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AUSTRALIAN CRIME COMMISSION V STODDART : THE END OF COMMON LAW SPOUSAL PRIVILEGE

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.


INTRODUCTION
The High Court decision Australian Crime Commission v Stoddart, 1 which held that a privilege against spousal incrimination 2 does not exist at common law, overturns hundreds of years of generally accepted legal thought. 3 In Australia, spouses are 'competent' 4 to testify for or against each other but are generally not 'compellable' 5 to testify for the prosecution in criminal cases. 6 Furthermore, it * LLB (Hons I), BCom, University of Western Australia. 1 (2011) 282 ALR 620 ('Stoddart'). 2 Hereafter referred to as 'spousal privilege'. 3 The decision also runs contrary to the Queensland Court of Appeal decision in Callanan v B [2005]  The Northern Territory and Queensland are the only jurisdictions in which an accused's spouse is absolutely compellable in criminal proceedings: Evidence Act 1939 (NT) s 9; Evidence Act 1977 (Qld) s 8. 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. The Evidence Act 1929 (SA) s 21 is similar, except the court 'may' excuse a spouse (indeed, any 'close relative') from giving evidence for the prosecution if certain criteria are met. In Western Australia, a spouse is generally not compellable for the prosecution (but is compellable for the accused), although there are specific exceptions: Evidence Act 1906 (WA) s 9. In all Australian jurisdictions a spouse is competent and compellable to give evidence for or against the other spouse in civil proceedings: Evidence Act 1995 (Cth) s 12; Evidence Act 1995 (NSW) s 12; Evidence Act 1939 (NT) s 7; Evidence Act 1977 (Qld) s 7; Evidence Act was commonly thought that there was a common law privilege which meant that a witness could refuse to answer a question if she or he believed that the answer may risk incriminating her or his spouse (although not a de facto spouse), 7 either in the current or independent proceedings. 8 The decision in Stoddart means that unless a statute prevents otherwise, there is now nothing to stop spouses being forced to incriminate each other in judicial or non-judicial proceedings. 9

II FACTS
On 3 April 2009, the first respondent, Mrs Stoddart, appeared in response to a summons issued pursuant to s 28(1) of the Australian Crime Commission Act 2002 (Cth) ('ACC Act'). The summons required Mrs Stoddart to attend as a witness at the premises of the appellant, the Australian Crime Commission ('ACC'), to give evidence on oath or affirmation 10  the common law spousal privilege-whose existence was not in contention-had not been abrogated by the ACC Act. 15 The ACC then appealed to the High Court, making two distinct submissions. Firstly, that there is no common law spousal privilege; secondly and alternatively, if the privilege does exist then s 30 of the ACC Act abrogates it. Mrs Stoddart argued that the privilege does exist at common law and that the principle of legality 16 applies to it; thus, clear and definite statutory language is required to affect or negate it.

IV HIGH COURT DECISION
By a five to one majority the High Court allowed the appeal 17 and held that spousal privilege does not exist at common law. Due to their decision on the ACC's first submission, the majority did not deem it necessary to consider its second submission. Two majority judgments were delivered: a joint judgment by French CJ and Gummow J, and a joint judgment by Crennan, Kiefel and Bell JJ. Heydon J delivered a dissenting judgment. All three of the judgments followed a similar methodology: analysing the historical primary and secondary sources in order to determine whether spousal privilege does (or ever did) exist at common law.

A French CJ and Gummow J
French CJ and Gummow J began by noting that under the ACC Act Mrs Stoddart was a competent and compellable witness. 18 Their Honours also observed that the ACC Act privilege against self-incrimination 19 is founded on the common law and thus this privilege is 'restricted to the incrimination of the person claiming it and not anyone else.' 20 French CJ and Gummow J then outlined the distinctions between the concepts of competence, compellability and privilege, noting that only privilege was at issue in this case. 21 Furthermore, the privilege claimed was one of spousal incrimination, not a privilege protecting marital communications. 22 Their Honours then turned to the Court of King's Bench decision in R v Inhabitants of All Saints, Worcester. 23 All Saints was argued to be the 'critical authority' in support of spousal privilege. 24 In All Saints a 'pauper', Esther Newman, was residing in the parish of Cheltenham, but a Court of Quarter Sessions had determined that, pursuant to the Poor Relief Act 1662 (Eng), 25 she was to be settled in the parish of All Saints. (The Poor Relief Act 1662 (Eng) required a parish to maintain its settled poor, with a wife undertaking the settlement of her husband). All Saints sought to avoid this result by establishing a subsequent marriage to George Willis, who had settlement in a third parish. However, Esther Newman would have retained her All Saints settlement if her marriage to George Willis was bigamous. Cheltenham sought to establish this fact by calling a witness, Ann Willis, to prove her earlier marriage to George Willis. Neither George nor Ann Willis were parties in the case, and nor did they have an interest in the decision. All Saints objected to the competency of Ann Willis but was unsuccessful in having her evidence struck out, as the court ruled that a wife was only incompetent to incriminate her husband in proceedings brought directly against him. However, the subsequent significance of the case is the obiter dicta comments of Bayley J, regarding the 'compellability' of Ann Willis. On this issue Bayley J commented that: It does not appear that the witness objected to being examined, or demurred to any question. If she had thrown herself on the protection of the court on the ground that her answer to the question might criminate her husband, in that case I am not prepared to say that the court would have compelled her to answer; on the contrary I think she would have been entitled to the protection of the court. 26 French CJ and Gummow J held, relying on authorities such as Riddle v The King, 27 Hoskyn v Metropolitan Police Commissioner 28 and S v Boulton, 29 that this passage only referred to the compellability of Ann Willis 'in the ordinary sense of the term'. 30 That is, Bayley J was not referring to a privilege that a spouse witness could claim in response to particular questions. 31  In an interesting aside their Honours noted that while equitable principles respecting the protection of confidences may apply-independently of the rules of evidence-to matrimonial confidences, equity does not protect confidential communications involving crime or fraud': Cases of violence by one spouse against the other have always been treated as an exception to the rule of spousal competency. 55 However, the question of whether in such cases a spouse could be compelled to give evidence was raised in both Riddle and Hoskyn. In Riddle, the High Court did not express certainty on the subject, although the separate judgments tended towards the view that a spouse was not compellable. 56 In Hoskyn, a majority in the House of Lords held that in cases of violence by one spouse against the other a spouse was not a compellable witness. 57 (This decision was largely being based upon considerations of policy relating to marriage). 58 Importantly, Crennan, Kiefel and Bell JJ noted that in neither Hoskyn nor Riddle was reference was made to the existence of a spousal privilege as a potential issue in cases of violence between spouses. 59 Lastly, their Honours disagreed that the policy considerations referred to in Hoskyn underlying the non-compellability of a spouse also pointed to the existence of a spousal privilege, as neither later applications of Hoskyn, nor the influential second report of the  74 Ibid. before addressing these questions Heydon J examined some preliminary issues which arose from the parties' arguments.

Preliminary issues
Heydon J noted that a rule of the common law does not have to be 'certain' before its existence can be recognised. 65 Furthermore, the recognition of a rule does not necessarily depend on a series of court decisions. Instead, a rule of the common law may be based on, inter alia, 'prior dicta, arguments by analogy, arguments seeking to avoid incoherence, moral criteria, the teachings of practical pressures, and the opinions of learned writers.' 66 His Honour believed this form of recognition provided authority for the existence of spousal privilege. 67 Next, Heydon J, similarly to the other judgments, outlined the distinction between the doctrines of competence, compellability and privilege, and (significantly) noted that the terms compellability and privilege are often used inaccurately in the various authorities. 68 Heydon J also observed the overlap between spousal noncompellability and spousal privilege, viewing this overlap as a 'suggestive factor'-though not conclusive-of the existence of the privilege. 69 The possible existence of a fourth, related doctrine was also remarked upon. This is the discretionary power of a trial judge to reject a question to a witness who is otherwise competent and compellable and cannot claim any privilege but who does not wish to give evidence adverse to another. 70 However, although there is some suggestion that this discretion exists in England, 71 the Australian authorities do not support it. 72 2 Does spousal privilege exist at common law?
Heydon J commenced by noting that there is a question regarding whether a spousal privilege would extend to questions tending to expose the other spouse to the imposition of a civil penalty (as is the case for the privilege against selfincrimination). 73 However, this question was not in contention in the appeal and thus was not addressed. 74 His Honour then turned to All Saints. It was regarding the interpretation of the obiter of Bayley J that Heydon J fundamentally disagreed with the majority judgments. His Honour opinioned that Bayley J's obiter did not refer to the issue of non-compellability. That is, if Ann Willis were not compellable she would not have been sworn in as a witness, yet Bayley J's assumption was that she had been sworn in and been asked a question. 75 What's more, the reference to the 'protection of the court' (a significant issue for Crennan, Kiefel and Bell JJ) could point to a privilege just as much as it could refer to compellability. 76  Heydon J next undertook a detailed examination of the subsequent reception of Bayley J's obiter in academic works. Referring to the third and subsequent editions of Samuel Phillipps's A Treatise on the Law of Evidence, 81 Heydon J noted that Bayley J's obiter is referred to in all but the eighth and ninth editions. 82 Further, although the term 'compellable' is used to describe the right of a spouse to refuse to answer certain questions, Heydon J argued that this was actually a reference to privilege. 83 Similarly, all editions of John Taylor's A Treatise on the Law of Evidence, as Administered in England and Ireland 84 cite Bayley J's obiter in support of the proposition that a spouse is not 'compelled' to answer questions which tend to incriminate the other spouse. 85 A substantially similar proposition is also found in the fourth edition of Thomas Starkie's A Practical Treatise on the Law of Evidence, 86 91 However, in all of the editions of Sir James Stephen's A Digest of the Law of Evidence, 92 a proposition in support of spousal privilege is included. Furthermore, Heydon J argued that 'a statement by Stephen was seen as authoritative independently of its sources.' 93 Heydon J then turned to more recent academic works. His Honour noted that the first through to tenth editions of Sidney Phipson's The Law of Evidence 94 contain a passage in support of spousal privilege, 95 as do all the editions of Halsbury's Laws of England. 96 However, the second through to tenth editions of Ernest Cockle's Leading Cases on the Law of Evidence 97 express more uncertainty regarding the position. 98 Lastly, Heydon J looked at Sir Rupert Cross's Cross on Evidence 99 (United Kingdom edition). 100 His Honour observed that in the first through to fifth editions Cross cites All Saints in support of the proposition that spousal privilege exists at common law and also provides policy arguments in support of this position. 101 Moreover, Heydon J argued that 'Cross had immense influence on the judges of his generation ... [and t]o contend that any statement of his on the common law is erroneous is to assume a very heavy burden of persuasion.' 102 (His Honour did not believe that the ACC had discharged this burden). 103 However, the sixth and subsequent editions of the text (which were not edited by Cross) state that spousal privilege does not exist at common law. 104 This was due to reliance on two new cases: Rio Tinto Zinc Corp v Westinghouse Electric Corp 105 and R v Pitt. 106 Heydon J disagreed that these cases supported the proposition that spousal privilege does not exist at common law, though. 107 Ultimately, his Honour believed that academic writings are capable of constituting the common law in their own right 108 and that the weight of academic authority is in favour of spousal privilege. 109 That is, the common law supported the existence of spousal privilege.
Heydon J recognised that there is not a 'vast quantity' of case law authority which supports Bayley J's obiter. However, his Honour did believe that spousal privilege had been applied or approved in several cases in the United Kingdom, 110 United States of America, 111 Canada, 112 Australia 113 and New Zealand. 114 Moreover, Heydon J contended that the relative lack of authority was due to the fact that the privilege was so commonly accepted that there was no need to cite any further authorities. 115 Overall, then, his Honour argued that the weight of authority, both judicial and non-judicial, is that spousal privilege does exist at common law. 116

3
Can spousal privilege be invoked in non-judicial proceedings?
Heydon J considered spousal privilege to be 'at least as important a privilege as legal professional privilege' 117 and as reflecting 'greater altruism than the privilege against self-incrimination.' 118 His Honour also viewed the policy arguments for spousal non-compellability as supporting the existence of spousal privilege and thus its importance in the law of evidence. 119 Therefore, spousal privilege should be treated as a rule of substantive law and not merely a rule of evidence. 120 As such, it is can be invoked in non-judicial proceedings.  128 Therefore, if a potential witness spouse believes that her or his testimony runs the risk of incriminating the accused spouse, she or he will refuse to testify 129 or apply to the court to be excused from testifying. 130 That is, the need for the privilege does not arise. 131 However, spousal privilege was seemingly still available as a protection in civil trials, trials where neither spouse was a party and proceedings not covered by the various Evidence Acts. An example of the last of these scenarios is investigative bodies such as the ACC, 132 which generally operate under statutes which limit the common law rules of evidence. 133 As such, remaining common law rights (for example, witness privileges) retain an important place in the operation of these bodies' investigations and examinations. 134 The High Court's decision in Stoddart, in abolishing one of these important safeguards, means that the balance has swung even further away from the individual's common law rights.
Perhaps what is surprising about Stoddart, then, is the willingness of the majority to overturn years of generally accepted thought-and apparently place Australia out of line with other common law countries 135 -without engaging in an analysis of the policy behind the supposed privilege. It is axiomatic to state that there was considerable uncertainty regarding whether spousal privilege existed at common law. Therefore, to paraphrase Dowsett J in Stoten v Sage, 136 given the uncertain nature of the authorities the ultimate decision to recognise or reject spousal privilege is surely very much a matter of policy. 137 Stoddart does represent a large crack in the crumbling legal fiction that a husband and wife are one person (the doctrine of unity). This doctrine sprung from the biblical notion of a husband and wife being 'one flesh'. 138 Based on this notion, to force one spouse to give evidence against the other is effectively to force the spouse to give evidence against her or himself. The doctrine of unity is arguably objectionable in modern society. Still, however, there are compelling underlying principles behind it. With respect, it is submitted that the majority judgments do not adequately engage with these.
Fundamentally, spousal privilege can be justified on the basis of two key policy rationales. 139 Firstly, spousal privilege advances the same principle as the privilege against self-incrimination. That is, it avoids spouse witnesses facing the 'cruel trilemma of [accusation of one's spouse], perjury or contempt'. 140 Moreover, as Heydon J contends, this argument has (even) 'more force in the case of a spouse not wholly motivated by selfish considerations, but by considerations touching the protection of another and the maintenance of family unity.' 141 Therefore, recognising the privilege is likely to encourage testimony from spouses (at least in cases where the other spouse is not facing a criminal investigation or trial) and is probably unlikely to result in the loss of much truthful testimony. 142 Secondly, spousal privilege preserves marital harmony. Committed familial relationships-which most persons choose to formalise via marriage-form the building blocks of all human societies. 143 To undermine these relationships by forcing spouses to potentially incriminate each other is a step that requires compelling justification. 144 Indeed, as most Australian jurisdictions preserve spousal non-compellability to a large extent-presumably on the basis of policy reasons-it is hard to see why these policy reasons should not also support the common law spousal privilege. 145 (Certainly this is the case in the jurisdictions where a spouse is prima facie compellable, but 'must' (Uniform Evidence Act jurisdictions 146 ) or 'may' (South Australia 147 ) be excused from giving evidence for the prosecution if certain criteria relating to the prospect of harmful consequences from giving evidence are met). That is, spousal non-compellability and privilege are arguably synonymous in terms of basic principle. 148 In the wake of Stoddart we will have to wait and see what impact the High Court's decision has on marital relationships, and whether in fact there will actually be any corresponding beneficial impact in criminal investigations and trials. 142 (6), this is where the court finds that: a) 'There is a likelihood that harm would or might be caused (whether directly or indirectly) to the person, or to the relationship between the person and the accused, if the person gives the evidence; and b) The nature and extent of that harm outweighs the desirability of having the evidence given'. 147 Pursuant to the Evidence Act 1929 (SA) s 21(3), this is where is appears to the court: a) 'That, if the prospective witness were to give evidence, or evidence of a particular kind, against the accused, there would be a substantial risk of-(i) Serious harm to the relationship between the prospective witness and the accused; or (ii) Serious harm of a material, emotional or psychological nature to the prospective witness; and b) That, having regard to the nature and gravity of the alleged offence and the importance to the proceedings of the evidence that the prospective witness is in a position to give, there is insufficient justification for exposing the prospective witness to that risk'. 148 Lusty, above n 100, 20.