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  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
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.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
If you are doing a Will, or you are the executor of a deceased estate, consider what taxes and duties could be payable.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).