Australian Crime Commission v Stoddart [2011] HCA 47

HIGH COURT OF AUSTRALIA

FRENCH CJ,

GUMMOW, HEYDON, CRENNAN, KIEFEL AND BELL JJ

AUSTRALIAN CRIME COMMISSION APPELLANT

AND

LOUISE STODDART & ANOR RESPONDENTS

Australian Crime Commission v Stoddart [2011] HCA 47

30 November 2011

B71/2010

ORDER

1. Appeal allowed.

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.

On appeal from the Federal Court of Australia

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

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

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".

1. FRENCH CJ AND GUMMOW J. 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.