By Alicia Hill
The common law has previously recognised the right of spousal privilege that renders a witness immune from answering questions or giving evidence that may incriminate their spouse.
The High Court case of Australian Crime Commission v Stoddart [2011] HCA 47, however was asked to consider whether this privilege was a common law right.
In 2009, Louise Stoddart was summoned by the Australian Crime Commission to answer questions regarding alleged tax-avoidance schemes run by her husband, Ewan Stoddart. Throughout the examination Mrs Stoddart remained silent when questioned about her husband's dealings, claiming she not required to give evidence that may incriminate him.
Mrs Stoddart commenced proceedings in the Federal Court seeking an injunction restraining the Examiner from asking her questions regarding her husband.
The High Court had to determine whether the right of spousal privilege existed at common law and if so, whether the Australian Crime Commission Act 2002 (Cth) abrogated this privilege.
The High Court ruled against Mrs Stoddard and held that the common law did not provide a sufficient basis for the conclusion that spousal privilege exists in the modern context.
The majority further provided that at time of the enactment of the Australian Crime Commission Act 2002 (Cth) the common law of Australia did not recognise the privilege as asserted by Mrs Stoddart and nor does it now.
Mrs. Stoddart was deemed a competent witness to be examined by the Australian Crime Commission and that spousal privilege could not be raised in answer to that obligation.
This will impact the conduct of cases where testimony from spouses, partners or defendants or others may be considered of use in proving allegations made or disproving defences asserted.
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.
