Australian Crime Commission v Stoddart - [2011] HCA 47

HIGH COURT OF AUSTRALIA
FRENCH CJ,
GUMMOW, HEYDON, CRENNAN, KIEFEL AND BELL JJ
AUSTRALIAN CRIME COMMISSION  APPELLANT
AND
LOUISE STODDART & ANOR  RESPONDENTS
Australian Crime Commission v Stoddart [2011] HCA 47
30 November 2011
B71/2010
ORDER
1.    Appeal allowed.
2.Set aside paragraphs 1, 2 and 3 of the order of the Full Court of the Federal Court of Australia made on 15 July 2010 and in their place order that the appeal to that Court be dismissed.

3. The appellant pay the first respondent's costs in this Court.
On appeal from the Federal Court of Australia
Representation
S J Gageler SC, Solicitor-General of the Commonwealth with B Lim for the appellant (instructed by Australian Government Solicitor)
B W Walker SC with N A Martin and T F N Pincus for the first respondent (instructed by Bernard Bradley & Associates)
Submitting appearance for the second respondent
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS
Australian Crime Commission v Stoddart
Evidence – Privilege – Spousal privilege – Witness summonsed pursuant to s 28(1) of Australian Crime Commission Act 2002 (Cth) ("Act") to give evidence regarding "federally relevant criminal activity" involving her husband – Witness declined to answer examiner's questions by claiming spousal privilege – Whether spousal privilege exists at common law and, if so, whether spousal privilege extends to non-curial proceedings – If spousal privilege exists at common law, whether Act restricts or abrogates spousal privilege.
Words and phrases – "compellability", "competence", "spousal privilege".

FRENCH CJ AND GUMMOW J. The first respondent ("Mrs Stoddart") was born in 1966 and for more than 20 years has been the wife of Mr Ewan Alisdair James Stoddart ("Mr Stoddart"). For some years Mr Stoddart was self‑employed as an accountant carrying on a practice at several locations in Queensland. Mr Stoddart ceased to conduct his accountancy practice in about 2006; in the preceding couple of years Mrs Stoddart provided part‑time secretarial assistance in the practice.
The Summons
On 3 April 2009, Mrs Stoddart appeared in response to a summons ("the Summons"), issued under s 28(1) of the Australian Crime Commission Act 2002 (Cth) ("the Act"). The appellant, the Australian Crime Commission ("the ACC"), is established by s 7(1) of the Act. One of its functions is to investigate matters related to "federally relevant criminal activity" (s 7A(c)), when authorised by its Board (established by s 7B).
Section 24A of the Act empowers an examiner appointed by the Governor‑General under s 46B to conduct an examination for the purposes of a "special ACC operation/investigation" (as defined in s 4(1)). This was identified in the present case as "Operation Grindelford". An examiner, in the exercise of powers in relation to an examination, has the same protection and immunity as a Justice of this Court (s 36(1)).
The Summons was issued on 26 March 2009 by the second respondent, Mr W M Boulton, as examiner ("the Examiner")[1], and required her to attend at the premises of the ACC in Brisbane to give evidence of "federally relevant criminal activity" involving named corporations and persons, including Mr Stoddart. The expression "federally relevant criminal activity" is defined in s 4(1) and s 4A of the Act in detailed terms. The expression includes offences against a law of the Commonwealth and certain offences against a law of a State, the Northern Territory and the Australian Capital Territory which potentially fall within federal legislative power.
[1]The Examiner, as second respondent, has filed a submitting appearance.
Before issuing the Summons, the Examiner was obliged by s 28(1A) to be satisfied that it was "reasonable in all the circumstances to do so" and to record in writing the reasons for the issue of the Summons.
Section 28(1) states:
"An examiner may summon a person to appear before an examiner at an examination to give evidence and to produce such documents or other things (if any) as are referred to in the summons."
Failure to answer questions as required (s 30(2)) is an offence punishable on conviction by penalties including imprisonment for a term not exceeding five years (s 30(6)).
Section 28(5) empowered the Examiner to take evidence on oath or affirmation and to require a person appearing to take an oath or make an affirmation administered by the Examiner. Mrs Stoddart was sworn by the Examiner. To refuse to take an oath or make an affirmation would have been: (i) an offence punishable on conviction by penalties including imprisonment for a term not exceeding five years (s 30(2), (6)), and (ii) a contempt which could have led to her being dealt with by the Federal Court or the Supreme Court of Queensland. Paragraphs (a) and (b) of s 25A(2) provided that as a person giving evidence Mrs Stoddart might be represented by a legal practitioner and she elected to do so.
The law relating to legal professional privilege is preserved by s 30(9). With respect to the privilege against self‑incrimination, s 30(5) limits the use that can be made of answers given or documents produced, but only if the requirements of s 30(4) are met. These include (par (c) of s 30(4)) the making at the time of a claim that answering the question or producing the document or thing "might tend to incriminate the person or make the person liable to a penalty" (emphasis added).
After swearing in Mrs Stoddart, the Examiner explained to her that she had the privilege against self‑incrimination in the terms provided by s 30(4) and (5) of the Act. She indicated that she wished to claim the privilege and the Examiner extended to her what he called "a blanket immunity".
The claim to privilege against spousal incrimination
It will be apparent from the terms of the provisions of the Act respecting a summons that the Act is drawn on the basis that, except as the Act might otherwise provide (and it is not said that it does otherwise provide), Mrs Stoddart was a competent and compellable witness[2].
[2]cf Evidence Act 1995 (Cth), s 12.
Further, the terms in which par (c) of s 30(4) is expressed show that the Act, in dealing with the self‑incrimination privilege, proceeds upon the foundation supplied by the common law. This was stated by Lord Diplock in In re Westinghouse Uranium Contract[3] as follows:
"the privilege against self‑incrimination was restricted to the incrimination of the person claiming it and not anyone else. There is no trace in the decided cases that it is of wider application; no textbook old or modern suggests the contrary. It is not for your Lordships to manufacture for the purposes of this instant case a new privilege hitherto unknown to the law."
[3][1978] AC 547 at 637‑638. This passage was cited with approval by Mason J in Rochfort v Trade Practices Commission (1982) 153 CLR 134 at 145; [1982] HCA 66 and by Brennan J in Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 at 516; [1993] HCA 74. In his treatise on evidence, Wigmore likewise wrote that the privilege "is that of the person under examination as witness": Evidence in Trials at Common Law, McNaughton rev (1961), vol 8, §2270.
In Environment Protection Authority v Caltex Refining Co Pty Ltd[4], McHugh J, after citing this passage, indicated that the apparent common law exception respecting rejection of evidence by the spouse of the accused rested upon a distinct principle, namely, lack of competence to testify.
[4](1993) 178 CLR 477 at 549.
In Rumping v Director of Public Prosecutions[5] the House of Lords rejected the proposition that at common law communications between spouses were protected against disclosure both in civil and criminal proceedings by the other spouse or by some third person. Lord Reid said with respect to the narrower protection afforded by s 3 of the Evidence Amendment Act 1853 (UK) ("the 1853 Act")[6]:
"It is true that there are cases where it has been held that Parliament has legislated under a misapprehension of the existing law, but that can hardly be the case here."
[5][1964] AC 814 at 834.
[6]16 & 17 Vict c 83.
Yet that is the substance of what Mrs Stoddart so far has successfully contended in this litigation. In effect, she seeks extension of her common law privilege beyond that of her self‑incrimination (which she maintained before the Examiner) to that of incrimination of her spouse by her evidence, and then relies upon the failure of the legislature in s 30 of the Act to restrict or abrogate that extended privilege.
In the course of her examination by counsel assisting, Mrs Stoddart was asked whether she was aware of invoices prepared at the premises of her husband's practice for services provided by other entities. Her counsel then objected that her client claimed "the privilege of spousal incrimination" and chose not to answer the question. The Examiner responded that the objection "on the basis of spousal privilege" needed to be determined elsewhere and adjourned the examination.
The litigation
On 14 May 2009 Mrs Stoddart commenced a proceeding in the Federal Court in which she sought an injunction restraining the Examiner from asking her questions relating to her husband and a declaration that "the common law privilege or immunity against spousal incrimination has not been abrogated by [the Act]".
Reeves J dismissed the application on 1 October 2009[7]. The Full Court (Spender and Logan JJ; Greenwood J dissenting)[8] allowed an appeal by Mrs Stoddart and granted a declaration that "the common law privilege against spousal incrimination has not been abrogated by [the Act]". Implicit in the terms of this declaration is the assumption that the common law in question is that of Australia at the time of the passage of the Act. In granting this relief, the majority followed the Queensland Court of Appeal in Callanan v B[9] and the Full Federal Court in S v Boulton[10]. In the latter case, the primary judge (Kiefel J) had expressed her preference for the contrary view as to the existence of such a privilege at common law and it will be necessary to return to her Honour's reasons in that case[11].
[7]Stoddart v Boulton (2009) 260 ALR 268.
[8]Stoddart v Boulton (2010) 185 FCR 409.
[9][2005] 1 Qd R 348.
[10](2006) 151 FCR 364.
[11]S v Boulton (2005) 155 A Crim R 152.
On its appeal to this Court, the ACC makes two distinct submissions. The first is that the Full Court erred in following Callanan and the Full Court decision in Boulton by recognising "a distinct common law privilege against spousal incrimination"; the second, and alternative, submission is that the Full Court should have held that s 30 of the Act, on its proper construction, does abrogate that privilege if it otherwise exists in the common law of Australia and, if so, it extends to non‑curial proceedings such as those of the ACC. For the reasons which follow, the appeal should succeed on the first ground, so that the second ground does not arise.
Essential distinctions
A reading of the critical reasoning in Callanan[12], the principal Australian authority upon which Mrs Stoddart relies, shows what appears to be an unremarked shift between the concept of competence and compellability of parties on the one hand and, on the other, that of testimonial privilege. The same even may be said of the treatment of the subject by Professor Julius Stone in Evidence: Its History and Policies[13].
[12][2005] 1 Qd R 348 at 352‑353.
[13](1991) at 606‑611.
As noted above, no question arises respecting competence and compellability of witnesses on this appeal. The question concerns the existence of a particular privilege. But in view of some looseness of expression apparent in some of the authorities, the distinctions involved are of considerable importance. They are stated as follows in the eighth Australian edition of Cross on Evidence[14]:
"It is necessary to distinguish between three separate, though closely related, concepts – the competence, compellability and privilege of a witness. A person is competent if that person may lawfully be called to give evidence. Nowadays, most people are competent witnesses, but under the law which applied to civil cases down to the middle of the nineteenth century, and to criminal trials until the end of that century, many of those who could give relevant evidence were not allowed to do so. A person is compellable if that person can lawfully be obliged to give evidence. The general rule is that all competent witnesses are compellable, but there are a few exceptions which will have to be mentioned in due course. The essential difference between competence and compellability on the one hand, and privilege on the other, is that the two former matters must be resolved before the witness begins to testify. Once the witness has entered the witness‑box and has been sworn, has affirmed or is permitted by law to give unsworn evidence, the witness must answer all questions put unless excused or unless the refusal to answer is based upon a privilege conferred by law. Competence and compellability therefore attach to the witness and not to the evidence the witness may give."
[14](2010) at 417 [13001].
In Hoskyn v Metropolitan Police Commissioner[15], Lord Wilberforce observed that: (i) the term "compellable" is of comparatively recent origin, first appearing in the Evidence Act 1851 (UK)[16] to indicate that a spouse can be competent without being compellable; (ii) as a matter of fundamental principle, a competent witness is a compellable witness; and (iii) at general law, the only certain exception seemed to be in favour of the Sovereign and those protected by diplomatic immunity.
[15][1979] AC 474 at 484‑486.
[16]14 & 15 Vict c 99.
In Shenton v Tyler[17], Sir Wilfrid Greene MR distinguished four rules of evidence. The first was that neither a party nor the spouse of a party was a competent witness on behalf of that party; the second was that a party was not a compellable witness against that party; and the third was that one spouse was not a competent witness against the other spouse. The fourth, long uncertain but eventually upheld by the House of Lords in Rumping, denied the existence of a privilege which protected marital communications as such, and is not in issue in the present litigation. It should, however, be added that the equitable principles respecting the protection of confidences may apply, independently of the rules of evidence, to matrimonial confidences[18], but that equity will not protect confidential communications involving crime or fraud[19].
[17][1939] Ch 620 at 626‑627.
[18]Argyll v Argyll [1967] Ch 302 at 329‑330.
[19]A v Hayden (1984) 156 CLR 532 at 544‑545, 571‑572; [1984] HCA 67.
The second rule identified by the Master of the Rolls was that in the common law courts, a party was not a compellable witness against that party. The rule did not apply in Chancery, where interrogatories might be administered to the opposite party and discovery ordered. This emphasises the importance, in the period before the fusion by the Judicature system of the administration of several court structures in England, of an appreciation that the rules of "the common law" primarily were those administered at jury trials by the courts of common law, and these rules were not necessarily followed in Chancery, Admiralty or the ecclesiastical courts[20].
[20]See the discussion by Luxmoore LJ in Shenton v Tyler [1939] Ch 620 at 646.
The first rule identified by the Master of the Rolls in Shenton v Tyler was that in the common law courts neither a party nor the spouse of a party was a competent witness on behalf of that party. The third rule also came into operation where the other spouse was a party. That spouse was not a competent witness against the other. As rules affecting competence, they extended to the whole of the evidence the witness might be able to give, whether or not relating to marital communications. One reason given to support the rules, in an era when a party was seen as having an interest in the litigation rendering him or her incompetent as a witness, was that the interest of the spouse of a party was exactly the same.
There were limited and indefinite exceptions to the incompetency of one spouse as witness for or against the other spouse. The early authorities were collected in 1796 as Note (a) to the report of a ruling in 1709[21]. Subsequent authorities included Aveson v Kinnaird[22], where in an action on an insurance policy taken out by a husband on the life of his wife there was admitted a dying declaration by the wife which tended to show fraud on the part of her husband.
[21]Anonymous (1709) 11 Mod 224 [88 ER 1004]. In this action brought by the husband against the defendant for assault and battery by the defendant of the wife, she was admitted by Sir John Holt CJ to give evidence. In Thompson v Trevanion (1693) Skinner 402 [90 ER 179], his Lordship had admitted in an action by the husband and wife for assault and battery by the defendant, a statement by the wife made immediately upon receiving the hurt, as part of the res gestae. See Kent, Commentaries on American Law, (1827), vol 2, Lecture XXVIII at 151.
[22](1805) 6 East 188 [102 ER 1258].
In Shenton v Tyler, the Master of the Rolls, in dealing with the fourth rule, referred[23] to the Second Report of the Common Law Commissioners presented in 1853. The Commissioners recommended (at 13‑14) that the law provide that all communications between spouses be privileged. That particular recommendation was acted upon by the Parliament (in s 3 of the 1853 Act), but only in a limited fashion[24]. Hence the statement in the eighth Australian edition of Cross on Evidence[25] that while "[f]rom time to time it has been suggested that there was a common law privilege attaching to marital communications ... the privilege is entirely the creature of statute"[26]. In the United States the development of the common law took a different course in many jurisdictions with the development of a privilege respecting communications between spouses[27].
[23][1939] Ch 620 at 628‑629.
[24][1939] Ch 620 at 629.
[25](2010) at 876 [25200].
[26]For example, Evidence Act 1958 (Vic), s 27; Evidence Act 1906 (WA), s 18. Section 97(2) and (3) of the Matrimonial Causes Act 1959 (Cth) rendered each spouse competent and compellable to disclose communications made between them during the marriage, where both spouses were parties to proceedings under that statute. Section 100(2) of the Family Law Act 1975 (Cth) extends this competence and compellability to any proceedings under that Act.
[27]Wigmore, Evidence in Trials at Common Law, McNaughton rev (1961), vol 8, Ch 83.
Another point of present significance is that when reporting in 1853, the Common Law Commissioners (who included Sir John Jervis, then Chief Justice of the Court of Common Pleas, Sir Alexander Cockburn, then Attorney‑General, Martin B, and practitioners who were to become Willes J and Lord Bramwell) made no reference to any then existing common law rule of privilege relating to communications between husband and wife, or to the protection of one spouse against incrimination of the other.
It may be said that in the great majority of cases decided before the mid‑Victorian era of statutory reform, evidence of this nature was effectively excluded by the first and third rules respecting spousal competency identified above, and that only in exceptional cases could evidence attracting the alleged privilege be given where neither spouse was a party.
All Saints
As Kiefel J noted in S v Boulton[28], the critical authority said to favour the extension to one spouse of the privilege to the other against self‑incrimination appears to be that of the Court of King's Bench in R v Inhabitants of All Saints, Worcester[29]. The case thus invites some attention, particularly to appreciate, despite the darkening of time elapsed since 1817, the setting in which that litigation took place.
[28](2005) 155 A Crim R 152 at 156.
[29](1817) 6 M & S 194 [105 ER 1215].

It is necessary to begin with the "old" poor law[30] before the reforms beginning with the Poor Law Amendment Act 1834 (UK)[31], and so to refer to the Poor Relief Act 1662 (Eng)[32]. This confirmed that a parish must maintain its settled poor, so that settlement law underpinned both the right to poor relief and the duty to provide it; in particular, non‑settled destitute people could be removed to their parish of settlement. Significantly for an understanding of All Saints, a wife undertook the settlement of her husband and, thus, usually of his birth place.
[30]The term is used by Professor Cocks, in his account in The Oxford History of the Laws of England, (2010), vol 13 at 473‑478.
[31]4 & 5 Will IV c 76.
[32]13 & 14 Car II c 12. The relevant text is conveniently set out in Montague, "The Law of Settlement and Removal", (1888) 4 Law Quarterly Review 40 at 41‑42.
The operation of the 1662 statute is described as follows by Sir Thomas Skyrme in his History of the Justices of the Peace[33]:
"Under s 1 of the 1662 Act the churchwardens or overseers in any parish could complain to a single justice within 40 days after a person came 'to settle in any tenement under the yearly value of £10' in the parish, and the justice could then issue a warrant to bring the party before him for examination. It then required two justices, however, (one of the Quorum) to order the removal of the individual to the parish where he was last legally settled. If he failed to comply, a single justice might send him to a house of correction to be punished as a vagabond (s 3). There was a right of appeal to Quarter Sessions against the ruling of the two justices. It was common practice for the parish to which the pauper was to be sent to lodge an appeal, and many were successful."
[33]Volume II: England 1689‑1989, (1991) at 101‑102.
Further, Quarter Sessions might decide to send up a case for consideration by the Court of King's Bench, although mandamus did not lie to compel this to be done[34].
[34]R v Justices of the County of Carnarvon (1820) 4 B & Ald 86 [106 ER 870].
In All Saints, Quarter Sessions had confirmed an order for removal of Esther Newman (or Willis) from the parish of Cheltenham to that of All Saints. This, then, was an example of an unsuccessful appeal to Quarter Sessions by the receiving parish. The removal order bound Esther, but the contestants in Quarter Sessions were the two parishes. Quarter Sessions sent up the case for the opinion of the King's Bench, which confirmed the order for removal of Esther to the parish of All Saints. The case was fully argued in the King's Bench, with two counsel appearing for Cheltenham and three[35] for All Saints.
[35]The leading counsel appears to have been Jervis KC, father of Sir John Jervis, who was to be chairman of the Common Law Commission which reported in 1853: see Holdsworth, A History of English Law, (1965), vol 15 at 450.
As a single woman, Esther, a pauper, had gained a settlement in All Saints. This would make that parish the appropriate destination on her removal from Cheltenham. All Saints sought to avoid that result by establishing her subsequent marriage to George Willis, who had a settlement in a third parish, which was that of his birth. However, Esther would have retained her All Saints settlement if her marriage to George was bigamous. This Cheltenham sought to establish by calling Ann Willis to prove her earlier marriage to George. Counsel for All Saints objected to the competency of that witness and unsuccessfully sought to have her evidence struck out.
Neither Ann nor George Willis was a party to the litigation and neither had any other interest in the decision. Ann was a competent witness unless her competency was denied by some applicable principle. None was found in what the judges referred to as the policy of the law. However, Bayley J was of the view that Ann had not been a compellable witness[36].
[36](1817) 6 M & S 194 at 200 [105 ER 1215 at 1217‑1218].
Counsel for All Saints had submitted[37] that to show that Ann Willis was a competent witness to prove her marriage to George Willis, it was not necessary to dispute the rule that spouses could not be witnesses for or against each other; this rule was limited to cases when the interest of the spouses was in controversy, as was the case where either was a party to the record. That argument prevailed. The subsequent significance of the case is limited to the opinion of Bayley J, unnecessary for the decision, respecting compellability.
[37](1817) 6 M & S 194 at 197 [105 ER 1215 at 1216].
In the treatment of the competency of husband and wife, Starkie wrote in his treatise on The Law of Evidence[38] that:
"Where neither of them is either a party to the suit, or interested in the general result, the husband or wife is, it seems, competent to prove any fact, provided the evidence does not directly criminate the other, or, as it seems, involve the disclosure of some communication made by the other."
He added[39], with respect to All Saints, that the evidence of Ann Willis did not directly criminate her husband, and could not be used against him afterwards or made the groundwork of any future prosecution.
[38]A Practical Treatise on the Law of Evidence, 3rd ed (1842), vol 2 at 551.
[39]At 552.
Starkie made no reference in this discussion to any distinction between competence and compellability. However, it later was said in the treatise by Taylor on The Law of Evidence that Bayley J had expressed "the better opinion" in distinguishing between competence and compellability[40]. That provides no firm foundation for the decision in Callanan[41] recognising a privilege against spousal incrimination.
[40]A Treatise on the Law of Evidence, 10th ed (1906), vol 2, §1368.
[41][2005] 1 Qd R 348.
In Hoskyn[42] Lord Wilberforce treated All Saints as one of the sparse authorities bearing upon the question whether, the Sovereign and diplomats apart, there were common law exceptions to the general rule that competent witnesses were compellable. Hoskyn, like Riddle v The King[43], in which Griffith CJ referred to All Saints, was concerned with charges of personal violence of husbands against wives and the compellability, in addition to the competence, of the victims as witnesses for the prosecution.
[42][1979] AC 474 at 485‑489.
[43](1911) 12 CLR 622 at 627‑628; [1911] HCA 33.
The more recent New Zealand decision in Hawkins v Sturt[44] appears to have turned upon the question whether on its proper construction a statutory provision that one spouse was not compellable "in any proceeding" to disclose any communication made by the other during marriage, applied to investigative proceedings under the Serious Fraud Office Act 1990 (NZ). Thereafter, the New Zealand Law Commission in its Report on Evidence, presented in 1999, did treat Hawkins as "some authority to the effect that a person may claim the privilege [against self‑incrimination] on behalf of his or her spouse" but favoured (par 284) limiting the protection to the person claiming it.
[44][1992] 3 NZLR 602.
Conclusions
In our view, it cannot be said that at the time of the enactment of the Act in 2002 the common law in Australia recognised the privilege asserted by Mrs Stoddart or that it does so now. We agree with the conclusion of Kiefel J in Boulton[45] that in All Saints and the subsequent decisions, in particular Hoskyn and Riddle, the term "compellable" was used to indicate that the witness might be obliged to give evidence in the ordinary sense of the term, not that, in response to particular questions, a privilege might be claimed by the witness.
[45](2005) 155 A Crim R 152 at 159.
Orders
The appeal should be allowed, but in accordance with the undertaking it gave to this Court on the grant of special leave, the ACC should pay the first respondent's costs of the appeal to this Court and the costs order against it made in the Full Court should not be disturbed. Orders 1, 2 and 3 made by the Full Court should be set aside and in place thereof the appeal to that Court against order 1 made by Reeves J on 1 October 2009 should be dismissed.
HEYDON J. Did the first respondent have the legal right to refuse to give to particular questions asked on behalf of the appellant answers which might have a tendency to expose her husband to conviction for a crime? That is the ultimate question in this appeal. Behind that ultimate question lie three issues.
First, does a competent and compellable witness in proceedings before a court have a common law right to refuse to give to particular questions answers which might have a tendency to expose his or her spouse to conviction for a crime? (Below that alleged right will be called, as the appellant called it, "spousal privilege".)
Secondly, if so, subject to any statute to the contrary, does a person appearing before an institution which is not a court bound by the rules of evidence have a right to invoke spousal privilege?
Thirdly, if so, did the Australian Crime Commission Act 2002 (Cth) ("the Act") abolish that right?
The answers to these questions are "Yes", "Yes" and "No".
Some preliminary points arise before these three issues are examined.
Must the privilege be certain?
The appellant contended that this Court should not recognise spousal privilege unless it was "clear". It contended that "[a]ny doubt in the historical record should be resolved against the existence of spousal privilege." The submission spoke of any doubt, no matter how footling, far-fetched or fanciful. On this submission, the existence of the common law privilege should not be recognised unless that existence is certain. The submission has an initial attraction but must, with respect, be rejected.
According to Griffith CJ, "the law is always certain although no one may know what it is"[46]. Putting aside that pronouncement, there is no requirement that the law be certain before its existence can be recognised. A court cannot recognise a rule of the common law unless it believes, after making due inquiries, that the rule exists. It is not necessary that that belief rise to the level of certainty. There is no analogy between the process of recognising a rule of the common law and the process of deciding whether the guilt of an accused person has been established beyond reasonable doubt. A fortiori, there is no need to meet the higher standard of "certainty"[47].
[46]Riddle v The King (1911) 12 CLR 622 at 629; [1911] HCA 33.
[47]Miller v Minister of Pensions [1947] 2 All ER 372 at 373-374; R v Summers [1990] 1 Qd R 92 at 94-95.
Below it will be concluded that "clear" statutory language is required to abolish spousal privilege because it is one of the rules of common law to which the "principle of legality" applies[48]. But it does not follow that spousal privilege itself will not be found to exist at common law unless its existence is "clear". The test by which the existence of a common law rule, fundamental or non‑fundamental, is recognised differs from the test which determines whether a statute has achieved the destruction of a rule of the fundamental kind to which the principle of legality applies.
[48]See below at [165]-[169].
There are many cases in which appellate courts, after the most learned, earnest and bona fide examination, have concluded, but only by bare majority, that a rule of law exists[49]. From one point of view it is hard to describe the existence of that rule as "certain" or "clear". On the appellant's approach it should not have been recognised because just before it was recognised its existence could not be described as "certain" or "clear".
[49]For example, Donoghue v Stevenson [1932] AC 562.
Does the recognition of a rule of law depend on a series of rulings?
It has been pointed out that Mr Justice Holmes said[50]: "A well settled legal doctrine embodies the work of many minds, and has been tested in form as well as substance by trained critics whose practical interest it is to resist it at every step." By "trained critics" he meant litigation lawyers seeking to advance the material interests of their clients. It has therefore been suggested that spousal privilege is not a "well settled legal doctrine". The suggestion assumes that spousal privilege is not the work of many legal minds and is untested by the type of trained critic he had in mind. The suggestion also assumes that those are the only relevant criteria. Those words were published when Mr Justice Holmes was 29 and had two years' standing as a practitioner. They are none the worse for that. They are, nonetheless, limited to "well settled legal doctrines". Those doctrines usually evolve over time. They come to develop limitations, qualifications and exceptions. The experience which lawyers have gained through examining and applying them on numerous past occasions makes them easier to apply in future. But does that preclude legal doctrines at earlier stages of their evolution from embodying rules of law? The "well settled legal doctrine" theory, if advanced as an exhaustive test for identifying common law rules, does not explain how one ascertains what the law is before it becomes "well settled". A rule of law may exist even if it comes to be modified and matured in consequence of fresh considerations thrown up by the circumstances in which it has to be applied in later cases.
[50]Holmes, "Codes, and the Arrangement of the Law", in Novick (ed), The Collected Works of Justice Holmes, (1995), vol 1, 212 at 213.
The quoted passage was not the only thing Mr Justice Holmes said. Just before it he said[51]:
"It is the merit of the common law that it decides the case first and determines the principle afterwards. Looking at the forms of logic it might be inferred that when you have a minor premise and a conclusion, there must be a major, which you are also prepared then and there to assert. But in fact lawyers, like other men, frequently see well enough how they ought to decide on a given state of facts without being very clear as to the ratio decidendi. In cases of first impression Lord Mansfield's often-quoted advice to the business man who was suddenly appointed judge, that he should state his conclusions and not give his reasons, as his judgment would probably be right and the reasons certainly wrong, is not without its application to more educated courts."
In short, far from contending that a doctrine could not be recognised unless it could be seen to be the work of many minds, hammered out between expert rivals on the anvil of many contested cases, Mr Justice Holmes was stating that the outcome of legal problems could often be reached almost instinctively.
[51]Holmes, "Codes, and the Arrangement of the Law", in Novick (ed), The Collected Works of Justice Holmes, (1995), vol 1, 212 at 212-213.
What is more, this is the same Mr Justice Holmes who developed the "bad man" theory of the law. The bad man "does want to know what the Massachusetts or English courts are likely to do in fact. I am much of his mind. The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law."[52] That assumes that lawyers who advise the bad man will seek to prophesy – to predict – what the courts, on the basis of the materials available to them, will do. Prophecy involves an element of uncertainty, not an assurance of certainty. In many instances among the materials available for consideration before the prophecy is made will not be any long stream of decided cases having a relevant ratio decidendi or even one such case. Rather the materials may include only prior dicta, arguments by analogy, arguments seeking to avoid incoherence, moral criteria, the teachings of practical pressures, and the opinions of learned writers.
[52]Holmes, "The Path of the Law", (1897) 10 Harvard Law Review 457 at 461.
Stare decisis
This appeal does not involve any question of stare decisis. The only sense in which this Court is "bound" by any decision is that it will not lightly overrule one of its own. There is no decision of this Court precisely in point. There are in point dicta of Bayley J, sitting as one member of the Court of King's Bench in banc in R v Inhabitants of All Saints, Worcester[53]. Even if the propositions he stated had been part of the ratio decidendi, since Cook v Cook[54] struck off the fetters of the vile servitude under which Australian courts had groaned before 1986, they would not now be binding on any Australian court.
[53](1817) 6 M & S 194 at 200-201 [105 ER 1215 at 1217-1218].
[54](1986) 162 CLR 376 at 390; [1986] HCA 73.
Max Radin said[55]:
"If a court follows a previous decision, because a revered master has uttered it, because it is the right decision, because it is logical, because it is just, because it accords with the weight of authority, because it has been generally accepted and acted on, because it secures a beneficial result to the community, that is not an application of stare decisis. To make the act such an application, the previous decision must be followed because it is a previous decision and for no other reason".
What Bayley J said is not to be followed because it is "a previous decision and for no other reason". It is to be followed because it is the work of "a revered master" which is "right", "logical", "just" and "beneficial". It accords with "the weight of authority", limited though that is. It has been "generally accepted and acted on" for many generations in the sense that only one judicial opinion is adverse to it[56], until very recently no text writer had criticised it, and very many treatises have asserted it to be true. In that respect this unusual appeal is valuable in that it reveals how the weight of professional, and latterly academic, opinion can play a significant role in recognising common law rules.
[55]"Case Law and Stare Decisis: Concerning Präjudizienrecht in Amerika", (1933) 33 Columbia Law Review 199 at 200.
[56]S v Boulton (2005) 155 A Crim R 152.
The distinction between competence, compellability, privilege and discretionary relief
A person who desires not to give evidence adverse to another person – in particular, a spouse who seeks a ruling from the court that he or she not be compelled to give evidence which might incriminate the other spouse – might seek to rely on one of four doctrines. Three are clear. In 1977 a fourth was suggested in England. There are no others.
Competence. First, the person may not be competent to give evidence of any kind – that is, may not lawfully be called to give evidence. In modern Australian law, the topic of non-competence is heavily regulated by statute. Instances of non-competence are limited to certain types of children, to persons of defective intellect, and to the accused or the accused's spouse when called as a prosecution witness (save in relation to particular offences).
Compellability. Secondly, though competent, the person may not be compellable to give evidence – that is, the person may lawfully be called to give evidence, but may not lawfully be compelled to enter the witness box. The word "non-compellability" is often used in a loose and wider sense to mean "privilege", and vice versa, but it is desirable to be more precise. In modern Australian law, the topic of compellability, too, is heavily regulated by statute. Instances of witnesses who are competent but not compellable are probably limited to an accused (who is competent in the defence case, and competent but not compellable at the instance of co-accused persons); the spouse and other relatives and associates of the accused; the sovereign, foreign sovereigns, and the diplomatic representatives of foreign sovereigns; and to some extent members of Australian legislatures.

Privilege. Thirdly, a person who is competent and compellable, and has entered the witness box, may have a privilege not to answer particular questions. In the last 16 years a fashion for creating new statutory privileges has grown up. They fall faster and pile up deeper than the leaves of Vallombrosa. But the best‑known privileges are three of the privileges developed at common law – the privilege against self-incrimination, legal professional privilege and "without prejudice" privilege. A person who validly claims privilege is seeking vindication of a right, not supplicating for the favourable exercise of a discretion[57]. The right on which the claimant is relying may be waived, but if it is asserted by a properly formulated objection assigning valid grounds for refusing to answer, the right – ie the privilege claimed – must be upheld by the court.
[57]Rank Film Distributors Ltd v Video Information Centre [1982] AC 380 at 442.
Links between non-compellability and privilege. There are links between questions of non-compellability and privilege. A question of whether a witness is competent is for the parties and for the court, for the court has a duty to preserve the orderly administration of justice by ensuring that untoward events do not take place like the entry into the witness box of very youthful children, or mentally defective persons, or accused persons in the prosecution case. But questions of non-compellability and privilege are pre-eminently for witnesses, not the parties or the court. A person who is non-compellable and declines to enter the witness box is in effect refusing to answer any questions at all. A person who is non-compellable but decides to enter the witness box and claim privilege is refusing to answer only questions falling within the category for which privilege can be claimed. In some circumstances the court may have a duty to advise persons who are non-compellable or may claim a privilege of their rights, or may follow a practice of doing so. But in the end it is those persons who must exercise a choice to make a claim of non-compellability or of privilege. Like non-compellability, a privilege is personal to the person claiming it, or, in the case of legal professional privilege, the person on whose behalf it is claimed. Thus at least in the case of the privilege against self-incrimination, evidence given by a witness wrongly compelled to answer may not be used against the witness in other proceedings[58]. If the court wrongly fails to uphold the claim to privilege, and the witness whose claim was wrongly rejected is a party, there is a right of appeal. A witness whose claim was wrongly rejected who is not a party obviously cannot appeal. And there is authority suggesting that a party adversely affected by the wrongful rejection (or acceptance) of a claim for privilege may not appeal[59].
[58]R v Garbett (1847) 2 Car & K 474 [175 ER 196]; R v Coote (1873) LR 4 PC 599; Brebner v Perry [1961] SASR 177 at 181; R v Clyne (1985) 2 NSWLR 740.
[59]R v Kinglake (1870) 22 LT 335; Markovina v The Queen (No 2) (1997) 19 WAR 119 at 126. See also Doe d Earl of Egremont v Date (1842) 3 QB 609 [114 ER 641].
The personal character of spousal non-compellability and spousal privilege is significant. If spousal privilege exists, the fundamental reasons for it overlap with the fundamental reasons for the existence of spousal non‑compellability. Indeed much of the argument for the first respondent proceeded on the assumption that that overlap conclusively established the existence of spousal privilege. It is a suggestive factor, but it is not conclusive.
Discretionary power of rejection. Where a competent and compellable witness cannot claim any privilege but desires not to give evidence adverse to another, a party may contend that the court has a discretionary power to reject the question seeking that evidence. There is a statement of Hoffmann J that "in a civil action the court does not have a discretion to permit a witness giving evidence at the trial to refuse to disclose relevant and admissible facts which are not covered by any recognised privilege."[60] That is an impeccably orthodox statement. Statute apart, are there any exceptions to it? Over the years since R v Christie[61] was decided in 1914 there have developed discretions in criminal cases to exclude evidence if its prejudicial effect would exceed its probative value[62] and to exclude evidence if the strict rules of admissibility would operate unfairly against the accused[63]. But it is not easy to point to the existence of these discretions in general form before 1914, and in large measure before quite recent periods. Their existence at common law outside criminal proceedings has been termed "highly doubtful"[64] in this Court and was emphatically denied in 1914 by both the House of Lords[65] and the Privy Council[66]. There has been, however, recognition of a limited discretion in civil cases concerning the special field of similar fact evidence to exclude evidence which, though relevant, is only remotely relevant or has small probative value compared to the additional issues which it would raise and the additional time required for their investigation, or might tend to confuse the jury as to the real issues[67]. The first respondent did not rely on these discretions. And they are not privileges because they can be invoked only by a party, not a witness.
[60]Arab Monetary Fund v Hashim (No 2) [1990] 1 All ER 673 at 681.
[61][1914] AC 545.
[62]R v Swaffield (1998) 192 CLR 159 at 191-193 [62]-[64]; [1998] HCA 1.
[63]Driscoll v The Queen (1977) 137 CLR 517 at 541; [1977] HCA 43; Stephens v The Queen (1985) 156 CLR 664 at 669; [1985] HCA 30.
[64]CDJ v VAJ (1998) 197 CLR 172 at 215 [142] n 106 per McHugh, Gummow and Callinan JJ; [1998] HCA 67. There are many authorities to the same effect, and only a handful to the contrary: Mood Music Publishing Co Ltd v De Wolfe Ltd [1976] Ch 119 at 127; Pearce v Button (1985) 8 FCR 388 at 402; Taylor v Harvey [1986] 2 Qd R 137.
[65]R v Christie [1914] AC 545 at 564.
[66]Ibrahim v The King [1914] AC 599 at 610.
[67]D F Lyons Pty Ltd v Commonwealth Bank of Australia (1991) 28 FCR 597 at 604 and 607.
In 1977 an exception in civil cases to Hoffmann J's statement swam into view as a possibility in England. It concerns claims by witnesses to refuse to answer which, though falling outside any relevant category of privilege strictly so called, nonetheless attract sympathy. In D v National Society for the Prevention of Cruelty to Children[68], Lord Hailsham of St Marylebone approved the following views of the Law Reform Committee[69]:
"Privilege in the main is the creation of the common law whose policy, pragmatic as always, has been to limit to a minimum the categories of privileges which a person has an absolute right to claim, but to accord to the judge a wide discretion to permit a witness, whether a party to the proceedings or not, to refuse to disclose information where disclosure would be a breach of some ethical or social value and non-disclosure would be unlikely to result in serious injustice in the particular case in which it is claimed."
Lord Kilbrandon agreed with Lord Hailsham[70]. Lord Simon of Glaisdale (with whom Lord Edmund-Davies was in substantial agreement[71]) emphatically differed[72]. He said: "it must be law, not discretion, which is in command." He also said[73]:
"the true position is that the judge may not only rule as a matter of law or practice on the admissibility of evidence, but can also exercise a considerable moral authority on the course of a trial. For example, in the situations envisaged the judge is likely to say to counsel: 'You see that the witness feels that he ought not in conscience to answer that question. Do you really press it in the circumstances?' Such moral pressure will vary according to the circumstances – on the one hand, the relevance of the evidence; on the other, the nature of the ethical or professional inhibition. Often indeed such a witness will merely require a little gentle guidance from the judge to overcome his reluctance. I have never myself known this procedure to fail to resolve the situations acceptably."
But judges who by "moral pressure" persuade counsel not to ask the question are not exercising a discretion to reject the question. And judges who with "a little gentle guidance" propel the witness towards a willingness to answer are not exercising a discretion to allow the question.
[68][1978] AC 171 at 227.
[69]Law Reform Committee, Sixteenth Report (Privilege in Civil Proceedings), (1967) Cmnd 3472 at 3 [1] (footnote omitted).
[70][1978] AC 171 at 242.
[71][1978] AC 171 at 243. Lord Diplock did not deal with the matter. The House of Lords was thus evenly divided.
[72][1978] AC 171 at 239.
[73][1978] AC 171 at 239.
The authorities cited by the Law Reform Committee were Attorney‑General v Clough[74] and Attorney-General v Mulholland[75]. Do these cases support the proposition for which they were cited? They agree with the well‑established rule that at common law a journalist while testifying has no privilege to refuse to disclose the source of that journalist's information[76]. But they contain three relevant passages. First, in the former case Lord Parker CJ said[77]: "it … would remain open to this court to say in the special circumstances of any particular case that public policy did demand that the journalist should be immune". Secondly, in the latter case Lord Denning MR said of members of the clergy, bankers and doctors[78]:
[74][1963] 1 QB 773.
[75][1963] 2 QB 477.
[76]McGuinness v Attorney-General (Vict) (1940) 63 CLR 73; [1940] HCA 6; British Steel Corp v Granada Television Ltd [1981] AC 1096; Independent Commission Against Corruption v Cornwall (1993) 38 NSWLR 207.
[77]Attorney-General v Clough [1963] 1 QB 773 at 792.
[78]Attorney-General v Mulholland [1963] 2 QB 477 at 489-490.
"The judge will respect the confidences which each member of these honourable professions receives in the course of it, and will not direct him to answer unless not only it is relevant but also it is a proper and, indeed, necessary question in the course of justice to be put and answered. A judge is the person entrusted, on behalf of the community, to weigh these conflicting interests – to weigh on the one hand the respect due to confidence in the profession and on the other hand the ultimate interest of the community in justice being done or, in the case of a tribunal such as this, in a proper investigation being made into these serious allegations. If the judge determines that the journalist must answer, then no privilege will avail him to refuse."
And, thirdly, in the latter case Donovan LJ said[79]:
"While the journalist has no privilege entitling him as of right to refuse to disclose the source, so I think the interrogator has no absolute right to require such disclosure. In the first place the question has to be relevant to be admissible at all: in the second place it ought to be one the answer to which will serve a useful purpose in relation to the proceedings in hand – I prefer that expression to the term 'necessary.' Both these matters are for the consideration and, if need be, the decision of the judge. And over and above these two requirements, there may be other considerations, impossible to define in advance, but arising out of the infinite variety of fact and circumstance which a court encounters, which may lead a judge to conclude that more harm than good would result from compelling a disclosure or punishing a refusal to answer."
These three statements are very vague. They are largely limited to the questioning of journalists about their sources. In Australia they have been treated as resting on a power in the trial judge to control the propriety of the proceedings by disallowing irrelevant or improper questions[80]. Thus Clancy ACJ, Brereton and Wallace JJ said[81]:
"It has never been suggested that if the question is relevant and proper any further discretion remains in the trial judge as to whether or not the witness should be compelled to answer, and if it did it is difficult to see upon what material it could be exercised."
It is plain that irrelevant questions are impermissible and open to objection, independently of any discretion. So are improper questions.
[79]Attorney-General v Mulholland [1963] 2 QB 477 at 492.
[80]Re Buchanan (1964) 65 SR (NSW) 9.
[81](1964) 65 SR (NSW) 9 at 11.
The proposition asserted by the Law Reform Committee may be a questionable transplant into a new area of a practice relating to discovery – a process which does have a discretionary element, since orders for discovery result from a procedure based on enactments with an equitable history[82]. There is a practice in defamation proceedings where qualified privilege or fair comment is relied on of limiting discovery which might reveal the source of a journalist's information. Dixon J refused to treat this practice as the basis for a rule of evidence excluding the testimonial revelation of the material[83].
[82]British Steel Corp v Granada Television Ltd [1981] AC 1096 at 1174.
[83]McGuinness v Attorney-General (Vict) (1940) 63 CLR 73 at 104-105, quoted with approval by Viscount Dilhorne in British Steel Corp v Granada Television Ltd [1981] AC 1096 at 1180.
In short, although there are indications that the discretion of which the Law Reform Committee spoke has been introduced by judicial fiat into English law[84], the Australian authorities are against it[85]. There is no reason to doubt the correctness of the Australian authorities.
[84]Science Research Council v Nassé [1980] AC 1028 at 1067; British Steel Corp v Granada Television Ltd [1981] AC 1096 at 1129, 1168-1169 and 1175.
[85]McGuinness v Attorney-General (Vict) (1940) 63 CLR 73 at 104; Re Buchanan (1964) 65 SR (NSW) 9.
Does a curial spousal privilege exist at common law?
The question as debated between the parties was whether there is a common law privilege by which one spouse can decline to answer questions the answers to which may have a tendency to expose the other spouse to conviction for a crime. The common law privilege against self-incrimination extends beyond convictions for crime to the imposition of a civil penalty. Since modern legislatures often seek to deal with misconduct, particularly commercial misconduct, by creating, in addition to crimes backed by criminal sanctions, civil contraventions backed by civil penalties, the question whether there is a common law spousal privilege relating to answers tending to expose the other spouse to the imposition of a civil penalty may be important in some circumstances. But it did not have to be debated in this appeal, and it was not.
It is generally not safe to embark on an examination of pre-19th century authorities in the law of evidence without the assistance of modern legal historians. That assistance usually demonstrates that earlier accounts call for significant revision[86]. And it is not necessary to examine pre-19th century authorities in order to resolve this appeal in favour of either party. Hence the debate between the parties about the opinions of Dalton[87] and "Lord [sic] Coke"[88] (as the parties persistently called Sir Edward), and about early bankruptcy practice, need not be examined.
[86]For example, Helmholz et al, The Privilege Against Self-Incrimination: Its Origins and Development, (1997); Langbein, The Origins of Adversary Criminal Trial, (2003).
[87]Countrey Justice, (1619) London Professional Books Ltd 1973 ed at 270.
[88]Coke, The First Part of the Institutes of the Lawes of England. Or, a Commentarie Upon Littleton, Not the Name of a Lawyer Onely, but of the Law It Selfe, (1628) at 6b.
The appellant argued, first, that there is no spousal privilege at common law, and, secondly, that the Court should not now create one. The appellant did not argue that if there were spousal privilege at common law the Court should now abolish it.
The appellant argued that the common law "never had occasion to develop spousal privilege" because until the mid-19th century spouses were generally not competent or compellable witnesses against each other in civil cases and until the late 19th century they were generally not competent witnesses against each other in criminal cases. During the periods of spousal incompetence which preceded those changes, no occasion could rationally arise for assuming that, contrary to the legal position, a spouse was competent and compellable to enter the witness box, and then considering, on that assumption, whether that spouse could claim a privilege against answering particular questions the answers to which incriminate the other spouse. But the rule of incompetence was less wide than the appellant's argument assumed. The rule of spousal incompetence did not prevent one spouse ever testifying about the conduct of the other spouse. It left some room for occasions on which a privilege question might arise. Hence, the submission that the common law "never had occasion" to consider spousal privilege is incorrect. The occasions were relatively limited, but they could arise. They could arise when a spouse was competent and compellable. They could also arise when a spouse was competent and, though not compellable, chose to enter the witness box, while reserving a desire not to answer particular questions which might incriminate the other spouse. In R v Inhabitants of All Saints, Worcester[89] Bayley J discussed an instance of the latter kind.
[89](1817) 6 M & S 194 at 200-201 [105 ER 1215 at 1217-1218].
Bayley J's dicta in R v Inhabitants of All Saints, Worcester
In that case Ann Willis was called to give evidence that she had married George Willis. If that evidence were accepted, it would follow that a later marriage by George Willis was bigamous. It was contended that she was not competent to give evidence. The contention failed. Neither Ann Willis nor George Willis were parties. There was no controversy or adverseness of interest between them in the proceedings. Hence, according to the principles of competence then in force[90], there was no bar to her entering the witness box. The court overruled R v Inhabitants of Cliviger[91], which was to the contrary. Bayley J, however, went further[92]:
"Ann Willis was a competent witness, and I found this opinion not upon the order of time in which she was called, for in my judgment she would have been equally competent after the second wife had given her testimony. It does not appear that she objected to be 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 put to her 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. But as she did not object, I think there was no objection arising out of the policy of the law, because by possibility her evidence might be the means of furnishing information, and might lead to enquiry, and perhaps to the obtaining of evidence against her husband. It is no objection to the information that it has been furnished by the wife."
The appellant described this as a "snippet" incapable of supporting spousal privilege.
[90]Bentley v Cooke (1784) 3 Dougl 422 [99 ER 729].
[91](1788) 2 T R 263 [100 ER 143].
[92](1817) 6 M & S 194 at 200-201 [105 ER 1215 at 1217-1218].
What was Bayley J talking about in this passage – non-competence, non‑compellability, privilege, or discretionary protection?

Bayley J cannot have been talking about non-competence, because he, like Lord Ellenborough CJ and Abbott J, decided that Ann Willis was a competent witness.
Though his references to "thrown herself on the protection of the Court" might suggest an appeal to discretionary protection, he cannot have been talking about discretionary protection. That is partly because no lawyer has thought that any such thing was possible until the last four decades of the 20th century. And it is partly because a claimant to a favourable exercise of discretion is merely an object of hoped-for advantage, not someone who is, in the words of Bayley J, "entitled to the protection of the Court."
Contrary to the specific submission of the appellant, Bayley J cannot have been talking about non-compellability. If Ann Willis were not compellable she would not have been sworn. Yet Bayley J's assumption was that she had been sworn and had been asked a question. The references to "protection" do not point unequivocally and exhaustively to non-compellability. A court which upholds the claim of a witness to privilege is giving the witness "protection" as much as a court which upholds the claim of a person to non-compellability.
By that process of negative elimination, privilege remains. But as well as what flows from negative elimination, there are positive indications that Bayley J was speaking of privilege. To say: "the spouse did not demur to any question" is to imply that she had willingly entered the witness box, for otherwise no question could have been asked. Privilege can be waived, and a failure to "demur to a question", or to "object" to a question, amounts to a waiver. When Bayley J said: "It does not appear that she objected to be examined", he meant the same thing as not demurring or not objecting to a question. That is, he meant that a privilege had been waived. Where a witness has demurred or objected to a question and the court compels an answer, the most probable characterisation of what has happened is that the demurrer or objection has been overruled and a claim to privilege has failed. Where on the other hand a witness has demurred or objected to a question and the court concludes that she is "entitled" not to be compelled to answer, the most probable characterisation of what has happened is that a claim to privilege has succeeded.
The wife's evidence could not directly incriminate her alleged husband, because if he were later to be prosecuted for bigamy she would not be either a competent or a compellable witness against him and her evidence would not have been admissible hearsay at the bigamy trial. But her evidence of the first marriage could indirectly incriminate him by causing inquiries to be instituted and other persons to be located – guests at the first marriage ceremony, the person who performed it, witnesses who could give evidence of cohabitation and repute to support a presumption of marriage. That is what the concluding words of the passage refer to.
Bayley J was thus assuming that an objection or demurrer by the spouse witness of whom he was speaking to answering a question on the ground that it might incriminate her husband was sufficiently based on a risk of that incrimination. In the words of Cockburn CJ in R v Boyes[93] about the privilege against self-incrimination 44 years later, he was assuming that there was a "danger [which was] real and appreciable, with reference to the ordinary operation of law in the ordinary course of things – not a danger of an imaginary and unsubstantial character, having reference to some extraordinary and barely possible contingency, so improbable that no reasonable man would suffer it to influence his conduct." Bayley J was saying that that danger was insufficient to support a conclusion of incompetence or non-compellability, but sufficient to render a claim to privilege valid.
[93](1861) 1 B & S 311 at 330 [121 ER 730 at 738].
Bayley J's language has been called "notably tentative"[94]. But that is to read bits of it in isolation. "I am not prepared to say that the Court would have compelled her to answer" may be, taken by itself, tentative. But the next words negate any tentativeness and are quite firm: "on the contrary, I think she would have been entitled to the protection of the Court."
[94]Hoskyn v Metropolitan Police Commissioner [1979] AC 474 at 503 per Lord Edmund-Davies.
It is therefore necessary, with respect, to reject the appellant's submission that Bayley J was stating a proposition about non-compellability, not privilege[95].
[95]Apart from the materials to be examined in detail shortly, others have thought that Bayley J was dealing with privilege, not non-compellability: Hoskyn v Metropolitan Police Commissioner [1979] AC 474 at 502 per Lord Edmund‑Davies; Tapper (ed), Cross and Tapper on Evidence, 12th ed (2010) at 250. To the extent that the majority in Hoskyn's case disagreed, Lord Edmund‑Davies, it has been said, "convincingly demonstrated" that they were wrong: Buzzard, May and Howard (eds), Phipson on Evidence, 13th ed (1982) at 704 [31-22].
It is also necessary to disagree with the view that later legal writers treated Bayley J as having discussed only non-compellability, not privilege.
Mr Justice Bayley
For the reasons given by Radin, a dictum can make the law. The shrewd enunciation of dicta was a primary technique in Chief Justice Marshall's illustrious career. And legal writers, too, can make the law. Indeed, they can make the law by saying things which though they may be questionable at the outset become so widely accepted that they are the law. A most important consideration is the rational force of the opinion propounded in the dictum or the writings. But something may depend on the identity of the author of the dictum, or the writer. An opinion on a point of law of the early 20th century or the early 14th century by Maitland will naturally carry more weight than the opinion of … some others.
In Riddle v The King[96] Griffith CJ called Bayley J "a Judge of very great experience and learning". In Hoskyn v Metropolitan Police Commissioner[97] Lord Salmon said of his dictum that "coming from such a master of the common law it deserves to be treated with the greatest respect: I regard it as being of the highest persuasive authority." In the same case Lord Edmund-Davies described him as "a judge of outstanding quality"[98]. But nothing will be known of Bayley J by most modern lawyers. This obstructs an understanding of the later significance of R v Inhabitants of All Saints, Worcester.
[96](1911) 12 CLR 622 at 628.
[97][1979] AC 474 at 496.
[98][1979] AC 474 at 502.
John Bayley was born in 1763. After practising as a special pleader, he was called to the Bar in 1792. In 1789 he had published a Treatise on the Law of Bills of Exchange. That is a subject difficult enough for most lawyers even after its codification[99], but much more so before codification. By 1836 there had been five English and two American editions. In 1790 he edited Lord Raymond's Reports, with notes. Around 1790 he "compiled a manuscript digest of the law of evidence, which was widely used by later pupils."[100] Explaining legal doctrines, orally or in writing, to neophytes in the law is an excellent way of increasing the understanding not only of those who are taught, but of those who teach. In 1799 he was made a Serjeant-at-Law. In 1808 he became a puisne judge of the Court of King's Bench. When he sought to lighten his burdens by going to the Exchequer in 1823, 11 silks and 101 barristers practising in the King's Bench presented two memorials to him urging him to stay. In 1830, however, he did leave and became a Baron of the Exchequer – an occasion on which Brougham paid him great tributes on behalf of the Bar. Fearing a decline in his powers, he retired in 1834. He has been described as having had a "large practice", a "mastery of case law" and a "particular mastery of the common law."[101] He had a habit which, in a minor way, was prevalent within living memory in New South Wales. Napier said that he always carried with him seven little red manuscript books "which are said to contain every case that ever was or ever will be decided in Westminster Hall"[102]. Information about cases that "will be decided" is information from which inferences as to future legal development can be drawn: that is, prophecies or predictions. Foss said of him[103]:
"No judge since the act was passed in 1799 granting a pension on retirement after fifteen years' service has declined to avail himself of the privilege for so long a period as Sir John Bayley."
How different, how very different, from the mercantile, even mercenary, retirement policies of some modern Australian judges. Lord Campbell regarded him as "among the best lawyers that have appeared in Westminster Hall" in his time[104]. Lord Campbell also said[105]:
"When M. Cottu, the French advocate, went [to] the Northern Circuit, and witnessed the ease and delight with which Mr Justice Bayley got through his work, he exclaimed, 'Il s'amuse à juger'".
[99]Bills of Exchange Act 1882 (UK); Bills of Exchange Act 1909 (Cth).
[100]Lobban, "Sir John Bayley", in Matthew and Harrison (eds), Oxford Dictionary of National Biography, (2004), vol 4 at 448.
[101]Lobban, "Sir John Bayley", in Matthew and Harrison (eds), Oxford Dictionary of National Biography, (2004), vol 4 at 448.
[102]Quoted from Napier's Manual of Improved Precedents, (1831) by Lobban, "Sir John Bayley", in Matthew and Harrison (eds), Oxford Dictionary of National Biography, (2004), vol 4 at 448.
[103]The Judges of England; With Sketches of their Lives, and Miscellaneous Notices connected with the Courts at Westminster, From the Conquest to the present time, (1864), vol 9 at 75.
[104]The Lives of the Chief Justices of England: From the Norman Conquest till the death of Lord Tenterden, (1857), vol 3 at 155.
[105]The Lives of the Chief Justices of England: From the Norman Conquest till the death of Lord Mansfield, (1849), vol 2 at 397n.
Mr Justice Bayley, then, may be said to have seen men and cities. He was viewed as a happy warrior. He had popularity and reputation. Popularity and reputation do not guarantee quality, but they can engender trust and influence. The trust may turn out to be misplaced. The influence may turn out to be pernicious. But they can both be real.
Mr Justice Bayley and legal writers
The appellant submitted that Taylor in his work on evidence had said that "it seems" that spousal privilege may exist "on one view of what [Bayley J] was saying." What Taylor actually did say will be examined below[106]. Taylor was only one of many writers who have treated the dicta of Bayley J as reflecting the existence of spousal privilege.
[106]See below at [91]-[93].
Some cases make a great impact at the time of decision, but gradually fade away. Others make no impact at the time of decision, nor for some time thereafter, but eventually become leading cases and pillars of the law. An example of the latter is the celebrated decision in Morice v Bishop of Durham[107], which, although now seen as fundamental to the law of trusts, was originally cited only for purposes which are now obsolete[108]. R v Inhabitants of All Saints, Worcester has been much cited. But what was its initial reception in legal treatises? What was its subsequent career there?
1817-1852: Phillipps
[107](1804) 9 Ves Jun 399 [32 ER 656]; (1805) 10 Ves Jun 522 [32 ER 947].
[108]Getzler, "Morice v Bishop of Durham", in Mitchell and Mitchell (eds), Landmark Cases in Equity (forthcoming).
The first treatise to notice R v Inhabitants of All Saints, Worcester was published in the same year as that case was decided. It was the third edition of S M Phillipps's A Treatise on the Law of Evidence. After a lengthy discussion of R v Inhabitants of All Saints, Worcester, the author said[109]:
"The result therefore appears to be, that, on the trial of an appeal against an order of removal [of a person to her maiden settlement], (and, upon the same principles, in any suit or proceeding between third persons,) a husband or wife is a competent witness to prove a former marriage, even after proof of a second marriage, although perhaps the witness would not be compellable to answer such questions." (emphasis in original)
This is plainly a reference to Bayley J's dicta. It is clear that, like Bayley J, the author is assuming that the spouse has entered the witness box. That is plain from the second use of the word "witness". It is also plain from the reference to questions, for if the spouse had not entered the box, no questions could have been asked. Hence the word "compellable" is a reference to privilege, not compellability. The same passage appeared in the next four editions, published in 1820, 1822, 1824 and 1829[110]. In the eighth edition in 1838 (with Andrew Amos)[111] and the ninth edition in 1843[112] the entire discussion of R v Inhabitants of All Saints, Worcester was shortened and the passage quoted above was omitted. In 1852, in the tenth edition (with Thomas James Arnold, one of the Police Magistrates for the Metropolis), the following appeared[113]:
"Although a wife is not to be rejected as a witness because her evidence has a tendency to criminate her husband, yet it seems she cannot be compelled to give such evidence."
Bayley J's judgment in R v Inhabitants of All Saints, Worcester was cited in support. Again, it is likely that the words "cannot be compelled" referred to a privilege. Phillipps's Treatise must have been influential. Apart from its eight English editions from 1817 to 1852, there were several American editions[114].
1848-1931: Taylor
[109]3rd ed (1817) at 69.
[110]4th ed (1820), vol 1 at 83; 5th ed (1822), vol 1 at 80; 6th ed (1824), vol 1 at 75; 7thed (1829), vol 1 at 80.
[111]8th ed (1838) at 165.
[112]9th ed (1843), vol 1 at 73.
[113]10th ed (1852), vol 1 at 73.
[114]See generally Twining, Rethinking Evidence: Exploratory Essays, 2nd ed (2006) at 49.
In 1848 John Pitt Taylor, then a barrister, later a County Court judge, published the first edition of A Treatise on the Law of Evidence, as Administered in England and Ireland. It was based on Simon Greenleaf's A Treatise on the Law of Evidence, published in the United States of America in 1842. According to Twining, "[f]or nearly fifty years it was regarded as the leading practitioners' treatise, replacing Starkie and Phillipps and in due course being overtaken by Phipson."[115] Taylor cited Bayley J for the following proposition[116]:
"But although, in these cases, the wife will be permitted to testify against her husband, it by no means follows that she will be compelled to do so; and the better opinion is that 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."[117] (emphasis in original)
Below this will be called "the first proposition". A reading of the passage as a whole suggests that by "these cases" Taylor meant cases in which a wife who was competent and compellable wished to give evidence tending to incriminate her husband. He read Bayley J's dicta as recognising the possession by a witness of a privilege, not as recognising a facility for the wife not to enter the witness box at all.
[115]Twining, Rethinking Evidence: Exploratory Essays, 2nd ed (2006) at 54.
[116](1848), vol 2 at 907 [997] (footnote omitted).
[117]Taylor cited R v Inhabitants of All Saints, Worcester (1817) 6 M & S 194 at 200 [105 ER 1215 at 1218].
Taylor repeated the first proposition in the second edition[118], in 1855. He added a cross-reference to a later paragraph. To the footnote referring to R v Inhabitants of All Saints, Worcester, he added a further case in support of the first proposition, namely Cartwright v Green[119]. In Cartwright v Green one of the grounds on which Lord Eldon LC allowed a demurrer to a bill of discovery was that it would compel production of material by a wife which could incriminate her husband. The bill was against three defendants, the first two of whom were husband and wife. Lord Eldon LC said[120]:
"Here the wife, if the act was a felony in the husband, would be protected: at all events she could not be called upon to make a discovery against her husband; and the third Defendant is directly implicated. The demurrer therefore is good as to all the Defendants".
That is, the husband and the third defendant could claim the privilege against self-incrimination, and the wife could not be required to give discovery incriminating her husband. There is some controversy whether this decision supported the first proposition. Brennan J, for example, treated the case as authority for the proposition that discovery "is denied because the policy of the law requires that the court should not give discovery at all in" an action to recover a penalty[121]. Seton said that a party could object to giving discovery or answering interrogatories on the ground that "an answer or document would form evidence or links in a chain of evidence of facts that would expose the deft [to] criminal proceedings". In support he said, citing Cartwright v Green: "A wife may decline to answer on the ground that her answers might tend to convict her husband"[122]. But the question whether Cartwright v Green in truth supported the first proposition is less important than the fact that Taylor said it did. In the later paragraph to which Taylor's footnote cross-referred, Taylor said[123]:
"It has already been casually observed, that some questions a witness is not compellable to answer. First, this is the case, where the answers would have a tendency to expose the witness, or, as it seems, the husband or wife of the witness, to any kind of criminal charge, whether in the common-law or ecclesiastical Courts, or to a penalty or forfeiture of any nature whatsoever." (emphasis in original)
Below this will be called "the second proposition". It plainly deals with privilege. The reference to "the husband or wife of the witness" is supported by a footnote referring to Cartwright v Green and R v Inhabitants of All Saints, Worcester, and also referring back to the first proposition. Taylor's use of the term "it seems" should not be taken to suggest doubt about the second proposition: for in stating the first proposition he had said it was the "better opinion", and that is a standard lawyer's technique for saying: "I am not absolutely certain about it, but my opinion is that it is so." There are many things lawyers think in the course of their professional lives which they are not absolutely certain about, but believe to be the case, and on which other people rely. Thereafter it became not uncommon for Cartwright v Green to be treated as an authority relevant to spousal privilege in trials, to be cited with cases specifically on that topic like R v Inhabitants of All Saints, Worcester[124] and Lamb v Munster[125].
[118]2nd ed (1855), vol 2 at 1064 [1234].
[119](1803) 8 Ves Jun 405 [32 ER 412].
[120](1803) 8 Ves Jun 405 at 410 [32 ER 412 at 413].
[121]Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 at 520; [1993] HCA 74.
[122]Forms of Decrees in Equity and of Orders Connected With Them, 3rd ed (1862), vol II at 1056.
[123]2nd ed (1855), vol 2 at 1131-1132 [1308] (footnotes omitted).
[124]For example, Thicknesse, A Digest of the Law of Husband and Wife, (1884) at 214 n 7 and 296.
[125](1882) 10 QBD 110 at 112-113, in which Stephen J relied on his own extra-curial statement of spousal privilege: see, for example, Bray, The Principles and Practice of Discovery, (1885) at 342.

Professor Wigmore suggested that the explanation, for what he terms the "privilege" of a spouse not to give evidence against the other, is the repugnance which was felt "in those days of closer family unity and more rigid paternal authority" to condemning a man by "admitting to the witness-stand" those who depended upon him[348], although other family members and servants were not excluded from giving evidence. The policy of the law has regarded the prospect of a party to a marriage giving evidence against the other with distaste, and as reflecting community sentiment, although the ascertainment of the facts and the enforcement of the criminal law have been seen by some as competing policy objectives[349]. Professor Wigmore, in particular, described it as "an indefensible obstruction to truth, in practice."[350] Nevertheless, in 1978, when the House of Lords came to consider the position of the common law on the question of compellability, in Hoskyn v Metropolitan Police Commissioner[351], it was said that the rule was based upon "the identity of interest between husband and wife and because to allow her to give evidence would give rise to discord and to perjury and would be, to ordinary people, repugnant."
[348]Wigmore, Evidence in Trials at Common Law, (1904), vol 3 at 3035 [2227].
[349]See for example R v Lapworth [1931] 1 KB 117 at 122 per Avory J; Hoskyn v Metropolitan Police Commissioner [1979] AC 474 at 507 per Lord Edmund-Davies.
[350]Wigmore, Evidence in Trials at Common Law, 3rd ed (1940), vol 8 at 232 [2228].
[351][1979] AC 474 at 488 per Lord Wilberforce; see also at 494 per Viscount Dilhorne.
Professor Wigmore used the word "privilege" in distinguishing the two aspects of the rule. He described the rule as it operated to prevent a spouse from giving evidence for the other as a "disqualification" and its operation to prevent a spouse giving evidence against the other as a "privilege"[352]. The latter term is maintained throughout the chapter on "Marital Relationship as a Testimonial Disqualification"[353] and may have been influential with others[354] to describe this aspect of the rule.
[352]Wigmore, Evidence in Trials at Common Law, (1904), vol 3 at 3034 [2227].
[353]Wigmore, Evidence in Trials at Common Law, (1904), vol 1 at 728-743 [600]‑[620].
[354]For example, Holdsworth, A History of English Law, 3rd ed (1944), vol 9 at 197‑198, although he also refers to it as a "disqualification".
A report of a ruling in a case[355] which predates Coke's statement suggested to Professor Wigmore that a "privilege" may have existed prior to, and was therefore separate from, the "disqualification". He draws from the report the court's acknowledgement that a husband had a right to prevent his wife testifying against him[356].
[355]Bent v Allot (1580) Cary 94 at 94-95 [21 ER 50 at 50]: "The defendant's wife examined as a witness. – It is informed that Colston, one of the defendants, examined his own wife as a witness: it is therefore ordered, the plaintant may take a subpoena against her on his behalf; and if Colston will not suffer her to be examined on the plaintant's party, then her examination on the said Colston's party is suppressed".
[356]Wigmore, Evidence in Trials at Common Law, (1904), vol 3 at 3034 [2227].
Professor Wigmore suggested that Coke was in error in his statement and merged two rules[357]. Regardless of the correctness of that view, the matter of the testimony of a spouse, whether for or against the other, has long been treated as one of competence effecting a disqualification[358], subject to certain exceptions and limitations upon that rule to which reference will be made. In Barker v Dixie[359] Lord Hardwicke CJ refused to allow the plaintiff's wife to be called as a witness, although the defendant consented to that course:
"The reason why the law will not suffer a wife to be a witness for or against her husband is, to preserve the peace of families; and therefore I shall never encourage such a consent; and she was not examined".
In Shenton v Tyler[360] Sir Wilfrid Greene MR denied that the privilege spoken of by Professor Wigmore had been part of English law and stated that the rules of evidence applied by the courts in connection with spouses related to competence and compellability[361].
[357]Wigmore, Evidence in Trials at Common Law, (1904), vol 3 at 3037 [2228].
[358]Stephen, A Digest of the Law of Evidence, 4th ed (1881) at 124 fn 1; Rumping v Director of Public Prosecutions [1964] AC 814 at 836 per Viscount Radcliffe; Hoskyn v Metropolitan Police Commissioner [1979] AC 474 at 484 per Lord Wilberforce, 489 per Viscount Dilhorne, 495 per Lord Salmon.
[359](1736) Cas T Hard 264 [95 ER 171].
[360][1939] Ch 620, which concerned another claim of spousal privilege which Professor Wigmore supported, that of a marital communication: Wigmore, Evidence in Trials at Common Law, (1905), vol 4 at 3257-3270 [2332]-[2341].
[361]Shenton v Tyler [1939] Ch 620 at 626, 638.
Professor Wigmore does not suggest that the privilege of the husband to which he referred was derived from the privilege against self-incrimination. He regarded that privilege as irrelevant to marital testimony[362]. And Professor Holdsworth said that it is possible that that privilege may have followed upon the rules of incompetency[363]. Moreover, the privilege against self‑incrimination has not been regarded as a privilege against incrimination by others, rather it is directed to the prospect of a person suffering a penalty or conviction out of his or her own mouth[364].
[362]Wigmore, Evidence in Trials at Common Law, (1904), vol 3 at 3039 [2228].
[363]Holdsworth, A History of English Law, 3rd ed (1944), vol 9 at 198.
[364]Controlled Consultants Pty Ltd v Commissioner for Corporate Affairs (1985) 156 CLR 385 at 393; [1985] HCA 6; Rio Tinto Zinc Corp v Westinghouse Electric Corp [1978] AC 547 at 637.
If it were suggested that the claimed spousal privilege had its foundations in the privilege against self-incrimination, the question would arise whether a wife could maintain it for her husband when the ACC Act appears to abrogate, or severely curtail, the husband's privilege against self-incrimination. We do not understand the first respondent to contend that status for the claimed privilege is gained by some connection to the privilege against self-incrimination.
The spouse as a compellable witness
The rule of competency, when it applied, meant that a person could not be called to give evidence in proceedings, for or against his or her spouse. In such a circumstance questions of the compellability of a spouse, or any privilege he or she had to refuse to answer a question, would not arise.
It has been suggested that an authoritative statement, earlier than that of Coke, appears in Michael Dalton's Countrey Justice, published in 1619[365], to the effect that a wife was not to be bound to give evidence against her husband[366]. If the words "not to be bound" were understood as "not obliged" they might imply some choice, on the part of the wife, consistent with a privilege. The particular passage relied upon in this regard[367] is as follows[368]:
"And yet the wife is not to be bound to give evidence, nor to be examined against her husband; for by the lawes of God, & of this land, she ought not to discover his counsell, or his offence in case of theft, (or other felony, as it seemeth) … I have knowen the Judge of Assise greatly to disallow, that the wife should be examined, or bound to give in any evidence against others in case of theft, wherein her husband was a partie, and yet her Evidence was pregnant and material to have proved the felony against others that were parties to the same felony, and not directly against the husband."
[365]Dalton, Countrey Justice, (1619) at 270.
[366]Lusty, "Is There a Common Law Privilege Against Spouse-Incrimination?", (2004) 27 University of New South Wales Law Journal 1 at 12-13.
[367]Lusty, "Is There a Common Law Privilege Against Spouse-Incrimination?", (2004) 27 University of New South Wales Law Journal 1 at 12.
[368]Dalton, Countrey Justice, (1619) at 270.
However, the words which immediately precede this passage are[369]:
"The Justices of Peace have authoritie (by the words of the Statute) to binde by Recognizance all such as do declare any thing materiall to proove the felony, to give evidence against the offendor".
Dalton is describing the operation of the "Marian Committal Statute" of 1555[370], which authorised the examination of witnesses for the purposes of criminal proceedings. It has been suggested that the reference to the wife "not to be bound to give evidence" may be to the act of binding her over by recognisance to attend trial[371]. The statement which follows would appear to be in the nature of a prohibition against her being examined as a witness at all and is consistent with a rule of competency.
[369]Dalton, Countrey Justice, (1619) at 270.
[370]2 & 3 Ph & M c 10.
[371]In argument in Hoskyn v Metropolitan Police Commissioner [1979] AC 474 at 481.
The first respondent submitted that Dalton ought to be taken to refer to the compellability of the wife, rather than her incompetence. Reference was made in this regard to Sir Matthew Hale's summary of Dalton's observations[372] and to the following commentaries thereon:
"The wife of a receiver who is not indicted, cannot be compelled to give evidence against a prisoner accused of the larceny, nor to be sworn or give evidence against another in case of theft, &c if her husband be concerned, though material against another, and not directly against her husband"[373] (emphasis added, footnote omitted)
and
"Lord Hale's … authority goes no further than this, that the wife is not compellable to give any evidence charging the husband with an offence"[374]. (emphasis in original)
[372]Hale, The History of the Pleas of the Crown, 2nd ed (1778), vol 1 at 301.
[373]Talfourd, A Practical Guide to The Quarter Sessions, and Other Sessions of the Peace, 4th ed (1838) at 507.
[374]Phillipps, A Treatise on the Law of Evidence, 3rd ed (1817) at 67.
These commentaries, and the latter part of the passage from Dalton, appear to be directed to the question whether the wife should be compelled to give evidence which might indirectly incriminate her husband and lead to him being charged with an offence. The passage from Dalton and the first commentary raise the question whether the wife should give evidence in a case where her husband was a party to an offence, but is not charged, where that evidence would be relevant against his co-offenders. Dalton suggests that the court would not require her to give evidence in such a circumstance. This does not equate to a privilege.
It has been observed that no authority dealt with the question of the compellability of the wife, where she is otherwise competent, until the 19th century[375]. The question whether a wife was competent to give evidence which might tend to, but not directly, incriminate her husband arose in All Saints[376] and it was held that she was competent. The earlier decision in R v The Inhabitants ofCliviger[377] had held to the contrary. A subsidiary question, which was addressed by Bayley J in All Saints[378], was whether the wife ought then to be compelled to give such evidence.
[375]Hoskyn v Metropolitan Police Commissioner [1979] AC 474 at 485 per Lord Wilberforce.
[376]R v The Inhabitants of All Saints, Worcester (1817) 6 M & S 194 [105 ER 1215].
[377](1788) 2 T R 263 [100 ER 143].
[378]R v The Inhabitants of All Saints, Worcester (1817) 6 M & S 194 at 200-201 [105 ER 1215 at 1217-1218].
Each of Cliviger and All Saints concerned the obligation of a parish to maintain a woman, to which issue her status as a married woman was relevant. Neither she nor her husband were parties to the proceedings and the husband did not stand as accused in them. However, a person, said to be the husband's wife by an earlier and continuing marriage, was sought to be called as a witness to give evidence, the effect of which might be to expose him to a charge of bigamy.
In Cliviger the evidence of the alleged first wife would also have contradicted the husband's sworn evidence that he had not been earlier married. Ashhurst J said that the situation presented "creates the doubt, whether it was competent to the wife to prove" that he had been married[379]. His Honour said that, although no question of those persons' interest in the proceedings arose, the proposed witness was incompetent to give evidence on the ground of public policy, which did not permit husband and wife to give evidence that "may even tend to criminate each other", observing that her evidence could prove him guilty of perjury, as well as bigamy[380]. Likewise, in Cartwright v Green[381] a wife's demurrer against a bill of discovery was upheld by Lord Eldon LC, on the ground that disclosure might incriminate her husband of a felonious taking of monies. But in a later case, R v The Inhabitants of Bathwick[382], Lord Tenterden CJ described the authority of the decision in Cliviger as "much shaken" by the decision in All Saints, which he followed, holding the wife to be a competent witness.
[379]R v The Inhabitants ofCliviger (1788) 2 T R 263 at 267 [100 ER 143 at 146].
[380]R v The Inhabitants ofCliviger (1788) 2 T R 263 at 268 [100 ER 143 at 146].
[381](1803) 8 Ves Jun 405 [32 ER 412].
[382](1831) 2 B & Ad 639 at 646 [109 ER 1280 at 1283].
Lord Ellenborough CJ, in All Saints, considered that it would be going too far to hold a wife incompetent "as to every fact which may possibly have a tendency to criminate her husband"[383]. To hold that a wife could give evidence would not cut across the rule of competency, that husband and wife shall not be permitted to be witnesses for or against or to incriminate each other, which he said was "founded in the policy of the law"[384]. Bayley and Abbott JJ were of like view. The ratio of All Saints is therefore that the rule of competency does not extend to a case where the evidence of a spouse may only indirectly incriminate the other spouse.
[383]R v The Inhabitants of All Saints, Worcester (1817) 6 M & S 194 at 199 [105 ER 1215 at 1217].
[384]R v The Inhabitants of All Saints, Worcester (1817) 6 M & S 194 at 199 [105 ER 1215 at 1217].
In All Saints the wife gave evidence of the fact of the earlier marriage. She did not "refuse to be examined", as Lord Ellenborough observed[385]. Whether he was implying a choice in her not to do so is not plain in what followed in his reasons. Neither he nor Abbott J discussed the question whether she would have been compellable in any event, but Bayley J did say something on this topic. It is his statement upon which the first respondent's argument substantially relies. He said, by way of obiter dictum[386]:
"It does not appear that she objected to be 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 put to her 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. But as she did not object, I think there was no objection arising out of the policy of the law, because by possibility her evidence might be the means of furnishing information, and might lead to enquiry, and perhaps to the obtaining of evidence against her husband."
[385]R v The Inhabitants of All Saints, Worcester (1817) 6 M & S 194 at 198 [105 ER 1215 at 1217].
[386]R v The Inhabitants of All Saints, Worcester (1817) 6 M & S 194 at 200-201 [105 ER 1215 at 1217-1218].
Bayley J observed that the rule of competency did not avail the wife (there was "no objection arising out of the policy of the law"). In any event she was willing to, and did, give evidence. It was in this context that he raised the question, whether she may have been obliged to do so, had she not been willing. This would appear to point to considerations of her compellability as a witness.
The first respondent rightly points out that the hypothesis of Bayley J is couched in terms as to whether the wife would be obliged to answer a question put to her. This could only arise after she had been sworn as a witness. Posing the question in this way might imply that Bayley J had something like a privilege in mind. But this is not clear from other references he makes. He does not refer to the wife as being able to claim a right as a witness, but to her seeking the protection of the court, and he does so on two occasions. This more strongly suggests that he had in mind an exercise of the court's power. The occasion for its exercise would be as to the question of her compellability as a witness. This is the issue which later cases regard Bayley J as having addressed.
It may be that the question of the wife's compellability had not been the subject of much consideration by the time of All Saints, given that the antecedent question as to the operation of the rule of competency had not been resolved. This may explain what Lord Edmund-Davies later observed in Hoskyn, that Bayley J expressed his view "in notably tentative language"[387]. These matters do not suggest the existence at this point of a recognised, freestanding privilege in a spouse as a witness as likely.
[387]Hoskyn v Metropolitan Police Commissioner [1979] AC 474 at 503 (his Lordship was in dissent in the outcome).
The later cases of Riddle v The King[388] and Hoskyn dealt with the question of the compellability of a wife in the circumstance where the rule of competency did not apply but for a different reason. In each case the husband was charged with offences against the wife. In Riddle the husband stood charged with wounding with intent to murder his wife; in Hoskyn the charge was of wounding the wife with intent to do her grievous bodily harm. In Hoskyn's case, notably, the marriage took place only a few days before the trial of the husband. In both cases the evidence of the wife could directly incriminate the husband on the charges and the rule of competency could therefore apply.
[388](1911) 12 CLR 622; [1911] HCA 33.
Cases of personal violence against a wife have long been treated as an exception to the rule of competency. Three years after Coke's statement of the rule it was held that a wife was allowed to give evidence against her husband when he was charged with her rape[389]. Although the decision was doubted for a time it later came to be applied. In Bentley v Cooke[390] Lord Mansfield said that a wife (or husband) had been permitted to be a witness when necessity required; and personal violence was a case of necessity for otherwise the wife would have no protection[391].
[389]The Trial of Mervin Lord Audley (1631) 3 St Tr 401 at 414.
[390](1784) 3 Dougl 422 at 423-424 [99 ER 729 at 729].
[391]See also Wharton, An Exposition Of The Laws Relating To The Women Of England, (1853) at 392.
The question of whether the wife could, in these circumstances, then be compelled to give evidence was raised in Riddle and in Hoskyn. In each case the wife expressed herself as unwilling to give evidence when she was called as a witness, but the judge ruled that she was compellable and she gave her evidence[392]. The question was whether she ought to have been compelled to do so, which is to say whether she was compellable in the broader sense, mentioned at the outset of these reasons. No mention is made in the judgments and speeches in these cases of any privilege which might be claimed by the wife were she compelled to give evidence, nor is All Saints referred to in connection with any such privilege[393].
[392]See Riddle v The King (1911) 12 CLR 622 at 623; Hoskyn v Metropolitan Police Commissioner [1979] AC 474 at 482.
[393]With the exception of Lord Edmund-Davies, who was in dissent in Hoskyn v Metropolitan Police Commissioner [1979] AC 474 at 502.

The decision in All Saints and the commentary upon it in Taylor on Evidence[394] were referred to in some of the judgments in Riddle and in Hoskyn, in relation to the state of the common law on the question of the compellability of the wife[395]. Taylor's view of what was said in All Saints was clearly regarded as influential. The author, citing All Saints, had said[396]:
"But although, by the common law 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." (emphasis in original)
[394]10th ed (1906), vol 2 at 973 [1368].
[395]Riddle v The King (1911) 12 CLR 622 at 628 per Griffith CJ; Hoskyn v Metropolitan Police Commissioner [1979] AC 474 at 485-486 per Lord Wilberforce (with whom Lord Keith of Kinkel agreed), 493 per Viscount Dilhorne, 496 per Lord Salmon, 502 per Lord Edmund-Davies.
[396]Taylor on Evidence, 10th ed (1906), vol 2 at 973 [1368].
Like Bayley J's judgment in All Saints, Taylor's commentary might be taken to suggest something like a right in the wife, as he refers to her being able to decline to answer any question which might incriminate her husband. But Taylor also restated what Bayley J had said, that it was necessary for the wife to seek the protection of the court. For the reasons earlier given, this suggests a determination as to her compellability.
The extract from Taylor does not suggest the existence of a rule concerning whether the wife is to be obliged, generally speaking, to give evidence. She might be able to do so because the rule of competency does not apply, the "permission" spoken of. But the question whether the court would compel her to do so is not considered by Taylor to have been resolved by All Saints ("it by no means follows that she can be compelled to do so"). Rather he favoured the view that she should not. Another authoritative writer on the law of evidence, Sir James Fitzjames Stephen, did not consider All Saints and other contemporaneous cases to be conclusive of the question of the wife's compellability:
"The cases, however, do not decide that if the wife claimed the privilege of not answering she would be compelled to do so, and to some extent they suggest that she would not." [397]
[397]Stephen, A Digest of the Law of Evidence, 4th ed (1881) at 124 fn 1.
It is unsurprising that judgments of this Court in Riddle did not express any certainty about the state of the law on the subject.
In Riddle two statutes dealt with the question of compellability in criminal proceedings[398]. They provided that a husband or wife of an accused was not a compellable witness, but one of the provisions of one of the Acts[399] contained a proviso rendering it inapplicable where a person would be compellable at common law. The question whether a wife was compellable at common law "to give evidence" was thereby raised[400]. Griffith CJ considered that the "better opinion" was that a wife was not, by reference to Taylor[401]. Barton J could find no clear ruling by a court that a spouse is both competent ("allowable to testify") and compellable, and concluded that it was "not established" that she was[402]. O'Connor J did not consider that the law could be stated any more highly than that husband and wife "are competent witnesses against each other, but it is doubtful whether they are compellable."[403]
[398]Crimes Act 1900 (NSW), s 407; Evidence Act 1898 (NSW), s 7.
[399]Evidence Act 1898, s 7.
[400]Riddle v The King (1911) 12 CLR 622 at 627 per Griffith CJ.
[401]Riddle v The King (1911) 12 CLR 622 at 629.
[402]Riddle v The King (1911) 12 CLR 622 at 633-634.
[403]Riddle v The King (1911) 12 CLR 622 at 640.
The House of Lords did not determine the question of spousal compellability in criminal proceedings until Hoskyn. In Leach v The King[404], a case which involved a charge of incest, it was held that, by s 4 of the Criminal Evidence Act 1898 (UK), the wife of a person charged with an offence to which the Act applies is not compellable to give evidence against her husband. Reference was made in passing in that case to the position at common law and to the "fundamental and old principle" that the court "ought not to compel a wife to give evidence against her husband in matters of a criminal kind."[405] That dicta was not followed in R v Lapworth[406], in connection with charges of personal violence by a husband against his wife, and that position was maintained until Hoskyn.
[404][1912] AC 305.
[405]Leach v The King [1912] AC 305 at 309 per Earl Loreburn LC; see also at 310-311 per Earl of Halsbury, 311 per Lord Atkinson.
[406][1931] 1 KB 117, nor in R v Algar [1954] 1 QB 279 at 285.
The first respondent pointed to a statement by Earl Loreburn LC in Leach, that a clearly stated law would be necessary "before the right of this woman can be affected"[407], as indicative of the existence of a privilege. The statement must be read in context. At issue in that case was a statutory provision which said that a wife or husband of an accused person may be called as a witness for the prosecution or the defence. His Lordship observed that, without the provision, the wife could not have been allowed to give evidence and it followed that she could not have been compelled to do so "and was protected against compulsion."[408] The protection referred to is that afforded by the rule of competency. It was against this background that he enquired whether it would have been intended by the provision to deprive her of this protection. The "right" of which he spoke was therefore what was provided by the rule of competency and this was not a privilege.
[407]Leach v The King [1912] AC 305 at 310.
[408]Leach v The King [1912] AC 305 at 310.
The majority in Hoskyn did not consider that the courts should require a wife to give evidence against her husband, even when he was charged with injuring her. The principal question in Hoskyn was whether the fact that a wife was competent to give evidence, because of the exception to the rule, meant that she was thereby compellable and it was held she was not. It was in this context that reference was made to All Saints and to Taylor's comments upon that case[409]. No reference was made by the majority to All Saints in connection with a spousal privilege[410]. The decision in Hoskyn as to the wife's compellability ultimately rested upon policy considerations as to marriage. Lord Edmund-Davies dissented, regarding the gravity of crimes of personal violence of this kind and the duty to prosecute them as more important[411].
[409]Hoskyn v Metropolitan Police Commissioner [1979] AC 474 at 485-486 per Lord Wilberforce, 490-491 per Viscount Dilhorne, 496 per Lord Salmon.
[410]Although Lord Edmund-Davies, in dissent, did so: Hoskyn v Metropolitan Police Commissioner [1979] AC 474 at 502.
[411]Hoskyn v Metropolitan Police Commissioner [1979] AC 474 at 507. It has been observed that this policy has found more favour with Australian legislatures: see Cross on Evidence, 8th Aust ed (2010) at 443 [13125].
Lord Wilberforce[412] acknowledged that there were arguments of policy either way[413]. He agreed with what had been said in Leach, that as a matter of principle a wife "ought not to be forced into the witness box"[414], and approved the approach taken by Griffith CJ in Riddle[415]. He was clearly influenced by the view the law, historically, had taken to marriage and which had informed the rule of competency. Lord Salmon considered it would be inconsistent with the common law's attitude to marriage, if a wife were to be compelled to give evidence incriminating her husband[416]. Viscount Dilhorne approved the statement of Griffith CJ in Riddle[417] that "[t]he old doctrine of the unity of husband and wife^[[418]^], and the importance of preserving confidence between them, and the other reasons which have been variously given, have still a great deal of weight."[419]
[412]With whom Lord Keith of Kinkel agreed.
[413]Hoskyn v Metropolitan Police Commissioner [1979] AC 474 at 483.
[414]Hoskyn v Metropolitan Police Commissioner [1979] AC 474 at 487-488.
[415]Hoskyn v Metropolitan Police Commissioner [1979] AC 474 at 488-489.
[416]Hoskyn v Metropolitan Police Commissioner [1979] AC 474 at 495.
[417]Riddle v The King (1911) 12 CLR 622 at 630.
[418]But see in this connection Tripodi v The Queen (1961) 104 CLR 1; [1961] HCA 22.
[419]Hoskyn v Metropolitan Police Commissioner [1979] AC 474 at 494.
The decision in Hoskyn is not directly applicable to a case such as this, for the reasons already mentioned. The first respondent did not suggest that it was. In argument for the first respondent it was put that the views of the majority regarding non-compellability were necessarily founded upon the privilege ("the underlying right"). That is to say, the considerations of marriage there referred to, which also informed the rule of competency, pointed to the existence of the claimed privilege. Later application of Hoskyn does not support such an inference. It has been taken to refer to the claim that a wife might make before she is sworn as a witness, which is to say to her non-compellability, by contrast with that of a holder of a privilege[420]. In any event the first respondent merely states an assumption. It needs to be shown that the common law addressed the question of the privilege claimed and provided the answer. They are the issues on this appeal.
[420]R v Pitt [1983] QB 25 at 30.
In Hoskyn Viscount Dilhorne observed that he would have expected Lord Ellenborough or Bayley J in All Saints to have referred to any existing rule, by which a wife, competent to give evidence, was compelled to do so[421]. Likewise, had a privilege not to answer questions existed, one would have expected that they would have made reference to it.
[421]Hoskyn v Metropolitan Police Commissioner [1979] AC 474 at 491.
The second report of the Common Law Commissioners[422], of 1853, might have been expected to mention a spousal privilege, had it been recognised by the law at that time. Statutory reforms to that point had removed the incompetence of parties and witnesses on the ground of interest but had maintained an exception in the case of husbands or wives of parties[423]. It is of interest to observe that s 3 of the Evidence Act 1851 (UK)[424] ("Lord Brougham's Act") had provided that neither a husband nor a wife was "competent or compellable to give evidence" for or against the other spouse[425]. The Commissioners recommended that the exception be abolished but that communications between spouses be privileged[426]. That privilege had not previously existed at common law, it was held in Shenton v Tyler[427]. As Sir Wilfrid Greene MR observed, the Common Law Commissioners made no mention of such a rule of law[428], and one would have expected them to had it existed. The same observation may be made concerning spousal privilege.
[422]Second Report of Her Majesty's Commissioners for Inquiring into the Process, Practice, and System of Pleading in the Superior Courts of Common Law, (1853).
[423]Evidence Act 1843 (UK); Evidence Act 1851 (UK); see generally as to the history Shenton v Tyler [1939] Ch 620 at 627-628 per Sir Wilfrid Greene MR.
[424]14 & 15 Vict c 99.
[425]Wharton, An Exposition Of The Laws Relating To The Women Of England, (1853) at 381.
[426]Second Report of Her Majesty's Commissioners for Inquiring into the Process, Practice, and System of Pleading in the Superior Courts of Common Law, (1853) at 13-14.
[427][1939] Ch 620.
[428]Shenton v Tyler [1939] Ch 620 at 629, 639.
Legislation was introduced in the United Kingdom dealing with the competence and compellability of spouses as witnesses in civil and, later, criminal proceedings[429]. In Australia provision is made with respect to criminal proceedings in legislation, but not uniformly, as mentioned at the outset of these reasons. This reflects differences of opinion as to the importance to be afforded to different policy considerations as giving effect to the public interest. By way of example, in Queensland a spouse is generally compellable in criminal proceedings[430]. Under the Evidence Act 1995 (Cth), a spouse is competent and compellable as a witness with respect to certain offences, but the spouse of an accused is given a right to object to giving evidence as a witness for the prosecution[431]. The right is less than a privilege, however, for it is provided that the court determines the question of the compellability of the spouse, after considering certain facts and the consequences which might follow were the spouse obliged to give evidence[432]. It confirms the role of the court in determining the question of compellability, whilst providing the factors relevant to that determination.
[429]See Shenton v Tyler [1939] Ch 620 at 628-629.
[430]Evidence Act 1977 (Q), s 8(2).
[431]Evidence Act 1995, s 18(2).
[432]Evidence Act 1995, s 18(6) and (7).
Summary of conclusion and orders
Opinions may differ as to the interpretation of statements in older texts and cases. Such statements as there are, which suggest that one spouse might not be obliged to give evidence or answer questions which may tend to incriminate the other, do not provide a sufficient foundation for a conclusion that a spousal privilege of the kind claimed existed. Statements in All Saints were addressed to the question of compellability and later cases show that they have been so understood. Those observations are consistent with a view that the court retains the power to determine the question of the wife's compellability. Even so, the question of her compellability was not finally determined in that case. Its lack of resolution until much later, in England, does not suggest that the topic of a substantive witness privilege was likely to have been addressed. The later application of some of the old common law views towards marriage, which informed the rule of competency, and about which it is not necessary to proffer a view on this appeal, with respect to the compellability of a spouse in criminal proceedings, does not point to the existence of a privilege. It merely states an assumption that those views meant that a privilege arose. It has not been shown that that question has been addressed by the common law courts.
The observations of Justice Oliver Wendell Holmes concerning the creation of legal doctrine are apposite here. He spoke of a statement of principle occurring only after a series of determinations on the same subject matter and by a process of induction and went on to say[433]:
"And this statement is often modified more than once by new decisions before the abstracted general rule takes its final shape. A well settled legal doctrine embodies the work of many minds, and has been tested in form as well as substance by trained critics whose practical interest it is to resist it at every step."
No such developments are evident in the cases and materials to which reference has been made in this case. They suggest, at most, that a spouse might seek a ruling from the court that he or she not be compelled to give evidence which might incriminate the other spouse.
[433]Holmes, "Codes, and the Arrangement of the Law", in Novick (ed), The Collected Works of Justice Holmes, (1995), vol 1, 212 at 213.
No question of compellability arises in this case. The first respondent was a competent witness to be examined under the ACC Act and was compelled by the provisions of that Act to do so. No privilege of the kind claimed could be raised in answer to that obligation.
We agree with the orders proposed by French CJ and Gummow J.