Competence and Compellability of Spouses in Criminal Proceedings
In this 1988 report, the Commission considered the need to protect the marital relationship, while balancing the interests of spouses, children and the community at large.
The Commission recommended that a spouse should be compellable for the defence (rather than just competent as under the existing law). A spouse should be competent for the prosecution of the other spouse in all cases, and compellable in certain cases. These would include cases where the offence charged involves an assault on, or injury or a threat of injury to, the spouse of the accused, or of causing the death of or injury to a child of the family. It would also include cases where the offence charged is a sexual offence alleged to have been committed in respect of a child of the family. A spouse should be compellable for the prosecution of a co-accused of the other spouses in cases where the offence involves violence or sexual conduct.
The Commission recommended that the existing privilege against revealing marital communications should be abolished in those cases where a spouse is a compellable witness.
The Commission recommends the creation of a new statutory privilege to allow a spouse witness to refuse to answer any question that might incriminate the other spouse, save where the former is a compellable witness for the prosecution.
|Press Release (PDF) (MS Word)|
|Report (PDF) (MS Word)|