S v Boulton & Anor [2006] HCATrans 665 (8 December 2006)

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S v Boulton & Anor [2006] HCATrans 665 (8 December 2006)

Last Updated: 14 December 2006

[2006] HCATrans 665

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B25 of 2006

B e t w e e n -

S

Applicant

and

WILLIAM McLEAN BOULTON (EXAMINER, AUSTRALIAN CRIME COMMISSION)

First Respondent

AUSTRALIAN CRIME COMMISSION

Second Respondent

Application for special leave to appeal

KIRBY J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 8 DECEMBER 2006, AT 9.52 AM

Copyright in the High Court of Australia

MR J.A. LOGAN, SC: May it please the Court, I appear with my learned friend, MS N.A. MARTIN, for the applicant. (instructed by Bernard Bradley & Associates)

MR S.P. DONAGHUE: May it please the Court, I appear for the first and second respondents. (instructed by Australian Government Solicitor)

KIRBY J: Yes, Mr Logan.

MR LOGAN: On 9 February 2005 the applicant attended before an Examiner, the first respondent, appointed by the second respondent, pursuant to a summons under the Australian Crime Commission Act. Having attended and being sworn, she was asked inter alia this question:

“In the time you have been together with your [de facto] partner ... have you been aware of him earning income from illegal activities?”

Section 30(6) of the Australian Crime Commission Act makes a failure to answer such a question an indictable offence punishable by up to five years gaol or 200 penalty units.

HAYNE J: Now, is that not the point at which you have to start, whether that obligation is one that applied to the applicant, because unless you cut it down, which you seek to do through the immunity, she was bound to answer?

MR LOGAN: In the same way, with respect, as someone prima facie was bound to disclose documents the subject of legal professional privilege or legal advice in Daniels’ Case.

HAYNE J: But in this case, if you start with the statute, you then observe that there is a special regime for legal professional privilege where legal practitioners are summoned.

MR LOGAN: Indeed, that is right.

HAYNE J: And there is a special regime enabling use immunity where the person who will be incriminated is asked to give an incriminating answer.

MR LOGAN: Quite, as there was, with respect, in the provisions of section 155 of the Trade Practices Act in Daniels. If, as we contend, the decision of the Queensland Court of Appeal in B v Callanan is correct, then the spousal immunity privilege is a common law privilege which is separate and distinct from the self-incrimination privilege, so that the provision for limited use immunity, and, we would accept, the abrogation which is a necessary corollary of that regime for limited use, does not capture in any way spousal privilege.

KIRBY J: By the way, Mr Logan, I should have said at the beginning, you read an affidavit of Bernard Anthony Bradley which contains the ABS statistics.

MR LOGAN: Quite, yes, if the Court pleases.

KIRBY J: Is there any objection to the receipt of that on the special leave application, Mr Donaghue?

MR DONAGHUE: No, your Honour, there is not.

KIRBY J: Yes, thank you. Well, we read that affidavit.

MR LOGAN: I do, if the Court pleases.

KIRBY J: Yes. Well, you can assume we have read it.

MR LOGAN: Thank you.

KIRBY J: It does create a little bit of a problem that if you got into the Court then you would not be able to get that statistical material before the Court unless it was some agreed fact or matter on which we could take judicial notice, but I think you can assume that we would be aware, anyway, generally speaking, of the comparative reduction of the number of marriages and the great increase in de facto relationships.

MR LOGAN: If the Court pleases. We heard extempore, with respect, the reasons as to why this Court would not be able to receive the affidavit proper on an appeal.

KIRBY J: Yes. That was in the other case that was the subject of the disposition just announced, but that was a different matter where this was an affidavit relevant to the merits and substance of the issue. Yes, anyway, you proceed.

MR LOGAN: Thank you. If a truthful answer then to that question were “Yes”, the applicant was confronted with these choices: answer that question honestly and thereby accuse the father of her three children, the youngest of whom was then in utero; secondly, answer it not at all and commit the offence of failing to answer; thirdly, answer it falsely and run the risk then of that falsehood being proved and thereby becoming liable for a like penalty, up to five years gaol or 200 penalty units. She chose a fourth path which was to claim – assert in any event – a privilege. The Examiner acknowledged, or at least assumed, that there was a privilege known to law but it was confined to spouses.

HAYNE J: But that fourth path, though reflecting what happened here, is relevant if, but only if, it provides an answer to the statutory obligation to answer, does it not?

MR LOGAN: Indeed, that is right. From the first assertion of privilege emerges the first special leave question, but that is necessary but not sufficient in terms of the applicant’s case. To succeed she has to demonstrate as well that that privilege not only exists but in today’s times should be extended to a de facto, but further, that even assuming that to be so, that it is not abrogated by the intendment of the language of a statute.

KIRBY J: But you accept what Justice Hayne has said and, indeed, what this Court has said repeatedly in the last five years? I have sat in at least 15 cases where it has been said that where Parliament has spoken, the starting point is the statute and then you have to see whether or not a common law principle can, consistently with the statute, provide for an old common law remedy and whether that should be expanded.

MR LOGAN: Yes, indeed, and, with respect, the authorities in that regard go to not lightly, where one construes the statute, construing it in a way that abrogates a common law privilege: Baker v Campbell, Daniels - - -

KIRBY J: Yes, it is true that the Court since 1904 or 1905 has been saying that if Parliament is to take away an ancient privilege, it has to do it clearly. The problem here is that this is not an ancient privilege. This is a new privilege that you are seeking the Court to declare so as to be consistent with the society which is served by the common law.

MR LOGAN: Yes. What we are seeking to do is to adapt a principle which, we submit, underscores an ancient privilege to modern times. So we accept there is an element of novelty in the proposition, but it is not a novelty in terms of principle, we submit, if one goes back in time - - -

HAYNE J: Accept for the purposes of argument that that is the process in which you are engaging. Can I tell you bluntly what troubles me most? If the person who is incriminated by the answer has no privilege, save the limited use immunity for which the Act prescribes, why should someone who is not incriminated be outside the reach of the otherwise general obligation to answer what you are asking? That is the nub of it for me.

MR LOGAN: Yes, quite. The answer, we submit, to that is that it lies in the rationale for the two privileges and the rationale for spousal immunity privilege, if one takes away from it one of the historical bases, which was the unity of husband and wife, then what one is left with are quite discrete considerations which bear upon why it is that one does not force people in a close personal relationship similar to that of man and wife to incriminate one another.

CALLINAN J: I do not know, Mr Logan. It seems to me to be peculiarly a matter for Parliament if you want to extend the common law in this way. There may be – I am not saying there are – all sorts of policy considerations. You are in an emotional area with all sorts of different attitudes and opinions. It is uniquely a matter, I think, for Parliament.

MR LOGAN: It is an area, in our respectful submission, where this Court has over the last 20 years – one sees hints in dissenting judgments, Sir Harry Gibbs in Calverley v Green, one sees as recently as last month, with respect, your Honour Justice Hayne reserving at the very end of your reasons for judgment in the Magill Case a question about whether that would attend – and leaving open whether that result would attend also domestic relationships.

CALLINAN J: I can accept all of that and I understand exactly what you are saying in regard to that, but this is more than an incremental extension that you are looking for.

MR LOGAN: We acknowledge at once that there are limits as between judicial power and matters that are matters for the elected legislature. This spousal privilege itself has already evolved once at common law. It evolved once because of the recognition that the concept of husband and wife being as one was an outdated concept and, hence, the privilege became reciprocal. That was an evolution that occurred at common law, not through statutory intervention. The evolution for which we contend is, in our respectful submission, a natural evolution of the common law and one which one can take consistent with the Breen approach in a principled way without traversing upon matters that are truly for the Parliament.

KIRBY J: Mr Logan, seeing as everyone else has put their cards on the table, can I put mine on the table? It is just as well you know and it is this, that even if one does not quite take exactly the same view as his Honour Justice Callinan does and takes a view the Court still has its function to fulfil, the problem I have is that you have argued only, in the context of this case, for de facto heterosexual relationships, and there would at least be an issue as far as I am concerned as to whether the conceptual category would extend to same sex relationships, which is a controversial matter in some circles. Then you look at the fact that the Parliaments around Australia, or the legislatures, have enacted various differential provisions in this area.

That rather suggests that this is not a matter where the legislatures have been silent. They have been moving, but in different ways. So that that is, I think, in the particular circumstances of this legislative setting, which you agree is the place we start, is something of an argument against the Court intervening on this occasion, however important the matter may be in another context.

MR LOGAN: What the statutes do not do is to deal with this privilege. What they do do, in our respectful submission, is to provide evidence that Parliaments are appreciating that there are relationships in our society beyond the traditional relationship of man and wife.

KIRBY J: Yes, but the Queenslanders have no knowledge yet of the uniform Evidence Act, except in federal courts, but it is an Act which is being considered elsewhere in Australia and it has dealt with some aspects of this privilege. That, I think, is a particular reason for being careful about extending the common law at a time when the jurisdictions of Australia are looking to legislative reform in a related area.

CALLINAN J: I agree with Justice Kirby on this. There are all sorts of related questions and they are exercising the minds of Parliaments.

MR LOGAN: In our respectful submission, the fact that these thoughts are occurring to each of your Honours in this way is indicative of a case that requires special leave in terms of a detailed consideration, rather than a pre-emptory consideration of - - -

KIRBY J: You are turning our candour against us.

MR LOGAN: Well, in an ambush, offence is often considered the best form of defence.

HAYNE J: When all the cards hit the table, you scream, “Full house”, Mr Logan. I know.

CALLINAN J: The other problem about all of this is that really these sorts of submissions can be made to politicians and Parliaments. It is interesting that people come here – and I know one voice probably may seem a bit futile or to offer one voice. But these are the sorts of arguments that politicians are uniquely qualified, I think, to deal with and debate in the Parliament. We are constantly getting really what are political submissions in a sense – and I mean political in the best sense – but we get political submissions, and that is what these sound to me to be in a sense.

MR LOGAN: There is, in our respectful submission, an element of advancement in this and there is an element of evolution, but the common law is not a prisoner of statute either. When one reflects on matters, one asks what is the common law but the law of common people. If one goes back to taws and in reflecting on that, it is incongruous, in our respectful submission, in 21st century Australia that the common law maintains a distinction which is wholly artificial and may well surprise many.

KIRBY J: I can see the force of that and I am a little bit more sympathetic to responding to the force because we have our function to perform as Parliament has its function, but it is the context that worries me. Like Justice Hayne, I am concerned that we are dealing with it not in some other context but in a very particular statutory context of a statute which is enacted for high public purposes to conduct investigations and has had fine-tuning provisions as to exceptions and privileges that will be recognised. That rather speaks against the privilege in this context.

MR LOGAN: We understand the high public purpose argument but, as we put in our written submission, it contains in it an unarticulated premise, that is, that that is the only public interest at play as opposed to what the authorities to which your Honour the Presiding Judge has referred, that there are other public interests and this Court balances the two in relation to matters of privilege and statutory abrogation.

CALLINAN J: Courts can get these sorts of things wrong. We do not always see the implications. A good example is Blomley v Ryan in relation to actions against builders and the principle was confined to domestic houses, but this Court took into account that that was, I think, said to be the most important investment that most people make, but there are all sorts of implications, of capital gains tax, all sorts of things that the Court did not take into account because it was not armed with all the information. Blomley v Ryan stands, but there has been subsequent authority which questions it. This is the problem about getting into these sorts of areas. For my part, that is how I see it.

MR LOGAN: It is, in our respectful submission, rather more difficult to see how the Court would get it wrong in relation to this in terms of the predominance of the relationship type in Australia.

HAYNE J: You said that the decision of the Full Court of the Federal Court was at odds with the decision of the Court of Appeal of Queensland. Did I understand that aright?

MR LOGAN: Yes. On reflection, there are different statutory regimes at play in the Crime and Misconduct Act with a peculiar definition of “privilege”.

HAYNE J: I was struck ultimately by the fact that I did not think the two decisions necessarily spoke to each other.

MR LOGAN: I am conscious of the time now, but to answer your Honour’s question, there is a mechanism, though, whereby in Queensland this question can come up under the Crime and Misconduct Act – perhaps that is a reason for not granting special leave – but the Court would be bound by B v Callanan. The argument would then be you extend the privilege. You can have a State matter effectively referred to the Australian Crime Commission, such that one subverts the State statute.

KIRBY J: But then presumably it will apply its own regime. Once the matter is referred to the federal body, it will apply its own statute, which is the 2002 Act.

MR LOGAN: It would, yes, that is right, and that is a mechanism - - -

KIRBY J: Is that correct, it is the 2002 Act?

MR LOGAN: Yes. We would become repetitious were we to go further.

KIRBY J: You did have a sort of fall-back argument, did you not, about public interest immunity?

MR LOGAN: It is not pressed, no. That was dealt with below and we are not trying to breathe life into Lazarus on that one. If the Court pleases.

KIRBY J: Yes, thank you very much, Mr Logan. The Court does not need your assistance, Mr Donaghue.

This application for special leave comes from the orders of the Full Court of the Federal Court of Australia. That court, on 23 June 2006, dismissed the applicant’s appeal from orders of Justice Keifel. Her Honour, in turn, had dismissed an application for judicial review directed to an Examiner of the Australian Crime Commission. The Examiner had rejected the applicant’s assertion of a common law immunity from answering a question concerning alleged criminal activities on the part of her de facto spouse or domestic partner.

The applicant wants this Court, in effect, to declare that, in the current social circumstances of Australia, the longstanding common law spousal immunity extends to a de facto relationship. Alternatively, it was originally argued that a public interest immunity fills the gaps in spousal immunity, but we were told that that aspect of the argument was not pressed. Statistical material was placed before us showing the relative decline in the number of marriages in Australia and the rise of de facto relationships in recent decades, a matter which is, in any case, a matter of common knowledge.

In the particular circumstances of this case we are not convinced that the present is a suitable occasion to explore the potentially important question raised by the application. The arguments turn ultimately on the construction of the Australian Crime Commission Act 2002 (Cth) and whether the propounded privilege could operate in harmony with that Act’s important investigative purposes. The particular subject of the immunity has been dealt with differentially in recent federal, State and Territory legislation. We are not convinced that, given this legislative setting, the argument of the applicant in this case has reasonable prospects of success to disturb the conclusions and orders of the Federal Court. Special leave is accordingly refused.

Do you ask for costs in this matter or is it treated as a criminal matter?

MR DONAGHUE: We do ask for costs, your Honour. It is a judicial review procedure.

KIRBY J: What do you say about that, Mr Logan? Is there any reason why the normal order should not be made?

MR LOGAN: Strictly speaking, it came up under the Administrative Decisions (Judicial Review) Act and it is in that sense a civil proceeding. It is obviously one which has a criminal investigative purpose to it in terms of the underlying proceeding and one which had some public interest about it in any event. Ordinarily costs would follow the event, we accept that, but there are considerations peculiar to the case which might enliven a discretion and the nature of the proceeding itself which might enliven a discretion the other way, or at least no order.

KIRBY J: Yes, thank you. The application is dismissed with costs.

AT 10.17 AM THE MATTER WAS CONCLUDED