of Public Prosecutions (Cth) (2013) 266 CLR 325 alters the weight to be given to principles regarding what is a “reasonable excuse”, referred to in s 194 of the CC Act, namely “inchoate prejudice”. [161], [169], [174]–[175].

The respondent submitted the privilege against self-incrimination may be abrogated by express statute and was so by s 194 of the CC Act. [203]–[209]. A forensic disadvantage, therefore, could not constitute a “reasonable excuse”. [216]. The respondent argued Strickland was rightly distinguished at first instance as, unlike that case, the lawfulness of the examination was not in question. [198].

Ground 2

Second, that the respondent failed to have consideration to s 201 of the CC Act which requires the Commission to give evidence to defence unless a court orders otherwise. The applicant argued s 201 would therefore provide co-accused the benefit coerced material and consequently limiting the applicant’s forensic choices at trial and undermining the protective measures within the CC Act. [3], [238]–[244].

The respondent emphasised s 201(4) allows a Court to decide whether a transcript in a coerced hearing should be released – it is not inevitable that it will be. [249]. The respondent argued s 201, regardless, is not itself a protective measure and the respondent was not obliged to take it into account. [249]–[250].

Ground 3

Third, the applicant argued the respondent’s decision was incompatible with the applicant’s human right pursuant to s 32(2)(k) Human Rights Act 2019 (“the HRA”) and was therefore unlawful per s 58(1)(a) of the HRA. [3]. While the presiding officer considered the HRA in his reasons, the applicant and Queensland Human Rights Commission argued he erred in conducting the “proportionality” exercise and finding limitations on the right were reasonable. [337]–[342].

The respondent contended the right in s 32(2)(k) of the HRA is confined to criminal processes, not applicable to the current “investigative” proceedings. [273], [292]. In any case, the presiding officer’s decision as to the limits of the right were justifiable given the nature of the right, purpose of the limitation, and lack of less restrictive alternatives [352]–[358]. Parliament was aware of the common law at the time of enacting the HRA and there is no indication it intended s 32(2)(k) to reflect the “wider common law privilege against self-incrimination”, rather it is intended to be commensurate with specific procedural rights [311]–[312]. Section 32(2)(k) should be viewed as only testimonial immunity and not derivative immunity. [316]–[322], [347]–[350].

Decision of the Court of Appeal

Leave to appeal was granted, but the appeal was dismissed on all grounds. [386].

Ground 1

Williams J accepted the respondent’s argument that Strickland was confined to circumstances where an investigation had been unlawfully constituted, and therefore “does not add to the principles identified and considered in NS v Scott [which is analogous here]”. [226]–[228]. Her Honour found the presiding officer did not err in finding the applicant did not have a reasonable excuse to refuse to answer the question. [230]–[231]. NS v Scott makes clear than in the context of an analogous legislative scheme, the privilege against self-incrimination is abrogated but sufficient protective mechanisms are in place for a fair trial to be achieved. [229], [233].

Ground 2

In dismissing ground 2, her Honour found s 201 of the CC Act was not a relevant consideration that the presiding officer was obliged to take into account. [259]–[267]. “The submissions of the applicant proceed on the basis that the existence of s 201 means that the transcript of any coerced examination will end up in the hands of the co-defendant. That is not the case.” [255]. First, an application for “reasonable excuse” pursuant to s 194 arises before s 201 is directly applicable; the latter may be considered in terms of “future potential operation … but it is not a decisive factor”. [257], [261]–[265]. Secondly, s 201 contains a safeguard, being that an application can be made to the Supreme Court to determine whether a transcript of the coerced hearing should be disseminated to co-defendants. [258].

Ground 3

Williams J dismissed ground 3, finding no error had been demonstrated in respect of the respondent’s decision. [366]. Her Honour found the human right in s 32(2)(k) of the HRA (not to be compelled to testify against oneself or to confess guilt) was a relevant human right and was engaged for the purposes of the presiding officer’s decision. [324]. Her Honour considered the right “should be given the broadest possible construction consistent with the authorities and the purpose of the [HRA]” and is not limited only to a criminal trial. [325]. Indeed, an interpretation limiting the right in that way fails to recognise the overlap between that right and the right to a fair trial (s 31 HRA). [325]. “The provision [s 32(2)(k)] has a role in protecting rights at stages before a trial which have a likely and significant impact on the trial itself.” [324].

Her Honour determined the presiding officer’s decision did limit the applicant’s human rights per ss 31 and 32(2)(k) of the HRA, “the limit was justified … and it was substantively compatible with human rights.” [365].

A Hughes of Counsel