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Pillowtalk and evidence: High Court rejects privilege against spousal incrimination

In ACC v Stoddart,[1] the High Court recently held that there is no common law privilege against incriminating one’s spouse, which had been thought to exist for several centuries. What impact will this decision have?

Spouses may now be unable to withhold evidence that may incriminate their partner. Image: ‘The Bed’ by Henri de Toulouse-Lautrec (1864–1901)

The facts

The Australian Crime Commission (ACC) had summonsed a witness (Mrs Stoddart) to provide evidence against her husband. Mrs Stoddart objected to answering certain questions on the basis of ‘the privilege against spousal incrimination’. Mrs Stoddart’s examination was adjourned in order to have her objection determined elsewhere.

Mrs Stoddart sought an injunction from the Federal Court to prevent the ACC from asking any questions relating to her husband and a declaration that ‘the common law privilege or immunity against spousal incrimination had not been abrogated’ by the Australian Crime Commission Act 2002 (Cth). The Federal Court dismissed Mrs Stoddart’s application,[2] but on appeal the Full Court granted the injunction and made the declaration sought.[3] 

The ACC appealed to the High Court, submitting that the Full Court had erred in finding that a common law privilege against spousal incrimination existed.

Evidence by a spouse

In order for evidence to be admissible, three separate but related issues must be considered.[4] Firstly, a witness must be competent; they may be lawfully called to give evidence. Instances of non-competence at common law are limited to certain types of children,[5] to ‘persons of defective intellect’, [6] and to the accused or the accused’s spouse when called as a prosecution witness,[7] although family members are now deemed competent at law.[8] In modern Australian law, the topic of non-competence is heavily regulated by statute.

Secondly, a witness must be compellable, or lawfully obliged to testify. Instances of witnesses who are competent but not compellable are probably limited to an accused; those with sovereign and diplomatic immunity;[9] and to some extent members of Australian parliaments.[10]

Thirdly, a person who is competent and compellable, and has entered the witness box, may have a privilege not to answer particular questions. The best-known privileges are three of the privileges developed at common law – the privilege against self-incrimination, legal professional privilege and "without prejudice" privilege. A person who validly claims privilege is seeking vindication of a right, not supplicating for the favourable exercise of a discretion.

Shenton v Tyler[11] distinguished several rules of evidence in relation to spouses called as witnesses. The first was that neither a party nor the spouse of a party was a competent witness on behalf of that party; the second was that a party was not a compellable witness against that party; and the third was that one spouse was not a competent witness against the other spouse.

Many of these rules have been abolished by legislative intervention, so the issue of Mrs Stoddart’s competence and compellability was not at issue in this case. Less certain was the existence and extent of the claimed privilege against spousal incrimination.[12]

Privilege against spousal incrimination

The seminal case on the privilege against spousal incrimination was considered to be R v Inhabitants of All Saints, Worcester.[13]

In that case, Ann Willis was called to give evidence that she had married George Willis. If that evidence were accepted, it would follow that a later marriage by George Willis was bigamous. Ann Willis was ruled competent to give evidence, as neither she nor George were parties to the dispute. In his dicta, Bayley J, however, went further (at 1217-8):

If she had thrown herself on the protection of the Court on the ground that her answer to the question put to her might criminate her husband, in that case I am not prepared to say that the Court would have compelled her to answer; on the contrary, I think she would have been entitled to the protection of the Court.

It was argued that this dicta created a privilege against spousal incrimination, a view that was supported in Heydon J’s dissenting judgement. In that judgement, his Honour cited a number of scholarly texts over the last two centuries that supported the existence of spousal privilege.[14]

However, both majority judgements (one by French CJ and Gummow J, and the other by Crennan, Kiefel and Bell JJ) noted that there have been few cases that have found the existence of a spousal privilege, and the case presented as the leading Australian judgements, Callanan v B,[15] was based on ‘no firm foundation’ (at [38]).  The majority found that analogous cases were decided on the basis of spouses’ compellability, rather than supporting the existence of a spousal privilege.[16]

Given that the majority found that the privilege had not been clearly established in earlier cases, they held that no common law privilege exists. French CJ and Gummow J concluded (at [41]):

In our view, it cannot be said that at the time of the enactment of the Act in 2002 the common law in Australia recognised the privilege asserted by Mrs Stoddart or that it does so now. We agree with the conclusion of Kiefel J in Boulton [2005] 155 A Crim R 152 that in All Saints and the subsequent decisions, in particular Hoskyn and Riddle, the term "compellable" was used 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.

Crennan, Kiefel and Bell JJ concluded (at [231]):

Opinions may differ as to the interpretation of statements in older texts and cases. Such statements as there are, which suggest that one spouse might not be obliged to give evidence or answer questions which may tend to incriminate the other, do not provide a sufficient foundation for a conclusion that a spousal privilege of the kind claimed existed … The later application of some of the old common law views towards marriage, which informed the rule of competency … [have not] shown that that question has been addressed by the common law courts.

While recognising there were no cases directly on point (at [56]), Heydon J’s dissent found that a series of rulings is not needed to recognise a rule of law; rather, where the earlier Courts have been silent or only express their decisions in dicta (as was the case with the passage in All Saints said to support the existence of spousal privilege), then contemporary courts may:

follow a previous decision, because a revered master has uttered it, because it is the right decision, because it is logical, because it is just, because it accords with the weight of authority, because it has been generally accepted and acted on, because it secures a beneficial result to the community.[17]

Even having run the gamut of competence, compatibility and privilege, the Court may still have a common law discretion to ‘exclude evidence which, though relevant, is only remotely relevant or has small probative value compared to the additional issues which it would raise’.[18] While there are some cases that vaguely support this proposition,[19] this is unsettled in the context of spouses giving evidence against parties in civil proceedings, although the situation in criminal proceedings is clearer.[20]

Impact of Stoddart

Despite strong media interest,[21] the Stoddart case will not have a significant impact on legal practice.

Section 18 of the Evidence Act 2008 (Vic) provides a broad discretion to judicial officers to excuse people from giving evidence against their partners in criminal proceedings. The Evidence Act deals with this as an issue of compellability, not privilege. Similar provisions exist in a number of other statutes; indeed, as Heydon J lyrically noted (at [61]), ‘[i]n the last 16 years a fashion for creating new statutory privileges has grown up. They fall faster and pile up deeper than the leaves of Vallombrosa.’

Under s 18(2) of the Evidence Act 1995 (Cth), a spouse is competent and compellable as a witness with respect to certain offences, but the spouse of an accused is given a right to object to giving evidence as a witness for the prosecution. It is then up to the Court to determine  the question of the compellability of the spouse, after considering certain facts and the consequences which might follow were the spouse obliged to give evidence.[22] According to Crennan, Kiefel and Bell JJ (at [230]), this provision confirms the role of the court in determining the question of compellability, whilst providing the factors relevant to that determination.

However, where coercive investigative powers are used, spouses will not be able to refuse to provide evidence. However, care must be taken to ensure that the empowering legislation addresses the compellability and competence of a witness; in the Stoddart case, the Court was satisfied that the empowering legislation allowed the ACC to seek this evidence.

In Victoria, there may also be some protection from the guarantees of citizens’ rights in criminal proceedings contained in the Charter of Human Rights and Responsibilities Act 2006 (Vic).[23]


While there had been assumed to be a privilege against spousal incrimination, the High Court has clarified that such protections had never existed at common law.

While the Stoddart decision clarifies the admissibility of spouses’ evidence, it does not remove or abolish any rule of evidence; indeed, such a rule never existed.

With this clarification, practitioners have a clearer understanding of those circumstances in which a spouse’s evidence will be compellable and competent, and where there may be opportunities to seek the Court’s discretion to exclude this evidence.


[1] [2011] HCA 47.
[2] Stoddart v Boulton (2009) 260 ALR 268.
[3] Stoddart v Boulton (2010) 185 FCR 409.
[4] See Cross on Evidence (201) 417, [13001].
[5] See R v Brown [1977] Qd R 220, 227-8 (D M Campbell J).
[6] See Toohey v Metropolitan Police Commisioner [1965] AC 595, 607 (Pearce LJ).
[7] Snyder’s Lessee v Snyder. 6 Binn 483, 488 (Pa, 1814). See also Mary Grigg’s Case (1672) 83 ER I .
[8] See Evidence Act 2008 (Vic) s 18.
[9] Evidence Act 1995 (Cth) s 15(1).
[10] Evidence Act 1995 (Cth) s 15(2).
[11] [1939] Ch 620, 626-627 (Greene MR).
[12] See further David Lusty, ‘Is there a common law privilege against spouse-incrimination?’ (2004) 27(1) University of New South Wales Law Journal 1.
[13][1817] 105 ER 1215.
[14] See eg S M Phillipps’s A Treatise on the Law of Evidence (3rd ed, 1817) 69; John Pitt Taylor, A Treatise on the Law of Evidence, as Administered in England and Ireland (1848), vol 2, 907 (footnote omitted); G M Dowdeswell and J G Malcolm, A Practical Treatise of the Law of Evidence (4th ed, 1853) 204; David Power Roscoe’s Digest of the Law of Evidence in Criminal Cases (6th ed, 1862) 140-1.
[15][2004] QCA 478.
[16] See eg Callanan v B [2004] QCA 478 and S v Boulton [2006] FCAFC 99; Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477, 516 (Brennan J).
[17] [57], citing Max Radin, ‘Case Law and Stare Decisis: Concerning Präjudizienrecht in Amerika’ (1933) 33 Columbia Law Review 199, 200. Cf Dyson Heydon, ‘ Judicial Activism and the Death of the Rule of Law’ (2004) 10(4) Otago Law Review 493.
[18] 64][-68] (Heydon J.
[19] Attorney-General v Clough [1963] 1 QB 773; Attorney-General v Mulholland [1963] 2 QB 477; cf McGuinness v Attorney-General (Vict) (1940) 63 CLR 73, 104; Re Buchanan (1964) 65 SR (NSW) 9.
[20] See eg Evidence Act 2008 (Vic), s 18;Evidence Act 1995 (Cth), s 18(6) and (7).
[21] See eg Farah Farouque, ‘Marriage no right to silence’, The Age (Melbourne), 1 December 2011, 7; Mark Oberhardt, ‘Spouses now must dish dirt in court’, The Courier-Mail (Brisbane), 2 December 2011), 27; Local Chris Merritt, ‘High Court has the last word on right to silence for spouses’, The Australian (Sydney), 1 December 2011, 3; Ashley Hall , ‘High Court rules spouses have no right to privacy’, PM (ABC Radio),30 November 2011.
[22] Evidence Act 1995 (Cth), s 18(6) and (7).
[23] Charter of Human Rights and Responsibilities Act 2006 (Vic) s 25. See further Re an application under the Major Crime (Investigative Powers) Act 2004 [2009] VSC 381.


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