Irish Law Reform Commission Papers and Reports

THE LAW REFORM COMMISSION

AN COIMISIÚN UM ATHCHÓIRIÚ AN DLÍ

(LRC 13 – 1985)

REPORT ON COMPETENCE AND COMPELLABILITY OF

SPOUSES AS WITNESSES

IRELAND

The Law Reform Commission,

Ardilaun Centre, 111 St Stephen's Green, Dublin 2

 

 

© Copyright The Law Reform Commission 1985

First Published July 1985

 

 

THE LAW REFORM COMMISSION

COMPETENCE AND COMPELLABILITY OF SPOUSES AS WITNESSES

CHAPTER 1: THE PRESENT LAW

At common law, in both civil and criminal proceedings, it was a general rule that a spouse of a party was not competent to testify. As Sir Edward Coke put it at the beginning of the seventeenth century:

This rule existed in the context of other rules of evidence which made the parties to civil litigation and the prosecutor or accused in criminal proceedings incompetent. Apart from the parties and their spouses, others with a proprietary or pecuniary interest in the outcome of proceedings were also incompetent.

These rules were abolished as far as civil proceedings were concerned in the middle of the last century. The Evidence Act, 1843 abolished incompetence through interest except in the case of the parties and their spouses. Parties to civil proceedings were made competent and compellable by the Evidence Act, 1851. Their spouses were made competent and compellable, except in proceedings instituted in consequence of adultery, by the Evidence Amendment Act, 1853.¹

1 The terms of the Act are:   “   1. On the trial of any issues joined, or of any matter or question, or any inquiry arising in any suit, or other proceeding in any court of justice, or before any person having by law or by consent of parties authority to hear, receive, and examine evidence, the husbands and wives of the parties thereto, and of the persons in whose behalf any such suit, action or other proceedings

 

 

There are, however, several matters relating to the competence and compellability of spouses in civil proceedings which are still not free from doubt. The Evidence Further Amendment Act, 1869 provided that parties to proceedings instituted in consequence of adultery and their husbands and wives were to be competent to give evidence.² This leaves open the question whether these persons are also compellable. In England it has been held that competence implies compellability in this provision.³ But there has been no reported decision on the point in Ireland and, in other contexts, as will be noted, it seems that competence does not imply compellability.⁴

1 cont'd   may be brought or instituted, or opposed or defended, shall, except as hereinafter excepted, be competent and compellable to give evidence either viva voce or by deposition according to the practice of the court, on behalf of either or any of the parties to the said suit, action or other proceeding.   2. Nothing herein shall render any husband competent or compellable to give evidence for or against his wife, or any wife competent or compellable to give evidence for or against her husband, in any criminal proceeding, or in any proceeding instituted in consequence of adultery.   3. No husband shall be compellable to disclose any communication made to him by his wife during the marriage, and no wife shall be compellable to disclose any communication made to her by her husband during the marriage.”   2 The relevant section, section 3, reads as follows:   “The parties to any proceedings instituted in consequence of adultery, and the husband and wives of such parties, shall be competent to give evidence in such proceeding: provided that no witness in any proceeding, whether a party to a suit or not, shall be liable to be asked or be bound to answer any question tending to show that he or she has been guilty of adultery, unless such witness shall have given evidence in the same proceeding in disproof of his or her alleged adultery.”   3 Tilley v Tilley [1949] P. 240.   4 See infra, pp. 5–6, 9–10.

 

 

The position of former spouses is also not free from doubt. In an English case decided before the enactment of the Evidence Amendment Act, 1853 it was held that a divorced wife was not competent to give evidence relating to matters which had occurred during her marriage in proceedings to which her former husband was party.⁵ In another case, a widow was held not competent in an action taken by the personal representatives of her deceased husband for conversion of part of an estate from a bank.⁶ It might be questioned whether the provision in the Evidence Amendment Act, 1853 making husbands and wives competent and compellable is effective to make a former spouse of a party to an action competent and compellable to testify on matters occurring while they were married. While this may appear to be the interpretation producing the most reasonable result it is noteworthy that an English court has held that the term wife does not include a widow for the purposes of a provision in another section of the same statute conferring on a wife a privilege not to disclose communications made to her by her husband.⁷

In criminal proceedings the law making spouses incompetent was subject to certain exceptions. In Lord Audley's Case, where the husband was charged as an accessory to the rape of his wife, it was laid down that a spouse was a competent witness in cases of assault perpetrated by the other party to the marriage.⁸ This exception has been held to extend to a charge of attempting to murder a wife by poisoning although no violence was involved.⁹ It may also extend to any offence involving infringement of liberty.¹⁰ On a charge of abducting and marrying a girl against her will, it was held that she was a competent witness notwithstanding the fact that the marriage was legally valid.¹¹

5 Munroe v Twistleton (1802) Peake Add. Cas. 219.   6 O'Connor v Marjoribanks (1842) 4 Man. & G. 435.   7 Shenton v Tyler [1939] Ch. 620. For text of the Act see supra, pp. 1–2.   8 (1631) 3 State Trials 401.   9 R. v Verolla [1963] 1 Q.B. 285.   10 Cross on Evidence, pp. 176–8 (5th ed., 1979).   11 R. v Wakefield (1827) 2 Lew. C. C. 279.

 

 

Treason is another possible exception.¹² On a charge of bigamy, when the first marriage and the existence of the first wife or husband had been proved, the second wife could be called¹³ but this was not really an exception as the second marriage was invalid.

These exceptions were expanded piecemeal by individual statutes enacted from 1872 onwards. At that time the accused was not as a general rule a competent witness even on his own behalf and provisions making the spouse of an accused competent were usually included in statutes which also made the accused himself a competent witness in a trial for the offence in question.¹⁴ In most cases it was provided either that the spouse “may be called” as a witness or that he or she “is competent” to give evidence. While it was sometimes stated expressly that the spouse was not compellable,¹⁵ it was more common to make no

12 Taylor, The Law of Evidence, p.976, fn.3 (16th ed., 1906).   13 R. v Young, (1847) 2 Cox. 291.   14 Licensing Act, 1872, section 51(4); Sale of Food and Drugs Act, 1875, section 21; Conspiracy and Protection of Property Act, 1875, section 11; Evidence Act, 1877, section 1; Married Women's Property Act, 1882, sections 12, 16; Explosives Act, 1881, section 4(2); Corrupt and Illegal Practices Prevention Act, 1883, section 53(2); Married Women's Property Act, 1884, section 1; Criminal Law Amendment Act, 1885, section 20; Merchandise Marks Act, 1887, section 10; Law of Libel Amendment Act, 1888, section 9; Public Health Act, 1891, section 118; Betting and Loans (Infants) Act, 1892, section 6; Prevention of Cruelty to Children Act, 1894, section 12; Law of Distress Amendment Act, 1895, section 5; False Alarms of Fires Act, 1895, section 2; Factory Act, 1895, section 49; Corrupt and Illegal Practices Prevention Act, 1895, section 2 Chaff-Cutting Machines (Accidents) Act, 1897, section 5; Motor Car Act, 1903, section 19(4); Prevention of Cruelty to Children Act, 1904, section 12; Children Act, 1908, section 133 (28).   15 See Criminal Law Amendment Act, 1885, section 20; Law of Libel Amendment Act, 1888, section 9; Law of Distress Amendment Act, 1895, section 5; False Alarms of Fire Act, 1895, section 2; Chaff-Cutting Machines (Accidents) Act, 1897, section 5; Prevention of Cruelty to Children Act, 1904, section 12; Children Act, 1908, section 133 (28).

 

 

express reference to compellability.¹⁶ It was then not clear whether it was intended that the witness should be compellable. In two cases the spouse was expressly made competent and compellable.¹⁷ There were a number of statutes where it was stated that a spouse of an accused “may be called” to give evidence but only on behalf or with the consent of that accused.¹⁸ It was then not clear whether the spouse was compellable as well as competent for the accused in such cases.

The Criminal Justice (Evidence) Act, 1924, which made the accused a competent witness for the defence in every case, also dealt with the position of spouses as witnesses. Section 1 provides:

Although there is no case in which the point has been fully argued, it seems to be accepted that the effect of these provisions making the spouse of an accused competent for the defence in every criminal case was not to make that spouse compellable.¹⁹

19 See Cross on Evidence, p. 178 (5th ed., 1979). R. v Boal [1965] 1 Q.B. 402 at p. 416. Criminal Law Revision Committee, Eleventh Report: Evidence (General), para. 145. The existence of statutes where spouses were stated to be “competent and compellable” is an argument against implying compellability [see supra, fn. 17]. However, see also T.M.S. Toswill, “The Accused's Spouse as Defence Witness” [1979] Criminal Law Review 696, at p. 699.   “.... That competence generally includes compellability is 'a constitutional principle underlying our whole system of Justice'.... It might therefore be expected that in the absence of any clear reason to the contrary, 'competent' in section 1 should include compellability. The word 'competent' has been used in statutes before 1898 to mean both competent-and-compellable and competent-but-not-compellable. If Parliament had here intended the latter, there would have been no need for paragraph (a), which restricts the meaning of 'competent' in section 1 by expressly saving D (a defendant) from being compelled to go into the witness box. Although the rules of statutory interpretation do not permit the courts to ascertain legislative intention by studying reports on parliamentary debates, these interestingly confirm that Parliament did intend section 1 to made S. (a spouse of a defendant) compellable for the defence. An amendment specifically designed to negative her compellability for the defence – by adding the words 'and the wife or husband, as the case may be, of the person so charged shall not be called as a witness without his or her consent' to what is now section 1(e) – was defeated.” In Tilley v Tilley [1949] P. 240 it was held that a provision in the Evidence Further Amendment Act, 1869 declaring a spouse competent in adultery proceedings had the effect of making such a spouse compellable. However this conclusion was based on rather special arguments.

 

 

Where several persons are charged together, one accused may not call the spouse of another accused by virtue of this section unless the latter gives his or her consent. But where a spouse of one accused is called for the defence by a co-accused pursuant to another statutory provision, section 1(c) is not applicable and it seems, therefore, that the consent of the accused spouse is not required unless the statute in question so provides.

Section 4 dealt with cases where a spouse of an accused may give evidence for the prosecution or for a co-accused without the consent of the accused spouse. Sub-section 1 provides:

The enactments in the Schedule to which reference was made in Section 4(1) were the Vagrancy (Ireland) Act, 1847, section 2; the Offences Against the Person Act, 1861, sections 48, 52, 53, 54, so far as unrepealed, and section 55; the Married Women's Property Act, 1882, sections 12 and 16; and the Prevention of Cruelty to Children Act, 1904 (The Whole Act).

The Vagrancy (Ireland) Act, 1847, section 2, which created the offence of deserting or wilfully neglecting to maintain a wife or child was repealed by section 4 of the Public Assistance Act, 1939 which, as will be noted, created a similar offence which was to be treated as if it were contained in the Schedule.²⁰ It, in turn, was repealed by section 24 of the Social Welfare (Supplementary Welfare Allowances) Act, 1975. The Married Women's Property Act, 1882 was repealed in its entirety by the Married Women's Status Act, 1957 which provides for the competence of spouses in proceedings under it.²¹

Sections 48, 53, 54 and 55 of the Offences Against the Person Act, 1861 which deal with the rape and abduction of women remain in force. Section 52 (as amended by section

20 See infra, p. 23.   21 See infra, p. 24.

 

 

19 of the Criminal Law Amendment Act, 1885), which provided that anyone convicted of indecent assault upon any female should be liable to not more than two years imprisonment, was repealed by the Criminal Law Amendment Act, 1935, section 6 of which is stated to be enacted in lieu of section 52 of the Offences Against the Person Act, 1861 and provides for penalties for indecent assault on a female. As a result of section 13(1) of the Interpretation Act, 1923 the reference in the Schedule of the Criminal Justice (Evidence) Act, 1924 to section 52 of the Offences Against the Person Act, 1861, must now be read as a reference to section 6 of the Criminal Law Amendment Act, 1935.²²

The reference to the “Prevention of Cruelty to Children Act, 1904 (The Whole Act)” in the Schedule is strange as most of the provisions in that Act creating offences had been repealed and re-enacted in the Children Act, 1908.²³ The only provisions creating offences in the 1904 Act which had survived this repeal are in section 2. The offences chargeable under that section are (i) causing a boy under

22 The Interpretation Act, 1923, section 13(1) provides:   “Where this Act or any Act passed after the commencement of this Act repeals and re-enacts, with or without modification, any provisions of a former Act, reference in any other Act to the provisions so repealed shall, unless the contrary intention appears, be construed as references to the provisions so re-enacted.”   23 The Interpretation Acts are not effective to ensure that the reference in the Criminal Justice (Evidence) Act, 1924 to the repealed sections of the Prevention of Cruelty to Children Act 1904 be construed as references to the re-enacting sections of the Children Act, 1908. The Interpretation Act, 1889 is not applicable to the Criminal Justice (Evidence) Act, 1924 because the latter was passed after the commencement of the Interpretation Act, 1923, section 18(2) of which provides:   “The Interpretation Act, 1889, shall not apply .... to any Act passed after the commencement of this Act ....” Section 13(1) of the Interpretation Act, 1923 applies only where the Act repealing and re-enacting was passed after its commencement. On this, see argument of Counsel in McGonagle v McGonagle [1951] I.R. 123 at p. 124.

 

 

fourteen or a girl under sixteen to be in a street or licenced premises for the purpose of singing, playing or performing, or being exhibited for profit, or offering anything for sale between nine p.m. and six a.m.; (ii) causing a child under eleven to be in a street or certain other places for the purpose of singing, playing or performing, or being exhibited for profit, or offering anything for sale; and (iii) causing any child under sixteen to be trained as an acrobat, contortionist or circus performer, or for any exhibition or performance which in its nature is dangerous.

In the case of offences under the enactments in the Schedule to the Criminal Justice (Evidence) Act, 1924, it was clear that by virtue of section 4(1) a spouse was competent for the prosecution and for a co-accused without the consent of the accused spouse. What was not so clear was whether competence implied compellability in this context. The matter had arisen in England in Leach v R.²⁴ on the construction of their Criminal Evidence Act, 1898 whose terms were identical to section 4(1) of the Criminal Justice (Evidence) Act, 1924. The House of Lords decided that the provision in the Criminal Evidence Act, 1898 that the wife of the person charged may be called as a witness for the prosecution without the consent of the person charged did not make the wife a compellable witness. Lord Atkinson, who was, incidentally, the Irish Law Lord at the time, put their argument for rejecting the submission that competence should imply compellability in accordance with the normal common law rule:

There has been no Irish decision on the point. The decision may be criticised on the ground that if compellability was not intended when it was stated that the spouse “may be called as a witness”, section 4(1) would have followed the terminology of section 1 and merely declared that the spouse

24 [1912] AC 305.   25 Ibid., at p. 311.

 

 

was “competent”. However it is unlikely that section 4(1) of the Criminal Justice (Evidence) Act, 1924 would have followed verbatim the English Criminal Evidence Act, 1898 had the decision in Leach v R. not been accepted by the Irish draftsman. In these circumstances that decision, if not actually binding, must be regarded as the strongest persuasive authority that in prosecutions for offences under the enactments in the Schedule to the Criminal Justice (Evidence) Act, 1924 a spouse is not compellable for the prosecution or for the defence.

It was also unclear if the Criminal Justice (Evidence) Act 1924 was intended to contain an exhaustive list of the enactments under which the spouse of the accused was to be a competent witness for the prosecution or for a co-accused without the accused spouse's consent.²⁶ If it was, the effect of the Act would have been to restrict the competence of spouses as many existing enactments which had made a spouse competent to testify were not included in the Schedule.²⁷ This question arose directly in McGonagle v McGonagle in 1951.²⁸ A husband was charged with wilful neglect of a child contrary to section 12 of the Children Act, 1908. Under section 133(28) of that Act the wife or husband of the person charged with that offence was competent but not compellable to give evidence. Objection was, however, taken to calling the wife in this case on the ground that the Children Act, 1908 was not among the enactments listed in the Schedule to the Criminal Justice (Evidence) Act, 1924. It was held by the Supreme Court

26 The debates in the Oireachtas on the legislation are not helpful on this point. Hugh Kennedy, the Attorney General, had drafted the Bill but did not participate in the debates as he had been appointed Chief Justice before its introduction. In his absence the speeches on the Bill were short and uninformative. (See Dail Debates vol. 7, cols 1914–5, 2649–53; Seanad Debates, vol. 3, cols 840–3, 900–2).   27 The list of enactments in the Schedule was more restricted than those included in the corresponding legislation in Northern Ireland, the Criminal Evidence (Northern Ireland) Act, 1923. Notable differences were the omission from the Schedule of the Irish Free State legislation of the Criminal Law Amendment Act, 1885, which dealt mainly with sexual offences against young girls, and the Punishment of Incest Act, 1908.   28 [1951] I.R. 123.

 

 

that the wife was competent by virtue of section 133(28) of the Children Act, 1908 notwithstanding the omission of that statute from the Schedule to the Criminal Justice (Evidence) Act, 1924. In his judgment O'Byrne J. (with whom Maguire C.J. agreed) said:

Later in his judgment O'Byrne J. remarked:

 

 

In his concurring judgment in the Supreme Court, Black, J. said:

Nor was he prepared to imply repeal because the reference in the Schedule to the Criminal Justice (Evidence) Act, 1924 to certain sections of the Offences Against the Person Act, 1861 would have been otiose if section 133(28) of the Children Act, 1908 and the First Schedule to that Act had not been repealed.

The final argument in favour of repeal was based on section 5 of the Criminal Justice (Evidence) Act, 1924 which provides:

 

 

Black, J. disposed of this briefly:

If section 133(28) of the Children Act, 1908 is not repealed by the Criminal Justice (Evidence) Act, 1924, the same must be true of other pre-1924 statutes making the spouse of the accused competent or compellable to testify in criminal trials which were not listed in the Schedule to that Act.²⁹ The following pre-1924 statutes dealing with the competence of the spouse of the accused in criminal trials are still in force:

Legislation subsequent to the Criminal Justice (Evidence) Act, 1924 has extended the competence of a spouse of the accused still further. However the inconsistency in drafting terminology to effect this end noted in relation to the pre-1924 legislation has been repeated. The Public Assistance Act, 1939, having provided for the offence of deserting or wilfully neglecting a wife or child (which was abolished by section 24 of the Social Welfare (Supplementary Welfare Allowances) Act, 1975), went on in the same section to state that “subsection (1) of section 4 of the Criminal Justice (Evidence) Act, 1924 .... shall apply and have effect in relation to persons charged with an offence under this section as if this section were mentioned in the Schedule to that Act”.⁷⁵ On the basis of Leach v R. the effect of this sub-section was to make the spouse of an

71 Dangerous Performances Act, 1879, section 3; Dangerous Performances Act, 1897, section 1.   72 Children Act, 1908, First Schedule.   73 Section 7(6) of the Criminal Law Amendment Act, 1912, provides:   “The wife or husband of a person charged with an offence under either of the said Acts may be called as a witness either for the prosecution or defence and without the consent of the person charged ....”: (The other Act referred to is one applying only to Scotland, the Immoral Traffic (Scotland) Act, 1902.)   74 Vagrancy Act, 1898, section 1.   75 Section 83(2).

 

 

accused competent but not compellable for the prosecution and for a co-accused of the spouse without the consent of the latter. By virtue of section 1 of the Criminal Justice (Evidence) Act, 1924 such a spouse was competent to testify for the spouse charged. The same situation obtains by virtue of the Married Women's Status Act, 1957 (whose wording is akin to section 4(1) of the Criminal Justice (Evidence) Act, 1924) where criminal proceedings are brought against one spouse for the protection and security of the other spouse's property.⁷⁶ Under the Redundancy Payments Act, 1967 the wife or husband of the person charged is competent but not compellable to give evidence whether for or against that person.⁷⁷ No provision is made in relation to a spouse giving evidence for a co-accused of the other spouse but it appears that the spouse of an accused is competent for a co-accused by virtue of the Criminal Justice (Evidence) Act, 1924⁷⁸ and so only where the accused spouse consents.

Offences under the Redundancy Payments Act, 1967 are (i) the failure of an employer to give notice of redundancy a fortnight before dismissal,⁷⁹ (ii) his failure to give a redundancy certificate,⁸⁰ (iii) furnishing false information

76 Section 9(4) of the Married Women's Status Act, 1957 provides:   “In any criminal proceedings to which this Section relates brought against one spouse, the other spouse may, notwithstanding anything to the contrary in any enactment or rule of law, be called as a witness either for the prosecution or defence and without the consent of the person charged.”   77 Section 45 of the Act provides:   “Section 53 of the Act of 1952 [now section 116 of the Social Welfare (Consolidation) Act, 1981] shall apply in relation to offences under this Act or under regulations thereunder as it applies to offences under the Act of 1952 or to offences under regulations thereunder ....”: For the text of section 116 see infra, fn. 84.   78 Criminal Justice (Evidence) Act, 1924), section 1(c). For text see supra, p. 6.   79 Section 17.   80 Section 18.

 

 

in a notice of redundancy or a redundancy certificate,⁸¹ (iv) giving false information when seeking a rebate on a redundancy payment made to an employee⁸² and (v) the failure to produce documents where the Redundancy Fund is liable for the payments due from an insolvent employer.⁸³

Under the Social Welfare (Consolidation) Act, 1981, Part II, the wife or husband of the person charged is competent to give evidence, whether for or against that person, but is stated not to be compellable.⁸⁴ No provision is made for evidence given by one spouse on behalf of a co-accused of the other spouse but it would appear that the spouse of an accused is competent for a co-accused by virtue of the Criminal Justice (Evidence) Act, 1924⁸⁵ and so only where the accused spouse consents. Offences under Part II of the Social Welfare (Consolidation) Act, 1981, which is the governing legislation of the Social Insurance system, are (i) obstruction of an inspector or the refusal to furnish information; (ii) misuse of insurance cards; (iii) making false representations to obtain a benefit; (iv) failure to pay employment contributions; and (v) wrongful deduction of

81 Sections 17, 18.   82 Section 36.   83 Ibid.   84 The Social Welfare (Consolidation) Act, 1981, section 116(4) of which consolidates section 52 of the Social Welfare Act, 1952 reads:   “In any proceedings for an offence under this Part of under regulations made under or applying the provisions of this Part, the wife or husband of the person charged with the offence shall, notwithstanding any other Act, be competent to give evidence, whether for or against that person, but the wife or husband shall not be compellable either to give evidence or, in giving evidence, to disclose any communication made to her or him, as the case may be, during the marriage by that person.”   85 See Criminal Justice (Evidence) Act, 1924, section 1(c). For text, see supra, pp. 5–6.

 

 

such contributions from an employee's remuneration.⁸⁶ Part III, Chapter II, of the same Act, which consolidates the Unemployment Assistance Act, 1933 and the Unemployment Assistance (Amendment) Act, 1935 provides that the wife or husband of a person charged with an offence under the Chapter may be called as a witness either for the prosecution or the defence and without the consent of the person charged.⁸⁷ On the basis of Leach v R., it does not appear that the spouse of an accused is ever compellable under this provision. Offences chargeable under this Chapter are (i) the failure by the holder of a “qualification certificate” to inform a deciding officer that his means have increased or that he otherwise no longer fulfils the conditions specified in the certificate;⁸⁸ (ii) the failure by such a holder to deliver up his certificate when it is determined that he is not entitled to it:⁸⁹ and (iii) the making of a false statement to obtain a

86 Social Welfare (Consolidation) Act, 1981, sections 114(4), 115(1) (2). For offences under regulations made pursuant to the Social Welfare (Consolidation) Act, 1981, section 116, see Social Welfare (Claims and Payments) Regulations, 1952, Article 19; Social Welfare (Collection of Employment Contributions by the Collector General) Regulations, 1979, Article 19; Social Welfare (Collection of Employment Contributions for Special Contributors) Regulations, 1979, Article 21; Social Welfare (Contributions) (Transitional) Regulations, 1979, Article 7.   87 Social Welfare (Consolidation) Act, 1981, section 145(4) the full terms of which are as follows:   “The wife or husband of a person charged with an offence under this Chapter may, notwithstanding anything contained in section 1 of the Criminal Justice (Evidence) Act 1924, be called as a witness either for the prosecution or the defence and without the consent of the person charged.”   88 Section 141(1) consolidating the Unemployment Assistance (Amendment) Act, 1935, section 7 and the Social Welfare (No. 2) Act, 1976, section 9.   89 Section 141(3).

 

 

qualification certificate or any payment or to avoid a repayment.⁹⁰

Two classes of case where the spouse of an accused may be called as a witness were stated by the Criminal Justice (Evidence) Act, 1924 to be unaffected by its provisions. One had been created by the Evidence Act, 1877, section 1 of which provides:

The second were cases where at common law the wife or husband of a person charged with an offence might be called as a witness.⁹² As has been noted, the most important such case is a charge of personal violence to the spouse. At that time there was no authority either in England or Ireland as to whether the injured spouse was compellable as well as competent on such a charge. Then in R. v

90 Section 144, consolidating the Unemployment Assistance Act, 1933, section 29, Unemployment Assistance (Amendment) Act, 1935, section 14, Unemployment Assistance (Amendment) Act, 1938, section 8, and the Social Welfare (No. 2) Act, 1976, section 9.   91 The Criminal Justice (Evidence) Act, 1924, section 5 provides:   “This Act shall apply to all criminal proceedings, notwithstanding any enactment in force at the commencement of this Act, except that nothing in this Act shall affect the Evidence Act, 1877.”   92 The Criminal Justice (Evidence) Act, 1924, section 4(2) provides:   “Nothing in this act shall affect a case where the wife or husband of a person charged with an offence may at common law be called as a witness without the consent of that person.”

 

 

Lapworth⁹³ the Court of Criminal Appeal in England, while accepting that there was no direct authority on the point, held that a wife had been rightly compelled to give evidence against her husband on a charge of causing her grievous bodily harm. That case held the field until 1978 when in Hoskyn v Commissioner for Metropolitan Police⁹⁴ the House of Lords held by a majority of four to one that a wife ought not to have been compelled to give evidence against her husband who was charged with wounding her with intent to do grievous bodily harm. Lord Wilberforce, summing up, argued:

Lord Dilhorne, concurring, said that he would find it “very repugnant” if a wife could be compelled at the instance of any prosecutor to testify against her husband on a charge involving violence, no matter how trivial and no matter what the consequences to her marriage and to her family.⁹⁶ Lord Salmon referred to the fact that under the Criminal Evidence Act, 1898 it had been held that a wife was not compellable to testify against her husband on charges of incest against his daughter⁹⁷ although this was a far more serious case

93 [1931] 1 K.B. 117.   94 [1979] A.C. 474.   95 Ibid., at p. 488.   96 Ibid., at p. 494.   97 Leach v R., [1912] AC 305.

 

 

than a husband's physical violence against his wife. But Lord Edmund Davies, dissenting, relied on the general principle that competent witnesses are compellable. Taking up Lord Dilhorne's reference to cases of trivial violence he countered:

It cannot be regarded as certain that the majority opinion of the House of Lords in Hoskyn v Commissioner of Metropolitan Police would be followed in Ireland. It is noteworthy that there are judgments in Australia (by Gavan Duffy,J.) New Zealand and Canada favouring the view that one spouse is compellable for the prosecution where the other spouse is charged with violence to her.⁹⁹ But equally there are other judgments in Australia and one in Canada favouring the view taken in Hoskyn v Commissioner of Metropolitan Police.¹⁰⁰

98 [1979] A.C. 474, at p. 507.   99 Sharpe v Rodwell [1947] V.L.R. 82; R. v Haukaman [195L] N.Z.L.R. 251; R. v Londsdale [1974] W.W.R. 157, (1973) 15 C.C.C. (2d) 201.   100 Riddle v R. (1911) 12 C.L.R. 620; R. v Phillips (1922) S.A.S.R. 276; R. v Carter [1970] 5 C.C.C. 1550.

 

 

The position of a spouse who being a competent but not compellable witness, chooses to give evidence was considered in 1982 by the Court of Appeal in England in R. v Pitt.¹⁰¹ It was held that

Although denying any intention to lay down any rule of practice for the future, the Court went on to state that it was “desirable that where a wife is called as a witness for the prosecution of her husband, the judge should explain to her, in the absence of the jury, that before she takes the oath she has the right to refuse to give evidence but that if she chooses to give evidence she may be treated like any other witness”.

Former Spouses

There have been no reported cases in Ireland on the competence and compellability of former spouses in criminal cases. In England the Court of Criminal Appeal has held that a wife is incompetent to testify against a man with whom she has had a voidable marriage, which was later annulled, when the charges related to events which occurred before the annulment.¹⁰² Presumably the same principle

101 [1982] 3 All E.R. 63.   102 R. v Algar, [1954] 1 Q.B. 279.

 

 

would be applied where there had been a divorce. In a later case a husband was held not competent to testify against a wife from whom he was judicially separated even as to matters occurring after the judicial separation.¹⁰³ Where a marriage is void, the rules making spouses incompetent or non-compellable have been held to have no application.¹⁰⁴

Communications Between Husband and Wife

Closely associated with the law relating to the competence and compellability of spouses is the privilege attaching to communications between spouses. The Evidence Amendment Act, 1853 which, as noted, made spouses competent and compellable witnesses in civil proceedings, also made provision that all communications between spouses should be privileged. Section 3, which so provided, reads as follows:

This provision was based on the Second Report of the Commissioners on Common Law Procedure who argued thus:

103 Moss v Moss [1963] 2 Q.B. 799.   104 R v Yacob (1981) 72 Cr. App. Rep. 313.   105 Cited in Shenton v Tyler [1939] 1 All E.R. 827 at p. 833 (per Sir Wilfred Greene M.R.).

 

 

Where, by virtue of some other statute, a spouse is competent to testify in cases where the other spouse is charged, it seems that section 3 of the Evidence Amendment Act, 1853 is effective to confer this privilege although, when passed, it could not have had any application to criminal proceedings as neither the accused nor the spouse of the accused was then ever competent to give evidence in them.¹⁰⁶ In the case of a spouse-witness called by virtue of the Criminal Justice (Evidence) Act, 1924 this position is confirmed by Section 1 (d) which provides:

A number of features of this privilege should be noted. Only the spouse to whom the communication is made and not the spouse by whom it is made is entitled to claim privilege. Thus in the Scots case of H. M. Advocate v H. D.¹⁰⁷ an accused husband was unable to prevent his wife from waiving this privilege and disclosing the contents of a relevant statement made by him to her. In England the House of Lords has held that a marital communication is not privileged at the instance of either spouse if evidence of it is given by a third party.¹⁰⁸ Accordingly the prosecution was entitled to tender in evidence a letter admitting a crime written from the accused to his wife which had been intercepted by the police. In both England and Canada it has been held that the privilege may not be claimed after the marriage has ended even if the

106 In fact one such statute viz., the Social Welfare (Consolidation) Act, 1981, section 116(4) contains a provision that a wife or husband should not be compellable to disclose any communication made to her or him during the marriage.   107 1953 S.C. (J.) 65.   108 Rumping v Director of Public Prosecutions [1964] A.C. 814. However there was a powerful dissent by Lord Radcliffe which might well be followed in Ireland.

 

 

communication had been made while the marriage subsisted.¹⁰⁹ In Canada, in a case early in the century, the Supreme Court decided that a privilege relating to communications did not extend to facts discovered so as to enable a wife to refuse to testify as to the bloodstained condition of the clothing her accused husband had left in their house.¹¹⁰ In Ireland the existence of a constitutional right to marital privacy in the context of sexual relations and procreation was recognised by the Supreme Court in McGee v Attorney General.¹¹¹ But the relevance of any such right to the confidentiality of verbal or written communications between spouses or of other facts discovered during a marriage has not so far been canvassed in any reported case. It has also been recognised by the Supreme Court that evidence obtained as a result of a conscious and deliberate violation of the constitutional rights of the accused, such as the inviolability of the dwelling, is not admissible.¹¹² In application of this principle, photographs and letters taken by a separated wife from her husband's house years after the separation have been ruled inadmissible in an application for maintenance brought by the wife.¹¹³

Privilege Against Self-Incrimination

Another privilege relevant to cases where it is proposed to call a spouse of a party to testify is that against self-incrimination. While the point has never been authoritatively decided there are judicial dicta to support

109 Shenton v Tyler [1939] Ch. 620; Regina v Kanester (1906), 55 W.W.R. 705: [1966] S.C.R.V., 57 W.W.R. 576. However, see also Connolly v Murrell (1891), P.R. 187, 270 where the opposite view was taken.   110 Gosselin v The King (1903), 33 S.C.R. 255. A different view has been taken in some jurisdictions in the United States. See Shephard v State, 257 Ind. 229, 277 N.E. 2d 165 (1971).   111 [1974] IR 284.   112 The People (Attorney General) v O'Brien [1965] I.R. 142.   113 O.C. v T.C., unreported, High Court, McMahon, J., 9 December 1981, reproduced in William Binchy, A Casebook on Irish Family Law, p. 221.

 

 

the view that this privilege extends to answers tending to incriminate the witness's spouse.¹¹⁴ In the Criminal Justice (Evidence) Act, 1924, there is no reference to the right of a spouse-witness to refuse to answer a question on grounds of self-incrimination or spouse-incrimination although there is a provision that an accused giving evidence in pursuance of the Act “may be asked any question in cross-examination notwithstanding that it would tend to incriminate him as to the offence charged.”¹¹⁵ The exact scope of this privilege is unsettled in other respects, notably whether it covers matrimonial offences, such as adultery,¹¹⁶ and whether it extends to incrimination under foreign law.¹¹⁷

114 Cross on Evidence, p. 230 (3rd ed., 1967); R. v All Saints, Worcester (1817) 6 M. & S. 194, at p. 210, per Bayley, J.   115 Criminal Justice (Evidence) Act, 1924, section 1 (e).   116 Redfern v Redfern [1891] P 139 at p. 147, per Bowen, L.J.; Blunt v Park Lane Hotel Ltd. [1942] 2 K.B. 253.   117 The State (Magee) v O'Rourke [1971] I.R. 205.

 

 

CHAPTER 2 PROPOSALS FOR REFORM

1. Civil Proceedings

The Commission is of the opinion that the doubts existing in relation to the competence and compellability of spouses in civil cases should be resolved. It sees no reason why spouses should not be compellable in proceedings instituted in consequence of adultery when they are compellable in every other class of civil action. As regards former spouses it would be absurd if they were not competent and compellable when existing spouses are. Accordingly the Commission recommends that the provisions which have given rise to doubts viz., sections 1 and 2 of the Evidence Act, 1853 and section 3 of the Evidence Further Amendment Act, 1869 should be repealed and replaced by a provision stating that a present or former spouse of a party to civil proceedings shall be a competent and compellable witness.

2. Criminal Proceedings

(a) Competence of the Spouse of an Accused for the Prosecution.

The present list of exceptions to the general rule that spouses are incompetent to testify is difficult to justify on any rational basis. Why should the wife of an accused be a competent witness on any charge involving bodily injury to a child and not on a charge of incest against the same child? Why should the wife of a person accused of a breach of a “barring order” under the Family Law (Protection of Spouses and Children) Act, 1981 where no violence to that spouse is involved not be a competent witness when she would be competent on a charge of an offence against her property under the Married Women's Status Act, 1957? It is clearly anomalous that the wife of an accused should be competent on charges of sexual offences under the Criminal Law Amendment Act, 1885 but not in the case of similar offences under the Criminal Law Amendment Act, 1935. It is difficult to find any justification apart from a feeling of tenderness for the Central Fund for the special treatment of offences under the Redundancy Payments Act, 1967 and the Social Welfare (Consolidation) Act, 1981. It cannot be said either that they are exceptionally serious

offences or that their proof is likely to depend on the testimony of a spouse.¹

However the problem of deciding on the offences where the spouse of an accused should be made competent for the prosecution would not arise if there were no general rule that such a spouse is incompetent to testify for the prosecution. As recently as 1958, the United States Supreme Court upheld this rule on the ground that “adverse testimony given in criminal proceedings would be likely to destroy any marriage”.² However that Court has subsequently modified its position and has held that an accused may not prevent his spouse testifying for the prosecution as “the witness spouse alone has a privilege to refuse to testify adversely and may be neither compelled to testify nor foreclosed from testifying”.³ In Australia a spouse is always competent to testify for the prosecution against the other spouse.⁴ In England, the Criminal Law Revision Committee, which reported in 1972, had “no doubt that the wife should be made competent as a witness for the prosecution in all cases”:⁵

1 In fact there is no record that a spouse has ever testified for the prosecution in such a case.   2 Hawkins v United States (1958) 358 U.S. 74 at p. 87, per Black, J.   3 Trammel v United States (1979) 445 U.S. 40 at p. 53.   4 Crimes Act, 1906, section 407 (New South Wales); Evidence Act, 1906, section 8(1) (Western Australia); Crimes (Competence and Compellability of Spouse Witnesses) Act 1978, section 3 substituting a new section 400 in the Crimes Act, 1958 (Victoria); Evidence Amendment Act, 1981 section 6(6) substituting a new section 85 in the Evidence Act 1910 (Tasmania); Evidence Act Amendment Act (No.2), 1983, section 4 substituting a new section 21 in the Evidence Act 1929–1982 (South Australia).   5 In their treatment the committee assumed for the sake of simplicity that the husband was the accused spouse and the prospective witness was the wife.

 

 

This recommendation was adopted in the Police and Criminal Evidence Act, 1984.⁷ The Law Reform Commission of Canada made a similar recommendation in 1975⁸ and it was adopted in the Canada Evidence Bill which received its first reading in Parliament in 1982. In a Discussion Paper published by the New South Wales Law Reform Commission in 1980 it was pointed out that a spouse had been competent in that jurisdiction since 1891 and so far as they were aware this had been fully accepted and they had never heard any claim that the long-established change should be reversed.⁹

6 Criminal Law Revision Committee, Eleventh Report: Evidence (General), para. 148.   7 Section 80(1).   8 Law Reform Commission of Canada, Report on Evidence, (1975) pp. 88–89.   9 New South Wales Law Reform Commission, Discussion Paper, Competence and Compellability (1980), para. 1.25A.

 

 

The matter is not without practical importance. The Director of Public Prosecutions has stated that the incompetence of a spouse as a witness for the prosecution has inhibited prosecutions:

In 1984, in a case where a husband was returned for trial by the District Court on a charge of bigamy, the D.P.P. announced that he was not lodging an indictment because the only witness in the Book of Evidence was the wife of the accused who was not a competent or compellable witness for the prosecution.¹¹

In making a recommendation on this matter the Commission is conscious of the provisions of Article 41 of the Constitution, especially Article 41.3.1. which provides:

10 Irish Press, 2 July 1979. In fact, by virtue of the Children Act, 1908, a wife is competent to testify against a husband charged with an offence involving bodily injury to a child as well as a number of other offences involving children. However the Director of Public Prosecutions may have had in mind charges of incest under the Punishment of Incest Act, 1908 or of the defilement of young girls under the Criminal Law Amendment Act, 1935, which are not covered by the provisions as to competence of spouses in the Children Act, 1908.   11 Irish Times, 3 November 1984.

 

 

However, it is not considered that the marriages would be endangered by making one spouse competent to testify against the other.¹²

Moreover, it may be argued that to deny to a court the right to hear a person willing to give relevant testimony in a matter before it is repugnant to the guarantee of fair procedures and the due administration of justice which have been held to be inherent in the Constitution. In S. v S., when holding unconstitutional the rule under which a party to a marriage was not allowed to give evidence of non-access during the marriage so as to bastardise a child born in wedlock, O'Hanlon, J. said:

12 “So far as competence is concerned .... can it be seriously maintained that many marriages would be saved from destruction if persons who were willing and anxious to do so were restrained from testifying against their spouse.” (Cross on Evidence, p. 183 (5th ed., 1979)).   13 [1983] I.R. 68, at p. 79.

 

 

Accordingly the Commission recommends that any rule of law making the spouse or former spouse of an accused incompetent as such to testify in criminal proceedings should be abolished.

(b) Compellability of the Spouse of an Accused for the Prosecution

Compellability on behalf of the prosecution is a more difficult question. Respect for the institution of marriage, enshrined in the Constitution, may be felt to require that one spouse should not be compelled to incriminate the other by testimony in court or be put in the invidious position of having to commit perjury so as to avoid this. Given the unity of husband and wife, the right of one spouse not to testify against the other may be considered to be a logical corollary of the right of an accused person not to give evidence at his own trial. It may also be presented as a consequence of the confidential relationship of spouses. As it was put in a Discussion Paper by the New South Wales Law Reform Commission:

The basic argument in favour of making the spouse of the accused compellable is that the public interest in the suppression of crime should be paramount. Whenever relevant evidence is withheld from a trial court there is interference with the due administration of justice and it is significant that the courts, relying on the Constitution,

14 New South Wales Law Reform Commission, Discussion Paper, Competence and Compellability (1980), para. 1.7.

 

 

have restricted rules of privilege having this effect.¹⁵ On some charges, notably those of domestic violence, often the only evidence available is that of the other spouse and it may be impossible to mount a successful prosecution if that spouse cannot be compelled to give evidence. Where the spouse is the victim of violence, given that consent is no defence under the substantive law on a charge of causing serious bodily harm, it is anomalous that the law of evidence should sanction what is, in effect, a retrospective evasion of that rule.¹⁶ Having regard to the fact that other relatives of the accused, such as parents and children, are compellable for the prosecution and to the compellability of a spouse of a party for either side in civil proceedings, the argument that it is intolerable that a spouse witness should be put in a position where there is a sharp conflict between the duty to tell the truth and family loyalty seems dubious. Indeed, it is arguable that compellability would be less detrimental to marital harmony than competence as more resentment may be excited if a spouse, being competent but not compellable, chooses to testify than if the testimony is extracted under compulsion of law.

The tendency in legislation in other common law jurisdictions has been to steer a middle course between total compellability and total non-compellability. This has sometimes involved making a spouse compellable in trials for enumerated offences. The offences named have generally been ones against the property or person of the other spouse, violence or sexual offences against children, and bigamy.¹⁷ They share the characteristic that the evidence of a spouse is often crucial to the prosecution in such cases.

This approach found favour with the English Criminal Law

15 See Murphy v Dublin Corporation [1972] I.R. 215; see also S. v S. [1983] I.R. 68.   16 Cross on Evidence, p. 177 (5th ed., 1979).   17 Married Women's Property Acts, 1884, section 1 (United Kingdom); Crimes Act, 1900, section 407 (New South Wales); Crimes Act, 1967, section 9 (Victoria); Evidence Act, 1977–1979, section 8 (Queensland); Evidence Amendment Act, 1981, section 6 substituting a new section 85 of the Evidence Act, 1910 (Tasmania); Police and Criminal Evidence Act, 1984, section 80 (England).

 

 

Revision Committee which reported in 1972 before the decision of the House of Lords in Hoskyn v Commission of Metropolitan Police.¹⁸ The Committee, which, as noted, assumed for simplicity of exposition that it was the husband who was the accused spouse, proceeded on the assumption that a wife was compellable on a charge arising out of personal violence towards her by her husband:

18 [1979] A.C. 474.

 

 

The Police and Criminal Evidence Act, 1984 adopted these recommendations in so far as it provided that the spouse of an accused was to be competent to give evidence for the prosecution in all criminal proceedings and compellable to give evidence where the offence charged involved an assault on or injury to that spouse. However the Act went further than the Report by making the spouse of an accused compellable when the latter was charged with injuring a child under sixteen or committing a sexual offence in respect of such a child irrespective of whether that child belonged to the same household.²⁰

This approach of listing specific offences has also found favour in Canada in the draft Canada Evidence Act presented to Parliament in 1982, and in Australia in reports of the South Australian Criminal Law and Penal Methods Committee, the Queensland Law Reform Commission, the Tasmanian Law Reform Commission, and the Law Reform Commission of Western Australia.²¹ The South Australian and Tasmanian bodies commented that the English report was over-restrictive in not extending the compellability of spouses to offences against all children rather than restricting it to cases where the child belonged to the same household as the

19 Criminal Law Revision Committee, Eleventh Report: Evidence (General), paras. 149–152.   20 Police and Criminal Evidence Act, 1984, section 80.   21 Uniform Law Conference of Canada, Uniform Evidence Act, (1981) sections 92, 93; Criminal Law and Penal Methods Reform Committee of South Australia, Third Report on Court Procedure and Evidence (1975), chapter 8; Queensland Law Reform Commission, The Law Relating to Evidence (1975), para. 8; Law Reform Commission (Tasmania), Competence and Compellability of Spouses to Give Evidence in Criminal Proceedings Preferred against the other Spouse (1977), pp. 9–10; Law Reform Commission of Western Australia, Report on Competence and Compellability of Spouses to Give Evidence in Criminal Proceedings, (1977), paras. 7, 16–17, 25.

 

 

accused. “It is better,” ran the argument “to go a little too far in the protection of children than to err in not giving sufficient protection.”²² The Western Australian Commission also decided against a limitation to children in the same household and then went further by recommending that a spouse of the accused should be compellable for all serious sexual offences and offences involving personal violence, or harm, irrespective of whether or not the victim is a member of the household or a child:

22 Law Reform Commission (Tasmania), Competence and Compellability of Spouses to Give Evidence in Criminal Proceedings Preferred against the other Spouse, (1977) p. 10.

 

 

Making spouses compellable in trials for enumerated offences has the advantage of precision. If it is considered that it is the gravity of the offence which makes compellability appropriate, this is a justifiable approach as long as all serious crimes are listed. Difficulty may arise because the gravity of many crimes, such as larceny, varies enormously according to the circumstances. If compellability of a spouse is justified on account of the difficulty of obtaining other evidence against the spouse charged, anomalies must result if a spouse is made compellable for some offences and not others. The evidence of a spouse may be crucial in some cases on charges other than those enumerated and unnecessary in some cases of the enumerated charges as when the accused has made a confession or damning forensic evidence is available. Also, it cannot be predicted that compelling a spouse to testify will be

23 Law Reform Commission of Western Australia, Report on Competence and Compellability of Spouses in Criminal Proceedings (1977), paras. 7.17–7.20.

 

 

disruptive of a marital relationship with one class of offence and not another. For these reasons the Law Reform Commissioner in Victoria, Australia, concluded

The Commissioner discounted the argument that “such a provision would leave the prosecution uncertain as to what evidence it would be able to elicit”:

Accordingly he recommended that not only the spouse but also the parent, child or de facto spouse of an accused should be exempted from the obligation to give evidence where the judge is satisfied

These recommendations were substantially adopted in Victoria by the Crimes (Competence and Compellability of Spouse Witnesses) Act, 1978.²⁷ A similar provision was enacted into law in South Australia by the Evidence Amendment Act (No. 2) 1983.²⁸ In Canada the same approach was recommended by their Law Reform Commission.²⁹

In a Discussion Paper published in 1980 the New South Wales Law Reform Commission made a proposal on spouse-witnesses which represented a synthesis between the two approaches. Having proposed that a spouse should be generally compellable on charges of violence or sexual misconduct in respect of that spouse or any child, they went on to suggest that this compellability should also extend to other cases where “in the opinion of the court, the interests of justice outweigh the importance of respecting the bond of marriage”. The Commission recommended that the court, when forming its opinion on this matter, should have regard to (a) the nature of the conduct charged; (b) the importance of the facts to which the wife may depose, and the availability of another mode of proof of those facts; (c) the likely weight of the

26 Ibid., para. 56.   27 Section 3 substituting a new section 400 in the Crimes Act, 1958.   28 Section 4 substituting a new section 21 in the Evidence Act, 1929–1982.   29 Canadian Law Reform Commission, Report on Evidence (1975), Draft Evidence Code, section 57.

 

 

wife's testimony; (d) the effect on the marriage of compelling a wife's testimony; (e) the hardship to the wife of testifying; (f) the effect on any child of the marriage; and (g) any other relevant factor.³⁰

A provision recognising compellability but making it subject to a wide discretion vested in the individual judge (or justice) might well just replace one set of anomalies with greater but better concealed anomalies in that no two judges will weigh the relevant factors alike. The result would then be some arbitrariness and uncertainty. Parties would not know in advance of the trial what evidence might be admitted and require to be answered. Problems might arise if the discretion were exercised differently at the preliminary examination from the trial itself. It would also be necessary to decide whether an appeal court should be entitled to interfere with the trial judge's exercise of discretion in the matter.³¹

The Commission is of the opinion that anomalies must inevitably arise if an attempt is made to make a spouse compellable for the prosecution in some cases and not in others. It is mindful that in the wake of Hoskyn v Commissioner of Metropolitan Police the weight of authority now favours the view that, apart from the Evidence Act, 1877, a spouse is never compellable to testify for the prosecution. It is not convinced that it is necessary at this stage to go further than making the spouse of an accused competent in all cases. This is the position in the United States. It is not aware that prosecutions have been prevented or have failed on account of the refusal of competent spouse witnesses to testify on behalf of the prosecution. Accordingly it recommends that it should be a general rule that a spouse is not compellable for the prosecution where the other spouse is charged with a criminal offence. The judge presiding at proceedings where a spouse of the accused is called as a witness by the prosecution should be required to satisfy himself that that

30 New South Wales Law Reform Commission, Discussion Paper, Competence and Compellability (1980), Appendix A, p. 84.   31 See Law Reform Commission of Western Australia, Report on Competence and Compellability of Spouses to give Evidence in Criminal Proceedings (1977), para. 7.13; New South Wales Law Reform Commission, Discussion Paper on Competence and Compellability (1980), Appendix B (pp. 86–90).

 

 

spouse is aware of his or her right to refuse to testify. As indictments for nuisance to a highway, or otherwise for the enforcement of a purely civil right under the Evidence Act 1877 are obsolete, there is no need to preserve the rule making spouses compellable witnesses in such cases as an exception to the general rule here proposed.

However the Commission believes that special provision should be made for joint trials where the evidence of a spouse of one accused may be relevant to secure the conviction of a co-accused. Accordingly, the Commission recommends that in joint trials the spouse of an accused should be a competent and compellable witness to give evidence for the prosecution but, when so testifying, should be entitled to refuse to answer any question or to produce any document if to do so would tend to incriminate the spouse accused.

(c) Compellability of the Spouse of an Accused for that Accused

It is already the law in Canada, Queensland, South Australia and England that one spouse is compellable to give evidence for the other spouse when the latter is accused.³² The English Criminal Law Revision Committee, the Victorian Law Reform Commissioner, the Law Reform Commission of Western Australia and the Discussion Paper of the New South Wales Law Reform Commission and the Research Paper of the Australian Law Reform Commission have all recommended that the law in their respective jurisdictions should be amended

32 Canada Evidence Act, section 4; Evidence Act, 1977–1979, section 8(3) (Queensland); Crime (Competence and Compellability of Spouse Witnesses) Act, 1978, section 2, substituting a new section 399 in the Crimes Act 1958 (Victoria); Evidence Amendment Act (No. 2), 1983, section 4 substituting a new section 21 of the Evidence Act 1929–1982 (South Australia); Police and Criminal Evidence Act, 1984, section 80(2) (England).

 

 

to achieve this.³³ in support of their recommendation which was enacted into law by the Police and Criminal Evidence Act 1984 the English Criminal Law Revision Committee argued thus:

However, the Law Reform Commission in Tasmania, which reported on the subject in 1977, came to a different conclusion:

33 Criminal Law Revision Committee, Eleventh Report, Evidence (General) (1972) para. 153; Victoria Law Reform Commissioner, Report: Spouse-Witness (Competence and Compellability) (1976), para. 40; Law Reform Commission of Western Australia, Report on Competence and Compellability of Spouses to give Evidence in Criminal Proceedings (1977), paras. 7.14–7.15; New South Wales Law Reform Commission, Discussion Paper, Competence and Compellability (1980), paras. 1.24–1.25c; the Australian Law Reform Commission, Evidence Reference, Research Paper No. 5 (1981) p. 75.   34 Criminal Law Revision Committee, Eleventh Report: Evidence (General) (1972) para. 153.

 

 

The Commission is firmly of the view that it would be intolerable if a person accused of a criminal offence were unable to compel testimony from the other spouse which might help to disprove the charge. It does not agree that compellability would result in more intimidation of spouse witnesses than would occur if they were merely competent. It may be anticipated that cross-examination will be effective to expose false testimony which is the result of intimidation. If a spouse is compellable for the defence it would make it legitimate to draw inferences where that spouse is not called. This would offset to some extent any unfair disadvantage at which the prosecution may find itself as a result of not being able to compel an unwilling spouse to testify. Accordingly the Commission recommends that, except in cases where spouses are jointly accused, one spouse should be compellable to give evidence for the other spouse when the latter is charged with a criminal offence.

(d) Comment by the Prosecution on Failure of Spouse to Testify

The prohibition on comment by the prosecution on the failure of the spouse of the accused to give evidence was examined by the English Criminal Law Revision Committee in 1971:

35 Law Reform Commission (Tasmania), Competence and Compellability of Spouses to Give Evidence in Criminal Proceedings Preferred Against the Other Spouse, (1977), p. 11. The Evidence Amendment Act 1981, section 6 substituting a new section 85 in the Evidence Act, 1910 followed this recommendation. The argument was criticised in the Research Paper No. 5 of the Australian Law Reform Commission on Competence and Compellability of Witnesses, p. 77.

 

 

However, the Police and Criminal Evidence Act, 1984 has maintained the prohibition.³⁷ The Commission is inclined

36 Criminal Law Revision Committee, Eleventh Report: Evidence (General), (1972), para. 154. The Law Reform Commission of Western Australia reached the same conclusion: see Report on Competence and Compellability to Give Evidence in Criminal Proceedings (1977), paras. 7.40–7.43.   37 Police and Criminal Evidence Act, 1984, section 80(8).

 

 

to the view that the balance is tilted sufficiently in favour of the accused if (as is recommended) a spouse is compellable for him and not for the prosecution. The present prohibition of comment by the prosecution on the failure of a spouse to testify exists in a context where one spouse cannot be compelled to give evidence for the defence on behalf of the other spouse. It would be unfair if an accused had inferences drawn against him where his or her spouse had refused to testify for the defence although requested to to so.³⁸ This situation cannot arise once a spouse is made compellable for the defence on behalf of the other spouse. In these circumstances the Commission recommends that it should be permissible for the prosecution as well as the judge to comment on the failure of the spouse of an accused to give evidence in criminal proceedings and section 1(b) of the Criminal Justice (Evidence) Act, 1924 should be repealed in so far as it prohibits such comment by the prosecution.

(e) Compellability of the Spouse of an Accused for a Co-Accused

A more difficult problem arises where one accused wishes to call the spouse of a co-accused. At present the general rule established by section 1(c) of the Criminal Justice (Evidence) Act, 1924 is that such a spouse is competent only upon the application of the accused spouse. Some exceptions to that rule were created by that Act itself.³⁹ Others exist by virtue of previous and subsequent

38 A different view has been taken in Tasmania: see the Evidence Amendment Act, 1981, section 6 substituting a new section 85 in the Evidence Act, 1910. Their Law Reform Commission Report, on whose recommendation the legislation was based, had argued that there was no reason why the prosecution should be denied the right to comment when the judge had such a right and when the prosecution had such a right of comment in respect of other witnesses. (Competence and Compellability of Spouses to Give Evidence in Criminal Proceedings Against the Other Spouse (1977), p. 11.)   39 See supra, p. 7.

 

 

legislation.⁴⁰ This question was considered in England by the Criminal Law Revision Committee which recommended “that the wife of accused A should be competent to give evidence on behalf of his co-accused B whether or not A is willing”:⁴¹

40 Licensing Act, 1872, section 51(4); Conspiracy and Protection of Property Act, 1875, section 21; Corrupt and Illegal Practices Prevention Act, 1883, section 53(2); Criminal Law Amendment Act, 1885, section 20; Chaff-Cutting Machines (Accidents) Act, 1897, section 5; Summary Jurisdiction (Ireland) Act, 1908, section 1; Children Act, 1908, section 133(28); Criminal Law Amendment Act, 1912, section 7(6); Public Assistance Act, 1939, section 83(2); Married Women's Status Act, 1957, section 9(4); Social Welfare (Consolidation) Act, 1981, section 145(4).   41 Criminal Law Revision Committee, Eleventh Report: Evidence (General) (1972), para. 155.

 

 

The conclusion that as a general rule the spouse of an accused should be competent for a co-accused without that accused's consent but that such a spouse should not, apart from exceptional cases, be compellable was given effect by the Police and Criminal Evidence Act, 1984.⁴³ This is the law in a number of the Australian States.⁴⁴ A different view was taken by the Victoria Law Reform Commissioner⁴⁵ and the Law Reform Commission of Western Australia.⁴⁶ The former stated his argument thus:

42 Ibid.   43 Section 80(1), (3).   44 Crimes Act, 1900, section 407 (New South Wales); Evidence Act, 1977–1979, section 8 (Queensland); Evidence Amendment Act, 1981, section 6 substituting a new section 85 in the Evidence Act, 1910 (Tasmania).   45 Victoria Law Reform Commissioner, Report: Spouse-Witness (Competence and Compellability) (1976), para. 58.   46 Law Reform Commission of Western Australia, Report on Competence and Compellability of Spouses to Give Evidence in Criminal Proceedings, (1977), paras 7.26–7.32.

 

 

Legislation in Victoria and South Australia has adopted this recommendation.⁴⁸ The conflicting policy-ends involved could, in theory, be reconciled by providing that an accused would be entitled to a separate trial if the spouse of another accused indicates unwillingness to testify on his or her behalf. But it is feared that such an extension of the right to a separate trial would inhibit prosecutions unduly. A less drastic solution would be to give the spouse of an accused called by a co-accused the right not to answer a question if the answer would tend to incriminate the spouse who is accused. This might sometimes result in the accused being denied the right to have evidence adduced which might exculpate him. But this already happens at a joint trial if one accused, whose evidence would exculpate another accused, elects not to testify. In all the circumstances, therefore, the Commission recommends that the spouse of an accused should be competent and compellable to give evidence on behalf of a co-accused but a spouse so testifying should be entitled to refuse to answer any question or produce any document if to do so would tend to incriminate the spouse who is accused.

(f) Former and Separated Spouses

The position of former and separated spouses merits separate consideration. A number of law reform bodies have recommended that spouses whose marriage has terminated

47 Victoria Law Reform Commissioner, Report: Spouse-Witnesses (Competence and Compellability) (1976). para. 58.   48 Crimes (Competence and Compellability of Spouse Witnesses Act, 1978 substituting a new section 399 in the Crimes Act, 1958 (Victoria); Evidence Act Amendment Act (No.2), 1983 substituting a new section 21 in the Evidence Act 1929–1982 (South Australia).

 

 

should be treated in the same way as strangers.⁴⁹ Consequently compellability would extend even to events occurring during the marriage. In England, the Police and Criminal Evidence Act, 1984 provides that in any proceedings a person who has been but is no longer married to the accused should be competent and compellable to give evidence as if that person and the accused had never been married.⁵⁰ In Tasmania the Evidence Amendment Act, 1981, which provides that a spouse of the defendant is, as a general rule, not compellable, defines a spouse as a person who is married to the defendant both at the time of trial and when the offence was alleged to have been committed.⁵¹ Consequently, not only is a former spouse generally compellable to testify for the prosecution but a present spouse is compellable where the offence was committed before the marriage.

The question is of marginal significance in Ireland at present as the only form of divorce available is judicial separation (divorce a mensa et toro) and this is seldom sought by estranged spouses as orders for maintenance and for the custody of children can be obtained without seeking judicial separation. Foreign divorces have been recognised only where at the time of the divorce the parties were domiciled in the country where the divorce was granted.⁵²

49 Criminal Law Revision Committee (England), Eleventh Report: Evidence (General) (1972), para. 157; Law Reform Commissioner of Victoria, Report: Spouse-Witnesses (Competence and Compellability) (1976), para. 65; New South Wales Law Reform Commission, Discussion Paper: Competence and Compellability (1980), para. 1.33.   50 Police and Criminal Evidence Act, 1984, section 80(5); see also the Victoria Crimes (Competence and Compellability of Spouse Witnesses) Act, 1978, sections 2 and 3 substituting new sections 399 and 400 in the Crimes Act, 1958, where former spouses are made generally compellable and no provision is made for exempting them as is done for present spouses.   51 Evidence Amendment Act, 1981, section 6 substituting a new section 85(3) in the Evidence Act, 1910.   52 Bank of Ireland v Caffin, [1971] I.R. 123; Gaffney v Gaffney [1975] I.R. 133; T. v T., [1983] I.R. 29. See also Law Reform Commission Working Paper No. 11–1984, Recognition of Foreign Divorces and Legal Separations; Law Reform Commission, Report on Recognition of Foreign Divorces and Legal Separations (LRC 10–1985), especially Chapter 2.

 

 

The Commission believes that the reticence of a former spouse as to events occurring during a marriage is entitled to the same respect as that of a present spouse. As regards events occurring during a marriage a former spouse should not therefore be compellable if a present spouse would not be compellable.

Accordingly, the Commission recommends that a former spouse of an accused should be competent and compellable to give evidence for any party in criminal proceedings but (i) if called by the prosecution, such a former spouse should not be compelled to answer any question relating to events which occurred while the marriage was still subsisting and (ii) if called by a co-accused such a former spouse should not be compelled to answer any question or to produce any document if to do so would tend to incriminate the former spouse accused relative to an event which occurred while the marriage was still subsisting.

The next question is whether estranged spouses who are not divorced should be treated as if they are married. In England, the Criminal Law Revision Committee concluded that they should be so treated:

The Commission does not share the view that it is impossible to make a satisfactory distinction between judicial separation and other forms of de facto separation.⁵⁴ It is considered that judicial separation should be treated on the same basis as divorce so that a spouse should be compellable to testify as to events occurring before the marriage and since the separation. In theory it would be possible to frame a wider definition of a separated spouse to include cases where there is a separation agreement or where spouses are not co-habiting and an order has been made under the Guardianship of Infants Act, 1964, the Family Law (Maintenance of Spouses and Children) Act, 1976 or the Family Law (Protection of Spouses and Children) Act, 1981. However, it is difficult to justify a distinction between such cases and those where spouses separate without making provision for children or maintenance. It is considered that it would be better to adopt the test of whether the spouses are living apart, which is known to the law in other

53 Criminal Law Revision Committee, Eleventh Report: Evidence (General), para. 156.   54 See Law Reform Commission, Working Paper No. 9–1980, The Rule Against Hearsay, p. 124.

 

 

contexts,⁵⁵ if it is desired to make provision for the compellability of separated spouses who have not been divorced or judicially separated. However, the Commission believes that it is an objection to any such provision that it would be too easy for spouses to pretend that they had been living together if they desired to avoid compellability.

Accordingly, the Commission recommends that in cases where spouses are judicially separated, and one spouse is charged with a criminal offence, the other spouse should be competent and compellable to give evidence for any party to the proceedings but (i) if called by the prosecution such a spouse should not be compelled to answer any question relating to events which occurred after the marriage and before the judicial separation and (ii) if called by a co-accused such as spouse should not be compelled to answer any question or to produce any document if to do so would tend to incriminate the spouse accused relative to an event which occurred after the marriage and before the judicial separation.

55 See, for example, the Married Women's Status Act, 1957, section 9(3) which provides:   “No criminal proceedings concerning any property claimed by one spouse (in this subsection referred to as the claimant) shall, by virtue of subsection (1) or subsection (2), be taken by the claimant against the other spouse while they are living together nor, while they are living apart, concerning any act done while living together by the other spouse, unless such property was wrongfully taken by the other spouse when leaving or deserting or about to leave or desert the claimant.”: See also Income Tax Act, 1967, section 196(1) (as substituted by Finance Act, 1980, section 17) which provides:   “A married woman shall be treated for income tax purposes as living with her husband unless either –   (a) they are separated under an order of a court of competent jurisdiction or by deed of separation, or   (b) they are in fact separated in such circumstances that the separation is likely to be permanent.”

 

 

(g) Void and Voidable Marriages

In its Report on Nullity of Marriage [LRC 9–1984] the Commission has made recommendations as to the grounds on which a marriage may be annulled. The effect of these recommendations is that a marriage would be void on grounds of prohibited degrees of relationship, certain formal defects, bigamy and nonage; a marriage would be voidable on account of lack of consent, lack of mental capacity, homosexual orientation, fraudulent misrepresentation and fraudulent non-disclosure of certain matters.

In the case of a void marriage the Commission sees no alternative to treating the parties as strangers for purposes of their competence and compellability as witnesses. However where a marriage is voidable, the parties should be treated as if they had been married until the time when the decree of annulment was granted. The Commission recommends that for the purposes of the law relating to the competence and compellability of witnesses, the parties to a void marriage should be treated as if they had never been married and the parties to a voidable marriage should be regarded as having been married from the time of the marriage ceremony to the time when the decree of annulment was granted.

(h) Compellability of Other Members of a Family

Reference has been made to legislation in Australia under which the court has power to exempt a close relative of the accused from the obligation to give evidence against him. Similar legislation exists in Israel and was, as noted, proposed in Canada by their Law Reform Commission. Any such discretionary power of exemption would involve the weighing of the hardship of compelling such evidence with its importance in a particular trial and the gravity of the offence. Consistency in the application of this process of weighing incommensurables would be almost impossible to achieve especially as it would not be practicable to make decisions subject to appeal. However the Commission is of opinion that prosecutors should exercise restraint in compelling members of a family to give evidence against one another. Such restraint may be absent in private prosecutions, including cases where a member of the Garda Siochana institutes a prosecution in a case which he has investigated. Accordingly the Commission recommends that provision should be made that a parent or child of an accused should not be compelled to give evidence for the

prosecution incriminating that accused unless a certificate from the Director of Public Prosecutions is tendered stating that he personally has examined the case and having considered the hardship of compelling the witness to testify, the importance of the evidence that witness could give and the gravity of the offence charged believes that it is in the public interest that the evidence be heard; where a person is in loco parentis to a child the relationship of parent and child should be deemed to exist. The Commission does not believe that provision need be made for other close relatives. Nor does it believe that an accused should have to seek the approval of the Director of Public Prosecutions to compel the child or parent of a co-accused to give evidence which might exculpate him. In limiting its recommendation as it has done the Commission has been mindful of the fact that the courts may impose a sentence which is lenient in cases where a refusal to testify is not reprehensible.

3. Communications between Husband and Wife

The privilege by which a spouse is not compellable to disclose any communication made to him or her by the other spouse has been much criticised and has been amended or abolished in several common law jurisdictions. In its Report on Privilege in Civil Proceedings published in December 1967 the English Law Reform Committee recommended its abolition in civil cases.⁵⁶ This was duly done for England in the Civil Evidence Act, 1968, and for Northern Ireland in the Civil Evidence Act (Northern Ireland) 1971.⁵⁷ Referring to section 3 of the Evidence (Amendment) Act, 1853, the Committee said:

56 Law Reform Committee, Sixteenth Report (Privilege in Civil Proceedings), (1967), paras 42, 43.   57 Civil Evidence Act, 1968, section 16(3); Civil Evidence Act (Northern Ireland), 1971, section 12(3).

 

 

The Criminal Law Revision Committee which reported in 1972 recommended that this privilege should be abolished in cirminal proceedings also. But their endorsement was perhaps less than whole hearted:

The privilege was, in fact, abolished for criminal proceedings by section 80(9) of the Police and Criminal Evidence Act, 1984.

The Ontario Law Reform Commission has also recommended the abolition of this privilege.⁶⁰ They noted that there was a basic confusion of thought as to whether the privilege was designed to promote candour in marriage or to prevent disharmony between spouses resulting from the revelation of marital communications. If the purpose of the privilege was to promote candour as between spouses they found it difficult to understand why the privilege was that of the recipient or why it did not survive after the marriage had terminated. On any view of the policy underlying the privilege, they felt that the definition of communciations protected by the privilege was unnecessarily restrictive:

58 Law Reform Committee, Sixteenth Report (Privilege in Civil Proceedings), (1967), paras. 42, 43.   59 Criminal Law Revision Committee, Eleventh Report: Evidence (General), (1972), para. 173.   60 Ontario Law Reform Commission, Report on the Law of Evidence, (1976), pp. 133–142.

 

 

It was their view that if the privilege were to be retained it should be a joint privilege enabling either spouse to object to the disclosure of marital communications. However they came down against this:

Accordingly, they concluded that marital privilege should be abolished.

However it cannot be said that there is a unanimity of opinion against a privilege relating to marital communications. Indeed a note of dissent to the recommendation of the Ontario Law Reform Commission was entered by its own chairman, who argued as follows:

61 Ibid., p. 138.   62 Ibid., p. 141. The Commission instances proceedings between the spouses or concerning the welfare of children as cases where a claim of privilege should not apply.

 

 

He wished to follow the relevant provisions of the California Evidence Code, section 980 of which provides:

The exceptions prescribed by the California Code are (i) communications made to enable or aid anyone to commit or plan to commit a crime or fraud; (ii) proceedings to place either spouse or his property under the control of another because of his alleged mental or physical condition; (iii) proceedings brought by or on behalf of one spouse against the other spouse; (iv) proceedings between a surviving spouse and a person who claims through the deceased spouse; (v) criminal proceedings in which one spouse is charged with a crime committed at any time against the person or property of the other spouse or of a child of either; (vi) criminal proceedings in which one spouse is charged with a crime committed at any time against the person or property of a third person committed in the course of committing a crime

63 Ibid., pp. 141–142.

 

 

against the person or property of the other spouse; (vii) criminal proceedings in which one spouse is charged with bigamy; and (viii) criminal proceedings in which the communication is offered in evidence by a defendant who is one of the spouses between whom the communication was made.⁶⁴

In the United States, the Supreme Court has held that information disclosed between husband and wife in confidence is protected from disclosure,⁶⁵ going so far on one occasion as to describe the privilege as “the best solace of human existence”.⁶⁶ The privilege permits a spouse or ex-spouse to object to evidence concerning confidential communications made or received by him during the marriage. There is a rebuttable presumption that any marital communication is confidential and so privileged. However it seems that communications between a husband and wife about crimes in which they were joint participants are not privileged.⁶⁷

The Uniform Rules of Evidence in the United States also recognise the privilege and make it a joint privilege:

64 California Evidence Code, sections 981–987.   65 Wolfe v United States, (1934) 291 U.S. 7; Blau v United States, (1951) 340 U.S. 332.   66 10 U.S. (13 Pet.) at 223.   67 Unites States v Mendoza, 574 F. 2d 1373 (5th Circuit).

 

 

It should be noted that this privilege applies only to confidential communications and is thus more restricted in its scope than that under the Evidence Amendment Act, 1853. Rule 216 lists some further limitations:

Rule 217 restricts this marital privilege where a communication is in aid of a crime or tort. It provides:

68 Uniform Rules of Evidence, rule 218.

 

 

Another restriction is to be found in Rule 128 which provides:

The Canadian Law Reform Commission also came down against the abolition of marital privilege but pinpointed several aspects of the privilege which it felt should be amended:

The section proposed by the Canadian Law Reform Commission read as follows:

69 Law Reform Commission of Canada, Report on Evidence (1975), p. 79.

 

 

In fact the solution adopted in the Canada Evidence Bill presented to Parliament in 1982 was closer to the United States law. The relevant sections provided:

70 Ibid., p. 30, Evidence Code, section 40.

 

 

The Commission is of the view that there may be more to be said for the present law than has been conceded by its critics. That law respects the confidentiality of marital communications to the extent that the testifying spouse does but not more so. Not only may this be the right balance but it avoids the thorny problem of distinguishing confidential and non-confidential communications. However the Commission believes that the confidentiality of marital communications would be preserved in most cases by the exercise of the same judicial discretion as obtains in respect of other confidential relationships, such as that of doctor and patient. The recognition of a privilege not to incriminate one's spouse (which is proposed below) will ensure that a spouse will not be bound to disclose a marital communication which would incriminate the other spouse. Even if the statutory provisions by virtue of which a spouse may refuse to disclose a communication made by the other spouse are repealed, a privilege rooted in the Constitution based on the right to privacy in a marital context, may remain. Accordingly the Commission recommends that section 3 of the Evidence Amendment Act 1853 and section 1(d) of the Criminal Justice (Evidence) Act 1924 should be repealed.⁷²

71 These are offences on the trial for which a spouse is compellable for the prosecution or for a co-accused of the other spouse.   72 For texts of these provisions see supra, pp. 31–32.

 

 

4. Privilege against Spouse-Incrimination

The privilege against self-incrimination is based on an old principle that it is repellant that a man should be compelled to give answers exposing himself to the risk of criminal punishment. If such a privilege did not exist, witnesses might be more reluctant to come forward to testify. It is not within the scope of this Report to examine whether this privilege is justified. But, given its existence, the Commission considers that it should extend to answers tending to incriminate the spouse of a witness. It shares the view expressed by the English Law Reform Committee that it is more repellant that a person should be compelled to incriminate his or her spouse, than that that person should be compelled to incriminate himself or herself.⁷³

The Law Reform Committee's recommendation that the privilege against self-incrimination should be extended to include incrimination of a spouse was given effect as regards civil proceedings in England by the Civil Evidence Act, 1968, section 14 of which provides:

In a later section of the Act it was declared for the avoidance of doubt that “references to a person's husband or

73 Law Reform Committee, Sixteenth Report (Privilege in Civil Proceedings) (1967), para. 9.   74 To the same effect see Civil Evidence Act (Northern Ireland), 1971, section 10.

 

 

wife do not include references to a person who is no longer married to that person.”⁷⁵

The English Criminal Law Revision Committee considered the matter in their Eleventh Report published in 1972. They recommended that a provision similar to section 14 of the Civil Evidence Act, 1968 should be enacted for criminal proceedings. However they also recommended that where a spouse of the accused gives evidence, that spouse should not be entitled to refuse to answer a question or to produce a document or thing on the ground that to do so would tend to prove the commission by the accused of the offence charged.⁷⁶ Surprisingly, no detailed argument supported this recommendation.⁷⁷ No action has been taken on it in subsequent legislation.

The Commission believes that the right of a spouse-witness not to incriminate an accused spouse in testimony is a logical corollary of the right of a spouse not to be compelled to testify for the prosecution when the other spouse is accused of a criminal offence. It may, of course, result in some injustice if relevant evidence is withheld from the court of trial. The injustice is likely to be most acute where a witness who might exculpate an accused refuses to answer a question because it might incriminate that witness's spouse. However the fact that such a privilege is invoked is likely to tell in favour of the accused. Under the present law, evidence exculpating an accused may be withheld where a witness claims that he would be incriminated or where one of several accused persons exercises his right not to testify. So no new departure of principle is involved in recognising the right of a witness not to give evidence incriminating his or her spouse, even where this evidence might exculpate an accused.

The Commission does not favour a situation where there is no privilege not to incriminate a former spouse as to events occurring during the marriage. It is considered

75 Civil Evidence Act, 1968, section 18(2). For Northern Ireland see Civil Evidence Act 1971 (Northern Ireland), section 14 (2).   76 Criminal Law Revision Committee, Eleventh Report: Evidence (General) (1972): Draft Criminal Evidence Bill, clause 15(3).   77 Ibid., para. 172.

 

 

that in this context as in others the reticence of a former spouse as to events occurring during a marriage should be respected. But where a marriage, being voidable, has been annulled or has been dissolved in circumstances where the dissolution is recognised here or the spouses have been judically separated, the privilege not to incriminate a spouse should be restricted to events occurring after the marriage and before the annulment, divorce or judicial separation. Accordingly the Commission recommends that a witness in criminal or civil proceedings should have the same right to refuse to answer any question or produce any document or thing tending to incriminate his or her spouse as he enjoys not to incriminate himself. But where a marriage has been annulled or dissolved or an order for judicial separation granted, it recommends that the privilege should be restricted to events occurring after the marriage and before the annulment, dissolution or judicial separation.

The Commission is, however, of opinion that a spouse of an accused should not be entitled to withold testimony on the ground of spouse incrimination where that spouse is called by the accused. An accused who calls his spouse should run the risk that that spouse may incriminate him just as he himself, if he gives evidence, may be asked any question in cross-examination notwithstanding that it would tend to incriminate him as to the offence charged.⁷⁸ Accordingly the Commission recommends that where the spouse of an accused is called as a witness by that accused he or she should not be entitled to refuse to answer any question or to produce any document on the ground that it would tend to incriminate the accused as to the offence charged or any other offence proof of the commission of which is admissible evidence against the accused in the trial.

78 Criminal Justice (Evidence) Act, 1924, section 1(c).

 

 

CHAPTER 3 RECOMMENDATIONS OF THE COMMISSION

1.

The existing enactments making a spouse of a party competent or compellable in civil proceedings should be repealed or replaced by a provision stating that a present or former spouse of a party to civil proceedings shall be a competent and compellable witness. (p. 35)

2.

Any rule of law making the spouse or former spouse of an accused incompetent as such to testify in criminal proceedings against his or her spouse (including former spouse) should be abolished. (p. 39)

3.

A spouse should not be compellable to testify for the prosecution in any case where the other spouse is charged with a criminal offence. However in a joint trial the spouse of an accused should be a competent and compellable witness to give evidence for the prosecution but, when so testifying, should be entitled to refuse to answer any question or to produce any document if to do so would tend to incriminate the spouse accused. The Evidence Act, 1877, section 1 should be repealed. (pp. 49–50)

4.

Except where two spouses are jointly accused, one spouse should be compellable to give evidence for the other spouse where that other spouse is charged with a criminal offence. (p. 52)

5.

It should be permissible for the prosecution and the judge to comment on the failure of the spouse of an accused to give evidence in criminal proceedings and the Criminal Justice (Evidence) Act, 1924, section 1(b) should be repealed in so far as it prohibits such comment by the prosecution. (p. 54)

6.

The spouse of an accused should be competent and compellable to give evidence on behalf of a co-accused but a spouse so testifying should be entitled to refuse to answer any question or produce any document if to do so would tend to incriminate the spouse who is accused. (p. 57)

 

 

7.

A former spouse of an accused should be competent and compellable to give evidence for any party in criminal proceedings but (i) if called by the prosecution such a former spouse should not be compelled to answer any question relating to events which occurred while the marriage was still subsisting and (ii) if called by a co-accused, such a former spouse should not be compelled to answer any question or to produce any document if to do so would tend to incriminate the former spouse accused relative to an event which occurred while the marriage was still subsisting. (p. 59)

8.

Where spouses are judicially separated, and one spouse is charged with a criminal offence, the other spouse should be competent and compellable to give evidence for any party to the proceedings but (i) if called by the prosecution he should not be compelled to answer any question relating to events which occurred after the marriage and before the judicial separation and (ii) if called by a co-accused, such a spouse should not be compelled to answer any question or to produce any document if to do so would tend to incriminate the spouse accused relative to an event which occurred after the marriage and before the judicial separation. (p. 61)

9.

For the purposes of the law relating to the competence and compellability of witnesses, the parties to a void marriage should be treated as if they had never been married and the parties to a voidable marriage should be regarded as having been lawfully married from the time of the marriage ceremony until the time when the decree of annulment was granted. (p. 62)

10.

A parent or child of an accused should not be compelled to give evidence for the prosecution incriminating that accused unless a certificate from the Director of Public Prosecutions is tendered stating that he personally has examined the case and having considered the hardship of compelling the witness to testify, the importance of the evidence that witness could give and the gravity of the offence charged, believes that it is in the public interest that the evidence be heard: where a person is in loco parentis to a child the relationship of parent and child should be deemed to exist. (pp. 62–63)

 

 

11.

Section 3 of the Evidence Amendment Act 1853 and section 1(d) of the Criminal Justice (Evidence) Act 1924 should be repealed. (p. 72)

12.

In both criminal and civil proceedings, a witness should have the same right to refuse to answer any question or produce any document or thing tending to incriminate his or her spouse as that witness has not to incriminate himself. But where a marriage has been annulled or dissolved or an order for judicial separation granted, this privilege should be restricted to events occurring after the marriage and before the annulment, dissolution or judicial separation. (p. 75)

13.

Where the spouse of an accused is called as a witness by that accused he or she should not be entitled to refuse to answer any question or to produce any document on the ground that it would tend to incriminate the accused as to the offence charged or any other offence proof of the commission of which is admissible evidence against the accused in the trial. (p. 75)

The Commission has drafted a General Scheme of a Bill to reform the law relating to the evidence of spouses in criminal proceedings and this is contained in an Appendix to this Report.

 

 

GENERAL SCHEME OF A BILL TO REFORM THE LAW RELATING TO THE EVIDENCE OF SPOUSES IN CRIMINAL PROCEEDINGS

1.

2.

3.

4.

5

6.

Provide that the Evidence Amendment Act, 1853, section 3 is hereby repealed.

7.

Provide that the provisions listed in the Schedule are hereby repealed.

8.

 

 

SCHEDULE

Licensing Act, 1872, section 51(4)

Sale of Food and Drugs Act, 1875, section 21.

Conspiracy and Protection of Property Act, 1875, section II.

Evidence Act, 1877, section I

Explosive Substances Act, 1883, section 4(2).

Corrupt and Illegal Practices Prevention Act, 1883, section 53(2)

Criminal Law Amendment Act, 1885, section 20.

Merchandise Marks Act, 1887, section 10.

Betting and Loans (Infants) Act, 1892, section 6.

Chaff-Cutting Machines (Accidents) Act, 1897, section 5.

Summary Jurisdiction (Ireland) Act, 1908, section 12.

Children Act, 1908, section 133(28).

Criminal Law Amendment Act, 1912, section 7(6).

Criminal Justice (Evidence) Act, 1924, section 1(c)(d), section 4(1), Schedule.

Married Women's Status Act, 1957, section 9(4).

Social Welfare (Consolidation) Act, 1981, sections 116(4), 145(4).