Court overturns wife's right to silence

Updated

The High Court has overturned a woman's right to refuse to incriminate her husband, a move which experts say has overturned hundreds of years of common law tradition.

Louise Stoddart was called before an Australian Crime Commission tax fraud investigation into her husband Ewan Stoddart in 2009.

But she refused to answer questions about the Gold Coast accountant, claiming spousal privilege.

She was backed last year in a ruling by the full bench of the Federal Court.

But in a majority ruling this morning, the High Court has upheld a challenge by the Crime Commission.

The court has ruled that there is no such privilege under common law.

It says the woman could be jailed if she continues to refuse to give evidence.

Terry O'Gorman from the Council for Civil Liberties 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.

The Crime Commission has been ordered to pay Ms Stoddart's legal costs.

'Entirely predictable'

Professor Frank Bates from the Newcastle Law School says the court's decision was "entirely predictable".

He says unlike in England, spousal privilege in Australia belongs not to common law but rather is determined entirely by statutes - that is, legislation.

Professor Bates says for that reason the High Court was right not to make its decision based on the common law tradition.

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.

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. Professor Frank Bates

"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."

Topics: law-crime-and-justice, courts-and-trials, australia, act, canberra-2600, southport-4215, qld

First posted