S v Boulton

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.