S v Boulton

Case [2005] FCA 821

FEDERAL COURT OF AUSTRALIA

S v Boulton [2005] FCA 821

EVIDENCE – spousal privilege – investigation by the Australian Crime Commission into criminal activities of the applicant’s de facto spouse – where applicant objected to answering questions on the basis of spousal privilege – where Commission proceeded on basis that spousal privilege does not apply to de facto relationships – application to review decision of the Commission – whether there is a common law privilege against spousal incrimination – whether such spousal privilege extends to de facto spouses

Statutes

Australian Crime Commission Act 2002 (Cth) ss 28, 46B, 30

Crimes Act1900 (NSW) ss 407, 407 AA

Crimes Act 1958 (VIC) ss 399, 400

Evidence Act 1898 (NSW) s 6

Evidence Act 1906 (WA) ss 7, 9(1)

Evidence Act 1910 (Tas) ss 84, 85(3A), 85

Evidence Act 1929 (SA) ss 16, 21

Evidence Act 1939 (NT) ss 7, 9

Evidence Act 1958 (VIC) s 24

Evidence Act 1977 (Qld) ss 7, 8

Evidence Ordinance 1971 (ACT) ss (2), 66, 74

Cases

A v Boulton (2004) 136 FCR 420 Cons

Arthur JS Hall v Simons [2002] 1 AC 615 Cited

Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 112 ALR 627 Foll

Barclays Bank v O’Brien [1994] 1 AC 180 Not Foll

Batthews v Galindo (1828) 4 Bing 611; 130 ER 904 Cited

Callanan v B [2004] QCA 478 Appl

Calvary v Green (1984) 155 CLR 242 Foll

Garcia v National Australia Bank (1998) 194 CLR 395 Cons

Hawkins v Sturt [1992] 3 NZLR 602 Cited

Hoskyn v Metropolitan Police Commission [1979] AC 474 Dist, Ex

Kable v Director of Public Prosecutions for New South Wales (1996) 189 CLR 51 Cited

Leach v The King [1912] AC 305 Dist, Ex

P’Orta-Ekenaira v Victoria Legal Aid (2005) 214 ALR 92 Foll

R v Byast [1999] 2 Qd R 384 Cons

R v Hawkins [1996] 141 DLR (4th) 193 Dis

R v Inhabitants of All Saints, Worcester (1817) 6 M&S 194 Ex

R v Khan (1987) 84 Cr App R 44 Cons

Riddle v The King (1911) 12 CLR 622 Dist, Ex

Rondel v Worsley [1969] 1 AC 191 Cited

Rumping v Director of Public Prosecutions [1964] AC 814 Cited

Telstra Corporation Ltd v Trelour (2000) 102 FCR 595 Foll

The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 Cons

Trammel v United States (1980) 445 US 40 Cited

Yerkey v Jones (1939) 63 CLR 649 Cited

Other Authorities

A Ligertwood, Australian Evidence, 4th edn, Lexis Nexis Butterworths, Australia, 2004

D Lusty, ‘Is there a Common Law Privilege against Spouse Incrimination?’ University of New South Wales Law Journal, vol 27(1), 2004, pp 1-41

EJ Imwinkelried, The New Wigmore:  Evidentiary Privileges, Aspen Law & Business, New York, 2002

JD Heydon, GD Byrne, Cross on Evidence, Australian edition, Lexis Nexis, Australia, 2005

MN Howard, P Crane & DA Hochberg, Phipson on Evidence, 14th edn, Sweet & Maxwell, London, 1990

S McNicol,

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Details
AGLC
S v Boulton [2005] FCA 821
Case
[2005] FCA 821
Decision Date

CaseChat Overview and Summary

The matter of S v Boulton was heard in the High Court of Australia. The case involved a dispute over the compellability of a spouse as a witness in a criminal trial, specifically whether a wife could be compelled to testify against her husband. The High Court was asked to determine the legal principles governing the compellability of a spouse in such circumstances, particularly in light of historical common law principles and subsequent statutory changes.

The court needed to decide whether the common law principle that a wife could not be compelled to testify against her husband still applied, or if it had been superseded by statutory provisions that render spouses generally competent and sometimes compellable in criminal cases. The court examined the evolution of the law from the common law position, through legislative changes, and the relevant judicial decisions in both Australian and English courts.

The court found that the common law principle, which protected spouses from being compelled to testify against each other, remained a fundamental principle in criminal proceedings. Despite statutory changes that have made spouses generally competent to testify, the court held that these statutes did not override the well-settled principle that a spouse should not be compelled to testify against their partner in cases of violence. The court referenced historical cases such as Riddle and Leach, as well as the more recent decision in Hoskyn, which reaffirmed the principle that a wife should not be compelled to testify against her husband in cases of domestic violence. The court concluded that the statutory provisions did not alter this fundamental principle, which continues to be of general application and fundamental importance.

The court ordered that the application be dismissed and that the applicant pay the respondents' costs of the application.

Orders

Orders of the court

1. The application be dismissed.

2. The applicant pay the respondents’ costs of the application.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Both this case and Taylor’s statement were cited with approval by Griffith CJ in Riddle v The King (1911) 12 CLR 622 at 628-9 (‘Riddle’). The other members of the Court did not deal with the question, which his Honour stated (at 627) in terms: ‘Was a wife compellable at common law to give evidence against her husband?’ in a situation where she was otherwise competent (emphasis added). His Honour concluded (at 629) that ‘the better opinion is stated by Taylor to be that a wife was not compellable.’ In Leach v The King [1912] AC 305 (‘Leach’), s 4 of the Criminal Evidence Act 1898 made a husband and wife competent to give evidence in the case of specified offences including incest. The Court of Criminal Appeal held that the statute made the wife an ordinary witness and therefore compellable. The House of Lords did not accept that proposition. In their Lordships view the principle that a wife cannot be compelled to give evidence was well settled (at 309, 311). The decision in Leach was approved in Hoskyn. In relation to Leach, Lord Wilberforce observed (at 487) that if their Lordships had been asked ‘What about the case when a wife was competent at common law - does not the ordinary rule make her compellable’ they would have answered ‘No, because the considerations which led the law to treat her as competent do not in any way weaken the force of the principle that we have stated that a wife ought not to be forced into the witness box, a principle of general application and fundamental importance.’ (emphasis added). In Hoskyn the husband was charged with wounding his wife. The wife was unwilling to give evidence but was required to. The question for the House of Lords was stated by Lord Wilberforce to be ‘whether a wife is a compellable witness against her husband in a case of violence on her by him’ (at 482). The judgments in Hoskyn refer to the decision of Bayley J in All Saints. Of that case Viscount Dilhorne said (at 491): ‘If in 1817 it was held in some quarters that a wife who was competent was ipso facto compellable, I cannot but think that Lord Ellenborough CJ and Bayley J would have referred to it. What was said in that case certainly lands no support to the view that competence on the part of a wife involves compellability. …’ There are a number of statutes in Australia and overseas which deal expressly with the questions whether a spouse is competent or compellable. In Australia they are both competent and compellable in civil cases and in general competent in criminal cases, although rules for compellability differ: McNicol at p 297; also see in particular: Evidence Ordinance 1971 (ACT) ss(2), 66, 74; Evidence Act 1898 (NSW) s 6; Evidence Act 1939 (NT) ss 7, 9; Evidence Act 1977 (Qld) ss 7, 8; Evidence Act 1958 (VIC) s 24; Evidence Act 1929 (SA) ss 16, 21; Evidence Act 1910 (Tas) ss 84, 85(3A), 85; Evidence Act 1906 (WA) ss 7, 9(1) (as amended by Acts Amendment (Evidence) Act 1991 (WA) s 5 and s 7 respectively); Crimes Act1900 (NSW) ss 407, 407AA; Crimes Act 1958 (VIC) ss 399, 400. Reference is not made in these legislations to a spousal privilege.

Decision

Reasons for decision

KIEFEL J

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Ratio Decidendi

Legal Principle Established

Established by: KIEFEL J

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