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Abstract
Spousal Competence and Compellability in Criminal Trials in
the 21st Century
Wendy Harris
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.
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