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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Australian Crime Commission v Stoddart [2011] HCA 47
Case
[2011] HCA 47
Decision Date
CaseChat Overview and Summary
The Australian Crime Commission (ACC) appealed to the High Court of Australia against a decision of the Full Court of the Federal Court of Australia. The dispute concerned whether a witness, Mrs Stoddart, could refuse to answer questions put to her by an examiner of the ACC on the grounds of spousal privilege. Mrs Stoddart had been summoned to give evidence regarding federally relevant criminal activity involving her husband.
The High Court was required to determine three core legal issues. First, whether a competent and compellable witness in court proceedings possesses a common law right to refuse to answer questions that might tend to expose their spouse to criminal conviction, referred to as "spousal privilege". Secondly, whether, in the absence of contrary statutory provisions, a person appearing before an investigative body that is not a court bound by the rules of evidence can invoke this spousal privilege. Thirdly, whether the *Australian Crime Commission Act 2002* (Cth) abrogated this alleged right.
The High Court concluded that at the time of the Act's enactment in 2002, and presently, the common law in Australia did not recognise the spousal privilege asserted by Mrs Stoddart. The Court distinguished between a witness being "compellable" to give evidence and the ability to claim a privilege in response to particular questions. The Court found that previous decisions, such as *All Saints*, *Hoskyn*, and *Riddle*, used the term "compellable" to mean that a witness could be obliged to give evidence, rather than implying a right to claim privilege against certain questions.
The appeal was allowed, and the orders of the Full Court of the Federal Court of Australia were set aside. The High Court ordered that the appeal to the Federal Court be dismissed, and the ACC was to pay Mrs Stoddart's costs in the High Court.
Orders
Orders of the court
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.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
FRENCH CJ
GUMMOW J
(dissent)
HEYDON J
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. 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.