High Court has the last word on right to silence for spouse

Chris Merritt, Legal affairs editor

The Australian

December 01, 2011 12:00AM

The High Court has overturned hundreds of years of legal tradition and abolished the last vestige of spouses' legal privilege.

Yesterday's decision triggered a dissent by judge Dyson Heydon, who cited precedents dating back to 1788 and spoke of the "altruism" of spousal privilege. But in practical terms, the majority's ruling came too late to prevent generations of spouses giving evidence against their partners.

By a margin of five to one, the court ruled that Australian common law did not give husbands and wives a privilege against giving incriminating evidence against each other.
The case before the High Court had been brought by the Australian Crime Commission, which is governed by legislation that has restricted the privilege against self-incrimination, but is silent on whether its investigations are subject to spousal privilege.

The ACC successfully overturned a Federal Court ruling that Louise Stoddart was entitled to claim a common law privilege against giving evidence against her husband, Queensland accountant Ewan Stoddart.In dissent, Justice Heydon argued common law should recognise a privilege against spousal incrimination. "Spousal privilege reflects greater altruism than the privilege against self-incrimination," he said. "If the privilege against self-incrimination of oneself is a fundamental right applying outside litigation in relation to all compulsory fact-gathering, why not a privilege against the incrimination of another person or persons, who may, to the claimant for the privilege, be dearer than self?"

The leading judgment by judges Susan Crennan, Susan Kiefel and Virginia Bell said Ms Stoddart was a competent witness and was compelled by the ACC Act to give evidence.
"No privilege of the kind claimed could be raised in answer to that obligation," they said.
While the ruling resolves a technical argument, it is expected to have a limited effect in practice as the Commonwealth Evidence Act already ensures that spouses can be compelled to give evidence against each other.

Brisbane criminal lawyer Michael Bosscher said that while the Queensland Evidence Act recognised spousal privilege it had been rendered almost useless by a large number of statutory exceptions. "In 17 years of practice, I've never had a case in which it has been claimed," he said. Australian Council for Civil Liberties president Terry O'Gorman said the decision was a "green light for the ACC to call in spouses to give evidence against their partners".

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Summary of decision

http://www.hcourt.gov.au/assets/publications/judgment-summaries/2011/hca47-2011-11-30.pdf


Full Transcript


http://www.austlii.edu.au/au/cases/cth/HCA/2011/47.html


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