A spouse who chooses to testify voluntarily has every right to do so.

The spousal privilege provides limited protection against being compelled to testify, but it is ultimately up to the judge to decide whether the privilege applies

Grant Davies operated a dance school. He recently entered a guilty plea in Sydney District Court to 28 charges, including sexual intercourse with a child without consent, indecent assault, and the production of child abuse material. He was originally facing 64 charges involving 10 former students that spanned more than a decade.

Davies was arrested in 2013 after his wife found inappropriate messages on his phone that he sent to one of his students. She copied the messages onto a thumb drive and took the drive, along with his laptop, to the police.

Spousal privilege

If Davies had elected to take his case to trial, could his wife have testified against him? People often think that a wife cannot testify against a husband, but that is not the law of Australia. Instead, section 18 of the Evidence Act 1985 provides that a spouse cannot be compelled to testify against the other spouse under certain circumstances. A spouse who chooses to testify voluntarily has every right to do so.

If a spouse does not want to testify, section 18 provides that the spouse cannot be forced to do so, but only if:

there is a likelihood that harm would or might be caused (whether directly or indirectly) to the spouse, or to the relationship between the spouse and the defendant, if the spouse gives the evidence; and

the nature and extent of that harm outweighs the desirability of having the evidence given.

Whether a spouse can be compelled to testify against the other spouse is therefore a judgment call. If the judge decides that the importance of the testimony outweighs the risk that the testimony will damage the marriage, the judge can require the spouse to testify.

Factors the judge must consider

The judge is more likely to decide that the spouse should be required to testify when:

• the crime is serious;
• the testimony is important to proof of the crime;
• no other evidence could substitute for the evidence that the spouse would give;
• the spouses did not have a long or strong relationship; and
• the spouse did not receive the information that is the subject of the testimony in confidence from the spouse against whom that information will be offered.

How the judge will balance those factors in any particular case is up to the judge. That means that one judge might apply the privilege and another might not if both are faced with similar facts.

Disclaimer : This article is just a summary of the subject matter being discussed and should not be regarded as a comprehensive legal advice for you to defend yourself alone. If you are charged with criminal offences, it is recommended that you seek legal assistance from criminal lawyers.