Australian Crime Commission v Stoddart

• Jurisdiction: Australia Federal only
• Court: High Court
• Judge: French CJ,Gummow JJ
• Judgment Date: 30 November 2011
• Neutral Citation: 2011-1130 HCA A,[2011] HCA 47
• Docket Number: B71/2010
• Date: 30 November 2011

[2011] HCA 47

HIGH COURT OF AUSTRALIA

French CJ, Gummow, Heydon, Crennan, Kiefel and Bell JJ

B71/2010

Australian Crime Commission

Appellant

and

Louise Stoddart & Anor

Respondents

Representation

S J Gageler SC, Solicitor-General of the Commonwealth with B Lim for the appellant (instructed by Australian Government Solicitor)

B W Walker SC with N A Martin and T F N Pincus for the first respondent (instructed by Bernard Bradley & Associates)

Submitting appearance for the second respondent

Australian Crime Commission v Stoddart

Evidence — Privilege — Spousal privilege — Witness summonsed pursuant to s 28(1) of Australian Crime Commission Act 2002 (Cth) (‘Act’) to give evidence regarding ‘federally relevant criminal activity’ involving her husband — Witness declined to answer examiner's questions by claiming spousal privilege — Whether spousal privilege exists at common law and, if so, whether spousal privilege extends to non-curial proceedings — If spousal privilege exists at common law, whether Act restricts or abrogates spousal privilege.

Words and phrases — ‘compellability’, ‘competence’, ‘spousal privilege’.

ORDER

1. Appeal allowed with costs.

2. Set aside paragraphs 1, 2 and 3 of the order of the Full Court of the Federal Court of Australia made on 15 July 2010 and in their place order that the appeal to that Court be dismissed.

3. The appellant pay the first respondent's costs in this Court.

1 French CJ And Gummow JJ The first respondent (‘Mrs Stoddart’) was born in 1966 and for more than 20 years has been the wife of Mr Ewan Alisdair James Stoddart (‘Mr Stoddart’). For some years Mr Stoddart was self-employed as an accountant carrying on a practice at several locations in Queensland. Mr Stoddart ceased to conduct his accountancy practice in about 2006; in the preceding couple of years Mrs Stoddart provided part-time secretarial assistance in the practice.

The Summons

2 On 3 April 2009, Mrs Stoddart appeared in response to a summons (‘the Summons’), issued under s 28(1) of the Australian Crime Commission Act 2002 (Cth) (‘the Act’). The appellant, the Australian Crime Commission (‘the ACC’), is established by s 7(1) of the Act. One of its functions is to investigate matters related to ‘federally relevant criminal activity’ (s 7A(c)), when authorised by its Board (established by s 7B).

3 Section 24A of the Act empowers an examiner appointed by the Governor-General under s 46B to conduct an examination for the purposes of a ‘special ACC operation/investigation’ (as defined in s 4(1)). This was identified in the present case as ‘Operation Grindelford’. An examiner, in the exercise of powers in relation to an examination, has the same protection and immunity as a Justice of this Court (s 36(1)).

4 The Summons was issued on 26 March 2009 by the second respondent, Mr W M Boulton, as examiner (‘the Examiner’) 1, and required her to attend at the premises of the ACC in Brisbane to give evidence of ‘federally relevant criminal activity’ involving named corporations and persons, including Mr Stoddart. The expression ‘federally relevant criminal activity’ is defined in s 4(1) and s 4A of the Act in detailed terms. The expression includes offences against a law of the Commonwealth and certain offences against a law of a State, the Northern Territory and the Australian Capital Territory which potentially fall within federal legislative power.

5 Before issuing the Summons, the Examiner was obliged by s 28(1A) to be satisfied that it was ‘reasonable in all the circumstances to do so’ and to record in writing the reasons for the issue of the Summons.

6 Section 28(1) states:

‘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.’

Failure to answer questions as required (s 30(2)) is an offence punishable on conviction by penalties including imprisonment for a term not exceeding five years (s 30(6)).

7 Section 28(5) empowered the Examiner to take evidence on oath or affirmation and to require a person appearing to take an oath or make an affirmation administered by the Examiner. Mrs Stoddart was sworn by the Examiner. To refuse to take an oath or make an affirmation would have been: (i) an offence punishable on conviction by penalties including imprisonment for a term not exceeding five years (s 30(2), (6)), and (ii) a contempt which could have led to her being dealt with by the Federal Court or the Supreme Court of Queensland. Paragraphs (a) and (b) of s 25A(2) provided that as a person giving evidence Mrs Stoddart might be represented by a legal practitioner and she elected to do so.

8 The law relating to legal professional privilege is preserved by s 30(9). With respect to the privilege against self-incrimination, s 30(5) limits the use that can be made of answers given or documents produced, but only if the requirements of s 30(4) are met. These include (par (c) of s 30(4)) the making at the time of a claim that answering the question or producing the document or thing ‘might tend to incriminate the person or make the person liable to a penalty’ (emphasis added).

9 After swearing in Mrs Stoddart, the Examiner explained to her that she had the privilege against self-incrimination in the terms provided by s 30(4) and (5) of the Act. She indicated that she wished to claim the privilege and the Examiner extended to her what he called ‘a blanket immunity’.

The claim to privilege against spousal incrimination

10 It will be apparent from the terms of the provisions of the Act respecting a summons that the Act is drawn on the basis that, except as the Act might otherwise provide (and it is not said that it does otherwise provide), Mrs Stoddart was a competent and compellable witness 2.

11 Further, the terms in which par (c) of s 30(4) is expressed show that the Act, in dealing with the self-incrimination privilege, proceeds upon the foundation supplied by the common law. This was stated by Lord Diplock in In re Westinghouse Uranium Contract3 as follows:

‘the privilege against self-incrimination was restricted to the incrimination of the person claiming it and not anyone else. There is no trace in the decided cases that it is of wider application; no textbook old or modern suggests the contrary. It is not for your Lordships to manufacture for the purposes of this instant case a new privilege hitherto unknown to the law.’

12 In Environment Protection Authority v Caltex Refining Co Pty Ltd4, McHugh J, after citing this passage, indicated that the apparent common law exception respecting rejection of evidence by the spouse of the accused rested upon a distinct principle, namely, lack of competence to testify.

13 In Rumping v Director of Public Prosecutions5 the House of Lords rejected the proposition that at common law communications between spouses were protected against disclosure both in civil and criminal proceedings by the other spouse or by some third person. Lord Reid said with respect to the narrower protection afforded by s 3 of the Evidence Amendment Act 1853 (UK) (‘the 1853 Act’) 6:

‘It is true that there are cases where it has been held that Parliament has legislated under a misapprehension of the existing law, but that can hardly be the case here.’

14 Yet that is the substance of what Mrs Stoddart so far has successfully contended in this litigation. In effect, she seeks extension of her common law privilege beyond that of her self-incrimination (which she maintained before the

Examiner) to that of incrimination of her spouse by her evidence, and then relies upon the failure of the legislature in s 30 of the Act to restrict or abrogate that extended privilege.

15 In the course of her examination by counsel assisting, Mrs Stoddart was asked whether she was aware of invoices prepared at the premises of her husband's practice for services provided by other entities. Her counsel then objected that her client claimed ‘the privilege of spousal incrimination’ and chose not to answer the question. The Examiner responded that the objection ‘on the basis of spousal privilege’ needed to be determined elsewhere and adjourned the examination.

The litigation

16 On 14 May 2009 Mrs Stoddart commenced a proceeding in the Federal Court in which she sought an injunction restraining the Examiner from asking her questions relating to her husband and a declaration that ‘the common law privilege or immunity against spousal incrimination has not been abrogated by [the Act]’.

17 Reeves J dismissed the application on 1 October 2009 7. The Full Court (Spender and Logan JJ; Greenwood J dissenting) 8 allowed an appeal by Mrs Stoddart and granted a declaration that ‘the common law privilege against spousal incrimination has not been abrogated by [the Act]’. Implicit in the terms of this declaration is the assumption that the common law in question is that of Australia at the time of the passage of the Act. In granting this relief, the majority followed the Queensland Court of Appeal in Callanan v B9 and the Full Federal Court in S v Boulton10. In the latter case, the primary judge (Kiefel J) had expressed her preference for the contrary view as to the existence of such a privilege at common law and it will be necessary to return to her Honour's reasons in that case 11.

18 On its appeal to this Court, the ACC makes two distinct submissions. The first is that the Full Court erred in following Callanan and the Full Court

decision in Boulton by recognising ‘a distinct common law privilege against spousal incrimination’; the second, and alternative, submission is that the Full Court should have held that s 30 of the Act, on its proper construction, does abrogate that privilege if it otherwise exists in the common law of Australia and, if so, it extends...