Background

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 relief.

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 state".

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 them.

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 Stoddart's husband.

Implications

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.

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