Ewan Stoddart was self-employed as an accountant carrying on a
practice at several locations in Queensland. His wife Louise
Stoddart provided part time secretarial assistance in the practice
for a few years before Mr Stoddart ceased his practice in 2006.
When the Australian Crime Commission later investigated Mr
Stoddart's business procedures, Mrs Stoddart was summoned by
the Commission to give evidence. She refused to answer certain
questions, claiming that she had a right to remain silent on the
basis of her marriage to Mr Stoddart.
High Court decision
In the Federal Court, the primary judge held that a spousal
privilege does exist at common law, but that it was abrogated by
the Australian Crime Commission Act 2002 (Cth) under which
Mrs Stoddart was compelled to give evidence. On appeal, the Full
Court of the Federal Court held by a majority that the common law
privilege against spousal incrimination does exist, was not
abrogated by the legislation, and granted Mrs Stoddart declaratory
The High Court was split in its decision. Heydon J gave a
dissenting judgement. He reasoned that spousal privilege is as
justified as the privilege against self-incrimination, with the
difference being that it is not wholly motivated by selfish
considerations but also by considerations of the protection of
another and the maintenance of family unity. He likened the concept
of spousal privilege to a human right which fosters human dignity
and immunity from the "great intrusive powers of the
On the other hand, the majority of judges were of the opinion
that case law does not support the concept of spousal privilege and
thus Mrs Stoddart could not rely on the concept in this case to
avoid testifying against her husband.
In their joint judgement, French and Gummow JJ highlighted the
distinction between three separate concepts – the
competence, compellability and privilege of a witness. Competence
and compellability are two principles that must be established in
order for a witness to testify at all. Crennan, Kiefel and Bell JJ
stated that at most, developments in case law suggest that in some
circumstances, a spouse might seek a ruling from a court that he or
she is not compellable to give evidence. Compellability
was not an issue in this case, as Mrs Stoddart was compelled under
the Australian Crime Commission Act 2002 (Cth).
Conversely, privilege is an avenue of protection which may arise
once a witness is in the witness box and is permitted by law to
give evidence. By identifying an absence of spousal privilege, the
High Court has made a definitive statement to limit exceptions to
the requirement for witnesses to answer all questions put to
The High Court also noted that while there are equitable
principles that may protect matrimonial confidences in certain
circumstances (despite its conclusion that spousal privilege does
not exist), such principles would not protect those confidences in
matters involving crime or fraud, such as in the case against Mrs
The High Court's judgement that spousal privilege does not
exist can be taken to be an authoritative declaration of the state
of the law on this matter. Cases previously relied upon to justify
the presence of such a privilege no longer hold the persuasive
power that may previously have been attributed to them. For those
in Mrs Stoddart's position, it reinforces the notion that
one's marital relationship will not be an adequate shield to
the piercing eyes of the law.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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This was an interlocutory decision about the appointment of a tutor for the child appellant, to carry on his proceedings.
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