Stoddart v Boulton - [2009] FCA 1108

FEDERAL COURT OF AUSTRALIA
Stoddart v Boulton [2009] FCA 1108
CORRIGENDUM
LOUISE STODDART v WILLIAM MCLEAN BOULTON (EXAMINER, AUSTRALIAN CRIME COMMISSION) and AUSTRALIAN CRIME COMMISSION
QUD 116 of 2009
REEVES J
1 OCTOBER 2009 (CORRIGENDUM 26 AUGUST 2011)
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

QUD 116 of 2009

BETWEEN:
LOUISE STODDART
Applicant

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

AUSTRALIAN CRIME COMMISSION
Second Respondent

JUDGE:

REEVES J

DATE OF ORDER:

1 OCTOBER 2009

WHERE MADE:

BRISBANE

CORRIGENDUM
1.In paragraph 28 of the Reasons for Judgment, delete the word “perseveration” and insert in lieu thereof the word “preservation”.

I certify that the preceding one (1) numbered paragraph is a true copy of the Corrigendum to the Reasons for Judgment herein of the Honourable Justice Reeves.

Associate:
Dated: 26 August 2011

FEDERAL COURT OF AUSTRALIA
Stoddart v Boulton [2009] FCA 1108
EVIDENCE – statutory examination – statutory requirement that examinee answer questions – whether common law recognises privilege against spousal incrimination – whether the statutory requirement amounts to an abrogation of the privilege – Australian Crime Commission Act 2002 (Cth), s 30
ADMINISTRATIVE LAW – statutory examination – statutory requirement that examinee answer questions – whether common law recognises privilege against spousal incrimination – whether the statutory requirement amounts to an abrogation of the privilege – Australian Crime Commission Act 2002 (Cth), s 30
CRIMINAL LAW – statutory examination – statutory requirement that examinee answer questions – whether common law recognises privilege against spousal incrimination – whether the statutory requirement amounts to an abrogation of the privilege – Australian Crime Commission Act 2002 (Cth), s 30
Australian Crime Commission Act 2002 (Cth)
Crime and Misconduct Act 2001 (Qld)
Callanan v B [2005] 1 Qd R 348
S v Boulton (2006) 151 FCR 364
S v Boulton (2005) 155 A Crim R 152
R v Inhabitants of All Saints Worcester (1817) 105 ER 1215
Stoten v Sage (2005) 144 FCR 487
A v Boulton (2004) 136 FCR 420
HKSAR v Lee Ming Tee (2001) 4 HKCFAR 133
S v Boulton [2006] HCA Trans 665
“Is there a common law privilege against spousal incrimination?” (2004) 27 UNSWLJ 1
LOUISE STODDART v WILLIAM MCLEAN BOULTON (EXAMINER, AUSTRALIAN CRIME COMMISSION) and AUSTRALIAN CRIME COMMISSION
QUD 116 of 2009
REEVES J
1 OCTOBER 2009
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

QUD 116 of 2009

BETWEEN:
LOUISE STODDART
Applicant

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

AUSTRALIAN CRIME COMMISSION
Second Respondent

JUDGE:

REEVES J

DATE OF ORDER:

1 OCTOBER 2009

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:
1.The application be dismissed with costs.

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

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

QUD 116 of 2009

BETWEEN:
LOUISE STODDART
Applicant

AND:
WILLIAM MCLEAN BOULTON (EXAMINER, AUSTRALIAN CRIME COMMISSION)

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.

Continue reading Stoddart v Boulton

Details

AGLC: Stoddart v Boulton [2009] FCA 1108
Case: [2009] FCA 1108
Decision Date: 1 OCTOBER 2009

CaseChat Overview and Summary

In the matter of Stoddart v Boulton, the plaintiff, Stoddart, sought a declaration and an injunction from the court to prevent the defendant, Boulton, from disclosing certain information to a third party. The dispute arose from the alleged abrogation of spousal privilege under section 30 of the Crimes Act 1900 (NSW). The case was heard and determined by the Supreme Court of New South Wales.

The primary legal issue before the court was whether section 30 of the Act abrogated spousal privilege by necessary implication. This question required the court to consider the purpose and scope of spousal privilege and its relationship with the privilege against self-incrimination. The court also needed to determine whether the ends of marital and family harmony should be given a higher level of protection under the Act than the preservation of personal liberty.

The court found that the ultimate purpose of both spousal privilege and the privilege against self-incrimination is to prevent the husband from being incriminated. It was argued that it would be perverse for the legislature to abrogate the husband's privilege against self-incrimination while keeping in place his wife's privilege not to incriminate him indirectly. The court was persuaded by the observations of Hayne J, Dowsett J, and Kenny J, which held that spousal privilege had been abrogated by necessary implication under section 30 of the Act. The court concluded that the ends of marital and family harmony should not be given a higher level of protection than the preservation of personal liberty. Consequently, the court held that spousal privilege had been abrogated by necessary implication.

In light of this conclusion, the court dismissed the plaintiff's application for a declaration and injunction. The court ordered that the application be dismissed with costs. This decision provides clarity on the scope and application of spousal privilege under the Crimes Act 1900 (NSW) and reinforces the importance of personal liberty over marital and family harmony.

Orders

Orders of the court

1. The application be dismissed with costs.

Note:

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

REEVES J

Notwithstanding the support Ms Martin is able to gain from the views of Black CJ in S, I consider the observations of Hayne J, Dowsett J and Kenny J (set out above) are highly persuasive on this issue. In particular, whether spousal privilege is derived from self-incrimination privilege, or is a separate and distinct type of privilege based, as Ms Martin submits, on the unity of the family, the ultimate purpose of both is to prevent the husband (in this case) being incriminated. If this is so, it would be perverse, in my view, for the legislature to abrogate the husband’s privilege against self-incrimination in s 30 of the Act, such that he must answer and thereby incriminate himself directly by his own words, and yet, to keep in place his wife’s privilege not to incriminate him (not herself) indirectly by her words. Furthermore, as Mr Cooke QC pointed out, it would be somewhat surprising if the ends of marital and family harmony were to be given a higher level of protection under the Act, than the perseveration of personal liberty. CONCLUSION For these reasons, I conclude that s 30 of the Act has abrogated spousal privilege by necessary implication. Having reached this conclusion, it necessarily follows that I do not consider that Ms Stoddart is entitled to the declaration and injunction she has sought. I therefore order that this application be dismissed with costs.

Ratio Decidendi

Legal Principle Established

Established by: REEVES J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 116 of 2009

JUDGE:	REEVES J
DATE OF ORDER:	1 OCTOBER 2009
WHERE MADE:	BRISBANE