Abstract
In Australian Crime Commission v Stoddart (2011) 282 ALR 620 the High Court held that a privilege against spousal incrimination does not exist at common law. This means that at common law a spouse can no longer invoke a privilege to refuse to answer a question, the answer to which may risk incriminating her or his spouse. This case note provides a brief outline of the key issue and the case, and an in-depth summary of the three High Court judgments. Finally, a short comment on the significance of the decision is provided, as well as an argument that the Court should have considered the policy justification behind the supposed privilege before deciding not to recognise it.
Highlights
In Australian Crime Commission v Stoddart (2011) 282 ALR 620 the High Court held that a privilege against spousal incrimination does not exist at common law
The High Court decision Australian Crime Commission v Stoddart,1 which held that a privilege against spousal incrimination2 does not exist at common law, overturns hundreds of years of generally accepted legal thought
Full Federal Court decision in S v Boulton (2006) 151 FCR 364. 4 ‘A person is competent if that person may lawfully be called to give evidence’: J D Heydon, Cross on Evidence (LexisNexis Butterworths, 8th Australian ed, 2010) 417 [13001]. 5 ‘A person is compellable if that person can lawfully be obliged to give evidence’: Heydon, above n 4, 417 [13001]
Summary
The High Court decision Australian Crime Commission v Stoddart, which held that a privilege against spousal incrimination does not exist at common law, overturns hundreds of years of generally accepted legal thought. In Australia, spouses are ‘competent’ to testify for or against each other but are generally not ‘compellable’ to testify for the prosecution in criminal cases. it. In the jurisdictions which use the Uniform Evidence Act (the Commonwealth, Australian Capital Territory, New South Wales, Tasmania and Victoria) spouses are generally compellable but in most cases the court must excuse them from giving evidence for the prosecution if certain criteria are met: Evidence Act 1995 (Cth) s 18, cf s 19; Evidence Act. 1995 (NSW) s 18, cf s 19; Evidence Act 2001 (Tas) s 18, cf s 19; Evidence Act 2008 (Vic) s 18, cf s 19. Under the ACC Act, failure to answer questions is an offence punishable on conviction by a fine not exceeding $22,000 or imprisonment for a period not exceeding five years.12 During her examination, Mrs Stoddart was asked whether she was aware of invoices prepared at Mr Stoddart’s practice for services provided by other entities. The second respondent, the ACC examiner, determined that this objection needed to be determined elsewhere and adjourned the examination
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