Louise Hall Courts
December 1, 2011
THE wife of a Gold Coast businessman accused of running a tax avoidance scheme cannot refuse to answer questions about her husband's alleged illegal activities, the High Court has ruled.
In a majority opinion, the court held that the common law does not recognise a privilege against spousal incrimination.
The case arose when Louise Stoddart was called before the Australian Crime Commission to give evidence in an examination of her husband, Ewan Alisdair James Stoddart in April 2009.
Mrs Stoddart, who worked part-time as a secretary in her husband's accounting practice, refused to answer questions about her husband, claiming that as his wife she had the right not to give evidence that might incriminate him.
Under the wide-ranging powers of the Australian Crime Commission Act, a person can be forced to answer questions which tend to incriminate themselves, however the rights of a spouse are not canvassed.
Mrs Stoddart applied to the Federal Court for an injunction restraining the examiner from forcing her to answer questions which might expose Mr Stoddart to a criminal conviction. She lost, but the decision was overturned when three appeal judges found that the common law right against spousal incrimination did exist and that the act did not negate it.
Yesterday the High Court upheld an subsequent appeal by the commission, giving it the green light to compel interviewees to answer questions or face five years' jail.
In a dissenting judgment, Justice Dyson Heydon relied upon an English case from 1817 in which Ann Willis was called to give evidence that she had married George Willis, to prove he was bigamous.
Justice Heydon said spousal privilege did exist at common law and he went on to argue that it could be characterised as a human right. ''It preserves a small area of privacy and immunity from the great intrusive powers of the state, and those who invoke them,'' he said.
The ruling will not affect criminal trials in NSW, where family members can be excused from testifying.
An Associate Professor at Melbourne Law School Jeremy Gans said the decision was likely to affect bodies such as royal commissions and anti-corruption watchdogs.
Terry O'Gorman, a criminal barrister and the president of the Australian Council for Civil Liberties, said that the ruling would have ''significant consequences''.
''It's a very surprising decision in that it overturns what criminal lawyers understand to have been the law for in excess of a century,'' he said.
