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SQH v Scott [2022] QSC 16

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Date: 23 February 2022 (restricted); 4 March 2022 (public) 
Court: Supreme Court of Queensland 
Judicial Officer: Williams J 
Human Rights Act 2019 (Qld) Sections: ss 3, 4, 8, 13, 25, 26, 31, 32, 48, 50, 51, 58, 59 
Rights Considered: Right to privacy and reputation; Right to protection of families and children; Right to a fair hearing; Rights in criminal proceedings 
Other Legislation: Crime and Corruption Act 2001 (Qld) ss 4, 180, 189, 190, 194, 195, 197, 200A, 201, 202; Evidence Act 1977 (Qld) s 130 
Keywords: Criminal Law and Corrective Services: Prosecution

This case concerned an appeal premised on the right not to be compelled to testify against oneself or to confess guilt (section 32(2)(k)). After consideration of a number of provisions of the Human Rights Act 2019 (Qld), the Court ultimately found that the grounds of appeal could not be made out as the limitation imposed upon said rights was justified (section 13).  

The appellant sought leave to appeal a decision of the respondent that the applicant did not have a reasonable excuse not to answer a question from the respondent (the question being: ‘what is your knowledge of the involvement of [names of alleged co-offenders] in the trafficking of dangerous drugs?’).  One of the three grounds of appeal directly involved the Human Rights Act 2019 (Qld) and alleged that the decision made was not compatible with the appellant’s right not to be compelled to testify against themselves or to confess guilt, as contained in section 32(2)(k) of the Human Rights Act 2019 (Qld). 

The Court acknowledged that multiple human rights were impacted (including the right to non-interference with privacy and family as the questions related to the appellant’s partner) but that ‘the values underlying the right to privacy largely overlap with the values underlying the right to a fair hearing and the right not to incriminate oneself’: [278], [291]. On this basis, the Court continued to consider the impact of the decision on the rights outlined in section 31(1) (right to a fair hearing) and section 32(2)(k) (right not to testify against oneself or confess guilt).  

The respondent’s argument that the circumstances did not engage section 32(2)(k) because the investigative hearing was not a criminal proceeding was rejected by the Court, which found that the right was engaged for the purposes of the respondent’s decision: [324]. In reaching this conclusion, the Court stated that ‘the right should be given the broadest possible construction consistent with the authorities and the purpose of the HR Act’: [324].  

The Court went on to consider the compatibility test related to section 13 (Human rights may be limited) and concluded that ‘while the decision of the respondent limited the applicant’s human rights in sections 31 and 32(2)(k) of the HR Act, the limit was justified under sections 8(b) and 13 of the HR Act’: [365]. This was largely due to the fact that the ‘code of silence’ present in organised crime prevents other less restrictive methods of collecting evidence and that if evidence obtained from coercive examinations could not be used by the Crime and Corruption Commission, the objects and purpose of the Crime and Corruption Act 2001 (Qld) would be undermined: [361]. Consequently, the third ground of appeal, which rested on the right outlined in section 32(2)(k) of the Human Rights Act 2019 (Qld), could not be established: [367]. 

Visit the judegement:  SQH v Scott [2022] QSC 16