Spousal right to silence abolished in Australia

By Legal Eagle

The High Court has recently overturned the right to refuse to give evidence against one’s spouse at common law in Australian Crime Commission v Stoddart [2011] HCA 47. It’s a fascinating decision, as it represents a further very large crack in the crumbling notion that husband and wife are one person.

As I’ve mentioned here, the common law had a doctrine known as ‘coverture marriage’. Blackstone explained as follows in his Commentaries on the Laws of England:

By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband: under whose wing, protection, and cover, she performs every thing; and is therefore called in our law-French a feme-covert; is said to be covert-baron, or under the protection and influence of her husband, her baron, or lord; and her condition during her marriage is called her coverture. Upon this principle, of a union of person in husband and wife, depend almost all the legal rights, duties, and disabilities, that either of them acquire by the marriage. I speak not at present of the rights of property, but of such as are merely personal. For this reason, a man cannot grant any thing to his wife, or enter into covenant with her: for the grant would be to suppose her separate existence; and to covenant with her, would be only to covenant with himself: and therefore it is also generally true, that all compacts made between husband and wife, when single, are voided by the intermarriage.

An adult unmarried woman was considered to have the legal status of ‘feme sole‘, while a married woman had the status of ‘feme covert‘.  While a feme sole had the right to own property and make contracts in her own name, a feme covert was not recognized as having legal rights and obligations distinct from those of her husband. Through marriage, the woman’s rights and obligations became those of her husband. It has been argued that Blackstone’s interpretation of coverture was far more conservative than the practice that actually occurred. In any case, the passage of the Married Women Property Act in 1882 in the UK abolished the notion that the woman’s property automatically became her husband’s upon marriage.

The spousal right to remain silent is part and parcel of the same notion: that husband and wife are one person, and to force a spouse to give evidence against her husband is effectively to force her to give evidence against herself.  It is clear, incidentally, that there is a privilege against self-incrimination in the common law and in statute. Coke CJ said in his First Institute in 1628 that a wife “cannot be produced either against or for her husband” and said that husband and wife were regarded by the law as one flesh, and that to allow the wife to give evidence might be a “cause of implacable discord and dissention between the husband and the wife, and a meane of great inconvenience”.

The facts and background

Stoddart arose in the context of a tax fraud investigation. Mr Stoddart was a tax accountant who carried on practice in Queensland. Mrs Stoddart was his wife of more than 20 years who, before her husband ceased practice, provided him with some part-time secretarial assistance. The Australian Crime Commission commenced a special investigation of Mr Stoddart and others alleging taxation fraud. On 26 March 2009, the ACC’s Examiner issued a Summons which required Mrs Stoddart to attend at the premises of the ACC in Brisbane to give evidence of “federally relevant criminal activity” involving certain named corporations and persons, including Mr Stoddart. Mrs Stoddart attended the ACC and was sworn in as a witness. After swearing in, the Examiner explained to Mrs Stoddart that she had the privilege against self-incrimination (as provided by s 30(4) and (5) of the Australian Crime Comission Act 2002 (Cth)). She indicated that she wished to claim the privilege and the Examiner extended what he called “a blanket immunity” to her. But over and above the privilege against self-incrimination, she declined to give evidence against her husband on the basis of the spousal right to remain silent, arguing that the ACC Act had not abrogated the common law doctrine.

In May 2009 Mrs Stoddart commenced proceedings in the Federal Court seeking to restrain the Examiner from asking her questions relating to her husband and seeking a declaration that “the common law privilege or immunity against spousal incrimination has not been abrogated by [the Act]”. The application was dismissed at first instance, but the Full Court of the Federal Court upheld Mrs Stoddart’s appeal, and granted the declaration sought by Mrs Stoddart. The ACC then appealed to the High Court.

The majority:

It is interesting to note that the majority split among gender divisions: French CJ and Gummow J on the one hand and Crennan, Kiefel and Bell JJ on the other. How nice to see an all-female majority decision!

Essentially, the existence of a common law privilege against spousal incrimination had been previously accepted by the Queensland Court of Appeal in Callanan v B [2004] QCA 478 and the Full Court of the Federal Court in S v Boulton [2006] FCAFC 99 followed Callanan. However, the majority said that these decisions were incorrect.

Mrs Stoddart argued before the High Court that the common law long ago created a right of a fundamental nature which entitled a spouse to refuse to answer questions which might incriminate the other spouse. As a result, the principle of legality would apply to it and require clear and definite statutory language to negate it. She said that it followed from the principle of legality that there is a presumption that it is highly improbable that Parliament would act to depart from fundamental rights or principles without expressing itself clearly. The majority found that any rule with regard to spousal incrimination was not a privilege, was not clearly established in the common law, and was not the kind of rule which required a clear intention to abrogate it.

French CJ and Gummow J:

French CJ and Gummow J noted that there is a distinction between the concept of competence and compellability of witnesses on the one hand and that of testimonial privilege on the other. A person is competent if that person may lawfully be called to give evidence. However, merely because they may be called does not mean that they can be compelled to give evidence. A person is compellable if that person can lawfully be obliged to give evidence. The general rule is that all competent witnesses are compellable, but this is not entirely the case. This should be distinguished from testimonial privilege. Once the witness has entered the witness-box and has been sworn in, the witness must answer all questions put unless excused or unless the refusal to answer is based upon a privilege conferred by law. Competence and compellability attach to the witness herself, and not to the evidence the witness may give.

The majority concluded that the common law had never really recognised a privilege against spousal incrimination, and that insofar as there had been such a privilege it was purely statutory. The cases which purportedly upheld a privilege against spousal incrimination used the term “compellable” to indicate that the witness might be obliged to give evidence in the ordinary sense of the term, not that, in response to particular questions, a privilege might be claimed by the witness. Thus they did not establish the existence of any privilege at common law.

Being a scholar who is interested in breach of confidence and privacy law, I was naturally interested to see the following aside at [22] from French CJ and Gummow J:

It should, however, be added that the equitable principles respecting the protection of confidences may apply, independently of the rules of evidence, to matrimonial confidence, but that equity will not protect confidential communications involving crime or fraud.

This naturally made me think of that sensational case, Duchess of Argyll v Duke of Argyll, a case involving martial confidences. The Duke of Argyll was restrained from publishing purportedly scurrilous material about the Duchess’s sexual procilivities after the breakdown of their marriage.

Crennan, Kiefel and Bell JJ:

Crennan, Kiefel and Bell JJ in the other majority judgment noted at [178] that:

Questions about the competence and compellability of spouses to give evidence against one another have had a long history. Statutes of the Commonwealth, and of the States and Territories, now deal with these questions for the purposes of criminal proceedings, although the provisions are not uniform in their effect. The Evidence Act 1995 (Cth) makes provision for the compellability of spouses and others in certain criminal proceedings but the Act is not expressed to apply to an examination under the ACC Act. Therefore, it is necessary to turn to the common law and the provisions of the ACC Act on these questions.

They say that there is no question that English common law would regard Mrs Stoddart as competent to give evidence against her husband. Although there is a rule in relation to spousal competency, it does not apply to Mrs Stoddart’s situation. There may be a question in English common law as to whether Mrs Stoddart is compellable, but if so, it is merely a rule of evidence, not a rule of law, and is thus more easily negated.

Like French CJ and Gummow J, the distinction between competency, compellability and privilege is essential to Crennan, Kiefel and Bell JJ’s decision. At [186] they say:

A true privilege, such as legal professional privilege, operates as a substantive rule of law and not as a rule of evidence. It enables a person, who is otherwise competent and compellable as a witness, to refuse to answer a question directed to a particular subject, a question which is otherwise relevant to the matters in issue. A privilege has been described as relating to an area of interrogation. A privilege permits a witness to make a choice as to whether he or she will claim it, or provide the answer or produce the document.

They conclude that the matter of giving evidence for or against a spouse has long been treated as one of competence effecting a disqualification. Ultimately, they find that Mrs Stoddart was a competent witness who was compelled by the provisions of the ACC Act to give evidence, and that no privilege of the kind claimed could be raised in answer to that obligation.

Heydon J (in dissent):

Heydon J considered that a competent and compellable witness in proceedings before a court had a common law right to refuse answer questions which might have a tendency to expose his or her spouse to conviction for a crime. Further he considered that a person appearing before an institution which is not a court bound by the rules of evidence have a right to invoke spousal privilege. Finally, he considered that the ACC Act did not abolish that right.

His Honour embarked upon an extensive historical inquiry into case law and textbooks, and came to the opposite conclusion to the majority, concluding that there was an operative common law privilege in existence.


In the immediate commentary on the decision on the ABC there are two strands. First, there is the disappointed reaction of Terry Gorman from the Council of Civil Liberties who says:

…the ruling overturns hundreds of years of legal practice aimed at upholding the stability of the institution of marriage.

“This judgement is not just restricted to the Australian Crime Commission, it’s not restricted to similar state-based crime commissions, it will reverberate around the ordinary criminal law from the lowest courts in the land, magistrates and local courts, through to supreme courts in all state and territories.

“It is a major, major decision.”

He says lawyers will now be advising their clients to keep sensitive matters from their spouses.

“Frankly, advice that I or any other criminal lawyer would give to spouses now is that if you’re at the slightest risk of being prosecuted, say absolutely nothing to your wife or your husband at all about what might be the subject of a police or crime commission investigation because you’ll be hauled into the dock and made give evidence against your spouse,” he said.

On the other hand, Professor Frank Bates from UNSW said that the decision was entirely predictable and that the High Court was right in its decision:

He says there is no uniformity on statutes regarding privilege across jurisdictions in Australia and he thinks they are being weakened.

“It’s the judges that are weakening it. I think the general principle from which everybody regards as a springboard, shall we say, is that everybody is both a competent and compellable witness against everybody else,” he said.”For example, it has been suggested that the priest-penitent privilege should be abolished.”

Professor Bates says though the High Court decision will be “extraordinarily” influential across Australia, spousal privilege could still be granted if the circumstances were sufficiently different; for instance, he says a ruling may be different “if we were dealing with a situation, for example, where an assault was committed on the wife”.

He says privileges of confidentiality can’t simply be abolished across the board, noting that under least threat is legal professional privilege which exists between a lawyer and their client.

Instead, Professor Bates says each privileged relationship has to be judged individually.

“The argument in favour of [spousal privilege] is that marital communications are such an important part of marriage that they should be protected,” he said.

“It may be that the policy view now is that there are some things that are more important than the protection of marital communications – serious criminal offences.”

Interesting times. Of course, as I noted above, marital confidentiality will still generally be protected by breach of confidence laws, but whether or not a spouse can be compelled to give evidence against the other spouse will now depend upon the circumstances and the nature of the offence allegedly committed by the other spouse.


  1. Posted December 10, 2011 at 3:35 pm | Permalink

    [email protected], the idea of being for fusion or anti-fusion is not really apposite. The argument is not whether one is in favour of it or not, but whether it ever happened.

    As I perceive it, there isn’t that much evidence of cross-fertilisation either in the jurisdictions where the point is hotly argued or in those less taken with the argument.

    Of course, the stand out example is A-G v Blake, but that was more a political fix than any heroic reshaping of the law based on a coherent philosophy. It hasn’t been picked up here (it’s been mentioned a few times but not followed).

  2. kvd
    Posted December 10, 2011 at 4:08 pm | Permalink

    Thanks Nick – yes I realised that neither my thief nor Mr Pratt in any way were asked to return their gains – too quick on the send! Taking your other points in good faith I would say:

    – as to barrier to entry, if the $700M is just the cream on the take I think a new entrant would have been at a severe disadvantage. The profitable rent-seeking would be just the ‘cushion’ needed to prevent additional competition, I’d suggest.

    – jail? How does that reimburse the losses? It might make the judge and the lawyers and the community feel good, but how about the many companies disadvantaged by the behaviour? And their shareholders, employees etc.

    – the too hard problem of an adequate fix. Didn’t realise that was a basic principle of justice 😉

    How about the courts actually doing their job and arbitrarily placing in escrow both private fortune and company equity? In this instance take a high% of the estimate $700M – or the lot, for all I care. Make it subject to top up for inflation by the parties at fault. Let them at their cost seek to vary the judge’s initial ruling as to division. And let the aggrieved parties put their claims at further cost to the guilty parties. Return any excess to Mr Pratt et al.

    Bet there’d be a few quick settlements; and remember that Mr Pratt was a billionaire – by himself, alone, worth more than the mythical $700M (plus, of course, suitable lawyers’ fees)

  3. kvd
    Posted December 10, 2011 at 4:21 pm | Permalink

    I mean, we already have laws which say I must hand over 1/11th of my turnover plus 30% of what I have left for ‘the common good’. What’s so wrong about requesting I hand back, in full, what I stole on the way through? 🙂

  4. Posted December 10, 2011 at 10:16 pm | Permalink

    kvd, the point I was trying to make about the $700M is that I think it is a rubbery figure because I can’t see massive barriers to entry. You seem to be saying the barriers to entry must be high because the oligopolists made $700M. You’re assuming the figure is right and I’m questioning its correctness.

    My point about jail is that its important because it is a disincentive more likely to play upon the minds of the Pratts of the world (heh heh heh) because the monetary penalties are never going to be a sufficient disincentive; not least because they can protect themselves by making sure they don’t hold property themselves.

    I’m not saying that I don’t think that restoring ill-gotten gains is unimportant. I’m simply saying that insisting that a company pay back, in one hit, what it eked out as a monopoly rent over years, will destroy it and have consequences for innocent people such as employees and shareholders (particularly those who weren’t around for the dividends during the life of the cartel).

    You may also be interested to know that the Competition and Consumer Act (as the Trade Practices Act is now known) has provision for firms which suffer losses as a result of cartel conduct to sue the cartel members, but the litigation is so ridiculously expensive (even compared to other commercial litigation) that it is hardly ever run.

  5. kvd
    Posted December 11, 2011 at 7:45 am | Permalink

    LE forgive me if you feel this is hijacking your original subject, but it is a subject in which I’m genuinely interested. Nick, a couple of follow ups on your latest:

    1. You are suggesting that the difficulty in reaching a reasonable figure of the fraud involved is a reason to put it in the too hard basket. I’d suggest that’s quite lame. The message being sent is that crime actually does pay – if it’s big enough, complicated enough.
    2. You have a couple of times suggested I would liquidate Visy, to recover whatever figure in one hit, throwing thousands out of work. Not so. Visy remains a private family held company. There would be nothing wrong with laws being enacted to require either part or the whole of the equity being confiscated, and perhaps sold into a public structure. Alternatively a process of appropriation of future earnings could be put in place – leaving the company owned just as it is. James Hardie comes to mind.
    3. You quite correctly say that there is provision for damaged parties to make claim, but then note that it’s basically too costly and inefficient to pursue that route. I don’t see why the law shouldn’t be turned on its head; with a court assessed figure which is then subject to dispute by the offending party at their cost.
    4. Moving into LE’s comment, I accept that there is a good case that any costs improperly imposed by Visy on its customers would most probably have been passed on in the final end user price of their own products. That means to me that the community at large will have bourne the ultimate cost, which leads me to think that confiscation of wealth by the government is “fairer” than individual settlements with customers.

    There is nothing fair or easy about any of this. But if the end result is a fortune built upon a lie or a crime, and society simply turns a blind eye because it’s all too hard, then what sort of message is being sent to the business world?

  6. Posted December 11, 2011 at 9:58 am | Permalink

    kvd, following your numbering …

    (1) I didn’t say that.

    (2) I suggested that the natural outcome of hitting a company with a fine equal to its illicit profit over an extended period would have the likely effect of sending it broke. I don’t think there’s much doubt in many cases. I don’t think that confiscating future income would work. You would have to force people to keep their capital invested for no return because they wouldn’t do it voluntarily.

    (3) That’s an interesting point, but what is the process for the Court’s assessment?

    (4) I agree although I have a visceral reaction to the phrase “confiscation of wealth by the government”.

    Your last (unnumbered) point really returns to the question of disincentive. In the United States, there is a rationale which calls for damages awards for triple the monopoly profits in anti-trust cases, but there is still anti-competitive behaviour. You’re dealing with people who think in terms of the risk they’re taking and whether the potential reward is worth it. They know that no government is going to shut down their business, so they know there is never going to be a punishment which has that effect. That is why I think jail is a more effective response. Tell someone that they risk going to jail for their behaviour and its a whole different equation. You can arrange your affairs, Alan Bond style, so that there’s no point in suing you, but you can’t do the same in respect of a jail sentence.

  7. Posted December 11, 2011 at 10:05 am | Permalink

    LE, as you observe, the Devenish case is one of breach of statutory duty and thus one which falls to be analysed according to the law of tort. As you are probably aware, there is no similar statutory duty in Australia. There were attempts in the late 90’s to frame some competition actions in terms of conspiracy (the illegality being the conduct in breach of Part IV of the TPA). That was done in an attempt to avoid limitation periods, but they were struck out on the basis of the presumption that when a statute makes something illegal which was not previously illegal and provides the remedy, that is the only remedy available.

  8. kvd
    Posted December 11, 2011 at 10:49 am | Permalink

    [email protected], you seem to want fairness in a process begun between the parties at several pubs, with continuing discussions via prepaid mobile phones? As the judge observed “for all the attention paid to company policy, it may as well have been written in Sanskrit”.

    But anyway:

    (1) You never said?
    [email protected]: The fact that it is difficult to put an economic value on crime is one of the main justifications (in my mind) for imposing jail sentences.
    [email protected]: I observe that there is a fair bit of speculation involved in arriving at the cost of cartel behaviour.
    [email protected]: I’m simply saying that insisting that a company pay back, in one hit, what it eked out as a monopoly rent over years, will destroy it and have consequences for innocent people

    (2) You still argue on the basis of immediate and full recompense, whereas I’d be happy with a program of return over 5-10 years, or alternatively a confiscation of part or whole equity. Mind you, with Pratt, if you had confiscated $700M in one hit that would have left the poor fellow with well over $4bn in personal fortune (at that time) to console himself with…

    (3) I’d be amazed if any of the larger accountancy firms couldn’t come up with a figure. My point was, thereafter it arbitrarily becomes the Court’s ruling, subject to rebuttal by the offending party. (Just like the process the Tax Office adopts in arbitrary tax assessment)

    (4) Me too! But it already happens to us wee folk. See my 53 above, and just add several zeros.

    (5) Jail: fine by me! But as well as, not in place of.

  9. Posted December 11, 2011 at 11:05 am | Permalink

    kvd, we seem to be speaking at cross purposes a bit …

    1. You are suggesting that the difficulty in reaching a reasonable figure of the fraud involved is a reason to put it in the too hard basket. I’d suggest that’s quite lame. The message being sent is that crime actually does pay – if it’s big enough, complicated enough.

    I interpret this as meaning that I think we should not do anything because its too hard. I do not think that. I think that we should do what works to deter the conduct. Because corporate crime does pay, you needs something scarier than the risk of a loss to deter them. The people at the heart of these things aren’t scared of that risk. They live with it all the time. Their preparedness to take such risks, often as not, is how they got so rich.

  10. kvd
    Posted December 11, 2011 at 11:07 am | Permalink

    Here Nick:

    In 2003 Visy Industries manufacturing revenues $2.5bn Visy plus Amcor market share 90+% — split 50% Visy, 40% Amcor

    Therefore extrapolate combined revenue as $4.5bn then multiply by 4 years, but allow for growth. Total combined revenue $16bn [These figures are available anyway from public documents – I’m just guessing]

    Pick a figure for overcharge – say 3% – which is laughable, by anyway… 3% of $16 billion is a bit under $500 million.

    There you go, and I saved Visy/Pratt et al $200M in deference to your need for “fairness” 😉

  11. kvd
    Posted December 11, 2011 at 11:11 am | Permalink

    [email protected] sorry – I posted without seeing your comment. Yes, we are somewhat at cross purposes. You seek to deter crime (which is laudable) while I’d like that PLUS handing back the loot. These are two separate issues in my mind.

  12. Patrick
    Posted December 12, 2011 at 11:27 am | Permalink

    I’m late to this, but I would like to point out that [email protected] has an overly credulous take on the UK.

    The pertinent fact is that Lord Denning trashed the common law in the UK, and the HL’s later acquisience to Parliament’s abrogation of the British Constitution in favour of EU supremacy pretty much sealed its fate.

    So they probably don’t fuss about fusion because they are constitutionally impossible of seeing the organic evolution of common law principles as a key pillar of human rights in a free society.

    What restitutionists and fusionists and kvd should be lobbying for is a compensation tribunal who can be asked to make a finding of restitution subject to judicial review of process and susbstantive blame.

    But there is no obvious reason to throw the common law out holus bolus in search of incremental improvements.

  13. Brian
    Posted August 27, 2012 at 4:55 pm | Permalink

    Thanks for the great article and following discussion on the topic.

    What implications does the decision have in Western Australia? Remember WA has it’s own Evidence Act (as opposed to the Uniform Evidence Act Cmth that was referred to in the decision). In WA, spousal privilege is provided for in statute; under s.18 of the Evidence Act 1906 (WA).

    Does this mean that for criminal proceedings within the WA Criminal Code, spousal privilege can apply?However, if it was a Federal criminal offence being tried, the above decision (ACC v Stoddart) would apply and no spousal privilege would be available in that case?

  14. Brian
    Posted August 27, 2012 at 5:20 pm | Permalink

    LE, I thought that would be the case. However, it does not seem right?! I guess the Law Reform Commission has not put the privilege in the Uniform Evidence Act as like you point out in the article, more for public policy reasons. Thanks for the reply

  15. Anon
    Posted August 28, 2012 at 10:12 am | Permalink

    It isn’t the case. The application of Australian evidence laws depends on the court, not the jurisdiction being exercised. So, WA evidence law applies to all proceedings in the WA courts, whether state or federal. The only federal criminal proceedings in WA that aren’t subject to WA evidence law (and are instead subject to Cth evidence law) are the very rare criminal trials run in the federal court. It’s in non-criminal matters where the contrast between federal and state evidence law is important, because of the federal court’s much wider jurisdiction. I guess if you want to keep marital secrets, make sure you sue (or get sued) in a WA court.

    Even if things were otherwise, fthe gap between WA and non-WA evidence law on spouses isn’t all that important in criminal trials for several reasons First, the WA’s privilege is barred in most serious criminal trials (see s9 of the WA evidence law.) Secondly, the uniform evidence law (applicable outside WA, Qld and SA) provides for a spousal non-compellability rule in all criminal trials (see s18 of the UEL), though it’s a balancing test of sorts. Third, neither evidence law applies to the ACC’s questioning power at issue in Stoddart. Rather, most coercive questioning regimes have their own privilege rules, though it’s possible for the common law to squeeze through any legislative gaps (as might have happened in this case, had the common law on spousal incrimination be held to exist.) The position in the WA equivalent to the ACC, the CCC, is not obvious from a quick reading of the statute: people questioned under that statute can claim all court privileges other than self-incrimination, but the WA spousal privilege seems to have an exception for coerced questioning. Maybe there’s a case or some other provision somewhere that makes things clear. I dunno.

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