SPOUSE-WITNESSES - COMPETENCE AND COMPELLABILITY AUSTRALIA

• NCJ Number: 57843
• Author(s): T W SMITH
• Date Published: 1976
• Length: 29 pages
• Corporate Author: American Archives of Rehabilitation Therapy
• Sale Source: National Institute of Justice/
• Language: English
• Country: Australia

Annotation

REVISION OF COMMON LAW RULES IN AUSTRALIA GOVERNING COMPETENCE OF HUSBAND AND WIFE TESTIMONY IS RECOMMENDED SO THAT A SPOUSE, WHEN NOT CO-ACCUSED WITH THE MATE, CAN BE COMPELLED TO TESTIFY IN TRIALS INVOLVING THAT MATE.

Abstract

DESPITE NUMEROUS AMENDMENTS TO THE RULES GOVERNING THE COMPETENCE OF HUSBANDS AND WIVES TO GIVE EVIDENCE FOR AND AGAINST THEIR SPOUSES, THIS AREA OF LAW STILL POSES SERIOUS, UNRESOLVED PROBLEMS. THIS REPORT EXAMINES THE FOLLOWING TOPICS REGARDING SUCH TESTIMONY: (1) CIVIL PROCEEDINGS; (2) CRIMINAL PROCEEDINGS, INCLUDING THE COMMON LAW RULES, ENGLISH STATUTES RELAXING RESTRICTIONS, AND THE CURRENT POSITION IN VICTORIA; (3) POLICY CONSIDERATIONS; (4) CONSIDERATION OF THE QUESTION, 'SHOULD THE COMPETENCE OF SPOUSE-WITNESSES BE RESTRICTED?'; (5) CONSIDERATION OF THE QUESTION, 'SHOULD THE COMPETENCY OF SPOUSE-WITNESSES BE EXTENDED?', INCLUDING COMPETENCY TO BE A WITNESS FOR AN ACCUSED SPOUSE, FOR THE PROSECUTION, AND FOR A CO-ACCUSED BEING TRIED JOINTLY WITH THE SPOUSE OF THE WITNESS; (6) PERSONS WHO ARE NO LONGER HUSBAND AND WIFE; AND (7) PRIVILEGE FOR HUSBAND AND WIFE COMMUNICATIONS. IN SUMMARY, IT IS RECOMMENDED THAT LEGISLATION BE ENACTED PROVIDING THAT THE HUSBAND OR WIFE OF AN ACCUSED PERSON, WHEN NOT A CO-ACCUSED WITH THAT PERSON, SHALL BE COMPELLABLE TO GIVE EVIDENCE ON BEHALF OF THAT PERSON AS IF THEY WERE NOT HUSBAND AND WIFE, BE COMPELLABLE TO GIVE EVIDENCE ON BEHALF OF ANY CO-ACCUSED IN THE PROCEEDINGS, AND EXCEPT FOR THE EXEMPTIONS SPECIFICALLY NOTED IN SUBPARAGRAPHS OF THIS SECTION, BE COMPELLABLE TO GIVE EVIDENCE ON BEHALF OF THE PROSECUTION. THE PROPOSED REVISIONS ALSO STATE THAT IN ANY CIVIL PROCEEDING, A PERSON WHO HAS BEEN BUT IS NO LONGER MARRIED TO A PARTY, AND IN ANY CRIMINAL PROCEEDING, A PERSON WHO HAS BEEN BUT IS NO LONGER MARRIED TO THE ACCUSED OR ONE OF THE ACCUSED, SHALL BE COMPELLABLE AND COMPETENT TO GIVE EVIDENCE AS IF THAT PERSON AND THE PARTY OR THE ACCUSED HAD NEVER BEEN MARRIED. A SECTION OF THE CRIMES ACT 1958 SHOULD BE AMENDED BY EXTENDING THE WORDS OF EXCEPTION TO COVER A FORMER SPOUSE OF THE ACCUSED. FOOTNOTES INCLUDED. (AUTHOR ABSTRACT MODIFIED--LWM)