Spousal Competence and Compellability in Criminal Trials in the 21st Century

Abstract

For many centuries a lawfully married spouse of an accused occupied a privileged position in terms of giving evidence against his or her spouse in criminal trials. This paper examines the historical origins and rationales for the special spousal rules relating to competence, compellability and privilege. The paper analyses the continued relevance of these rationales to adult relationships in the 21st century with particular emphasis on the application of these rules to former spouses, de facto spouses, same sex relationships and traditional aboriginal marriages. The approaches taken in the various jurisdictions in Australia are discussed to determine the adoption of the rationales in the relevant legislation and the extent of application outside lawful marriages. The analysis reveals a divergence across Australia as to both approach and the categories of witnesses given special treatment under the competency and compellability rules.