FEDERAL COURT OF AUSTRALIA
Stoddart v Boulton [2010] FCAFC 89
Citation: Stoddart v Boulton [2010] FCAFC 89 Appeal from: Stoddart v Boulton [2009] FCA 1108 Parties: LOUISE STODDART v WILLIAM MCLEAN BOULTON (EXAMINER, AUSTRALIAN CRIME COMMISSION) and AUSTRALIAN CRIME COMMISSION File number: QUD 253 of 2009 Judges: SPENDER, GREENWOOD AND LOGAN JJ Date of judgment: 15 July 2010 Corrigendum: 27 July 2010 Catchwords: ADMINISTRATIVE LAW – where witness summoned under s 28 Australian Commission Act 2002 (Cth) and declined to answer questions in respect of her husband’s activities on the basis of spousal privilege – whether s 30 of the Australian Crime Commission Act 2002 (Cth) abrogates spousal privilege by necessary implication Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth)
Australian Crime Commission Act 2002 (Cth) s 4, Part II, ss 7, 7A, 7C, 20, 22, 24A, 25A, 28, 29, 30, 46B
Crimes Act 1914 (Cth) s 10
Family Law Act 1975 (Cth) s 48
Federal Court of Australia Act 1976 (Cth) s 21
Trade Practices Act 1974 (Cth) s 155
Crime and Misconduct Act 2001 (Qld)
Criminal Evidence Act 1898 (UK) s 4Cases cited: A v Boulton (2004) 136 FCR 420
Annetts & Anor v McCann & Ors (1990) 170 CLR 596
Baker v Campbell (1983) 153 CLR 52
Bropho v Western Australia (1990) 171 CLR 1
Callanan v B [2005] 1 Qd R 348
Cartwright v Green (1803) 32 ER (Chancery) 412; 8 Ves. Jun. 405
Coco v The Queen (1994) 179 CLR 427
Coleman v Power (2004) 220 CLR 1
Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501
Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543
Electrolux Home Products Pty Ltd v Australian Workers’ Union (2004) 221 CLR 309
Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477
Hawkins v Sturt [1992] 3 NZLR 602
Hoskyn v Metropolitan Police Commissioner [1979] AC 474
Lamb v Munster (1882) LR 10 QBD 110
Leach v The King [1912] AC 305
Potter v Minahan (1908) 7 CLR 277
R v Inhabitants of All Saints, Worcester (1817) 6 M&S 194; 105 ER 1215
R v Secretary of State for the Home Department; Ex parte Pierson [1998] AC 539
Re Boulton; Ex parte Beane (1987) 162 CLR 514
Re Intercontinental Development Corp Pty Ltd (1975) 1 ACLR 253
Reid v Howard (1995) 184 CLR 1
Riddle v The King (1911) 12 CLR 622
S v Boulton (2006) 151 FCR 364
S v Boulton [2006] HCA Trans 665
Saeed v Minister for Immigration and Citizenship [2010] HCA 23
Stoddart v Boulton [2009] FCA 1108
Stoten v Sage (2005) 144 FCR 487
The Commissioner of Police v Tanos (1958) 98 CLR 383
Trammel v the United States 445 US 40 (1980)Heydon JD and Byrne D, Cross on Evidence (Butterworths, Looseleaf Service)
Pitt Taylor, A Treatise on the Law of Evidence (1848) Vol 1
Lusty D, “Is there a common law privilege against spouse-incrimination?” (2004) 27(1)…
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- AGLC
- Stoddart v Boulton [2010] FCAFC 89
- Case
- [2010] FCAFC 89
- Decision Date
CaseChat Overview and Summary
In the case of Stoddart v Boulton, the primary dispute involved the interpretation of the Australian Crime Commission Act 2002 (Cth) concerning the extent to which spousal privilege could be overridden by the Act's provisions. Specifically, the case centred on whether a wife, Mrs. Stoddart, was required to testify against her husband regarding his activities, despite invoking spousal privilege. The matter was heard by the court which had to determine if section 30 of the Australian Crime Commission Act 2002 (Cth) impliedly abrogated spousal privilege.
The court was tasked with resolving the legal issue of whether the Australian Crime Commission Act 2002 (Cth) necessitated the abrogation of spousal privilege by implication, thus overriding common law protections. This involved interpreting the statutory language, the broader purpose of the Act, and the extent to which the statutory provisions could be seen to have overridden established legal privileges.
The court examined the Act's language, its purpose in addressing serious organised criminal activity, and the balance between public interest in criminal investigation and personal rights. The court found that the statutory language, coupled with the Act's overarching objectives, indicated that the Parliament intended an unqualified obligation on witnesses to testify, regardless of potential spousal incrimination. This conclusion was reached despite the absence of explicit statutory language abrogating spousal privilege, as the court deemed the intention to be clear from the overall legislative context and purpose.
The court ultimately ruled that the Australian Crime Commission Act 2002 (Cth) did not abrogate spousal privilege by necessary implication. Consequently, the court set aside the earlier ruling that had required Mrs. Stoddart to testify against her husband. Furthermore, the court ordered that the respondents were to pay the appellant's costs associated with the appeal and the application below.
The court was tasked with resolving the legal issue of whether the Australian Crime Commission Act 2002 (Cth) necessitated the abrogation of spousal privilege by implication, thus overriding common law protections. This involved interpreting the statutory language, the broader purpose of the Act, and the extent to which the statutory provisions could be seen to have overridden established legal privileges.
The court examined the Act's language, its purpose in addressing serious organised criminal activity, and the balance between public interest in criminal investigation and personal rights. The court found that the statutory language, coupled with the Act's overarching objectives, indicated that the Parliament intended an unqualified obligation on witnesses to testify, regardless of potential spousal incrimination. This conclusion was reached despite the absence of explicit statutory language abrogating spousal privilege, as the court deemed the intention to be clear from the overall legislative context and purpose.
The court ultimately ruled that the Australian Crime Commission Act 2002 (Cth) did not abrogate spousal privilege by necessary implication. Consequently, the court set aside the earlier ruling that had required Mrs. Stoddart to testify against her husband. Furthermore, the court ordered that the respondents were to pay the appellant's costs associated with the appeal and the application below.
Orders
Orders of the court
1. The appeal is allowed.
2. The orders made by Reeves J on 1 October 2009 are set aside.
3. In lieu thereof:
(a) it is declared that the common law privilege against spousal incrimination has not been abrogated by the Australian Crime Commission Act 2002 (Cth);
(b) the First Respondent’s ruling of 3 April 2009 to the contrary is set aside.
4. The Respondents are to pay the Appellant’s costs of and incidental to the appeal and of the application below to be taxed if not agreed.
Note:
Background
Background to the litigation
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Evidence
Evidence Before The Court
Section 28 contains a power to summon witnesses and take evidence. The provisions are in these terms:28 Power to summon witnesses and take evidence(1)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.(1A)Before issuing a summons under subsection (1), the examiner must be satisfied that it is reasonable in all the circumstances to do so. The examiner must also record in writing the reasons for the issue of the summons. The record is to be made:(a) before the issue of the summons; or (b) at the same time as the issue of the summons.(2)A summons under subsection (1) requiring a person to appear before an examiner at an examination must be accompanied by a copy of the determination of the Board that the intelligence operation is a special operation or that the investigation into matters relating to federally relevant criminal activity is a special investigation.(3)A summons under subsection (1) requiring a person to appear before an examiner at an examination shall, unless the examiner issuing the summons is satisfied that, in the particular circumstances of the special ACC operation/investigation to which the examination relates, it would prejudice the effectiveness of the special ACC operation/investigation for the summons to do so, set out, so far as is reasonably practicable, the general nature of the matters in relation to which the person is to be questioned, but nothing in this subsection prevents an examiner from questioning the person in relation to any matter that relates to a special ACC operation/investigation.(4)The examiner who is holding an examination may require a person appearing at the examination to produce a document or other thing.(5)An examiner may, at an examination, take evidence on oath or affirmation and for that purpose:(a)the examiner may require a person appearing at the examination to give evidence either to take an oath or to make an affirmation in a form approved by the examiner; and(b)the examiner, or a person who is an authorised person in relation to the ACC, may administer an oath or affirmation to a person so appearing at the examination.(6)In this section, a reference to a person who is an authorised person in relation to the ACC is a reference to a person authorised in writing, or a person included in a class of persons authorised in writing, for the purposes of this section by the CEO.(7)The powers conferred by this section are not exercisable except for the purposes of a special ACC operation/investigation.(8)A failure to comply with section 29A, so far as section 29A relates to a summons under subsection (1) of this section, does not affect the validity of the summons. Section 29 contains a power to obtain documents. Section 30 addresses the failure of witnesses to attend and answer questions as set out at [46] of these reasons. Conclusion as to the construction of the Act and the necessarily implied abrogation of spousal immunity
Decision
Reasons for decision
Section 30 addresses the failure of witnesses to attend and answer questions as set out at [46] of these reasons. Conclusion as to the construction of the Act and the necessarily implied abrogation of spousal immunity Having regard to the Act as a whole; its character as the expression of the Parliament’s response to the protection of the public interest in the investigation and detection of serious organised criminal activity, as broadly defined, by establishing a statutory mechanism for ACC‑conducted special operations or special investigations and an examination procedure established for the purposes of those activities; the examination mechanism as an instrument for the forensic search for the truth from witnesses who can speak to the facts relevant to serious organised criminal activity the subject of an operation or investigation; the unqualified obligations arising out of s 30 of the Act having regard to the removal of the “reasonable excuse” provisions; the adoption of a balance in the competing public interest in providing citizens with a measure of protection in the form of a limited use immunity arising out of the abrogation of the privilege against self‑incrimination and the retention of legal professional privilege; and the expressions of opinion contained in the Second Reading Speeches, the Explanatory Memorandum for the 2000 Bill and the Revised Explanatory Memorandum for the 2001 Bill, it seems to me that the Australian Crime Commission Act 2002 imposes an unqualified obligation upon a witness in the position of Mrs Stoddart to answer the question she was required to answer unconstrained by any notion of a privilege against or immunity from answering the question on the footing that her answer might tend to incriminate her spouse. A number of things are said against such a construction. Mrs Stoddart contends that had the Act intended to bring about the abolition of an existing common law right, privilege or immunity by adopting the unqualified obligations reflected in s 30 of the Act, the Parliament would have provided a witness with a limited use immunity concerning answers required to be given which might tend to incriminate the spouse of the witness, just as it did for the witness in abrogating the privilege against self‑incrimination. The absence of any counter‑balancing limited use spousal protection and thus the protection of the public interest in marital unity, marital cohesion and the sanctuary of the home or family environment, is said to suggest that the legislation intended the retention of the common law immunity. Put another way, the absence of any counter‑balancing limited use protection of the public interest in marital unity leads to the conclusion, in construing the Act, that the high degree of certainty required to imply a legislative intention to abrogate is not satisfied as the language of the Act is not unmistakeably or unambiguously clear to that effect. For the reasons indicated at [47] to [54] and [85], a consideration of the legislation as a whole reveals that the Parliament has made its intention clear, by necessary implication, having regard for language, character and purpose of the legislation.
Ratio Decidendi
Legal Principle Established
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