S v Boulton

Case [2006] FCAFC 99

FEDERAL COURT OF AUSTRALIA

S v Boulton (Examiner, Australian Crime Commission) [2006] FCAFC 99

EVIDENCE – appeal – spousal privilege – investigation by the Australian Crime Commission into criminal activities of the appellant’s de facto spouse – appellant relied on spousal privilege – whether there is a common law privilege against spousal incrimination – whether such spousal privilege extends to de facto spouses – whether Australian Crime Commission Act 2002 (Cth) abrogates spousal privilege

PRACTICE AND PROCEDURE – precedents – decision of another intermediate court of appeal on question of common law followed

HELD: (dismissing the appeal) the common law privilege against spousal incrimination does not extend to de facto spouses

Australian Crime Commission Act 2002 (Cth), s 30

A v Boulton (2004) 136 FCR 420, cited
Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485, applied

Callananv B [2005] 1 Qd R 348, followed

Lipohar v The Queen (1999) 200 CLR 485, discussed
R v Young (1999) 46 NSWLR 681, referred to
Royal Women’s Hospital v Medical Practitioners Board of Victoria [2006] VSCA 85, referred to

S v Boulton (2005) 155 A Crim R 152, affirmed

Stoten v Sage (2005) 144 FCR 487, referred to
Transurban City Link v Allan (1999) 95 FCR 553, applied

J D Heydon and G Byrne, Cross on Evidence, loose leaf service, Butterworths, Australia

D Lusty, “Is there a Common Law Privilege against Spouse Incrimination?” (2004) 27 UNSWLJ 1

S v WILLIAM MCLEAN BOULTON (EXAMINER, AUSTRALIAN CRIME COMMISSION) AND AUSTRALIAN CRIME COMMISSION

QUD 191 of 2005

BLACK CJ, JACOBSON and GREENWOOD JJ
23 JUNE 2006
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

QUD 191 of 2005

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

S
Appellant

AND:

WILLIAM MCLEAN BOULTON
(EXAMINER, AUSTRALIAN CRIME COMMISSION)
First Respondent

AUSTRALIAN CRIME COMMISSION
Second Respondent

JUDGES:

BLACK CJ, JACOBSON and GREENWOOD JJ

DATE OF ORDER:

23 JUNE 2006

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:

1.        The appeal be dismissed with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

QUD 191 of 2005

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

S
Appellant

AND:

WILLIAM MCLEAN BOULTON
(EXAMINER, AUSTRALIAN CRIME COMMISSION)
First Respondent

AUSTRALIAN CRIME COMMISSION
Second Respondent

JUDGES:

BLACK CJ, JACOBSON and GREENWOOD JJ

DATE:

23 JUNE 2006

PLACE:

BRISBANE

REASONS FOR JUDGMENT

BLACK CJ

INTRODUCTION

  1. In response to a summons to appear before an Examiner of the Australian Crime Commission in Brisbane on 9 February 2005, issued pursuant to the Australian Crime Commission Act 2002 (Cth) (the Act), the appellant was asked this question: “In the time that you have been together with your [de facto] partner … have you been aware of him earning income from illegal activities?”

  2. The appellant refused to answer and claimed a “privilege against…

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AGLC
S v Boulton [2006] FCAFC 99
Case
[2006] FCAFC 99
Decision Date

CaseChat Overview and Summary

In the case of S v Boulton, the respondents argued against the application of the spousal incrimination privilege in contexts outside judicial proceedings. The central dispute was whether the spousal incrimination privilege should be confined to judicial settings, similar to the privilege against self-incrimination. The court was tasked with determining the extent and applicability of the spousal incrimination privilege under Australian common law, particularly in relation to its application in administrative processes. The court also had to consider whether this privilege should extend to de facto spouses and whether it could be limited by legislation.

The court examined the historical development and legal precedents surrounding the spousal incrimination privilege, referencing cases such as Holdsworth A History of English Law and Shenton v Tyler. The court concluded that the common law recognises a privilege against spousal incrimination, which is distinct from the privilege against self-incrimination. The privilege, however, does not extend to de facto spouses. The court further found that any extension of this privilege within the common law of Australia should be declared by the High Court, ensuring the unity of the common law. The court also noted that public interest immunity does not apply to spousal privilege. The court rejected the argument that the privilege is limited to judicial proceedings, considering it a substantive common law right.

The appeal was dismissed with costs. The court agreed with the reasoning presented by Justice Jacobson, rejecting the argument that the authority of the intermediate Court of Appeal should not be followed. The court found no merit in the submission that the authority was 'plainly wrong'. The decision was supported by scholarly articles and historical legal analyses, confirming the existence of the spousal incrimination privilege in the common law. The court's reasoning aligns with the broader principles of competence and compellability, ensuring that the privilege is recognised in appropriate contexts.

Orders

Orders of the court

1. The appeal be dismissed with costs.

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

The respondents referred to the observation in Daniels v ACCC at [31] that the privilege against exposure to penalties should be confined to judicial proceedings. But this is of no relevance to the question of whether the spousal incrimination privilege should be equally limited.CONCLUSION AND ORDERS It follows that the appeal must be dismissed with costs. In this appeal I have had the benefit of reading the draft reasons for judgment formulated by his Honour the Chief Justice and also draft reasons prepared by his Honour Justice Jacobson. For my part, I agree that the appeal must be dismissed with costs for the reasons indicated by Justice Jacobson. I am unpersuaded that the reasons for judgment reflected in Callanan v B [2005] 1 Qd R 348 are incorrect. Therefore, I reject the submission that the authority of this intermediate Court of Appeal ought not be followed on the basis that it is ‘plainly wrong’. Having regard to the authorities discussed by Justice Jacobson and the discussion of the historical evolution of the principles of competence and compellability and the relationship between those notions and the privilege a competent or compellable witness might call in aid in refusing to answer a question which might incriminate his or her spouse discussed at Holdsworth A History of English Law, 7th Edition, Sweet and Maxwell, London at Volume 9, pages 177-208, Volume 5, pages 181-185 and Volume 15, at pages 138-140 and the discussion of Shenton v Tyler (1939) Ch 620 at Law Quarterly Review, Volume LVI at page 137 and the authorities discussed by Jacobson J, I am satisfied that the common law recognises a privilege against spousal incrimination. In addition, I note that his Honour Justice McPherson has added his major scholastic support to the argument developed by Mr Lusty in his article entitled “Is there a Common Law Privilege against Spouse Incrimination?” (2004) 27 UNSWLJ 1, in support of the recognition by the common law of such a privilege. That privilege does not extend to de facto spouses. Any normative extension as part of the common law of Australia of a privilege of refusing to answer a question designed to elicit evidence in aid of a search for the truth ought only to occur as a declaration by the High Court of the “one common law” (Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 563, per Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ) within a constitutionally “unified structure” for “an integrated Australian legal system, with, at its apex, the exercise by [the High Court] of the judicial power of the Commonwealth” (Kable v Director of Public Prosecutions (NSW) (1997) 189 CLR 51 at pages 138 and 143 per Gummow J: John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 at 534 per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) so as to “ensure the unity of the common law of Australia” (Kable at 138 per Gummow J) or, alternatively, as the expression of legislative power leading to a valid law of the Commonwealth or the relevant State or Territory.

Ratio Decidendi

Legal Principle Established

Moreover, the explanation of public interest immunity stated by Spigelman CJ in R v Young at [54]-[57] shows that public interest immunity has no application to spousal privilege or the supposed claim of de facto spousal privilege. It does not fall within the reasons customarily given for this head of claim, which is “curiously inappropriate” to the present matter; Sankey v Whitlam (1978) 142 CLR 1 at 56.OTHER CONSIDERATIONS The respondent submitted that even if there is a common law spousal privilege, it is, at most, a rule of evidence and that it does not apply in an examination which is an administrative process. I have already come to the view that the privilege is excluded by the ACC Act. However, I doubt that there is any weight in the appellant’s suggestion that spousal privilege is limited to judicial proceedings and that it is a rule of evidence. Indeed, the position seems to be otherwise; see the authorities cited at [147]. Since the privilege is analogous to the privilege against self-incrimination, it must be considered to be a substantive common law right. The respondents referred to the observation in Daniels v ACCC at [31] that the privilege against exposure to penalties should be confined to judicial proceedings. But this is of no relevance to the question of whether the spousal incrimination privilege should be equally limited.CONCLUSION AND ORDERS It follows that the appeal must be dismissed with costs. In this appeal I have had the benefit of reading the draft reasons for judgment formulated by his Honour the Chief Justice and also draft reasons prepared by his Honour Justice Jacobson. For my part, I agree that the appeal must be dismissed with costs for the reasons indicated by Justice Jacobson. I am unpersuaded that the reasons for judgment reflected in Callanan v B [2005] 1 Qd R 348 are incorrect. Therefore, I reject the submission that the authority of this intermediate Court of Appeal ought not be followed on the basis that it is ‘plainly wrong’. Having regard to the authorities discussed by Justice Jacobson and the discussion of the historical evolution of the principles of competence and compellability and the relationship between those notions and the privilege a competent or compellable witness might call in aid in refusing to answer a question which might incriminate his or her spouse discussed at Holdsworth A History of English Law, 7th Edition, Sweet and Maxwell, London at Volume 9, pages 177-208, Volume 5, pages 181-185 and Volume 15, at pages 138-140 and the discussion of Shenton v Tyler (1939) Ch 620 at Law Quarterly Review, Volume LVI at page 137 and the authorities discussed by Jacobson J, I am satisfied that the common law recognises a privilege against spousal incrimination. In addition, I note that his Honour Justice McPherson has added his major scholastic support to the argument developed by Mr Lusty in his article entitled “Is there a Common Law Privilege against Spouse Incrimination?” (2004) 27 UNSWLJ 1, in support of the recognition by the common law of such a privilege.