Stoddart v Boulton

ISSUES 3 To succeed in obtaining the declaration and injunction she has sought, Ms Stoddart must show that:

(1) spousal privilege or immunity exists at common law; and (2) that common law privilege has not been abrogated by s 30 of the Act.

4 I will turn to consider each of these issues in order.

does spousal privilege exist at common law? 5 The resolution of this first issue revolves around two relatively recent appeal court decisions to which I was referred by both counsel: Ms Martin for Ms Stoddart and Mr Cooke QC for the Crime Commission. 6 First, in Callanan v B [2005] 1 Qd R 348 ("B"), the Queensland Court of Appeal unanimously held that spousal privilege existed at common law: see McMurdo JA at [1], McPherson JA at [8] and Jerrard JA at [22]. That decision involved a refusal by a spouse to answer questions asked in the course of a crime investigation being conducted under the Crime and Misconduct Act 2001 (Qld) ('the Qld Act'). In their decisions, McPherson and Jerrard JJA relied extensively on an article by Mr D Lusty entitled "Is there a common law privilege against spousal incrimination?" (2004) 27 UNSWLJ 1. 7 Secondly, in S v Boulton (2006) 151 FCR 364 ("S"), a Full Court of this Court came to the same conclusion: see Black CJ at [16] to [28], Jacobsen J at [75] to [99] and Greenwood J at [171]. While the central issue in S was whether spousal privilege extended to a de facto spouse, the Full Court had to determine, as a necessary first step, whether spousal privilege existed at all. 8 At first instance in S ((2005) 155 A Crim R 152), Kiefel J considered she should follow the decision in B as a matter of judicial comity (at [31] and [32]), even though her Honour was of the view that the common law did not recognise the concept of spousal privilege: see at [25]. 9 In his decision in S, Black CJ examined the difficulties identified by Kiefel J with the existence of spousal privilege: see at [17] to [22]. In particular, his Honour noted the comments made by Kiefel J about the confusion created by statements that had related compellability to privilege: see at [20]. Furthermore, he noted the historical difficulty with the existence of a spousal privilege when the earlier common law rules relating to spousal incompetence and non-compellability meant that it would almost never have arisen for consideration: see at [19]. Ultimately, the Chief Justice concluded that Bshould be followed: see at [25] and [28]. In reaching this conclusion, his Honour noted that: ● there were differing opinions as to whether a definitive modern spousal privilege existed; ● there was one common law in Australia; ● there was a need for certainty in its interpretation; ● the decision in B had not been contradicted; ● it involved a careful analysis of the relevant legal history; and ● it was based on a scholarly article on the subject. 10 Jacobson J, with whom Greenwood J agreed, traced the historical evolution of the notions of competence, compellability and privilege and concluded that the common law did recognise a spousal incrimination privilege: see at [99]. Jacobson J noted the uncertainty surrounding the notions of compellability and privilege raised by Kiefel J (at [93]) but respectfully disagreed with her Honour as to what flowed from the proposition that a wife was not compellable as a witness: see at [98]. Jacobson J relied particularly on the decision of Barley J in R v Inhabitants of All Saints Worcester (1817) 105 ER 1215 and concluded that spousal privilege was related to non-compellability: see [91]. It should, perhaps, be noted that Kiefel J had doubted the correctness of this decision: see the reasons of Kiefel J at [15]. 11 In addition to these two appeal court decisions, it is worth mentioning that in Stoten v Sage (2005) 144 FCR 487 ("Stoten"), Dowsett J essentially took the same approach as Kiefel J in S. While his Honour doubted the existence of such a common law privilege independent of statute, for reasons of judicial comity, he decided he should follow the decision in B: see Stoten at [6] and [14]. 12 Since the resolution of this issue was a necessary part of the decision in S and, therefore, part of the ratio decidendi, I consider I am bound to follow the Full Court's decision in that case. Even if I were not so bound, I would not be so bold as to ignore the principle of judicial comity in relation to the decision in B, when, as I have noted above, five judges of this Court have recently followed it. It follows that I should hold that spousal privilege or immunity does exist at common law.

has spousal privilege been abrogated by section 30 of the acc act? 13 Unlike the first issue, this second issue has not been determined conclusively by an intermediate appeal court, or by the High Court. 14 Section 30 of the Act, relevantly provides: (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.

15 On this issue, Ms Martin essentially relied upon the views expressed by Black CJ in S to the effect that: ● spousal privilege had not been expressly abrogated by s 30 of the Act (see at [57]); ● he would be slow to conclude that s 30 of the Act abrogated spousal privilege by necessary implication (at [58]); and ● if it were necessary to decide the point, he would conclude that spousal privilege was a separate and distinct privilege and a fundamental right to which Parliament did not turn its attention when enacting the Act: see at [59]. 16 At this point, it is convenient to note that Ms Martin acknowledged that these views of Black CJ in S were obita dictum and the other two judges in that case, also in obita dicta, took the opposite point of view. Jacobsen J reviewed various authorities (S at [140] to [156]), including the Full Court decision in A v Boulton (2004) 136 FCR 420 ("A") (particularly the decision of Kenny J) and the decision of Dowsett J in Stoten. His Honour then concluded (S at [152] to [156]) that the general and unqualified obligation to answer questions expressed in s 30(2) of the Act, considered in the context of the character and purpose of the legislation, its legislative history and the Explanatory Memorandum on the 2002 amendments to the Act, was sufficient to abrogate spousal privilege. 17 For his part, Greenwood J agreed generally with the reasons of Jacobsen J (S at [170]) and concluded (S at [173]) that s 30 of the Act had the effect of excluding the operation of spousal privilege. While Ms Martin submitted that Greenwood J did not provide any reasons for his conclusion at [173], I reject that submission because I consider his Honour, at [170], clearly adopted the reasons of Jacobsen J on this issue. 18 Ms Martin also relied on B to the extent that the Queensland Court of Appeal held that the Qld Act did not abrogate the privilege against spousal incrimination. Ms Martin submitted that the Act and the Qld Act are essentially synonymous for present purposes, as both abrogate self-incrimination privilege and make no mention of spousal privilege. 19 On this aspect, Mr Cooke QC submitted that the decision in B was distinguishable for two main reasons. First, while it was held in B that, on a plain reading of the relevant section of the Qld Act that purported to prevent a person refusing to answer a question on the grounds of privilege (s 190(2)(b)), it may be inferred that the intention of Parliament was to abrogate all forms of privilege (except legal professional privilege), the Dictionary meaning of the word 'privilege' in the Qld Act used the word 'means' (instead of 'includes') and specifically mentioned only two forms of privilege: self-incrimination and legal professional. McPherson JA said this produced a 'clumsy' result (at [12]), the effect of which he described at [13] as follows:

The problem created by the intrusion of the Dictionary meaning is that, possibly inadvertently, it produces a limiting effect on s 190(2)(b).

…. the superimposition of the definition of privilege in sch.2 renders it uncertain precisely which forms of privilege were intended to be abolished and which of them preserved.

20 McPherson JA, therefore, concluded that the Qld Act did not abrogate spousal incrimination privilege by clear words or necessary implication: see at [15]. On this issue, McMurdo JA agreed with McPherson JA (at [1]) and Jerrard JA came to a similar conclusion: see at [23]. 21 Secondly, Mr Cooke QC submitted that the Qld Act was in fact quite different to the Act. In particular, s 194(1)(a) of the Qld Act excused a witness from answering questions in circumstances where that witness had a 'reasonable excuse' for refusing to answer. So, he submitted, unlike s 30 of the Act, the Qld Act did not impose upon a witness an unqualified obligation to answer questions. He submitted this difference was significant in discerning a legislative intention to exclude the common law privilege by necessary implication. Mr Cooke QC also submitted that, because of the 'reasonable excuse' defence, even if the confusion surrounding the definition of 'privilege' had not arisen, there would have been stronger grounds for the argument that the Qld Act did not abrogate the privilege against spousal incrimination, than there were available in relation to the Act. 22 On this issue, Mr Cooke QC also submitted that the Full Court's decision in A emphasised the unqualified obligation to answer questions established by s 30(2) of the Act. In this regard, he particularly pointed to the observations of Kenny J at [58] as follows:

Pursuant to s 30(2) of the Act, the obligation to answer a question that the examiner requires an examinee to answer is expressed in general terms. The purpose of an examination would, in large part, be defeated if the obligation expressed in s 30(2) were subject to the privilege …

The language of s 30(2) is apt to create not only a general but also an unqualified obligation to provide answers when required.

23 As well, Mr Cooke QC relied upon Stoten where Dowsett J detailed the legislative history of s 30(2) of the Act (at [21] to [27]) and concluded (at [29]):

It is quite clear from the Explanatory Memorandum and the Second Reading Speeches that, in deleting the concept of reasonable excuse and otherwise amending s 30, Parliament intended to establish a regime in which all questions posed by an examiner were to be answered, subject only the express provisions of s 30.

24 I would add that, as with Jacobsen J in S, Dowsett J also referred (Stoten at [30]) to the decision of Kenny J in A - his Honour was also a member of the Full Court in A - and concluded:

It is difficult to see any logical reason for the Parliament to have abrogated privilege against self-incrimination but retain spousal privilege.

25 Ms Martin attempted to deal with Stoten by submitting that Dowsett J had erred in that he had conceived of spousal privilege as an extension of the privilege against self-incrimination and concluded that, because the latter had been abrogated by the Act, spousal privilege had been too. 26 What seemed to be at the heart of Ms Martin's submissions was that spousal privilege was a separate and distinct privilege from self-incrimination privilege and, consequently, on basic principle, the legislature could not abrogate the common law spousal privilege unless it did so by express provision or necessary implication. It followed that since s 30 made no express provision to abrogate spousal privilege, in order for it to be abrogated by necessary implication there would need to be evidence of a clear and unmistakable intention on the part of the legislature (see HKSAR v Lee Ming Tee (2001) 4 HKCFAR 133 at [55]). Furthermore, Ms Martin submitted that the express reference to self-incrimination privilege and the associated protections in s 30(4) and s 30(5) of the Act highlighted the fact that Parliament was only concerned to abrogate that type of privilege while leaving others untouched. 27 Before concluding on this issue, it is also worth mentioning that, during the unsuccessful special leave application in S v Boulton (see [2006] HCA Trans 665), Hayne J made a brief but telling comment, as follows:

Can I tell you bluntly what troubles me most? If the person who is incriminated by the answer has no privilege, save the limited use immunity for which the Act proscribes, why should someone who is not incriminated be outside the reach of the otherwise general obligation to answer what you are asking? That is the nub of it for me.

28 Notwithstanding the support Ms Martin is able to gain from the views of Black CJ in S, I consider the observations of Hayne J, Dowsett J and Kenny J (set out above) are highly persuasive on this issue. 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 of personal liberty.

CONCLUsion 29 For these reasons, I conclude that s 30 of the Act has abrogated spousal privilege by necessary implication. Having reached this conclusion, it necessarily follows that I do not consider that Ms Stoddart is entitled to the declaration and injunction she has sought. I therefore order that this application be dismissed with costs. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.

Solicitor for the Applicant: Bernard Bradley & Associates

Solicitor for the Respondents: Australian Crime Commission