Spousal Compellability in the Law of Evidence

313. The Present Law. At common law a spouse of an accused person was, with certain exceptions (eg crimes of violence against the spouse) incompetent to give evidence for or against the accused, and was in any event not compellable as a witness even when competent.[122] This position has been changed by legislation in various respects throughout Australia, though the law is far from uniform.[123] In general, spouses are competent witnesses both for the defence and the prosecution, but are not compellable for the prosecution except in respect of a limited range of offences. For example in New South Wales, the Crimes Act 1900 s 407AA[124] makes a married person a compellable witness for the prosecution where the spouse is charged with an offence involving domestic violence. A compellable witness may, however, apply to the court to be excused from giving evidence. In Victoria a spouse is generally compellable against an accused, subject to a discretion given to the court to exempt the spouse. The factors to be taken into account in exercising this discretion are spelt out: they include the nature of the relationship, the likely effect on it of compelling the spouse to testify and the importance of the facts in issue.[125] It has generally been held by Australian courts that an Aboriginal woman remains, a competent and compellable witness even though she might ‘say that, by the laws of the aborigines, she is the prisoner’s wife’.[126] There is at present no statutory provision in Australia dealing with traditional marriages for this purpose.[127] Traditionally married Aborigines are thus compellable witnesses against each other unless they can rely on relevant legislation covering de facto relationships.

314. Reform of the General Law. The retention of inter-spousal non-compellability in the law of evidence has been extensively investigated by law reform agencies in Australia, including this Commission.[128] Though there has been no unanimity on any specific proposal, there is no support for the abolition of the privilege altogether. The extension of non-compellability to persons in marriage-like relationships has however tended to be treated very cautiously. The Mitchell Committee in South Australia, after referring to the evidence that few Aborigines benefit from the rule because of their informal domestic relationships, rejected its extension to de facto relationships on the ground that ‘it is not desirable to extend the situations in which the prosecution of persons accused of crime may be impeded because witnesses cannot be compelled to give evidence’.[129] The Committee did not specifically consider the problems of traditional marriages. The New South Wales Law Reform Commission Report on De Facto Relationships declined to make a firm recommendation in this regard, preferring to wait on this Commission’s Evidence Report.[130] In its Interim Report, this Commission proposed a discretion similar to that in Victoria, to exclude a spouse (including a de facto spouse) from giving evidence. The question of recognizing traditional marriage for this purpose was left to the present Report.[131]

315. Recognition of Traditional Marriage for this Purpose. The strength of the law enforcement argument which prevailed with the Mitchell Committee depends to a degree on the specific proposal. The enforcement of the law is certainly a consideration in exercising any discretion to excuse a spouse from testifying. If the rule is merely an anomaly, defining it as narrowly as possible, for example, so as to exclude traditionally married persons, might be justified. But it cannot be said that inter-spousal non-compellability is a mere anomaly. It is a concession to the social, emotional and economic stability of marriage, which in some form or other is very likely to survive. Failure to extend the rule to traditional spouses gives the impression that the law cares only about the stability of Marriage Act marriage, de spite the continuing importance of traditional marriage in many Aboriginal communities. As Justice Muirhead pointed out in a case in 1978, the public policy applicable to the non-compellability of a spouse in a legally recognized marriage applies equally to a traditional marriage.[132] It is undesirable that Aboriginal traditional marriages should continue not to benefit from the rule.[133] Traditionally married persons should be compellable to give evidence for and against each other in criminal cases only to the same extent as persons married under the general law.[134]

316. Marital Communications. A related problem is the extension of the evidentiary privilege relating to marital communications to traditional married persons. This privilege does not exist at common law[135] or under the Family Law Act 1975 (Cth),[136] but is a statutory creation of varying ambit throughout Australia.[137] There is no evidence as to the impact of non-recognition of the privilege on traditional marriage, but it would be artificial to distinguish it from inter-spousal non-compellability, as an evidentiary rule protecting similar interests and values. The privilege relating to marital communications should extend equally to traditionally married persons.

[122]cf Hoskyn v Commissioner of Police for the Metropolis [1978] 2 All ER 136 (HL). A witness who is not ‘competent’ may not give evidence at all. A witness who is competent but not compellable may give evidence, but cannot be required to do so without his or her consent.

[123]See JA Gobbo, D Byrne, JD Heydon (ed) Cross on Evidence, 2nd Australian edn, 1979, 162-4, 169-77.

[124]As amended by Crimes (Domestic Violence) Amendment Act 1982 (NSW).

[125]Crimes Act 1958 (Vic) s 400.

[126]R v Cobby (1883) 4 LR (NSW) 355, 356 (Windeyer J); R v Neddy Monkey (1861) 1 W and W (L) 40; cf MC Kriewaldt, ‘The Application of the Criminal Law to the Aborigines of the Northern Territory of Australia’ (1960) 5 UWAL Rev 1, 20. For a recent example of a traditional spouse compelled against her will (and without any result) to give evidence against her husband see Police v Campbell, unreported, NT Court of Summary Jurisdiction, Mr J Murphy SM (8 June 1982), discussed at para 625.

[127]There was a statutory modification to this rule in Queensland from 1965 to 1979, but it was limited to the non-compellability of female Aborigines. Aborigines’ and Torres Strait Islanders’ Affairs Act 1965 (Qld) s 41; Aborigines Act 1971 (Qld) s 48. See para 239. cf Aboriginals Ordinance (No 2) 1937 (NT) extending the privilege of non-compellability to ‘any Aboriginal living as consort husband or wife of any aboriginal charged with a summary or indictable offence’. This provision was repealed in 1953: Welfare Ordinance 1953 (NT) s 4.

[128]NSWLRC 36, 298-9; ALRC 26, Evidence (Interim) AGPS, Canberra, 1985, vol 1, para 196-7, 251-6, 529; vol 2, App C, para 9.

[129]SA Criminal Law and Penal Methods Reform Committee, Third Report (1975) para 11.5.

[130]NSWLRC 36, para 16.9.

[131]ALRC 26, vol 1 para 531, 536.

[132]Unreported decision, 1978, referred to by G Neate, Dying Declarations and Customary Marriages of Australian Aborigines and Rules of Criminal Evidence, ANU, LLB Honours dissertation, 1979, 118-9. A similar view was expressed by Mr J Murphy SM in Police v Campbell (n 126).

[133]cf Justice RA Blackburn, Submission 320 (5 January 1982) supporting the extension of inter-spousal non-compellability to traditional marriage (but not to de facto relationships generally).

[134]There being no problem of competition between spouses, the privilege should extend to each traditional wife with respect to her husband. No proposal is made to create a new non-compellability rule for traditional wives as between themselves, or for other relationships where there may be constraints under Aboriginal customary laws about one person giving evidence against another. Dr D Bell pointed out that the emphasis given to spousal compellability and marital communications reflects a certain view of marriage which may not be shared in Aboriginal communities: ‘it may be more important not to compel a mother-in-law to give evidence about her son-in-law’. Submission 491 (16 September 1985) 4-5. But to create general and indeterminate categories of non-compellable persons would constitute too great a derogation from the general principle of compellability. Some protection may be given in such cases by the rule about confidential communications under Aboriginal customary laws, proposed in ch 25. See para 656-661.

[135]Rumping v DPP [1964] AC 814.

[136]Family Law Act 1975 (Cth) s 100(2).

[137]See Cross, 271-3: ALRC 26, vol 1 para 462, 895-8.