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  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.
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.
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  QCA 478 and the Full Court of the Federal Court in S v Boulton  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  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  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  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.