S v Boulton (Examiner, Australian Crime Commission) [2006] FCAFC 99 (23 June 2006)

EVIDENCE – appeal – spousal privilege – investigation by the Australian Crime Commission into criminal activities of the appellant’s de facto spouse – appellant relied on spousal privilege – whether there is a common law privilege against spousal incrimination – whether such spousal privilege extends to de facto spouses – whether Australian Crime Commission Act 2002 (Cth) abrogates spousal privilege

PRACTICE AND PROCEDURE – precedents – decision of another intermediate court of appeal on question of common law followed

HELD: (dismissing the appeal) the common law privilege against spousal incrimination does not extend to de facto spouses

Australian Crime Commission Act 2002 (Cth), s 30

A v Boulton [2004] FCAFC 101; (2004) 136 FCR 420, cited
Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; (1993) 177 CLR 485, applied
Callanan v B [2004] QCA 478; [2005] 1 Qd R 348, followed
Lipohar v The Queen [1999] HCA 65; (1999) 200 CLR 485, discussed
R v Young [1999] NSWCCA 166; (1999) 46 NSWLR 681, referred to
Royal Women’s Hospital v Medical Practitioners Board of Victoria [2006] VSCA 85, referred to
S v Boulton [2005] FCA 821; (2005) 155 A Crim R 152, affirmed
Stoten v Sage [2005] FCA 935; (2005) 144 FCR 487, referred to
Transurban City Link v Allan [1999] FCA 1723; (1999) 95 FCR 553, applied

J D Heydon and G Byrne, Cross on Evidence, loose leaf service, Butterworths, Australia
D Lusty, "Is there a Common Law Privilege against Spouse Incrimination?" (2004) 27 UNSWLJ 1

S v WILLIAM MCLEAN BOULTON (EXAMINER, AUSTRALIAN CRIME COMMISSION) AND AUSTRALIAN CRIME COMMISSION
QUD 191 of 2005

BLACK CJ, JACOBSON and GREENWOOD JJ
23 JUNE 2006
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 191 of 2005

BETWEEN:	S Appellant
AND:	WILLIAM MCLEAN BOULTON (EXAMINER, AUSTRALIAN CRIME COMMISSION) First Respondent AUSTRALIAN CRIME COMMISSION Second Respondent
JUDGES:	BLACK CJ, JACOBSON and GREENWOOD JJ
DATE OF ORDER:	23 JUNE 2006
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1. The appeal be dismissed with costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 191 of 2005

BETWEEN:	S Appellant
AND:	WILLIAM MCLEAN BOULTON (EXAMINER, AUSTRALIAN CRIME COMMISSION) First Respondent AUSTRALIAN CRIME COMMISSION Second Respondent

JUDGES:	BLACK CJ, JACOBSON and GREENWOOD JJ
DATE:	23 JUNE 2006
PLACE:	BRISBANE

1 In response to a summons to appear before an Examiner of the Australian Crime Commission in Brisbane on 9 February 2005, issued pursuant to the Australian Crime Commission Act 2002 (Cth) (the Act), the appellant was asked this question: "In the time that you have been together with your [de facto] partner ... have you been aware of him earning income from illegal activities?"

2 The appellant refused to answer and claimed a "privilege against spousal incrimination".

3 The Examiner required her to answer the question. Although the Examiner, noting the decision of the Queensland Court of Appeal in Callanan v B [2004] QCA 478; [2005] 1 Qd R 348 (B’s Case), assumed the existence of the privilege and that it applied in the proceeding he was conducting, he ruled against the appellant’s claim for privilege for the reason that it was only available to persons legally married and the appellant and her partner were not married.

5 The appellant contended before the primary judge that the first respondent (the Examiner) made errors of law in deciding that the privilege against spousal incrimination did not apply to a de facto spouse.

6 Whilst her Honour doubted that the common law recognized a privilege against spousal incrimination at all, she did not consider that the Court, constituted by a single judge, should depart from the decision of an intermediate appellate court (albeit in a distinct curial hierarchy) on a question of the existence of a privilege at common law, unless convinced that the reasoning in that decision was plainly wrong (at [30]-[32]). Not being persuaded that the reasoning was plainly wrong, her Honour applied B’s Case.

7 Her Honour declined, however, to extend the privilege against spousal incrimination to de facto spouses (at [32]-[42]). Her Honour also expressed the view that the privilege against spousal incrimination "is closer to a rule of evidence than a substantive rule of law" (at [45]).

8 The appellant appeals against the dismissal of her application. The main ground of appeal is that the primary judge erred in not extending the privilege to de facto spouses. During the hearing of the appeal, the Court allowed the appellant to amend her Notice of Appeal to raise an argument that was not made before the primary judge and which did not form any part of the appellant’s objection to answering the question asked of her: that "public interest immunity privilege" was available to be relied upon by the appellant.

9 The respondents (the Examiner and the Commission) filed a Notice of Contention, contending first, that the primary judge should have found that the common law does not recognize a privilege against spousal incrimination and second, that if such a privilege does exist then it is a rule of evidence only that has no application to examinations conducted under the Act and, third, that any such privilege, even if applicable to such an examination, had been abrogated by s 30 of the Act.

10 Section 24A provides that an examiner may conduct an examination for the purposes of a "special ACC operation/investigation".

11 The expression "special ACC operation/investigation" relevantly means "an investigation into matters relating to federally relevant criminal activity that the ACC is conducting and that the Board has determined to be a special investigation" (s 4).

12 When the appellant was asked the question quoted in [1], there were instruments in force by which the Board had determined that an investigation into whether established criminal networks are involved in the supply of illegal drugs, the corruption and bribery of officials, perverting the course of justice, violence related offences and securities market misconduct was a special investigation (pursuant to s 7C).

13 On 1 February 2005, the Examiner summoned the appellant to appear at an examination held for the purposes of the special investigation to give evidence "in relation to your knowledge of the unlawful importation of illegal drugs, including tier 1 goods, into Australia, related or connected relevant offences against a law of a State that have a federal aspect, and connected money laundering, by [her de facto partner and other named persons]". The instruments referred to in [12] were attached to the summons (s 28(1) and (2)).

14 Section 25A(1) provides that an examiner may regulate the conduct of the proceedings at an examination as he or she thinks fit. The examination must be held in private (s 25A(3)). A person giving evidence may be represented by a legal practitioner (s 25A(2)(a)) and the legal practitioner may, so far as the examiner thinks appropriate, cross-examine any witness on any matter that the examiner considers relevant to the ACC operation/investigation. The examiner may direct that any evidence given before the examiner must not be published (s 25A(9)(a)). Section 28(5) provides that an examiner may, at an examination, take evidence on oath or affirmation.

15 Section 30 contains provisions requiring a person to attend before the Examiner and to answer questions. Sub-s (2) relevantly provides that a person appearing as a witness shall not "refuse or fail to answer a question that he or she is required to answer by the examiner". The section provides for matters relevant to legal professional privilege in sub-ss (3) and (9) and for privilege against self-incrimination in sub-ss (4) and (5). The appellant does not challenge the decision of the Full Court in A v Boulton [2004] FCAFC 101; (2004) 136 FCR 420 that the Act deprives a witness of the benefit of the privilege against self-incrimination. Section 30(6) provides that a person who contravenes sub-s (2) is guilty of an indictable offence and liable to imprisonment for up to five years.

16 As I have noted, the Examiner assumed the existence of a privilege against spousal incrimination, citing the unanimous decision of the Queensland Court of Appeal in B’s Case. In reliance upon that privilege, the appellant submitted that she was not required to answer the question asked of her.

17 The primary judge described the appellant’s claim as being to a privilege or immunity from answering questions, the answers to which may incriminate the de facto spouse of the witness. On appeal, the appellant submitted that this privilege is separate and distinct from (and, indeed, pre-dated) the privilege against self-incrimination.

18 Having traced the argument for the privilege through the decision in B’s Case and an article written by Mr David Lusty entitled "Is there a Common Law Privilege Against Spouse-Incrimination?" ((2004) 27 UNSWLJ 1) and the cases cited by Mr Lusty, the primary judge said that she was "unable to agree that there is a spousal privilege recognized by the common law" (at [25]).

19 The immediate difficulty identified by her Honour with the existence of the privilege was that the application in earlier times of the common law rules relating to the incompetence and non-compellability of spouses meant that any such common law privilege would almost never have arisen for consideration.

20 Her Honour also doubted that the decision in R v Inhabitants of All Saints, Worcester (1817) 6 M & S 194 (All Saints) – "a case which assumes some importance in connexion with Mr Lusty’s argument" (at [15]) – supported the existence of the privilege. Mr Lusty referred to statements made obiter dicta by Bayley J in that case and argued that "these comments amount to a specific recognition of a common law privilege against spouse-incrimination" ((2004) 27 UNSWLJ 1 at 15). Her Honour considered, however, that Bayley J’s reference to whether the spouse witness would have been "compelled" to answer a question was a reference to whether the spouse might be obliged to give evidence at all, as the term is ordinarily understood, rather than a reference to compelling the witness to answer particular questions, the interpretation contended for by Mr Lusty which is more akin to a privilege (at [27]).

21 Despite her conclusion that a spousal privilege had not been recognised by the common law, her Honour applied the decision of the Queensland Court of Appeal in B’s Case to resolve the issue of privilege in the present case. In my view, her Honour was correct in doing so, and for the reasons she gave.

22 Her Honour commenced with the proposition, derived from Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; (1993) 177 CLR 485, that "an intermediate appellate court – and even more so a single judge – should not depart from a decision of another Australian intermediate appellate court in an area where uniformity is desired, unless the court is convinced that the reasoning is plainly wrong" (at [30], emphasis in original). Marlborough Gold Mines was concerned with the desirability of uniformity of decision in the interpretation of national uniform legislation. Her Honour reasoned that the need for certainty and uniformity similarly applied to the interpretation of Australia’s unified common law which "may be as great as in the area of legislation".

23 Whether this Full Court should also follow the decision in B’s Case raises similar issues for resolution.

24 The respondents were plainly correct in their submission that the decision in B’s Case is not binding on this Court. But that proposition involves little more than a recognition that the Queensland Court of Appeal is unable to reverse this Court’s judgment should it depart from the decision in B’s Case (see Lipohar v The Queen [1999] HCA 65; (1999) 200 CLR 485 at 506 (Gaudron, Gummow and Hayne JJ) citing Favelle Mort Ltd v Murray [1976] HCA 13; (1976) 133 CLR 580 at 591 (Barwick CJ)).

25 In Lipohar v The Queen at 44, Gaudron, Gummow and Hayne JJ said of the common law:

The "courts" are the courts of the Australian legal system: federal, State and Territorial. The maintenance and development of the common law of Australia is therefore the collective enterprise of the Australian judiciary, sitting within their respective hierarchies with the High Court at the apex. Whilst different intermediate courts of appeal may give inconsistent rulings upon questions of common law, this demonstrates not that there is more than one common law, but that one or other of the courts will not have correctly applied or declared the common law (Lipohar at [45]). As Gaudron, Gummow and Hayne JJ noted: "the situation which arises is not materially different to that which arises where trial judges ... within the same court reach different conclusions on the same point of law". That is, differing rulings on the common law by trial judges within the same court will be subject to review by the appellate courts within that hierarchy. The same is true of the position the High Court occupies in relation to differing rulings on the common law by different intermediate appellate courts. Recognition of the principle that there is one common law of Australia, necessarily points to principles that make for uniformity and certainty in interpretation, the need for which was recognised in the reasons of the primary judge.

26 The respondents accepted the proposition that there is a unified common law of Australia but submitted that no rule of "comity" – the term they used to describe the rule stated by the primary judge – followed from this. I would avoid the use of the expression "comity" in this context and I note that it is not an expression that the primary judge used. Once it is accepted that there is indeed a unified common law of Australia, the expression "comity", suggesting as it does a basis in goodwill and courtesy, and used conventionally in connection with international relationships, does not seem to me to reflect sufficiently the approach that should be taken when a point of common law comes to be considered by one of Australia’s intermediate appellate courts.

27 Consistently with these propositions, this Court should regard the decision of the Queensland Court of Appeal in B’s Case in the same manner in which it would regard a previous decision by a Full Court of the Federal Court upon a question of the common law; that is, it will depart from that decision if convinced that it is plainly wrong (see Transurban City Link v Allan [1999] FCA 1723; (1999) 95 FCR 553 and see and compare R v Yates (1991) 102 ALR 673 at 679-680 (Priestly JA)). There is also scope within that rule to depart from a previous Full Court decision in recognition of the "unusual features" of a particular case. So it is that, as with previous decisions of the Full Court of this Court (see Transurban City Link at 560), decisions of the Queensland Court of Appeal on a point of common law are entitled to due respect and should not lightly be departed from.

28 The decision of the Court of Appeal in B’s Case reflects the indisputable and ancient policy of the common law that a wife would be entitled to "the protection of the Court" in declining to answer a question that might incriminate her husband (see, for example, the discussion in the judgment of Griffith CJ in Riddle v R [1911] HCA 33; (1911) 12 CLR 622 at 629 and the materials there cited). Whether, historically, the policy of protection – and the reasons upon which it was founded – gave rise to a protection having the true character of a modern privilege, is a question upon which minds have differed. In her reasons, the primary judge pointed to the difficulties encountered in reaching that conclusion. That said, the reasoning of the Queensland Court of Appeal in B’s Case is not contradicted by any decided case or work of authority and involves an analysis of legal history and reference to a lengthy and scholarly examination of the subject by Mr Lusty. In these circumstances, the respondents’ submission that B’s Case should not be followed because it is plainly wrong is simply unpersuasive. It follows that the unanimous judgments of the Queensland Court of Appeal in B’s Case – that the common law recognises a privilege against spousal incrimination – should be followed by this Court in the present case.

DOES THE COMMON LAW PRIVILEGE AGAINST SPOUSAL INCRIMINATION EXTEND TO DE FACTO SPOUSES?

29 There was evidence before the primary judge that whilst she and her partner are not legally married, they have been in what she described as a de facto relationship for more than eleven years. The evidence is that she has lived together with her partner for well over ten years, excepting one period of separation of about six months duration. The appellant and her partner have three children of their relationship. The appellant states that familial and domestic responsibilities are "shared together" and that her partner is "very supportive" of their children. She also states that they have agreed to marry some time in the future and intend to spend the rest of their lives together. Other than her statement that during the period of separation in 2001 her partner continued to support her financially, there is no evidence as to the ownership and management of finances and assets. None of this evidence was contested and the primary judge was prepared to proceed on the footing that the appellant and her partner are in a de facto relationship.

30 B’s Case concerned a witness who was legally married to her spouse. McPherson JA (with whom McMurdo P agreed) observed that the privilege extended to both "husband witnesses as well as to wives" (at [8]). Jerrard JA, when tracing the history of the privilege through the sources identified by Mr Lusty, stated (at [22]):

It should also be noted that in the conclusion to his work, Mr Lusty canvassed and apparently rejected an argument that, because of the policy underlying the privilege, it could be extended to "protect ... persons in close relationships" who were not legally married. Mr Lusty, following a statement made by Sir Rupert Cross, considered that the line had to be drawn somewhere "and it is perfectly logical that it was drawn at de jure spouses by common law" ((2004) 27 UNSWLJ 1 at 41).

31 The primary judge took account of the arguments in favour of extending the privilege to de facto spouses, including that such relationships are well known in Australian society and are recognized for various legal purposes. Her Honour also noted the argument that the policy underlying the privilege (the public interest in the maintenance of harmonious relationships and confidence within a marriage) was equally applicable to a de facto relationship (at [33]).

32 Her Honour also canvassed the arguments against extending the privilege, commencing with the proposition that the common law rule applied to the union between husband and wife. Noting a series of cases in which the common law has continued to maintain a distinction between persons lawfully married and other close relationships of love and affection, her Honour maintained that the policy underlying the privilege reflects the public interest in the "harmony of and confidence within marriage" (at [39]) and, accepting the common law method of incremental development of the law based on principle, concluded (at [42]):

33 The appellant submitted that the privilege reflects broader public policy concerns that are not limited by, nor unique to, formal marriage. She also submits that the common law privilege has evolved in the course of its history (from one that could be invoked by wives alone to now protect husband witnesses) based upon changing conceptions of the policy underlying the privilege so that it should now be extended again to reflect its broader rationale.

34 The respondents submitted that the appellant has not shown any sound foundation for extending the privilege to de facto couples, first because the extension sought by the appellant does not accord with accepted principles for the development of the common law and second, because the Court lacks what was said to be a "proper evidentiary foundation" for the extension.

35 In the course of the hearing, a further submission was developed about the extension of the common law privilege by reference to statutory developments. The appellant submitted that the Court should take account of statutory developments relating to the position of de facto spouses as a reflection of the contemporary social values that should inform the development of the common law. The respondents, on the other hand, submitted that there was no scope for the use of statutes in this way in an area in which the legislative policy in relation to the rights of de facto spouses could be said to be inconsistent with the legislative policy relating to the competence and compellability of spouses.

36 There is nothing in the reasons for decision in B’s Case or in the work of Mr Lusty to suggest that the privilege ever extended beyond lawfully married spouses. This was the position at common law in relation to the competence and compellability of spouses in criminal proceedings (see below at [47]) and it would be surprising if the privilege against spousal incrimination was any wider. It is uncontroversial, however, that the incidence of de facto relationships in the community has greatly increased over the past 30 years (A A Tegel Pty Ltd v Madden (1982) 2 NSWLR 591 at 601 (Kirby P), at 617 (McHugh JA)) and that this has influenced the development of legal principles. Of course, and as the primary judge noted, the cases also provide examples of a reluctance to extend legal principles to de facto spouses.

37 Her Honour cited the statement of Deane J in Calverley v Green [1984] HCA 81; (1984) 155 CLR 242 at 268 that the "exceptional cases" in which equity assumes an intention of advancement "are defined by reference to recognized categories of relationships rather than by the actual presence of love and affection". Deane J accepted the reasons of Mason and Brennan JJ as providing "convincing reasons for denying that either logic or analogy warrant the extension of those categories of relationships to encompass [a de facto relationship]". In their joint judgment, Mason and Brennan JJ distinguished the marriage relationship from a de facto relationship (at 259-260):

38 The Chief Justice, on the other hand, considered that the presumption of advancement would apply within a de facto relationship. Gibbs CJ referred to the "apparent permanence" of the relationship and noted that the parties "live[d] together, and represent[ed] themselves to others, as man and wife." For Gibbs CJ, it was important to "reject ... any notion of moral disapproval, as inappropriate to the resolution of disputes as to property in the twentieth century" (at 250).

39 The denial of the presumption of advancement to the female partner in a long term de facto relationship has been criticised: Prentice v Cummins [2003] FCA 1002; (2003) 134 FCR 449 at 463 (Sackville J). On the appeal in that case to the High Court, Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ commented that "it is unnecessary in the circumstances of the present case to express any concluded view as to the perception by Mason and Brennan JJ [in Calverley v Green] of the particular and exclusive significance to be attached to the status of marriage in this field of legal ... discourse": Trustees of the Property of Cummins (a bankrupt) v Cummins [2006] HCA 6 at [69]. Relevantly for the present case, the High Court referred to State legislation that provides for the adjustment of property rights of de facto partners when the relationship breaks down and Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ stated that "the extent to which these statutory innovations may bear upon further development of the principles of equity is a matter for another day" (at [70]).

40 The ability of "statutory innovations" to influence the development of the common law was acknowledged and discussed by Gleeson CJ, Gaudron and Gummow JJ in Esso Australia Resources v Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49. That case established that the test at common law for determining whether legal professional privilege applies in relation to discovery and inspection of confidential written communications between lawyer and client is whether a communication was made for the dominant purpose of a lawyer providing legal advice or legal services.

41 Gleeson CJ, Gaudron and Gummow JJ rejected an argument that the common law should be modified and adapted to the statutory analogy of the Evidence Act 1995 (Cth), which had established a dominant purpose test in relation to the adducing of evidence. Noting that the legislation in question had not been enacted throughout Australia, Gleeson CJ, Gaudron and Gummow JJ observed that "there is no consistent pattern of legislative policy to which the common law in Australia can adapt itself" (at [23]).

42 The proposition that the common law can be modified in accordance with a statutory analogue that reflects a consistent legislative view of what the public interest demands in a particular area of law is only one of the "varied and complex questions" that may be triggered by the "interrelation and interaction between common law and statute": Esso Australia Resources [1999] HCA 67; (1999) 201 CLR 49 at [18]. This interrelation and interaction has also been described as a "symbiotic relationship": Brodie v Singleton Shire Council [2001] HCA 29; (2001) 206 CLR 512 at [31] (Gleeson CJ).

43 The appellant, whilst submitting that the Court should take account of statutory developments relating to the position of de facto spouses as a reflection of contemporary social mores, disclaimed a suggestion that the submission involved the analogical use of such statutes. The appellant’s submission thus seems to accord with the extra-curial observations of Finn J that:

(Justice Paul Finn, "Statutes and The Common Law: The Continuing Story" in Suzanne Corcoran and Stephen Bottomley (eds), Interpreting Statutes (2005) at 62).

44 Leaving to one side, for the moment, the position of de facto spouses under the evidence statutes across the States, Territories and the Commonwealth, the evident public policy of relevant statutes of every Australian jurisdiction does, as a matter of generality, offer support to the appellant’s submission that the common law privilege against spousal incrimination should be extended for the benefit of de facto spouses.

46 The position of de facto spouses under the laws of evidence of the States, Territories and the Commonwealth tells, however, a different story. The legislative policy in favour of the equal treatment of the rights and privileges of de facto spouses that is discernable from the statutes referred to at [45], is insufficient to provide a formative (and extending) influence on the common law privilege against spousal incrimination when the more directly relevant statutory provisions about the evidence of de facto spouses exhibit no such consistent policy.

47 This is best illustrated by considering the various statutory provisions about the competence and compellability of spouses as witnesses for the prosecution in a criminal proceeding against his or her spouse. Part of the background against which these statutory provisions were enacted was the historical refusal of the common law to extend the rules of incompetence and non-compellability of spouses beyond lawfully married spouses (R v Cobby (1883) 4 LR (NSW) 355; R v Fuzil Deen (1895) 65 QLJ 302 and see the discussion in R v Byast [1999] 2 Qd R 384; R v Algar [1954] 1 QB 279; R v Yacoob (1981) 72 Cr App R 313; R v Khan (1987) 84 Cr App R 44; see also J D Heydon, Cross on Evidence (7^th ed, 2004) at [13110]-[13135]; Wendy Harris, "Spousal Competence and Compellability in Criminal Trials in the 21^st Century" (2003) 3 QUTLJJ 294).

48 There are some jurisdictions in which lawfully married spouses and de facto spouses do receive equal treatment under the evidence laws, either because any protection for a lawfully married spouse has been removed by a provision that makes him or her competent and compellable as a prosecution witness in all cases (Evidence Act 1977 (Qld), s 8(2); Evidence Act 1939 (NT), s 9(5)) or because any discretionary protection that the spouse witness enjoys is equally enjoyed by lawfully married and de facto spouses (Evidence Act 1995 (Cth), s 18; Evidence Act 1995 (NSW), s 18; Evidence Act 2001 (Tas), s 18, Evidence Act 1929 (SA), s 21)

49 In other jurisdictions, however, protections that are afforded to lawfully married spouses are not extended to de facto spouses. So, in Western Australia, the protection that a lawfully married spouse has by virtue of being a compellable witness only when the accused is charged with certain listed offences is limited to the "wife or husband" and does not extend to a "former wife or former husband" or to a de facto spouse. (Evidence Act 1906 (WA), s 9). In Victoria, the wife, former wife, husband or former husband of the accused are competent and compellable witnesses for the prosecution in all cases, subject to a general power vested in the judge to grant an exemption to the accused’s wife or husband (but not to a former wife or former husband or to a de facto partner) either generally or in relation to a specific matter (Crimes Act 1958 (Vic), s 400).

50 The divergent treatment of de facto spouses by statute in an area that is closely related to the privilege against spousal incrimination seems to me to deny the legitimacy of any such extension of the privilege through the interpretation of the common law of Australia and also to mean that there is no consistent pattern of legislative policy to influence the development of that common law. Moreover, whatever may be the common law’s assessment of the policy of extending the rights and privileges of de facto spouses, the legislation to which I have referred points to any extension (or abrogation) of the common law privilege against spousal incrimination as being properly a matter for the legislatures. It follows, in my view, that the primary judge was correct to conclude that the appellant was unable to avail herself of the privilege as she was not lawfully married to her partner. This ground of appeal must fail.

THE REMAINING GROUNDS OF APPEAL RELATING TO THE PRIVILEGE AGAINST SPOUSAL INCRIMINATION

51 In her Notice of Appeal, the appellant asserts that the primary judge erred in law by failing to decide whether the privilege applies to non-judicial proceedings and whether the privilege has been abrogated by the Act. These two points are also raised by the respondents in their Notice of Contention.

52 Although it is not necessary to answer these questions to resolve this appeal, I would observe that it was an essential step in the Court of Appeal’s reasoning in B’s Case that the privilege is capable of applying in non-judicial proceedings: [2004] QCA 478; [2005] 1 Qd R 348 at [8] (McPherson JA, with whom McMurdo P agreed), [22] (Jerrard JA). Consistently with my approach to the primary question of the existence of the privilege, I would follow the Court of Appeal on this point also.

53 Whether the privilege has been abrogated by s 30 of the Act is a more difficult question. The appellant submitted that the privilege against spousal incrimination is separate and distinct from the privilege against self-incrimination (cf Environment Protection Authority v Caltex Refining Co Pty Ltd [1993] HCA 74; (1993) 178 CLR 477 at 516 (Brennan J)). This submission is supported by B’s Case, in which McPherson JA described the privilege as "a distinct privilege" (at [2]) and considered that legal professional privilege and the privilege against self-incrimination could be distinguished from "other forms of privilege recognized at common law, including spousal privilege" (at [13]). Jerrard JA considered that the privilege was "far older than the principle against self incrimination" (at [22]).

54 Whilst the appellant accepted that it was a necessary implication of s 30 that the privilege against self-incrimination had been abrogated (A v Boulton [2004] FCAFC 101; (2004) 136 FCR 420), she contended that the Act says nothing at all about the privilege against spousal incrimination and that, in those circumstances and with the benefit of the common law presumption that important common law rights or immunities will not be abrogated in the absence of express words or necessary implication, it must be accepted that the privilege remains.

55 The respondents submitted that a consideration of the purposes of the investigative regime established by the Act, together with the unqualified obligation to answer questions imposed by s 30(2)(a) and the legislative history of the section, demonstrate that the privilege has been abrogated by necessary implication. This was said to be so regardless of whether it was considered to be an independent privilege or a species of self-incrimination.

56 The respondents relied on Stoten v Sage [2005] FCA 935; (2005) 144 FCR 487, where Dowsett J held that the privilege against spousal incrimination was abrogated by the Act. Dowsett J referred to the text and history of s 30 and concluded (at [29]):

Having referred to the Full Court’s decision in A v Boulton, Dowsett J stated "it is difficult to see any logical reason for Parliament to have abrogated privilege against self-incrimination but retained spousal privilege" (at [30]). In response, the appellant submitted that Dowsett J erred by treating the privilege against spousal incrimination as a species of the privilege against self-incrimination. In light of the treatment of the privilege in B’s Case, there may be force in that submission.

57 It is plain that the Act does not expressly abolish the privilege against spousal incrimination. The inquiry, then, is whether the Act does so by necessary implication.

58 In A v Boulton, Kenny J reasoned that the purpose of an examination – to obtain information in order to further an investigation of serious and organised criminal activity, ordinarily involving sophisticated methods and techniques, in circumstances where persons with relevant information would frequently be expected to refuse to volunteer that information – would, in large part, be defeated if the obligation to answer a question (expressed in s 30(2)) were subject to the privilege against self-incrimination: [2004] FCAFC 101; (2004) 136 FCR 420 at [58]. The force of this consideration is lessened when the witness is the spouse of a person who is the subject of an investigation and the claim is in relation to a privilege against spousal incrimination. Moreover, the "use immunity" conferred by s 30(5) in relation to answers given that might tend to incriminate the witness, which her Honour rightly noted was a "very clear indication of a legislative intent to abrogate the privilege against self-incrimination", simply has no relevance to the present inquiry. Finally, whilst it is true that "the language of s 30(2) is apt to create not only a general but also an unqualified obligation to provide answers when required" ((2004) [2004] FCAFC 101; 136 FCR 420 at [59]), I would be slow to conclude that this provision alone provides a necessary implication that the privilege has been abrogated, especially in the absence of any clear demonstration that the Parliament directed its attention to the privilege in question. It is only if the present privilege is conceived of as simply an extension of the privilege against self-incrimination that it is difficult to find a reason for Parliament to have abrogated the core privilege yet retained its extension.

59 If it were necessary to decide this point, I would proceed upon the basis that the privilege is a separate and distinct privilege (see B’s Case) and that it should be seen as involving a fundamental right to which Parliament did not turn its attention when enacting the Act.

COULD THE APPELLANT HAVE REFUSED TO ANSWER THE QUESTION ON THE BASIS OF "PUBLIC INTEREST IMMUNITY PRIVILEGE"?

60 Although the appellant was granted leave to amend her Notice of Appeal to include a claim to "public interest immunity privilege", the point was not pressed at any length. The appellant’s submission was that a privilege against spousal incrimination that extends to de facto spouses should be recognized as a category of "public interest immunity privilege". The respondents’ answer was that this involved a misunderstanding of the basis for the doctrine of public interest immunity and they relied upon the decision of the New South Wales Court of Criminal Appeal in R v Young [1999] NSWCCA 166; (1999) 46 NSWLR 681.

61 For the appellant to succeed on this ground, she must persuade the Court that it should establish a category of public interest immunity that would enable a de facto spouse to refuse to answer a question, the answer to which would tend to incriminate his or her spouse. There are two formidable obstacles.

62 First, the New South Wales Court of Criminal Appeal in R v Young [1999] NSWCCA 166; (1999) 46 NSWLR 681 and the Victorian Court of Appeal in Royal Women’s Hospital v Medical Practitioners Board of Victoria [2006] VSCA 85, in refusing to create new categories of public interest immunity, have affirmed that the doctrine concerns, as it is variously put, "the conduct of governmental functions" (R v Young at [54] (Spigelman CJ)), "the proper functioning of government" (Royal Women’s Hospital at [34] (Warren CJ)) and "decision-making ‘at the highest levels of government’" (Royal Women’s Hospital at [55] (Maxwell P)). The appellant did not identify any public interest in the present case that is governmental in character.

63 Second, the reasons for rejecting the submission that the common law privilege against spousal incrimination should be extended to protect de facto spouses (above at [29]-[50]) apply equally to the rejection of the submission that the Court should, in effect, create a new category of public interest immunity.

I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Black.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 191 of 2005

BETWEEN:	S Appellant
AND:	WILLIAM MCLEAN BOULTON (EXAMINER, AUSTRALIAN CRIME COMMISSION) First Respondent AUSTRALIAN CRIME COMMISSION Second Respondent

JUDGES:	BLACK CJ, JACOBSON and GREENWOOD JJ
DATE:	23 JUNE 2006
PLACE:	BRISBANE

66 The appellant is the de facto spouse of a person under investigation by the Australian Crime Commission. The functions of the ACC are to investigate serious and organised federally relevant criminal activity.

67 Mr Boulton, an examiner appointed under the statute establishing the ACC, issued a summons to the appellant to appear and give evidence. As the learned primary judge observed at [1], Mr Boulton’s purpose was to seek answers from the appellant about her de facto husband’s alleged criminal activities.

68 The appellant appeared but took a threshold objection that she was not bound to answer questions which may tend to incriminate her de facto spouse.

69 Mr Boulton was prepared to accept that there is a privilege against spousal incrimination but he decided that the privilege did not extend to de facto spouses.

70 In an application for judicial review of Mr Boulton’s decision, Kiefel J was of the view that the common law did not recognise the concept of spousal privilege; see [25]. However, her Honour, as a matter of judicial comity, followed a decision of the Queensland Court of Appeal which came to the view that the privilege existed at common law; see [31] – [32].

71 Nevertheless, the primary judge held that, even if there is a privilege against spousal incrimination, it does not extend to de facto spouses.

72 Four questions arise on this appeal. First, does the common law recognise a privilege against spousal incrimination. Second, if so, does the privilege extend to de facto spouses.

73 The third question is whether, if the privilege exists, it is excluded by clear words or necessary implication in the Australian Crime Commission Act 2002 (Cth).

74 The fourth question, though not raised before the primary judge, is whether the appellant was entitled to rely on public interest immunity to refuse to answer questions. The respondents oppose leave to pursue this issue on appeal.

75 In Heydon and Byrne, Cross on Evidence, loose leaf service, Butterworths, Australia, the learned authors observe at [25150] that the privilege against self-incrimination extends to answering questions tending to incriminate a witness’s spouse; cf Heydon (2004) Cross on Evidence, 7^th ed, Butterworths, Australia at [25150] and The Laws of Australia (Law Book Company) vol 16, Part 16.7 at [106] and Halsbury’s Laws of Australia (Butterworths) vol 13 at [195-7410].

76 Heydon and Byrne cite a number of authorities in support of this proposition, including a decision of the Queensland Court of Appeal in Callanan v B [2005] 1 Qld R 348 and English and Australian authorities dating back to 1803. Reference is also made to an article, D Lusty "Is there a Common Law Privilege Against Spouse Incrimination?" (2004) 27 UNSWLJ 1.

77 In Callanan v B, McPherson JA said at [6] that Mr Lusty’s research supports the existence of the privilege at common law. His Honour went on to hold, at [6]-[7], that the common law has recognised "spousal privilege" since the 17^th century. McMurdo P agreed with McPherson JA. The other member of the bench, Jerrard JA went further, stating at [22] that the privilege can be traced to at least a thousand years of legal history.

78 Kiefel J disagreed because, in her view, the authorities which might be thought to support the existence of the privilege were concerned with the issue of compellability of a spouse to give evidence rather than the narrower question of privilege.

79 The earliest statement of the principle seems to be Michael Dalton’s work, The Countrey Justice (1^st ed, 1618). Dalton stated the rule in the language of compellability, namely that a wife was "not to be bound to give evidence, nor be examined against her husband." The jurisprudential foundation for this was that a wife was not bound to discover the crime of her husband; see Lusty at 12-13.

80 Ten years later, in 1628, Lord Coke stated the principle as one of incompetency. He said that "a wife cannot be produced either against or for her husband"; see E Coke (1628) The First Part of the Institutes of the Lawes of England, 1^st ed, London. Lord Coke’s statement and the subsequent history are discussed by Lord Wilberforce in Hoskyn v Metropolitan Police Commissioner [1983] UKHL 4; [1979] AC 474 at 484 – 486.

81 Lord Wilberforce pointed out in Hoskyn at 484 that at common law a wife was incompetent to give evidence against her husband. The principle was based on the medieval doctrine of the unity of husband and wife, together with the privilege against self-incrimination. The repugnance to public opinion of seeing one spouse testify against the other was also involved.

82 The incompetency rule was subject to a limited number of exceptions but they are not relevant for present purposes. However, as spouses were in most cases incompetent to testify against each other, the issues of compellability and privilege rarely arose for consideration; Lusty at 13.

83 The first case in which the issue of compellability or privilege arose was Cartwright v Green (1803) 8 Ves Jun 405. Discovery was sought from a married woman who demurred on the ground that discovery may subject her husband to a charge of larceny.

84 Lord Eldon LC upheld the demurrer stating that:-"... the wife, if the act was a felony in the husband, would be protected: at all events she could not be called upon to make a discovery against her husband".

85 In Riddle v R [1911] HCA 33; (1911) 12 CLR 622 at 627 and in Hoskyn at 485, Cartwright v Green is said to have decided that a wife was not compellable to answer on oath in order to show that her husband was guilty of a criminal offence.

86 However, as Mr Lusty points out, at 17, the words used by Lord Eldon in Cartwright v Green suggest that what underlies the rule is the general principle that a wife is not bound to discover her husband’s crime. This supports the view that the common law recognised a privilege against spousal incrimination analogous to that against self-incrimination.

87 So too does the judgment of Bayley J in R v Inhabitants of All Saints, Worcester (1817) 6 M & S 194. The issue was one of competency of the wife in proceedings under the Poor Laws. The Court decided that she was competent upon the ground that her evidence could not incriminate the husband, notwithstanding that it tended to establish the crime of bigamy.

88 The following passage from the judgment of Bayley J at 200, 1215 was quoted with apparent approval in Riddle at 628 and Hoskyn at 485:-

89 Griffith CJ in Riddle at 628 and Lord Wilberforce in Hoskyn at 485–486 set out the commentary on this passage from the "authoritative" text, Taylor on Evidence (1906) 10^th ed at [1368]. The learned author there observed that although under the common law rule of incompetency, the wife may be permitted to give evidence that may indirectly incriminate her husband, it does not follow that she can be compelled to do so:-

90 In Hoskyn the House of Lords went on to accept the statements made in Leach v The King [1912] AC 305 that a wife was not compellable to give evidence against her husband. This was described by Earl Loreburn LC in Leach, at 309, as a fundamental and old principle, and by Lord Atkinson, at 311, as "deep seated in the common law".

91 The words used in Taylor on Evidence, and the words of Bayley J in All Saints, point in favour of the view that the common law recognised the principle of spousal privilege and that it was related to the rule that a wife was not compellable to give evidence against her husband.

92 It is difficult to understand what else could have been meant by Taylor’s words that the wife may "decline to answer" and Bayley J’s statement that the Court would not have compelled her to answer.

93 It may be true that there was some confusion in the authorities between compellability and privilege; R v Young [1999] NSWCCA 166; (1999) 46 NSWLR 681 at [87], S McNicol (1992) The Law of Privilege, Law Book Co, Sydney, 295-323. But the two concepts are related, though distinct, and the words used by Bayley J and Taylor seem relatively clear. To those words must be added the authority of Cartwright v Green, discussed above.

94 Of course, as the authorities and the leading texts make clear, the distinction between competence, compellability and privilege must be maintained; see Cross on Evidence (7^th ed) at [13001], McNicol at 301. But it seems to me that Lord Eldon in Cartwright v Green, Bayley J in All Saints , and the author of Taylor on Evidence must have recognised the existence of the necessary distinction in the statement to which I have referred.

95 In my view the position with respect to spousal privilege at common law is different from that which applied to the so called privilege against marital communications. There is some dispute in the authorities as to whether that privilege existed at common law; see Rumping v Director of Public Prosecution [1964] AC 814 at 843. It is possible that there was never any common law rule specifically establishing this head of privilege prior to the enactment of the Evidence Amendment Act 1853 (UK); see McNicol at 300-304. However, Cartwright v Green, All Saints and Taylor indicate that spousal privilege was recognised.

96 The principle of spousal privilege was stated in clear terms by Stephen J in Lamb v Munster (1882) 10 QBD 110. The issue arose on an objection to answering interrogatories. Stephen J said at 112–113:-

97 Bowen CJ stated the principle in almost identical terms in Re Intercontinental Development Corporation Pty Limited (1975) 1 ACLR 253 at 259. His Honour cited a number of supporting authorities including Lamb v Munster.

98 Griffith CJ in Riddle at 627–628 and all of the Law Lords in Hoskyn referred with apparent approval to Bayley J’s dictum in All Saints; see at 485–6, 490–1, 493, 496, 502-503, 508. It is true, as Kiefel J observed at [27] that the judges in Riddle and Hoskyn were concerned with the issue of compellability and that they cited All Saints to support the proposition that a wife was not compellable. But I respectfully disagree with her Honour as to what follows from this.

99 It seems to me, as I have already said, that All Saints supports the principle of spousal privilege. In my opinion the references to it in Riddle and Hoskyn, and the reference to Taylor on Evidence, provide implied support for the proposition that the common law recognises a privilege against spousal incrimination. So too does the citation by Heydon and Byrne at [25150] of Riddle and Hoskyn to support the statement of general principle.

100 The learned primary judge’s analysis of the authorities shows quite plainly that the common law rules of spousal incompetence and non-compellability applied only to spouses in a valid marriage. Since the same considerations underlie the existence of a privilege against spousal incrimination, the same barrier stands in the way of the appellant’s claim.

101 However, the appellant argues that the common law should be extended to take account of the relative rise of de facto relationships and contemporary social attitudes in their favour. Evidence was not called but reference was made to the Reports of Law Reform Commissioners; see Australian Law Reform Commission (1985) Evidence Interim Report Vol 1 at [532] and Australian Law Reform Commission, NSW Law Reform Commission and Victorian Law Reform Commission (2005) Review of the Uniform Evidence Acts, Joint Discussion Paper No 47 at [4.58].

102 The decision of the English Court of Appeal in R v Khan (1987) 84 Cr App R 44 provides unambiguous support for the principle that the common law spousal incompetency rule is limited to spouses who have undergone a valid form of marriage.

103 The issue in Khan was whether a woman, who had undergone a marriage which was not recognised by English law, was competent to give evidence. The decision of the Court was that she was competent, under the law as it stood prior to a statutory amendment in 1986, which made husbands and wives competent witnesses.

104 Glidewell LJ delivered the judgment of the Court. His Lordship gave a clear and coherent account of the common law dating back to 1814. He referred to Campbell v Twemlow (1814) Pri 81 and Batthews v Galindo (1828) 4 Bing 611.

105 The common law principle, as stated by Park J and Best CJ in Batthews, was that a woman who had cohabited with a man as his mistress was competent to give evidence. The earlier decision in Campbell, which Park J thought might have decided to the contrary, was explained as a decision on its own facts.

106 The language of the judges in Batthews of course reflects the mores of the early 19^th century but it clearly states the common law. Park J said at 612 that "the mere circumstance of a woman’s cohabiting with a man, though it goes to her credit, is no ground for rejecting her testimony".

107 The position was stated even more clearly by Best CJ at 614. He said that the true principle is that the witness "is not to be excluded, unless de jure wife of the party". Glidewell LJ added to this quote, "in other words, unless she is in law the wife of the party"; at 49.

108 His Lordship went on to state the English common law position as it stood until 1986. He said, at 50, that a woman who was, to use a term which he recognised as old-fashioned, a mistress, was competent to give evidence. He said that this applied even to "one who calls herself a wife in modern parlance".

109 The question then is whether, the common law position ought to be extended. As, Kiefel J pointed out, common law rules and immunities are not immutable and may be revised from time to time; D’Orta-Ekenaike v Victorian Legal Aid [2005] HCA 12; (2005) 214 ALR 92 at [56], [60]; Arthur J S Hall & Co v Simons [2000] UKHL 38; [2002] 1 AC 615 at 688, 704.

110 However, in R v Young at [85]-[98] Spigelman CJ explained that there are strict limits on the ability of the courts to develop a new category of privilege.

111 Spigelman CJ pointed out at [72] that all claims of privilege operate as a fetter upon the discovery of truth. Thus, except in a few specified relationships where considerations of general policy require a special privilege, there is "an inflexible rule" that no obligation of honour can stand in the way of the imperative need to reveal the truth in the witness box; McGuiness v Attorney General (Vic) [1940] HCA 6; (1940) 63 CLR 73 at 102-103 per Sir Owen Dixon.

112 The relationship of husband and wife has been recognised as being of that character. De facto relationships have not. Spigelman CJ said at [91] that an intermediate appellate court should be slow to develop a new category of privilege. His honour rejected the more flexible approach adopted by the Supreme Court of Canada in M v Ryan (1997) 143 DLR (4th) 1, as founded, at least in part, upon the Canadian Charter of Rights and Freedoms, and in particular, the right to privacy.

113 Moreover, as Gaudron and McHugh JJ observed in Breen v Williams [1995] HCA 63; (1996) 186 CLR 71 at 115, advances in the common law must proceed by conventional methods of legal reasoning. Here, there is no evidence to establish that there is general community acceptance of the privilege propounded by the appellant.

114 It is true that de facto relationships have been recognised in legislation dealing with property rights and social security; see eg Social Security Act 1991 (Cth) s 4; Veteran’s Entitlements Act 1986 (Cth) s 5E and Property Act 1974 (Qld) Part 19. But there, the specific features of the relationship, such as the requisite period of cohabitation, are defined with precision for the purposes of the statute. Those provisions are of no assistance in seeking to develop the common law in a different context.

115 Indeed, the High Court has shown a reluctance to extend established common law principles relating to husband and wife to de facto couples. In Calverley v Green [1984] HCA 81; (1984) 155 CLR 242, the Court refused to apply the presumption of advancement to a party who was not validly married.

116 Mason and Brennan JJ commented at 259-260 that the exclusive union for life, undertaken by parties to a valid marriage, though often broken, remains the foundation of the legal institution. Their honours said that the term "de facto husband and wife" embraced a wide variety of relationships. They described it as "a term obfuscatory of any legal principle except in distinguishing the relationship from that of husband and wife".

117 Deane J was of a similar view at 268. His honour drew a distinction between the recognised categories of relationships and "the actual presence of love and affection".

118 As Isaacs J said in Wilkinson v Osborne [1915] HCA 92; (1915) 21 CLR 89 at 97, the Court is not a legislator; it cannot initiate a principle; it can only formulate a principle which has already achieved the required level of community acceptance; see also R v Young at [92]-[93].

119 There is nothing to suggest that an extension of the privilege against spousal incrimination to de facto spouses has been recognised in accordance with accepted tests. Any such extension is a matter for the legislature.

120 The principles which govern the statutory abrogation of common law rights are well settled. They have been stated by the High Court on numerous occasions and have been analysed and applied by Full Federal Courts twice in the last three years. It is unnecessary to set out the detail of each of those authorities, or to refer to every one of them, but the following principles can be distilled.

121 First, a statue is not to be construed as abrogating important common law rights and privileges except by clear words or necessary implication; Sorby v The Commonwealth [1983] HCA 10; (1983) 152 CLR 281 at 289-90, 309, 311, 316; Daniels Corporation International Pty Limited v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543 at [11]; A v Boulton [2004] FCAFC 101; (2004) 136 FCR 420 at [54]; Griffin v Pantzer [2004] FCAFC 113; (2004) 137 FCR 209 at [46].

122 Second, an intention to exclude a common law privilege may be gleaned from a statute even though express words of exclusion are not used; Sorby at 289.

123 Third, the question of whether the statute impliedly abrogates a privilege is to be determined upon the proper construction of the statute, considered as a whole, and from its character and purpose; Sorby at 289, 309.

124 Fourth, important common law privileges are not to be lightly abrogated and the oft cited phrase "necessary implication" requires that there be a high degree of certainty as to the intention of the legislature; the intention must be manifested by unmistakable and unambiguous language; Hamilton v Oades [1989] HCA 21; (1989) 166 CLR 486 at 495; Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427 at 437.

125 Fifth, what is required is that there be a manifestation or indication that the legislature has directed its intention to the question of abrogation and has consciously determined that the privilege is to be excluded; Coco v The Queen at 437; Plaintiff S157/2002 v The Commonwealth [2003] HCA 2; (2003) 211 CLR 476 at [30] per Gleeson CJ.

126 Sixth, general words will not be sufficient to disclose the requisite intention unless it appears from the character and purpose of the provision that the obligation was not intended to be subject to any qualification; Pyneboard Pty Ltd v Trade Practices Commission [1983] HCA 9; (1983) 152 CLR 328 at 341; Coco v The Queen at 438; Plaintiff S157 at [30]; Griffin v Pantzer at [53].

127 Seventh, the presumption that the legislature does not intend to abrogate entrenched common law rights may be displaced by implication if it is necessary to prevent the statute from being rendered inoperative or meaningless or from frustrating the evident statutory purpose; Mortimer v Brown [1970] HCA 4; (1970) 122 CLR 493 at 495; Coco v The Queen at 438.

128 The relevant provisions of the ACC Act were set out and considered in some detail by Kenny J in A v Boulton at [9]-[20], [57]-[66]. At the risk of some repetition, I will refer to the principal sections.

129 The functions of the ACC include the investigation of matters relating to federally relevant criminal activity; see s 7A(c). Federally relevant criminal activity is defined to mean serious and organised crime which is an offence against a law of the Commonwealth or a Territory, or an offence against a State law that has a federal aspect; see s 4(1).

130 The Board of the ACC may determine that an investigation into matters relating to federally relevant criminal activity is a special investigation. Before making this determination, the Board must consider whether ordinary police methods of investigation are likely to be effective; s 7C(3).

131 When the ACC, in carrying out an ACC operation/investigation, obtains evidence of an offence, the evidence must be given to the Attorney General of the Commonwealth or the relevant State Attorney General; see s 12(1). An ACC operation/investigation is an intelligence operation conducted by the ACC or an investigation into matters relating to federally relevant criminal activity that the ACC is conducting; see s 4(1).

132 The ACC has all necessary and reasonable incidental powers for the performance of its functions and specific powers conferred on the ACC are not to be taken to limit by implication the generality of the conferral of these incidental powers; see s 19.

133 An examiner may conduct an examination for the purposes of a special ACC operation/investigation; s 24A. An examiner must be a person who has been enrolled as a legal practitioner for at least five years; an examiner is to be appointed by the Governor-General after consultation with an Inter-Governmental committee; the period of appointment is for up to five years; see s 46B.

134 A person giving evidence at an examination may be represented by a legal practitioner, who may, if the examiner thinks appropriate, examine and cross-examine witnesses; s 25A(2) and (6). The examination is to be held in private and the examiner may direct that the evidence not be published; s 25A(3) and (9).

135 At the conclusion of the examination, the examiner must give to the head of the special ACC operation/investigation, a record of the proceedings and documents provided to the examiner in connection with the examination; s 25A(15).

136 An examiner may summon a person to appear at an examination to give evidence and to produce documents. The examiner must be satisfied that it is reasonable to issue the summons and the Board must determine that the intelligence operation is a special operation or a special investigation. The examiner may take evidence on oath or affirmation. These provisions are stated in s 28(1), (1A), (2) and (5).

137 Section 30 of the Act is critical to the question of whether the privilege against spousal incrimination, or indeed the privilege against incrimination of a de facto spouse, if there be such a privilege, is excluded.

138 Section 30(2)(b) provides that a person appearing as a witness shall not refuse or fail to answer a question that he or she is required to answer by the examiner. Section 30(4) and (5) provide for a limitation that can be made of any answers given as an examination where, before answering the question, the person claims that the answer might tend to incriminate them.

139 Because of the importance of s 30 to the question of the construction of the ACC Act, I will set out the section in full. It provides as follows:-

140 Strictly speaking it is not necessary for me to answer the question of whether the ACC Act abrogates the privilege claimed by the appellant. This is because I have determined that the spousal privilege does not extend to de facto spouses. Nevertheless, I will consider the question of whether the ACC Act expressly or impliedly abrogates any form of "spousal" privilege against incrimination.

141 The ACC Act does not expressly abrogate any spousal privilege. However, in A v Boulton, Kenny J (with whom Beaumont J and Dowsett J agreed) held that the language, character and purpose of the ACC Act manifested a legislative intention to abrogate, by necessary implication, the privilege against self-incrimination; see at [56].

142 The question which then arises in the present case is whether the language, character and purpose of the ACC Act disclose the same legislative intention to exclude the spousal privilege.

143 In Stoten v Sage [2005] FCA 935; (2005) 144 FCR 487, Dowsett J came to the view that spousal privilege is excluded. His honour commented that in light of the decision in A v Boulton, it is difficult to see any logical reason for Parliament to have abrogated the privilege against self-incrimination, whilst retaining spousal privilege; see at [29]-[31]. I respectfully agree and will state my reasons briefly.

144 The privilege against incrimination of a witness’s spouse is an extension of the privilege against self-incrimination. Similar policy considerations underlie the existence of spousal privilege as those which explain the privilege against self-incrimination. These considerations are conformity with public opinion in the abhorrence of seeing one spouse testify against the other, and the encouragement of persons to give testimony; see Heydon and Byrne at [25150]; see also Lord Wilberforce in Hoskyn at 484, referred to above at [81].

145 Moreover, as I observed at [81], the common law doctrine of the unity of husband and wife underlay the principle of spousal incompetence to give evidence. The common law privilege against spousal incrimination is related to the "incompetence" principle. It must therefore follow that since spousal privilege is an extension of the privilege against self-incrimination, the authorities dealing with the statutory abrogation of the latter principle are relevant to the question of the abrogation of spousal privilege; see Stoten v Sage at [15].

146 The privilege against self-incrimination is a "fundamental ... bulwark of liberty" which was developed in the 17^th century in England as a reaction to the excesses of the Star Chamber. It is a substantive right which is deeply ingrained in the common law; Reid v Howard [1995] HCA 40; (1995) 184 CLR 1 as 11-12; Griffin v Pantzer at [40]-[41].

147 The privilege against self-incrimination is not limited to curial proceedings. The tenet of Australian authority is that it applies in quasi-judicial and non-judicial proceedings, unless excluded by statute; Sorby at 306, Pyneboard at 341; see also McGee v Gilchrist [2005] SASC 254; (2005) 92 SASR 100 at [30] and Griffin v Pantzer at [37]

148 The effect of the appellant’s submission was that Dowsett J was in error in Stoten v Sage in considering that spousal privilege was an extension of the privilege against self-incrimination. Senior Counsel for the appellant pointed to the historical roots of the spousal privilege which seems to pre-date the privilege against self-incrimination. Senior Counsel also relied on the principle that there must be a manifestation or indication that the legislature has directed its attention to the right and consciously decided upon abrogation.

149 However, the flaw in this argument is that the two principles are related, notwithstanding that spousal privilege may have earlier historical antecedents. Furthermore, the character and purpose of the ACC Act as explained in A v Boulton shows an intention to create a general and unqualified obligation to answer questions.

150 In A v Boulton, Kenny J said at [57] that the statutory purpose of an examination is:-

151 I respectfully agree with her Honour’s observations. The central role of an ACC examination in combating organised crime is emphasised by the provisions of the ACC Act set out by her Honour and which I have largely repeated.

152 Kenny J pointed in particular to s 30(2) which she said is apt to create a general and unqualified obligation to provide answers; see at [59]. Her Honour also observed that it is manifest that the ACC Act deprives a witness of the benefit of the privilege against self-incrimination, whilst providing limited compensation in the way of the use immunity in s 30(5), so long as the privilege is claimed in accordance with s 30(4); see at [66].

153 In addition, Kenny J referred at [67]-[69] to the legislative history and the explanatory memorandum. Her Honour said at [71] that an examination of the material reveals that if the ACC Act were not construed so as to remove the privilege against self-incrimination, the purpose of the amendments which introduced s 30 would be defeated.

154 The language of s 30(2)(b) is equally apt to create an unqualified obligation to provide answers and to exclude the privilege against spousal incrimination as it is to exclude the privilege against self-incrimination.

155 It is true that the compensation of limited use immunity in ss 30(4) and (5) is limited to self-incrimination. But it does not follow from this that the legislature failed to manifest an intention to exclude spousal incrimination. It did so in the general words of s 30(2) but that was sufficient because it appears from the character and purpose of the legislation, to which Kenny J pointed, that the obligation to answer was not subject to any qualification.

156 So too, the legislative history and the explanatory memorandum to which Kenny J refers show that the purpose of the statutory examination would be frustrated if spousal privilege could be claimed.

157 The appellant submitted that the modern approach to the recognition of a privilege is to look at the underlying public policy rationale for why a particular class of evidence ought to be excluded. This is to be done, so it was submitted, upon the basis that the categories of public interest are not to be closed; see D v National Society for the Prevention of Cruelty to Children [1977] UKHL 1; [1978] AC 171 at 230.

158 The appellant went on to submit that in modern society it is wrong to confine the content of spousal privilege by the form of the relationship.

159 The error in the approach urged on the Court by the appellant is that public interest immunity is concerned with interests which are governmental in character; R v Young at [54]-[55].

160 Public interest immunity is not a residual category of privilege in which courts can limit access to information upon the basis of weighing the public interest in disclosure against any competing factor that can be described as public interest; R v Young at [55].

161 In R v Young, Spigelman CJ at [55]-[56] clearly explained that D v National Society is not to be seen as a charter for the unlimited creation of new classes of public interest immunity. It is only where new classes of documents emerge that are important to the working of government that the categories may be extended.

162 In any event, public interest immunity was not raised before Mr Boulton. If it had been, the examiner may have been required to carry out a balancing exercise to determine where the balance lay between damage done to the public interest, and the value of evidence in the proceedings; Alister v The Queen [1983] HCA 45; (1984) 154 CLR 404 at 412; Commonwealth v Northern Land Council [1993] HCA 24; (1993) 176 CLR 604 at 616.

163 It is plain that the public interest immunity ground cannot be raised on the appeal, consistently with the principles stated in Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1 at 7 and other well known authorities.

164 Moreover, the explanation of public interest immunity stated by Spigelman CJ in R v Young at [54]-[57] shows that public interest immunity has no application to spousal privilege or the supposed claim of de facto spousal privilege. It does not fall within the reasons customarily given for this head of claim, which is "curiously inappropriate" to the present matter; Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1 at 56.

165 The respondent submitted that even if there is a common law spousal privilege, it is, at most, a rule of evidence and that it does not apply in an examination which is an administrative process.

166 I have already come to the view that the privilege is excluded by the ACC Act. However, I doubt that there is any weight in the appellant’s suggestion that spousal privilege is limited to judicial proceedings and that it is a rule of evidence. Indeed, the position seems to be otherwise; see the authorities cited at [147].

167 Since the privilege is analogous to the privilege against self-incrimination, it must be considered to be a substantive common law right.

168 The respondents referred to the observation in Daniels v ACCC at [31] that the privilege against exposure to penalties should be confined to judicial proceedings. But this is of no relevance to the question of whether the spousal incrimination privilege should be equally limited.

I certify that the preceding one hundred and four (104) numbered paragraphs are a true copy of the Reasons for Judgment herein of Justice Jacobson.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 191 of 2005

BETWEEN:	S Appellant
AND:	WILLIAM MCLEAN BOULTON (EXAMINER, AUSTRALIAN CRIME COMMISSION) First Respondent AUSTRALIAN CRIME COMMISSION Second Respondent

JUDGES:	BLACK CJ, JACOBSON and GREENWOOD JJ
DATE:	23 JUNE 2006
PLACE:	BRISBANE

170 In this appeal I have had the benefit of reading the draft reasons for judgment formulated by his Honour the Chief Justice and also draft reasons prepared by his Honour Justice Jacobson. For my part, I agree that the appeal must be dismissed with costs for the reasons indicated by Justice Jacobson.

171 I am unpersuaded that the reasons for judgment reflected in Callanan v B [2004] QCA 478; [2005] 1 Qd R 348 are incorrect. Therefore, I reject the submission that the authority of this intermediate Court of Appeal ought not be followed on the basis that it is ‘plainly wrong’. Having regard to the authorities discussed by Justice Jacobson and the discussion of the historical evolution of the principles of competence and compellability and the relationship between those notions and the privilege a competent or compellable witness might call in aid in refusing to answer a question which might incriminate his or her spouse discussed at Holdsworth A History of English Law, 7^th Edition, Sweet and Maxwell, London at Volume 9, pages 177-208, Volume 5, pages 181-185 and Volume 15, at pages 138-140 and the discussion of Shenton v Tyler (1939) Ch 620 at Law Quarterly Review, Volume LVI at page 137 and the authorities discussed by Jacobson J, I am satisfied that the common law recognises a privilege against spousal incrimination. In addition, I note that his Honour Justice McPherson has added his major scholastic support to the argument developed by Mr Lusty in his article entitled "Is there a Common Law Privilege against Spouse Incrimination?" (2004) 27 UNSWLJ 1, in support of the recognition by the common law of such a privilege.

172 That privilege does not extend to de facto spouses. Any normative extension as part of the common law of Australia of a privilege of refusing to answer a question designed to elicit evidence in aid of a search for the truth ought only to occur as a declaration by the High Court of the "one common law" (Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520 at 563, per Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ) within a constitutionally "unified structure" for "an integrated Australian legal system, with, at its apex, the exercise by [the High Court] of the judicial power of the Commonwealth" (Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1997) 189 CLR 51 at pages 138 and 143 per Gummow J: John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; (2000) 203 CLR 503 at 534 per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) so as to "ensure the unity of the common law of Australia" (Kable at 138 per Gummow J) or, alternatively, as the expression of legislative power leading to a valid law of the Commonwealth or the relevant State or Territory.

173 I am satisfied that the relevant provisions of the Australian Crime Commission Act 2002 (Cth) have the effect of excluding the operation of the privilege.

174 I also agree that there is no room for the operation of ‘public interest immunity’ and that such a ground cannot be raised on the appeal. I am satisfied for the reasons indicated by his Honour Chief Justice Spigelman, in R v Young [1999] NSWCCA 166; (1999) 46 NSWLR 681 that public interest immunity has no application to spousal privilege or a claim for de facto spousal privilege.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood.

Counsel for the Appellant:	Mr J Logan SC with Ms N Martin

Solicitor for the Appellant:	Bernard Bradley & Associates

Counsel for the First and Second Respondents:	Mr A Southall QC with Mr S Donaghue

Solicitor for the First and Second Respondents:	Australian Government Solicitor

Date of Hearing:	9 November 2005
Date of Judgment:	23 June 2006

Federal Court of Australia - Full Court Decisions

S v Boulton (Examiner, Australian Crime Commission) [2006] FCAFC 99 (23 June 2006)