Case Commentaries
| Author | Rosemary Pattenden |
| Published date | 01 April 2012 |
| Date | 01 April 2012 |
| DOI | http://doi.org/10.1350/ijep.2012.16.2.401 |
| Subject Matter | Article |
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Spousal testimonial privilege—Australia
The Australian Crime Commission (ACC), a statutory body that investigates
‘federally relevant criminal activity’, is empowered by s. 30 of the Australian
Crime Commission Act 2002 (Cth) to compel witnesses to appear before it and
answer questions. Non-compliance is a criminal offence. During investigations
into the affairs of an accountant named Stoddart, the ACC summoned Mrs
Stoddart as a witness. She claimed that a common law privilege, analogous to the
privilege against self-incrimination, entitled her to refuse to answer questions if
the answers had a tendency to expose her husband to conviction for a crime. The
ACC adjourned the questioning so that she could establish the legitimacy of this
claim in the courts. A majority of the Full Court of the Federal Court in Stoddart v
Boulton [2010] FCAFC 89 was persuaded that a spousal testimonial privilege existed
at common law and had not been restricted by the 2002 Act. Australian Crime
Commission vStoddart [2011] JCA 47 is the ACC’s successful appeal to the High Court
of Australia against that decision.
To understand the High Court’s reasons for holding that when the Australian
Crime Commission Act was passed in 2002 the common law in Australia did not
recognise the privilege to which Mrs Stoddart laid claim, it is necessary to appre-
ciate how the concept of privilege differs from that of competence and
compellability. A witness lacks competence if he or she may not lawfully be asked
to give evidence. A compellable witness is a competent witness who is obliged to
testify. Most witnesses are both competent and compellable; a few, such as, under
the Evidence Act 1995 (Cth), the criminal defendant’s spouse when called as a
witness by the prosecution, are competent without being compellable. By the
common law, Mrs Stoddart was competent and, by s. 30 of the Australian Crime
Commission Act 2002, she was compellable. A privilege, such as that invoked by
Mrs Stoddart, gives a witness who, by choice or compulsion, has entered the
witness box the power or duty not to answer questions falling within the category
covered by the privilege.
doi:10.1350/ijep.2012.16.2.401
212 (2012) 16 E&P 212–227 THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF
The Australian Crime Commission Act 2002 does not refer to incrimination of a
spouse. On the other hand, the Act expressly mentions legal professional privilege
(s. 30(3)) and the privilege against self-incrimination (s. 30(4)), which it prunes
back. Perhaps Parliament felt that there was no need because in 2002 no
Australian court had accepted the existence of a spousal testimonial privilege.
This came later in Callanan vB[2004] 1 QCA 478 and SvBoulton [2006] FCAFC 99. In
the common law’s motherland, England, a witness in a civil trial can refuse to
answer questions that tend to incriminate a spouse, but this is by virtue of the
Civil Evidence Act 1968, s. 14(1). There is no direct supporting authority in the
English common law of a spousal testimonial privilege. On the contrary, in Re
Westinghouse Uranium Contract [1978] AC 547 at 637 Lord Diplock asserted that ‘the
privilege against self-incrimination is restricted to the incrimination of the person
claiming it and not anyone else’, which is inconsistent with such a privilege, and
in Rumping vDPP [1964] AC 814 the House of Lords held that confidential communi-
cations between spouses were not privileged in civil or criminal proceedings. It
seems odd to have a spousal testimonial privilege if marital communications are
not privileged. The rationale for recognising a privilege (see discussion below) is
surely the same in both situations.
A common law rule barring a spouse from testifying in an action for or against the
other spouse had restricted the need for a spousal testimonial privilege until the
passing of the Evidence Amendment Act 1853. Until then the issue of spousal
privilege could only arise in trials in which a non-party witness’s evidence had a
tendency to incriminate the non-party witness’s spouse. RvInhabitants of All Saints,
Worcester (1817) 105 ER 1215 is an example. Heydon J rested his dissent inAustralian
Crime Commission vStoddart on this case. His argument is weak because, in the first
place, the ratio decidendi of All Saints is undeniably that a third party wife whose
evidence tends to indirectly incriminate her husband is a competent witness and,
in the second, just one of the judges (Bayley J) speculated what might have
happened had the wife been reluctant to incriminate her husband. Bayley J
remarked:
It does not appear that she objected to be examined, or demurred to
any question. If she had thrown herself on the protection of the Court on the
ground that her answer to the question put to her might criminate
her husband, in that case I am not prepared to say that the Court
would have compelled her to answer; on the contrary, I think she
would have been entitled to the protection of the Court. ((1817) 105 ER
1215 at 1217–18, emphasis added)
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