30 November 2011

Spousal Privilege

In Australian Crime Commission v Louise Stoddart & Anor [2011] HCA 47 the High Court has upheld an appeal by the Australian Crime Commission (ACC) against the decision of the Full Court of the Federal Court of Australia, which had granted a declaration that the Australian Crime Commission Act 2002 (Cth) had not abrogated the common law privilege against spousal incrimination.

The High Court held that the common law does not recognise a privilege against spousal incrimination. The Court was concerned with claims regarding common law; its decision does not invalidate provisions in Commonwealth and state/territory enactments regarding privilege in criminal prosecutions.

Section 30(2)(b) of the ACC Act provides that a person appearing as a witness before the ACC, in an investigation by that organisation (which is not a court), shall not refuse or fail to answer a question required under that Act. Failure to answer questions as required is an offence punishable on conviction by penalties including imprisonment.

In the course of answering questions concerning details of her husband's business, Ms Stoddart claimed to be entitled to "the privilege of spousal incrimination", ie a right not to give evidence that might incriminate her husband.

The Act does not refer to such a privilege. Questioning by the ACC was adjourned to enable her to bring proceedings in which a Commonwealth court would determine whether the claimed privilege existed, and if so whether it continued to have effect.

In Stoddart v Boulton [2009] FCA 1108 the Federal Court dismissed the Ms Stoddart's application for declaratory and injunctive relief, holding that a spousal privilege existed at common law but that it was abrogated by the Act.

On appeal, the Full Court of the Federal Court in Stoddart v Boulton [2010] FCAFC 89 held by a majority that the common law privilege against spousal incrimination existed and that the Act had not abrogated that privilege, and granted declaratory relief.

The ACC appealed to the High Court, arguing that -
• the Full Court erred in recognising a common law privilege against spousal incrimination, and, in the alternative,
• the Full Court should have held that s 30 of the Act dealing with the privilege against self-incrimination abrogated the spousal privilege if it otherwise existed
The High Court today held by majority that the claimed privilege against spousal incrimination does not exist at common law.

Ms Stoddart was a competent witness to be examined under the Act and was compelled to give evidence by the provisions of the Act. No privilege of the kind claimed could be raised in answer to that obligation. It was therefore not necessary to consider the appellant's alternative submission.

The Court's decision will attract considerable interest from practitioners, legal theorists and academics. French CJ and Gummow J refer to -
• Lord Diplock in In re Westinghouse Uranium Contract ("the privilege against self-incrimination was restricted to the incrimination of the person claiming it and not anyone else. There is no trace in the decided cases that it is of wider application; no textbook old or modern suggests the contrary. It is not for your Lordships to manufacture for the purposes of this instant case a new privilege hitherto unknown to the law.")

• McHugh J in Environment Protection Authority v Caltex Refining Co Pty Ltd (the apparent common law exception respecting rejection of evidence by the spouse of the accused rested upon a distinct principle, namely, lack of competence to testify)

• the House of Lords in Rumping v Director of Public Prosecutions (rejecting the proposition that at common law communications between spouses were protected against disclosure both in civil and criminal proceedings by the other spouse or by some third person)
and comment that "In effect, [Stoddart] seeks extension of her common law privilege beyond that of her self-incrimination ... to that of incrimination of her spouse by her evidence, and then relies upon the failure of the legislature in s 30 of the Act to restrict or abrogate that extended privilege". They go on to state -
... the statement in the eighth Australian edition of Cross on Evidence that while "[f]rom time to time it has been suggested that there was a common law privilege attaching to marital communications ... the privilege is entirely the creature of statute". In the United States the development of the common law took a different course in many jurisdictions with the development of a privilege respecting communications between spouses.

Another point of present significance is that when reporting in 1853, the Common Law Commissioners ... made no reference to any then existing common law rule of privilege relating to communications between husband and wife, or to the protection of one spouse against incrimination of the other.

It may be said that in the great majority of cases decided before the mid-Victorian era of statutory reform, evidence of this nature was effectively excluded by the first and third rules respecting spousal competency identified above, and that only in exceptional cases could evidence attracting the alleged privilege be given where neither spouse was a party.
After considering the judgement in R v The Inhabitants of All Saints Worcester and its reception by the NZ Law Reform Commission they state that
In our view, it cannot be said that at the time of the enactment of the Act in 2002 the common law in Australia recognised the privilege asserted by Mrs Stoddart or that it does so now. We agree with the conclusion of Kiefel J in Boulton that in All Saints, and the subsequent decisions, in particular Hoskyn and Riddle, the term "compellable" was used to indicate that the witness might be obliged to give evidence in the ordinary sense of the term, not that, in response to particular questions, a privilege might be claimed by the witness.
Dyson Heydon, quoting Oliver Wendell Holmes J and indulging in a bibliographical romp, again acted as the 'great dissenter' in a quirky judgement that will presumably be mined with delight by his fans and those not so inclined.

Crennan, Kiefel and Bell JJ state that -
Opinions may differ as to the interpretation of statements in older texts and cases. Such statements as there are, which suggest that one spouse might not be obliged to give evidence or answer questions which may tend to incriminate the other, do not provide a sufficient foundation for a conclusion that a spousal privilege of the kind claimed existed. Statements in All Saints were addressed to the question of compellability and later cases show that they have been so understood. Those observations are consistent with a view that the court retains the power to determine the question of the wife's compellability. Even so, the question of her compellability was not finally determined in that case. Its lack of resolution until much later, in England, does not suggest that the topic of a substantive witness privilege was likely to have been addressed. The later application of some of the old common law views towards marriage, which informed the rule of competency, and about which it is not necessary to proffer a view on this appeal, with respect to the compellability of a spouse in criminal proceedings, does not point to the existence of a privilege. It merely states an assumption that those views meant that a privilege arose. It has not been shown that that question has been addressed by the common law courts.

The observations of Justice Oliver Wendell Holmes concerning the creation of legal doctrine are apposite here. He spoke of a statement of principle occurring only after a series of determinations on the same subject matter and by a process of induction and went on to say:
And this statement is often modified more than once by new decisions before the abstracted general rule takes its final shape. A well settled legal doctrine embodies the work of many minds, and has been tested in form as well as substance by trained critics whose practical interest it is to resist it at every step.
No such developments are evident in the cases and materials to which reference has been made in this case. They suggest, at most, that a spouse might seek a ruling from the court that he or she not be compelled to give evidence which might incriminate the other spouse.

No question of compellability arises in this case. The first respondent was a competent witness to be examined under the ACC Act and was compelled by the provisions of that Act to do so. No privilege of the kind claimed could be raised in answer to that obligation.