Noticeboard
| Published date | 01 December 2005 |
| Date | 01 December 2005 |
| DOI | http://doi.org/10.1350/ijep.2005.9.4.296 |
| Subject Matter | Noticeboard |
296 THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF
NOTICEBOARD
(2005) 9 E&P 296–307
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East Anglia, Norwich NR4 7TJ, UK. Email: R.Pattenden@uea.ac.ukEast Anglia, Norwich NR4 7TJ, UK. Email: R.Pattenden@uea.ac.uk
East Anglia, Norwich NR4 7TJ, UK. Email: R.Pattenden@uea.ac.uk
Spousal incrimination privilege—Australia
Academics will be heartened by the attention paid to legal scholarship in Callanan v
B [2004] QCA 478. On the basis of a recently published academic article ( D. Lusty, ‘Is
there a Common Law Privilege Against Spouse Incrimination?’ (2004) 27 UNSWLJ 1–
41), the Queensland Court of Appeal was persuaded that a spouse incrimination
privilege, predating the privilege against self-incrimination, exists at common law.
The substantial starting point of the academic argument which the court adopted is
a statement by Michael Dalton in The Countrey Justice (1618) at p. 261 that a wife ‘is
not bound to give evidence, nor be examined against her husband’. The rationale
was the unity of husband and wife: the wife had no identity separate from her
husband. Some 350 years later in Hoskyn v Metropolitan Police Commissioner [1979] AC
474 the House of Lords held that a wife cannot be compelled to testify against her
husband in criminal proceedings for an offence of wounding her. Beyond England, in
the interests of marital harmony, the right of the witness-spouse to refuse to testify
adversely has been confirmed by the US Supreme Court (Trammel v US (1980) 445 US
40 ) and in New Zealand (Hawkins v Sturt [1992] 3 NZLR 602 at 610). The latter involved
a non-judicial tribunal. This is important because of the context in which the privilege
issue arose in Callanan v B.
Mrs B had been summonsed to appear before the Crime and Misconduct Commission
to answer questions about what she knew of the involvement of various individuals
in drug-related activities. These individuals included her husband who was facing
charges for drug offences. She claimed privilege not to answer questions that could
incriminate him. When this claim was rejected, she challenged that decision in the
courts. Having been persuaded of the existence of spouse-incrimination privilege,
the Queensland Court of Appeal held that it had not been successfully abrogated by
the Crime and Misconduct Act 2001 (the legislation under which the Commission
was set up) or any other legislation.
The decision in Callanan v B was considered in S v Australian Crime Commission [2005]
FCA 821. Like Callanan, this case involved a claim to spouse-incrimination privilege
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