S v Boulton

REASONS FOR JUDGMENT 1 The first respondent is an examiner of the second respondent, the Australian Crime Commission ('ACC'), under the Australian Crime Commission Act 2002 (Cth) ('ACC Act'). The applicant was summoned under s 28 of that Act to appear at an examination before the first respondent. It does not appear to be disputed that it was intended to seek answers from the applicant to questions relating to her knowledge of certain allegedly criminal activities on the part of her de facto spouse. The applicant took an objection to doing so at the outset. It was said to be based upon 'spousal privilege', which is to say, a privilege or immunity from answering questions which may incriminate the spouse of the witness. A decision of the Queensland Court of Appeal in Callanan v B [2004] QCA 478 ('Callanan v B') had recently held that the common law recognised such a privilege. 2 The first respondent proceeded upon the basis that there was such a privilege and that it was capable of applying to an examination by the ACC. In his view however, the privilege could not be claimed by the applicant because she was not married to the person who was under investigation. The common law privilege only recognises and attaches to a person to whom the witness is lawfully married. The first respondent therefore required the applicant to answer the questions. The applicant seeks a review of that decision in these proceedings. 3 The statutory scheme of the ACC Act was referred to in some detail by Kenny J in A v Boulton (2004) 136 FCR 420 at 423 [8] and following ('Boulton'). The functions of the ACC, which replaced the National Crime Authority, include the investigation of federally relevant criminal activity, which is defined to refer to serious and organised crime. An examiner appointed under s 46B of the ACC Act may conduct an examination for the purposes of a 'special ACC operation/investigation'. 4 Section 28(1) of the ACC Act provides that: 'An examiner may summon a person to appear before the examiner at an examination to give evidence and to produce such documents or other things (if any) as are referred to in the summons.' 5 Subsections (1) and (2) of s 30 provide: 'Failure of witnesses to attend and answer questions Failure to attend (1) A person served, as prescribed, with a summons to appear as a witness at an examination before an examiner shall not: (a) fail to attend as required by the summons; or (b) fail to attend from day to day unless excused, or released from further attendance, by the examiner. Failure to answer questions etc. (2) A person appearing as a witness at an examination before an examiner shall not: (a) when required pursuant to section 28 either to take an oath or make an affirmation-refuse or fail to comply with the requirement; (b) refuse or fail to answer a question that he or she is required to answer by the examiner; or (c) refuse or fail to produce a document or thing that he or she was required to produce by a summons under this Act served on him or her as prescribed.' 6 A person who contravenes these subsections (and subs (3) which is not presently relevant) is guilty of an offence: subs (6). A privilege against self-incrimination is not preserved but where such a claim is made the answer or document is not admissible against the witness in certain proceedings: subs (4) and subs (5). The law relating to legal professional privilege is unaffected: subs (9). 7 Callanan v B involved a hearing conducted pursuant to the investigative powers given by the Crimes and Misconduct Act 2001 (Qld) at which a wife declined to answer questions relating to her knowledge of the involvement of various persons in dangerous drug-related activities, including that of her husband. McPherson JA, with whom the other members of the Court of Appeal agreed, was initially disposed to agree with the trial judge that there was no common law privilege against spouse incrimination. His Honour was however persuaded to the contrary by an article by Mr D Lusty,'Is there a Common Law Privilege against Spouse Incrimination?' University of New South Wales Law Journal, vol 27(1), 2004, pp 1-41. 8 The second respondent submits that the decision in Callanan v B should not be followed and Mr Lusty's argument that there has always been a distinct privilege recognised by the common law should not be accepted. The focus of the common law historically was upon the competence of a spouse to give evidence. It is submitted that after the 19th century the courts may have spoken of the compellability of a spouse to give evidence in criminal trials but it was never referred to as a privilege. 9 The three concepts of competence, compellability and privilege are separate though related concepts: JD Heydon & GD Byrne, Cross on Evidence, Australian edition, Lexis Nexis, Australia, 2005 at [13001] ('Cross'). As those authors point out, competence means that a person may lawfully be called to give evidence. An incompetency rule prevents a potential witness giving evidence altogether: EJ Imwinkelried, The New Wigmore: Evidentiary Privileges, Aspen Law & Business, New York, 2002 at p 43 s1.3.5 ('Wigmore'). A compellable witness is one who may lawfully be required to attend and be obliged to give evidence: Cross at[13001]. A privilege is an immunity from the disclosure of particular information. Privileges differ from the other rules in that they are based upon social policy considerations: Wigmore at s 1.3.5. 10 An essential difference between the three, as pointed out in Cross at [13001], is that evidentiary rulings on competency and compellability are given before a witness gives evidence. The rules may therefore be seen to attach to the witness and not the evidence they are to give. A privilege or immunity, on the other hand, may be taken with respect to particular questions with the court ruling whether an answer is required. Put another way, the disqualification of a witness relates to the person; privilege relates to the area of interrogation: S McNicol, Law of Privilege, Law Book Company, Sydney, 1992 at p 301 ('McNicol'). 11 The applicant's case depends upon there being a privilege from answering questions which might incriminate her de facto spouse. More recently it has been held that a privilege such as legal professional privilege is a rule of substantive law and not merely a rule of evidence and is not confined to evidence given in judicial proceedings: The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 at p 552 [9]-[10] ('Daniels Corporation'). The applicant would argue that a spousal privilege is of this kind. It is not suggested by the applicant that the common law rules of evidence of spousal incompetence and non-compellability have application to an examination under the Act. 12 No text or authority would appear to doubt that the common law rule relating to spouses was that they could not give evidence for or against each other. The rule was one said to be of incompetency: Cross at [13030]; Wigmore ats1.3.5; McNicol atp 297; A Ligertwood, Australian Evidence, 4th edn, Lexis Nexis Butterworths, Australia, 2004 at [5.11]; MN Howard, P Crane & DA Hochberg, Phipson on Evidence, 14th edn, Sweet & Maxwell, London, 1990 at [9-06]. Subject to certain exceptions in some criminal cases, the rule was absolute. The rule was initially directed to wives but came to be applied to either spouse. 13 The history of the rule is regarded as obscure. The authorities variously say that it rests upon the doctrine of unity of husband and wife, coupled with the privilege against self-incrimination, the danger of perjury and the 'repugnance' the public would feel in seeing a spouse testifying against the other: Hoskyn v Metropolitan Police Commission [1979] AC 474 at 484-485 ('Hoskyn'). In Hoskyn (at 485) Lord Wilberforce refers to the statement in Gilbert, Law of Evidence ((1760), p 136), that a law which allowed the evidence of a wife against her husband 'would occasion implacable divisions and quarrels, and destroy the very legal policy of marriage that has so contrived it… .' 14 It was not until the 19th century that the cases dealt with the question arising when a spouse was competent to give evidence, namely whether they were also compellable: Hoskyn at 485. The question arose in criminal cases constituting an exception to the rule of incompetency and because statutes had commenced to deal expressly with the evidence which might be given by spouses. 15 A case which assumes some importance in connexion with Mr Lusty's argument is R v Inhabitants of All Saints, Worcester (1817) 6 M&S 194 ('All Saints') and its subsequent treatment by Taylor in A Treatise on the Law of Evidence (1848) ('Taylor'). In that case the wife was held to be a competent witness in proceedings under the Poor Laws and she did not object to be examined. Bayley J (at 200) however said that if she had 'thrown herself on the protection of the Court' he was 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.' Taylor (10th edn, 1906 at s 1368) says of this decision: 'But although, by the common rule of incompetency, the wife may be permitted to give evidence which may indirectly criminate her husband, it by no means follows that she can be compelled to do so; and the better opinion is that under it she may throw herself upon the protection of the Court, and decline to answer any question which would tend to expose her husband to a criminal charge.' 16 Both this case and Taylor's statement were cited with approval by Griffith CJ in Riddle v The King (1911) 12 CLR 622 at 628-9 ('Riddle'). The other members of the Court did not deal with the question, which his Honour stated (at 627) in terms: 'Was a wife compellable at common law to give evidenceagainst her husband?' in a situation where she was otherwise competent (emphasis added). His Honour concluded (at 629) that 'the better opinion is stated by Taylor to be that a wife was not compellable.' 17 In Leach v The King [1912] AC 305 ('Leach'), s 4 of the Criminal Evidence Act 1898 made a husband and wife competent to give evidence in the case of specified offences including incest. The Court of Criminal Appeal held that the statute made the wife an ordinary witness and therefore compellable. The House of Lords did not accept that proposition. In their Lordships view the principle that a wife cannot be compelled to give evidence was well settled (at 309, 311). 18 The decision in Leach was approved in Hoskyn. In relation to Leach, Lord Wilberforce observed (at 487) that if their Lordships had been asked 'What about the case when a wife was competent at common law - does not the ordinary rule make her compellable' they would have answered 'No, because the considerations which led the law to treat her as competent do not in any way weaken the force of the principle that we have stated that a wife ought not to be forced into the witness box, a principle of general application and fundamental importance.' (emphasis added). 19 In Hoskyn the husband was charged with wounding his wife. The wife was unwilling to give evidence but was required to. The question for the House of Lords was stated by Lord Wilberforce to be 'whether a wife is a compellable witness against her husband in a case of violence on her by him' (at 482). 20 The judgments in Hoskyn refer to the decision of Bayley J in All Saints. Of that case Viscount Dilhorne said (at 491): 'If in 1817 it was held in some quarters that a wife who was competent was ipso facto compellable, I cannot but think that Lord Ellenborough CJ and Bayley J would have referred to it. What was said in that case certainly lands no support to the view that competence on the part of a wife involves compellability. …' 21 There are a number of statutes in Australia and overseas which deal expressly with the questions whether a spouse is competent or compellable. In Australia they are both competent and compellable in civil cases and in general competent in criminal cases, although rules for compellability differ: McNicol at p 297; also see in particular: Evidence Ordinance 1971 (ACT) ss(2), 66, 74; Evidence Act 1898 (NSW) s 6; Evidence Act 1939 (NT) ss 7, 9; Evidence Act 1977 (Qld) ss 7, 8; Evidence Act 1958 (VIC) s 24; Evidence Act 1929 (SA) ss 16, 21; Evidence Act 1910 (Tas) ss 84, 85(3A), 85; Evidence Act 1906 (WA) ss 7, 9(1) (as amended by Acts Amendment (Evidence) Act 1991 (WA) s 5 and s 7 respectively); Crimes Act 1900 (NSW) ss 407, 407AA; Crimes Act 1958 (VIC) ss 399, 400. Reference is not made in these legislations to a spousal privilege. 22 Mr Lusty's article suggests that the common law took a wrong turning as a result of Lord Coke's pronouncement of the rule as one of incompetency: see also Hoskyn at 484. In his view, the better statement of the rule was that given by Michael Dalton in The Countrey Justice (1st edn, 1618 at 261), namely that a wife 'was not bound to give evidence, nor be examined against her husband.' He accepts that Coke's rule of incompetency dominated the case law for many years but argues that a line of 'collateral' cases following Dalton's statement of the rule ran parallel with those developing out of the incompetency rule. The most important case for the purposes of the argument would appear to be the All Saints case. Mr Lusty is of the view that the general and unqualified language in each of Riddle, Leach and Hoskyn shows a recognition of a spousal privilege. Compellability and privilege are, in his opinion, two manifestations of the one basic principle (at 19). He concludes that there is a common law privilege against spouse incrimination which is analogous to, yet separate from, privilege against self-incrimination (p 23). 23 McPherson JA in Callanan v B (at [6]-[7]) approved the starting point identified by Mr Lusty for such a privilege and its apparent acceptance in the three cases mentioned: '[6] The first question is, as I have said, whether there is a common law privilege against spouse incrimination. His Honour held that there was not. I would have been disposed to agree with that conclusion were it not for having seen a very recent paper by Mr David Lusty published in 2004 in vol 27 of the University of New South Wales Law Journal 1, entitled "Is there a Common Law Privilege against Spouse Incrimination?". Mr Lusty's answer, which he supports by cogent authority and careful research, is that the common law has recognisedsuch a "spousal privilege" for a very long time, going back to the 17th century and beyond. It would be an act of temerity on my part to attempt to summarise what he has written, which is available in full in the journal referred to; but its substantial starting point is the statement by Michael Dalton in The Countrey Justice (1618),at 261, that a wife "is not bound to give evidence, nor be examined against her husband". Dalton's Countrey Justice has, as Mr Lusty points out, been judicially recognised as a work of the highest authority; and I may perhaps venture to add that it was immensely influential in the United States in both the colonial and post-colonial period. Many of the later treatises published on the subject were local adaptations of that work. (emphasis added). [7] Coming to more recent times, a wife has been held not to be a compellable witness in criminal proceedings against her husband for an offence of wounding her. That was held to be so in Hoskyn v Metropolitan Police Commissioner [1979] AC 474, in which the House of Lords relied on statements in their earlier decision in Leach v The King [1912] AC 305, where Lord Loreburn LC referred to the "fundamental and old principle" that "you ought not to compel a wife to give evidence against her husband in matters of a criminal kind" ([1912] AC 305, 309). In the same case, Lord Atkinson said: "The principle that a wife is not to be compelled to give evidence against her husband is deep seated in the common law of this country, and I think if it is to be overturned it must be overturned by a clear, definite, and positive enactment, and not by an ambiguous one ...". In Australia, Griffith CJ in Riddle v The King (1911) 12 CLR 622, 626-628 treated as correctly stating the law some of the principal common law decisions that have recognised such a privilege. See also Hawkins v Sturt [1992] 3NZLR 602, 610, where Tompkins J repeated that "the fundamental common law principle that a spouse is not to be compelled to give evidence against the other spouse" is not to be overturned "save by a clear, definite and positive enactment to that effect". In the United States, the existence of such a privilege was accepted by the Supreme Court in Trammel v United States (1980) 445 US 40, 53.' 24 I should for completeness refer briefly to the last two cases cited by his Honour. Hawkins v Sturt [1992] 3 NZLR 602 concerned the question whether the "fundamental principle" established in Leach, that a spouse is not to be compelled to give evidence, was abrogated by statute. In Trammel v United States (1980) 445 US 40 ('Trammel') it was noted that an earlier decision of the Supreme Court had abolished the common law disqualification, but left undisturbed the rule that either party could prevent the other from giving adverse testimony. The rule thus evolved into one of privilege rather than one of absolute disqualification. 25 I regret that I am unable to agree that there is a spousal privilege recognised by the common law. I shall state my reasons for that view shortly, since I consider that I should nevertheless follow the Court of Appeal's decision. 26 The common law is not static and its rules evolve. Little consideration is therefore necessary as to whether Lord Coke's statement of an incompetency rule was correct, if that was how courts thereafter understood and applied it. The argument for a spousal privilege does not deny how the rule developed but suggests that there was also a recognition of a privilege in some cases. There is an immediate difficulty, it seems to me, in accepting that the law developed by reference to competence and compellability and also recognised a privilege. An application of the former two rules would mean that the question of privilege would almost never arise for discussion given at the least that a spouse could not be compelled to be a witness. 27 The argument for a privilege would seem to depend upon the words used in the All Saints case, which might on one view suggest that Bayley J was concerned with the wife's compulsion to answer particular questions rather than being compelled to give evidence at all. Since that case and Taylor's comments upon it were referred to with approval in each of the three principal cases - Leach, Riddle and Hoskyn - it is necessary to consider how the word 'compellable' was used. In my view, they meant that a witness might be obliged to give evidence as the term is ordinarily understood. There is no suggestion in the judgments that something other than that rule of evidence was being referred to. The questions stated by each of Lord Wilberforce in Hoskyn and Griffith CJ in Riddle confirm this. Compellability in this sense is the question which follows but is not answered by any issue as to competence, as Viscount Dilhorne's reference in Hoskyn to All Saints (at [20] above) makes plain. Lord Wilberforce's statement of how the question in Leach was approached (discussed at [18] above) reinforces the view that what was being determined was compellability of a witness in its broad sense and not a narrower privilege with respect to aspects of the evidence. 28 With this background and with the question the cases were dealing with identified, all that can be said about the All Saints case is that it did not suggest competence meant compellability. The remarks of Bayley J were not applied in these cases to support a privilege. The cases contain no reference to a privilege and they had no reason to venture into that domain. The decision of the United States Supreme Court in Trammel shows how in that country the common law rule was changed to a privilege, but there is nothing in the English cases to support such an evolution. 29 It cannot be doubted that from time to time there has been confusion about the three concepts. This has arisen in connexion with another suggested common law privilege, that relating to marital communications. It is not necessary to discuss it at length. Rumping v Director of Public Prosecutions [1964] AC 814 at 864 holds that the only common law rule affecting the evidence of spouses inter se was based upon competency and there was no separate principle standing apart from it: see also McNicolat p 301. I agree with that author's contention that one cannot use the words privilege and incompellability interchangeably and that the conceptual distinction should be maintained. There seems to me no reason to doubt that that the judges in the cases referred to above would have understood the distinction. 30 The fact that there is no text or authority, apart from Callanan v B, which has discussed the existence of a spousal privilege does not support the applicant's argument. Nevertheless it has been held that an intermediate appellate court - and even more so a single judge - should not depart from a decision of another Australian intermediate appellate court in an area where uniformity is desired, unless the court is convinced that the reasoning is plainly wrong: Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 112 ALR 627 at 629 ('Marlborough'). 31 Australia has a unified common law: Kable v Director of Public Prosecutions for New South Wales (1996) 189 CLR 51 at 112, and the need for certainty therefore arises. It has been suggested that it would be on a rare occasion that a court determining the same issue would depart from the decision of another comparable court: Telstra Corporation Ltd v Trelour (2000) 102 FCR 595 at 602-3 [27] and [28]. Their Honours were there concerned with decisions dealing with the construction of statutes, but the need for certainty with respect to the content of a common law rule may be as great as in the area of legislation. I would not suggest that the decision in Callanan v B is plainly wrong. In that regard it seems to me that Marlborough requires even further reticences of a single judge. It must be accepted that in some areas of law minds may differ even if views to the contrary are strongly held. This is so here where what is involved is the historical origin and construction of a rule of common law and the meaning given by the courts to the term compellability. 32 It follows in my view that I should apply Callanan v B. This does not however conclude the questions arising on this application. This case presents an additional feature, one not considered in Callanan v B. Here the applicant claims she has been in a de facto relationship for some years. This is not disputed, at least for the purposes of this application. 33 There are some factors which would appear to favour the applicant's contention that 'spouse' ought now to be taken to refer not only to marriages within the meaning of the Marriage Act 1961 (Cth) but also to de facto relationships. Relationships of this kind are well known in our society and are recognised for various purposes such as property and inheritance law and by a number of statutes. Furthermore, the more modern rationale for the common law rule is said to be that it is the public interest to maintain harmonious relationships and the confidence of a marriage. It is submitted that this should be equally applicable to a de facto relationship. 34 The historical basis for the rule was the union of husband and wife. Upon it depended particular legal rights, duties and disabilities acquired by or as a result of the marriage: W Blackstone, Commentaries on the Laws of England, 5th edn, vol 1, Clarendon Press, Oxford, 1773 at p 442. Lord Salmon in Hoskyn (at p 495) considered that the rule underlined 'the supreme importance attached by the common law to the special status of marriage and to the unity supposed to exist between husband and wife'. The rule does not therefore apply of its own force to other relationships. The question in this case is therefore whether it can and should be extended to them. 35 Some early cases did make reference to couples living together but appear not to have regarded that as sufficient for the rule: see Batthews v Galindo (1828) 4 Bing 611; 130 ER 904. More recently in England it has been held that to be a 'spouse' for the purpose of the rule requires a valid marriage: R v Khan (1987) 84 Cr App R 44. In R v Byast [1999] 2 Qd R 384 the Queensland Court of Appeal held that the rule that a husband and wife could not be guilty of conspiracy, which derived from the same fiction namely that they were regarded by the law as one person, could not be extended to a 'common law' marriage. The 'exceptional position' created by the law should, their Honours held, be taken to refer to husband and wife constituted as such by a lawfully solemnized union (at 385). 36 Common law rules and immunities may be revised from time to time. The approach that should be taken can be seen by the decision of the High Court in P'Orta-Ekenaira v Victoria Legal Aid (2005) 214 ALR 92. It involves consideration of the policy behind the immunity and whether it endures: see also Arthur JS Hall v Simons [2002] 1 AC 615 at 688, 704. As Lord Reid pointed out in Rondel v Worsley [1969] 1 AC 191 at 227B-C, public policy is not immutable and should be re-examined if there is doubt as to whether it is justifiable in present day conditions. 37 Calvary v Green (1984) 155 CLR 242 provides an example of a reluctance by the High Court to extend the application of equitable principles to relationships other than a lawful marriage. It may be thought to be pertinent to the present case. It was there held that the presumption of advancement should not be extended to de facto spouses: see at pp 259-260 and p 268. Deane J pointed out that these exceptional cases in equity are defined by categories of relationships rather than the actual presence of love or affection. In his Honour's view, any adjustment of those relationships should be made by reference to logical necessity and analogy and not by reference to idiosyncratic notions of what is fair and appropriate. 38 In Garcia v National Australia Bank (1998) 194 CLR 395 at 404 and 422-5, consideration was given to the question whether the principle referred to in Yerkey v Jones (1939) 63 CLR 649 namely the 'special equity' protecting married women, should be extended to other 'publicly declared relationships short of marriage between members of the same or of opposite sex', but it was not necessary to decide the question. It may be observed that the principle is based upon the marriage relationship being one of 'trust and confidence'. The Court said that it was not based upon a theory of female dependence. The 'tenderness' of the law towards women was not based upon the marriage ceremony but reflects the underlying risk of exploitation in relationships. Further, in Barclays Bank v O'Brien [1994] 1 AC 180 Lord Browne-Wilkinson concluded that the law should recognise that legal wives were not the only group exposed to the emotional pressure of cohabitation. 39 A difficulty in applying the reasoning of his Lordship in the present case is that the policy relating to spousal privilege is not one which arises from an incident of relationships generally. It is truly a policy, said historically, to reflect the desire of the public with respect to the harmony of and confidence within marriage. Another difficulty is that any basis for the rule seems antiquated and difficult to justify: Cross at [13250]. Indeed the better course in the view of some could be to abolish it altogether or modify it, as many statutes have done. 40 In R v Hawkins [1996] 141 DLR (4th) 193 the Supreme Court of Canada considered the position of the former girlfriend of an accused person who had given statements prior to her marriage to him. Although upholding the rule's extension to her, the majority also considered submissions that the rule should be modified. Their Honours noted the relevant justifications for the rule as being the promotion of conjugal confidences and marital harmony and the repugnance of conscripting a person into the prosecution of their spouse. The rule had however been called arbitrary for the reason it excluded other relationships and was antiquated. It also impinged upon aspects of a person's autonomy. However, whilst expressing its willingness to adapt and develop common law rules to reflect changing circumstances in society at large, the Court was of the view that it should only make incremental changes (at pp 210-214). This is consistent with the approach taken in other common law jurisdictions. 41 Two changes to the rule were suggested as necessary to the Court. The details of them are not relevant for present purposes save to note they involved the creation of a new exception to the rule to deal with attempts to insulate evidence, and changing the rule to render a spouse competent if the marriage was solemnized after the issue of an indictment. These changes were not considered by the court to be merely incremental. 42 It does not seem to me a small matter to extend a rule which has as its basis a formal legal relationship and public perceptions, historically, about what is involved in such a relationship, including views about how it should be maintained. If it is suggested that the rule is antiquated, that would not seem to me to provide much support for a logical extension of it. It may suggest its abrogation as appropriate. 43 In the result, in my view, the first respondent was correct in requiring the applicant to answer questions as she was not able to avail herself of any common law privilege. 44 Given the conclusion I have reached it is strictly not necessary for me to answer further questions raised by the second respondent as to whether the privilege is abrogated by the ACC Act and whether it is such as should apply to non-judicial proceedings. I shall make only some brief observations. 45 Abrogation of important common law rights and immunities by statute requires clear words or necessary implication: Daniels Corporation at 553. The words 'necessary implication' require that any intention to abrogate such a right or privilege must appear clearly and unmistakably from the legislation as a whole: Boulton at [55]. But these statements assume the existence of a right of the kind mentioned such as the privilege against self-incrimination which is dealt with expressly by s 30 of the ACC Act. The principal question in the present case is whether the 'privilege' involves rights or immunities. It seems to me to be arguable that it is closer to a rule of evidence than a substantive rule of law. 46 The application will be dismissed with costs. I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel.

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