Friday, 9 October 2009

Common law spousal privilege

A sequel of sorts to Re an application under the Major Crime (Investigative Powers) Act 2004 [2009] VSC 381 played out in Federal Court last week. The very different outcome serves as an example of how influential the Charter of Human Rights and Responsibilities Act 2006 has been to Victorian law.

In Stoddart v Boulton [2009] FCA 1108, an application for an injunction was lodged in Federal Court to restrain the Examiner of the Australian Crime Commission from compulsorily examining a woman about matters involving her husband.

The powers of the Australian Crime Commission Act 2004 (Cth) are like the powers conferred by the Major Crime (Investigative Powers) Act 2004 (Vic) in many respects. Section 30(2) of the Act prohibits a witness at an examination from refusing or failing to answer any question put to them.

In the case of Mrs Stoddart, she refused to answer questions on the grounds of spousal privilege, then brought action for an injunction to permanently stay the Examiner from further questioning her. She relied upon a series of obiter remarks in previous cases that strongly suggested the existence of spousal privilege or immunity at common law. The argument was then developed along similar lines to Re Major Crime, though interestingly Chief Justice Warren's decision was not specifically referred to; in the absence of a specific and express intention of parliament, a basic common law right should not be considered to be abrogated (the right in this case being spousal privilege, rather than privilege against self-incrimination through use of derivative evidence).

In the Commonwealth jurisdiction, of course, there is no Charter of Human Rights to re-balance the scales in favour of the protection of the individual. In the absence of such statutory protection, the Federal Court found that spousal privilege was impliedly abrogated by the provisions of the ACC Act:

In particular, whether spousal privilege is derived from self-incrimination privilege, or is a separate and distinct type of privilege based, as Ms Martin submits, on the unity of the family, the ultimate purpose of both is to prevent the husband (in this case) being incriminated. If this is so, it would be perverse, in my view, for the legislature to abrogate the husband’s privilege against self-incrimination in s 30 of the Act, such that he must answer and thereby incriminate himself directly by his own words, and yet, to keep in place his wife’s privilege not to incriminate him (not herself) indirectly by her words. Furthermore, as Mr Cooke QC pointed out, it would be somewhat surprising if the ends of marital and family harmony were to be given a higher level of protection under the Act, than the perseveration [sic] of personal liberty.

(perserveration is, in fact, a word, but in the circumstances I think preservation may have been intended by Reeves J).

This decision reinforces the significance that a proposed Commonwealth Bill of Rights could hold. As Jeremy Gans said on the Law Report, a number of law enforcement mechanisms at Commonwealth level would need to be reviewed if such a Bill becomes a reality.


Jeremy Gans said...

It's an interesting decision. If spousal privilege is an aspect of the privilege against self-incrimination, then it's surely absurd to have the former but not the latter.

But I'm not sure that the purpose of spousal privilege is to prevent someone from being incriminated. The purpose of the equivalent in s18 of the UEL is surely to prevent damage to the relationship between family members. In that case, the relevant rights under the Charter would be the s13(a)'s right against arbitrary interference in the family or s17(1)'s right of families to protection. The latter seems more apt, though it isn't expressly mentioned in the National Consultation Report's recommended list of rights (Recommendation 25.)

Anyway, if that's right then there'd be a good argument that spousal privilege is preserved under the MC(IP)A, as it isn't expressly repealed (so Charter s. 32 can do its bit.)

Habeas Corpus said...

The Full Federal Court in Stoddart v Boulton [2010] FCAFC 89 has now reversed this earlier decision.

Common law privilege against spousal incrimination is not abrogated by the ACCA 2002 (Cth).

Jeremy Gans said...

Interesting. A High Court is inevitable, surely?

Jeremy Gans said...

And... special leave granted by the High Court last week: