Stoten v Sage

[2005] FCA 935

FEDERAL COURT OF AUSTRALIA

Stoten v Sage (Examiner, Australian Crime Commission) [2005] FCA 935

EVIDENCE – spousal privilege – operation/investigation by the Australian Crime Commission into criminal activities of the applicant’s spouse – where applicant objected to answering questions on the basis of spousal privilege – where Commission proceeded on basis that spousal privilege does not apply under Australian Crime Commission Act 2002 (Cth) – application to review decision of the Commission – whether there is a common law privilege against spousal incrimination – whether such spousal privilege is abrogated by statute

Australian Crime Commission Act 2002 (Cth) ss 24A, 25A, 28, 30
Criminal Code Act 1995 (Cth)
Evidence Act 1995 (Cth) ss 4, 17, 18
National Crime Authority Act 1984 (Cth) s 7, 28, 30
Australian Crime Commission Establishment Act 2002 (Cth)

S v Boulton [2005] FCA 821 considered
Environment Protection Authority v Caltex Refinery Co Pty Ltd (1992-1993) 178 CLR 477 considered
Callanan v B (2005) 29(3) CrimLJ 182 followed
Read v Howard (1995) 184 CLR 1 considered
Pyneboard Pty Ltd v Trade Practice Commission (1982-1983) 152 CLR 328 considered
Sorby v The Commonwealth (1983) 152 CLR 281 considered
The Daniels Corporation International Pty Ltd v Australian Competition & Consumer Commission (2002) 213 CLR 543 considered
A v Boulton (2004) 136 FCR 420 followed

JD Heydon, GB Byrne, Cross on Evidence, loose leaf service, Butterworths
The Laws of Australia, Law Book Company, vol 16
Halsbury’s Laws of Australia, Butterworths, vol 13
D Lusty, ‘Is There a Common Law Privilege Against Spouse Incrimination?’, University of New South Wales Law Journal, vol 27, 2004, p 1

KATHERINE STOTEN v G E (TIM) SAGE (EXAMINER, AUSTRALIAN CRIME COMMISSION) AND AUSTRALIAN CRIME COMMISSION

QUD 162 OF 2005

DOWSETT J
8 JULY 2005
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 162 OF 2005

BETWEEN:

KATHERINE STOTEN
APPLICANT

AND:

G E (TIM) SAGE (EXAMINER, AUSTRALIAN CRIME COMMISSION)
FIRST RESPONDENT

AUSTRALIAN CRIME COMMISSION
SECOND RESPONDENT

JUDGE:

DOWSETT J

DATE OF ORDER:

8 JULY 2005

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:

1.        The application be dismissed; 

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

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 162 OF 2005

BETWEEN:

KATHERINE STOTEN
APPLICANT

AND:

G E (TIM) SAGE (EXAMINER, AUSTRALIAN CRIME COMMISSION)
FIRST RESPONDENT

AUSTRALIAN CRIME COMMISSION
SECOND RESPONDENT

JUDGE:	DOWSETT J
DATE:	8 JULY 2005
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. On 21 and 22 June 2005 the applicant (“Ms Stoten”) appeared before the first respondent (the “Examiner”) who was conducting an examination pursuant to s 24A of the Australian Crime Commission Act 2002 (Cth) (the “Act”). The examination was for the purposes of an investigation being conducted by the second respondent (the “Commission”). Ms Stoten attended before the Examiner in answer to a summons dated 17 June 2005, which summons was issued pursuant to subs 28(1) of the Act.…