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Thursday, 9 March 1972
Page: 639


Senator GREENWOOD (Victoria) (Attorney-General) - I think that there are other problems which an examination of the amendment brings out, quite apart from the social problems which I think are at the heart of this matter. If one looks at the amendment, one sees that it proposes that a person who is a spouse:

.   . is nol a compellable witness except on behalf of the other spouse.

In short, if a husband seeks to call his wife to give evidence on his behalf, the husband has the right to call his wife. What happens when the wife goes into the witness box? She undoubtedly will give the evidence which her husband had in mind she could give when he called her. That will be of assistance to the husband's case. One does not know in those circumstances whether the wife was or was not compellable - she may have been quite prepared to go - but whatever be the motivation for her going into the witness box and giving evidence for her husband, she ought to be subject to cross-examination; and there is no question but that she is.

Then we come across the provision which is contained in sub-clause (3.) of the amendment, which reads:

In a proceedings (nol being a criminal proceeding) a person who is, or has been married, cannot bc compelled to disclose communications made between himself and his spouse or former spouse during their marriage.

The incredible situation arises, as it seems to me, that a wife could go into a witness box and, for whatever reason, say, yes, she was present at an accident, that she saw what had happened, the position of the cars and the events immediately preceding the accident, and she could be tested uphill and down dale on her recollection of these events; but it is known to her as it is known to the other party and to the counsel of the other party that she had openly told people that her husband had admitted to her that certain aspects of his evidence were untrue. Yet she cannot be questioned about that matter because questions asked about that subject would seek to interrogate her about a communication which passed between herself and her husband.

How that aids justice, 1 do not know. It is one of those areas about which Senator Byrne talked, that people just do not understand why it is that certain questions cannot be asked and why certain facts cannot be brought out. That is a problem which a number of lay people find with regard to these intricacies and these webs of mystery with which lawyers encase themselves. I sense that that would be one of the problems which Senator Murphy's amendment would create. 1 do not think we are dealing with a situation which arises each day in the courts. I think we are dealing with a situation which arises only rarely. When it does arise it creates problems for the parties involved, for the judge who has to try the case, and for those academics who make their living from writing about what happens in relation to the law of evidence. It seems to me that we should have a provision regarding the compellability of (he wife to give evidence. The question is: What is the right provision? I arn not absolutely wedded to the clause in the Bill. I think it is the right provision in the way in which our society has developed. If the Committee could come up with an adequate alternative I would not be averse to it. I see a lot of problems in Senator Murphy's amendment. I think it would create the situation to which I referred in my second reading speech when I referred to the speech made by Lord Reid in 1964 in Rumping's case. His Lordship said: lt is a mystery to me why it was decided to give this privilege to the spouse who is a witness: it means that if that spouse wishes to protect the other he or she will disclose what helps the other spouse but use this privilege to conceal communications if they would be injurious, but on the other hand a spouse who has 'become unfriendly to the other spouse will use this privilege to discloss communications if they are injurious to the other spouse but conceal them if they are helpful.

That puts it pithily and 1 think it is involved in the amendment.







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