Compellability

Compellability of certain witnesses in criminal proceedings

1.90 A submission to the Inquiry from Rights Australia has prompted the examination of compellability provisions relating to certain witnesses under the uniform Evidence Acts.[71] Rights Australia suggests that the Evidence Act 1995 (Cth) be amended to include same-sex de facto relationships within the definition of ‘de facto spouse’. Such an amendment will ensure equal protection in relation to compellability of same-sex and opposite-sex partners of an accused in a criminal matter.

1.91 Under s 12(b) of the uniform Evidence Acts, a person who is competent to give evidence about a fact is compellable to give that evidence. Section 18, which applies only to criminal proceedings, permits certain categories of witnesses to object to giving evidence against the accused. The witnesses entitled to raise the objection are the accused’s spouse, de facto spouse,[72] parent or child.[73] The uniform Evidence Acts provide that the court has the discretion to excuse the witness from testifying after balancing the risk of harm to the witness or to the witness’ relationship with the accused against the importance of the evidence.[74]

1.92 The uniform Evidence Acts also set out a non-exhaustive list of factors that must be taken into account in the exercise of the discretion, including the nature and gravity of the offence, the substance and importance of the evidence, the availability of other evidence, the nature of the relationship between the accused and the witness, and any breach of confidence involved.[75] This general approach is subject to exceptions for proceedings for certain criminal offences (which differ for each of the uniform Evidence Act jurisdictions, but which generally relate to offences against children and domestic violence offences). The exceptions are set out in s 19 of the uniform Evidence Acts. In proceedings relating to the excepted offences, the witness is compellable.

1.93 The discretionary approach to compellability in the uniform Evidence Acts reflects the underlying rationale and competing policy considerations:

on the one hand, the desirability, in the public interest, of having all relevant evidence available to the courts and on the other the undesirability in the public interest that

  • the procedures for enforcing the criminal law should be allowed to disrupt marital and family relationships to a greater extent than the interests of the community really require, and

  • the community should make unduly harsh demands on its members by compelling them, where the general interest does not require it, to give evidence that will bring punishment upon those they love, betray their confidences, or entail economic and social hardships.[76]

1.94 A discretionary compellability regime applies not only in uniform Evidence Act jurisdictions, but also in Victoria and South Australia.[77] While there is general consistency of approach in these jurisdictions, there is some divergence in the categories of witnesses entitled to object to being required to give evidence. Of particular relevance for this discussion is the position of a person in a de facto relationship with an accused, particularly where the relationship is same-sex.

1.95 The definition of ‘de facto spouse’ contained in the Evidence Act 1995 (Cth), which also applies in the Australian Capital Territory and Norfolk Island,[78] provides that a de facto spouse:

(a) of a man, means a woman who is living with the man as his wife on a genuine domestic basis although not married to him; and

(b) of a woman, means a man who is living with the woman as her husband on a genuine domestic basis although not married to her.[79]

1.96 Clearly, the definition of de facto spouse in the Evidence Act 1995 (Cth) does not extend to persons in a same-sex relationship.[80] In this respect, it is inconsistent with the uniform Evidence Acts in force in New South Wales and Tasmania—which treat all de facto couples, regardless of sex, equally (provided they fall within the definitions which are provided for in other legislation).[81] Further, to qualify as a ‘de facto spouse’ for the purposes the Evidence Act 1995 (Cth), co-habitation with a person of the opposite sex must be established.[82]

1.97 The issues raised in this Inquiry are:

  • whether the definition of ‘de facto spouse’ in the Evidence Act 1995 (Cth) should be extended to cover a person in a de facto relationship, regardless of sex, as is the case in New South Wales and Tasmania, thereby including such a person amongst the class of persons who potentially may not be required to give evidence; and

  • whether the term ‘de facto spouse’ is an appropriate descriptor of a person in a de facto relationship.

1.98 In most Australian jurisdictions, there has been a trend in recent years to change the law to recognise that parties in a genuine de facto relationship should have similar rights and privileges to parties in a legal marriage.[83] There have also been moves to increase equality and remedy legislative discrimination against those who live in a variety of relationships regardless of sex.[84]

1.99 In 2002, amendments were made to the Evidence Act 1995 (NSW) with the passing of the Miscellaneous Acts Amendment (Relationships) Act 2002 (NSW), by which the definition of ‘de facto relationship’ contained in the Property (Relationships) Act 1984 (NSW) was extended to a range of statutes, including the Evidence Act 1995 (NSW). The effect of the amendment was to broaden the definition of ‘de facto spouse’ in the Evidence Act 1995 (NSW) by making it non-gender specific. Since the passing of the amending Act, a ‘de facto spouse’ for the purposes of the Evidence Act 1995 (NSW) is now a person with whom the person has a de facto relationship within the meaning of the Property (Relationships) Act 1984 (NSW), that is:

a relationship between two adult persons:

(a) who live together as a couple, and

(b) who are not married to one another or related by family.[85]

1.100 In determining whether two persons are in a de facto relationship, the court is to take into account all the circumstances of the relationship, including:

(a) the duration of the relationship,

(b) the nature and extent of common residence,

(c) whether or not a sexual relationship exists,

(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties,

(e) the ownership, use and acquisition of property,

(f) the degree of mutual commitment to a shared life,

(g) the care and support of children,

(h) the performance of household duties,

(i) the reputation and public aspects of the relationship.[86]

1.101 Section 4(3) provides that no finding in respect of any of the above matters, or any combination of them, is

to be regarded as necessary for the existence of a de facto relationship, and a court determining whether such a relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.

1.102 Although not explicitly stated, the effect of the amendment in New South Wales is to extend the potential exemption to compellability to a person in a de facto relationship with the accused, regardless of the person’s sex.

1.103 In Tasmania, all persons in a de facto relationship regardless of sex are recognised in a similar way. However, the position is less prescriptive than in New South Wales. The term ‘spouse’ in s 18 of the Evidence Act 2001 (Tas) includes a person who is in a ‘significant relationship’ within the meaning of the Relationships Act 2003 (Tas).[87] For the purposes of the Relationships Act 2003 (Tas), the definition of a ‘significant relationship’ differs from the definition of a ‘de facto relationship’ contained in the Property (Relationships) Act 1984 (NSW) in one notable respect. A ‘significant relationship’ is defined in s 4(1) of the Relationships Act 2003 (Tas) as:

a relationship between two adult persons:

(a) who have a relationship as a couple; and

(b) who are not married to one another or related by family.

1.104 Therefore, in Tasmania, it is not necessary for a couple to live together to establish the requisite relationship (as is the case in New South Wales). Otherwise, s 4(2) provides that in determining whether two persons are in a ‘significant relationship’, the court is to take into account a range of matters that point to the nature and quality of the relationship. These are the same matters that are also contained in the Property (Relationships) Act 1984 (NSW). The list includes ‘the nature and extent of common residence’[88] as one of the matters that may be taken into account.

1.105 It follows that a broader class of persons enjoy potential exemption from compellability under the Evidence Act 2001 (Tas).

1.106 Given the differing definitions of ‘spouse’ and ‘de facto spouse’ in the uniform Evidence Acts of the Commonwealth, New South Wales and Tasmania, currently there is disconformity between these jurisdictions in the laws relating to compellability of a person in a de facto relationship with the accused.

Submissions and consultations

1.107 The Commissions endorse the view expressed in ALRC 38 that the procedures for enforcing the criminal law should not be allowed to disrupt ‘family relationships to a greater extent than the interests of the community require’.[89] The gender-based definition of ‘de facto spouse’ in the Evidence Act 1995 (Cth) discriminates against those in relationships with persons other than of the opposite sex, is potentially disruptive of such relationships and unnecessarily harsh upon the parties to them and constitutes an unnecessary divergence between the Evidence Act 1995 (Cth) and other uniform Evidence Act jurisdictions.

1.108 Accordingly, the Commissions proposed in DP 69 that the current definition of ‘de facto spouse’ in Evidence Act 1995 (Cth) be amended to give a person in a same-sex de facto relationship with an accused the right to object to giving evidence for the prosecution in criminal matters.[90] Consultations and submissions subsequent to DP 69 have not addressed the proposal in detail but have been generally supportive of this approach.[91]

The Commissions’ view

1.109 The Commissions remain of the view that the concept of a ‘de facto spouse’ should be gender-neutral.

1.110 Subsequent to DP 69, further consideration has been given to the use of the term ‘spouse’ in the context of de facto relationships. The Commissions have formed the view that it is preferable to eliminate the use of this word, which does not sit easily with a gender neutral concept of a de facto relationship. Accordingly, the Commissions recommend that the expression ‘de facto spouse’, which appears in ss 18, 20 and the Acts’ Dictionary, be replaced with the term ‘de facto partner’ in both the Evidence Act 1995 (Cth) and Evidence Act 1995 (NSW).

1.111 These changes would ensure equality and avoid discrimination by according the same legal privileges in relation to compellability provisions to all those who are couples, irrespective of the sex of the parties involved. It would also reflect developments in social attitudes in Australia and result in greater uniformity between the uniform Evidence Act jurisdictions.

1.112 The Commissions are also of the view that the approach reflected in the definition of a ‘significant relationship’ under the Tasmanian legislation is to be preferred, that is:

a relationship between two adult persons—

(a) who have a relationship as a couple; and

(b) who are not married to one another or related by family.

1.113 This approach is less prescriptive because it does not require that the parties to a relationship live together. It caters for a range of situations in which a couple may not cohabit but may nonetheless have a relationship with many of the other characteristics indicative of a de facto relationship. For example, circumstances can be envisaged where parties in a relationship choose to maintain separate residences, or live apart while one party is in long-term care outside the home. In such cases, the circumstances of any cohabitation (or lack of it) are just one factor to be taken into account in determining whether a de facto relationship exists.

1.114 The Commissions have also considered whether or not it is necessary to include indicia for the court to take into account when determining what constitutes the requisite relationship. Lists of such matters exist in the relevant legislation in New South Wales and Tasmania. However, a number of these factors (such as the degree of financial dependence and independence, and any arrangements for financial support, between the parties; the ownership and acquisition of property; and the performance of household duties) have limited relevance to the potential exemption from compellability. Nonetheless, on balance it is thought desirable to include a short non-exhaustive list of indicia which may assist the court to determine whether ‘a relationship as a couple’ exists. The recommended indicia, extracted from the lists in the New South Wales and Tasmanian legislation, are:

  • the duration of the relationship;

  • the degree of commitment to a shared life; and

  • the reputation and public aspects of the relationship.

1.115 Further, the Commissions propose that it should not be a requirement that the relationship is between two ‘adult’ persons (as is currently the case in NSW and Tasmania). It is quite foreseeable that one or both of the persons in a de facto relationship may be less than 18 years old and should be entitled to object to giving evidence in the same way as an older member of a de facto relationship.

1.116 It is also recommended that the words ‘or related by family’ which currently appear in the definitions of ‘de facto relationship’ in New South Wales and ‘significant relationship’ in Tasmania are superfluous and should not be included in the revised definition of ‘de facto partner’. The inclusion of such words would exclude persons who have a relationship as a couple who may also be related by family (for instance, cousins or family members related by marriage).[92]

1.117 Whatever definition of a person in a de facto relationship applies, ultimately it is up to the court to assess whether or not the relationship exists and whether, taking into account various factors, the discretion should be exercised to excuse the witness from giving evidence.

Recommendation 4–4 The provisions of the Evidence Act 1995 (Cth) and the Evidence Act 1995 (NSW) should be amended to eliminate the term ‘de facto spouse’ (including the definition) and to replace it with the term ‘de facto partner’.

Recommendation 4–5 The Evidence Act 1995 (Cth) should be amended to provide a definition of ‘de facto partner’ in the following terms:

‘de facto partner’ means a person in a relationship as a couple with another person to whom he or she is not married.

Recommendation 4–6 The Evidence Act 1995 (Cth) should be amended to provide that for the purpose of determining whether a relationship between 2 persons is a relationship as a couple, the matters that the court may take into account include:

(a) the duration of the relationship;

(b) the extent to which the persons have a mutual commitment to a shared life; and

(c) the reputation and public aspects of the relationship.

[71] Rights Australia Inc, Submission E 45, 24 March 2005.

[72] Section 18 of the Evidence Act 2001 (Tas) only uses the term ‘spouse’ which includes a person who is in a ‘significant relationship’ within the meaning of the Relationships Act 2003 (Tas).

[73] Section 20(3) of the uniform Evidence Acts sets out when the judge or any party (other than the prosecutor) may comment on the failure of a defendant’s spouse, de facto spouse, parent or child to give evidence.

[74] Uniform Evidence Actss 18(6).

[75] Ibid s 18(7).

[76] Australian Law Reform Commission, Evidence, ALRC 38 (1987), [80].

[77] Crimes Act 1958 (Vic) s 400; Evidence Act 1929 (SA) s 21.

[78] Evidence Act 2004 (NI) Dictionary, Pt 1.

[79] Evidence Act 1995 (Cth) Dictionary, Pt 1.

[80] However, the Commissions note that there are examples of a person’s same-sex partner being recognised for the purposes of other Commonwealth legislation. See for example the definition of ‘close family member’ in s 102.1 (in Chapter 5, ‘The Security of the Commonwealth’) of the Criminal Code Act 1995 (Cth), which includes a ‘person’s spouse, de facto spouse or same-sex partner’.

[81] It is noted that the Evidence Act 2004 (NI) Dictionary, Pt 1 includes the same definition as the Commonwealth Act.

[82] Similar pre-requisites apply in definitions of ‘de facto spouse’ and ‘de facto relationship’ in other Commonwealth legislation. See, for example, Corporations Act 2001 (Cth)s 9 (‘de facto spouse’) and Family Law Act 1975 (Cth)(‘de facto relationship’).

[83] W Harris, ‘Spousal Competence and Compellability in Criminal Trials in the 21st Century’ (2003) 3(2) Queensland University of Technology Law and Justice Journal 274, 297.

[84] See, by way of recent examples, Parliament of Victoria Scrutiny of Acts and Regulations Committee, Discrimination in the Law: Inquiry under Section 207 of the Equal Opportunity Act 1995 (2005); South Australian Government, Removing Legislative Discrimination Against Same Sex Couples, Discussion Paper (2003); ACT Department of Justice and Community Safety, The Recognition of Same Sex Relationships in the ACT, Discussion Paper (2005); Parliament of Tasmania, Joint Standing Committee on Community Development, Report on the Legal Recognition of Significant Personal Relationships, (2001).

[85] Evidence Act 1995 (NSW) Dictionary, Pt 1; Property (Relationships) Act 1984 (NSW) s 4(1).

[86] Property (Relationships) Act 1984 (NSW) s 4(2).

[87] Evidence Act 2001 (Tas) s 3.

[88] Ibid s 4(3)(b).

[89] Australian Law Reform Commission, Evidence, ALRC 38 (1987), [80].

[90] Australian Law Reform Commission, New South Wales Law Reform Commission and Victorian Law Reform Commission, Review of the Uniform Evidence Acts, ALRC DP 69, NSWLRC DP 47, VLRC DP (2005), [4.70].

[91] Submissions received which generally support the proposal include: Director of Public Prosecutions (NSW), Submission E 87, 16 September 2005; New South Wales Public Defenders Office, Submission E 89, 19 September 2005; The Criminal Law Committee and the Litigation Law and Practice Committee of the Law Society of New South Wales, Submission E 103, 22 September 2005; Victoria Police, Submission E 111, 30 September 2005. The proposal was also supported in consultation with Judge S Bradley, Consultation, Cairns, 12 August 2005. A submission was received in opposition to the proposal from C O’Donnell, Submission E 60, 20 August 2005.

[92] The issue is raised in the submissions of: the Commonwealth Director of Public Prosecutions, Submission E 108, 16 September 2005; and in consultation with the Commonwealth Director of Public Prosecutions, Consultation, Canberra, 25 August 2005.