Professor Keith Thompson

Crime Commission v Stoddart (2011): Common law of Australia and Spousal Privilege


In Australian Crime Commission v Stoddart (2011) 244 CLR 554 (‘Stoddart’), the High Court of Australia by a majority of five to one, decided that the common law of Australia did not recognise a spousal privilege. Crennan, Kiefel and Bell JJ based their reasons on the view that the dicta of Bayley J in R v Inhabitants of All Saints, Worcester (1817) 6 M & S 194; 105 ER 1215, which had been said to reflect such a privilege, was on its proper interpretation addressed to compellability, not spousal privilege. French CJ and Gummow J arrived at a similar conclusion. Heydon J’s dissent examined the cases, literature and history more carefully. In so doing he discussed how common law develops including how it is affected by custom, history and commentary. He found that many legal principles are well settled even if they have not been frequently litigated.

This paper discusses Stoddart for three reasons. First, because the result came as a surprise to the Australian profession and public at large. Second because it seems inconsistent with that novelty traditionally shunned by the High Court. And third, because it appears to reflect the impact of feminist thought on changing definitions of marriage.


Keith Thompson is a Professor and Associate Dean at the Sydney School of Law of The University of Notre Dame Australia. He previously worked as International Legal Counsel for The Church of Jesus Christ of Latter-day Saints through the Pacific and African continent and as a partner in a commercial law firm in Auckland, New Zealand.