SPOUSES AS WITNESSES IN ENGLAND AND QUEENSLAND:DURING MARRIAGE AND AFTER DIVORCE

Abstract

An interesting aspect of the law of evidence concerns whether, in a criminal proceeding, a person who is married to the accused, or has at some time in the past been married to the accused but subsequently divorced, is either competent or compellable to give evidence against their spouse, or former spouse. The same question could be asked in relation to parties in civil cases. The case of the former spouse is of particular interest because it does not appear to have been the subject of any recent judicial or legislative attention in any State of Australia save Victoria. The purpose of this short article is to review the authorities concerning both spouses and former spouses under the law of Queensland. The term 'spouse' will be used herein in the sense of lawfully wedded spouse1 thus excluding any de facto relationship: the term 'former spouse' will have a corresponding meaning. The term 'competent' is used herein to mean lawfully able to give evidence whilst the term 'compellable' is used to mean required by law to testify if called upon to do so. As much of modern Queensland law turns on the common law of England it is necessary to consider the position in that jurisdiction at the outset.