LAW72005 Evidence Law Assignment: Spousal Privilege Analysis

This document presents a comprehensive solution to an Evidence Law assignment, addressing key issues related to spousal privilege, hearsay evidence, and the admissibility of different forms of testimony. The assignment analyzes the application of the Evidence Act 1995 in a scenario involving a married couple, Jessica and Leo, and their involvement in a case related to the death of another individual, Vlad. The solution explores whether Jessica can object to testifying against her husband, Leo, based on spousal privilege, and whether Leo can prevent Jessica from voluntarily testifying. It also examines the admissibility of Sharni's lay opinion and Duncan's testimony regarding Leo's behavior. The analysis delves into the rules concerning hearsay evidence, admissions, and lay opinions, providing detailed reasoning and legal references to support the conclusions. The solution demonstrates a clear understanding of the legal principles and their application to the given facts, offering a valuable resource for students studying evidence law.

Running head: EVIDENCE LAW
Evidence Law
Name of the Student
Name of the University
Author Note

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Table of Contents
Question 2..................................................................................................................................2
Question 3..................................................................................................................................3
Question 5..................................................................................................................................5
Question 7..................................................................................................................................7
BIBLIOGRAPHY....................................................................................................................10

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Question 2
Issue
The issue in this question is to determine whether Jessica could object to testify in the
court, any part(s) of her testimony given to the police.
Additionally, there is another issue to determine the grounds on which Jessica could,
if she can, object to give any part(s) of her testimony.
Rule
The Evidence Act 1995 (Cth) recognises spousal privilege under section 18, stating
that it is only applicable in a criminal proceeding1. The section states that a person who is a
de facto partner, spouse, child or parent of an accused/defendant could object to giving
evidence of a communication that he/she had with the defendant in question2. Such evidence
could be anything that could incriminate the defendant. A partner, spouse, parent or child of
the defendant, therefore, cannot be forced to testify against the defendant, which is going to
incriminate him3. The objection of the spouse, partner, parent or child needs to be made
immediately as the person knows about his/her right not to give evidence against his/her
partner or at least before giving out any evidence against his/her partner, spouse, parent or
child4.
However, it is to be noted that the court has the ultimate discretionary power whether
to allow or reject such objection of the witness to testify against his spouse, partner, parent or
child. Subsection 6 of Section 18 of the Act asks the court to allow the witness’s objection to
give evidence against his/her spouse, partner, parent or child on the ground that: a) the
1 Evidence Act 1995 (Cth), s 18(1).
2 Evidence Act 1995 (Cth), s 18(2).
3 Australian Crime Commission v Stoddart [2011] HCA 47.
4 Evidence Act 1995 (Cth), s 18(3).

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evidence so given would cause a harm to the person or to his/her relationship with the
defendant; and b) the effect of such harm would out-weigh the reason for receiving the
evidence5. The court, under section 18(7) of the Act may disallow the objection of the spouse
(witness) to testify against his partner6.
Application
In the given case, Jessica is married to Leo, thereby holding the spousal privilege of
right against incriminating her spouse per the Evidence Act. Jessica cannot be forced to give
evidence against Leo about the night of Vlad’s death when Leo was out to buy diapers for
their baby and returned quite late after the midnight. She could object to testify before the
court that Leo was ‘agitated’ and did not answer when he was asked as to why he was late
[9]. She could deny to testify about the car wash incident where Leo had availed the gold-
class treatment for the car, which was quite unusual for them; the gold-class treatment being
expensive [14]. She could object to disclose Leo’s comment when he was asked whether they
could afford it [15].
The court, however, holds the discretionary power to decide whether or not to allow
Jessica’s objection to give testimony against Leo, which might incriminate him7.
Conclusion
Therefore, Jessica could object in giving any part(s) of her statement as a testimony
before the court which may speak against her husband Leo on the grounds of ‘compellability
of spouse’ as discussed under section 18 of the Evidence Act 1995.
5 Evidence Act 1995 (Cth), s 18(6).
6 Evidence Act 1995 (Cth), s 18(7).
7 Lusty, David. "Is There a Common Law Privilege against Spouse-incrimination." (2004) 27 UNSWLJ: 1.

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Question 3
Issue
The issue in this question is to determine whether Leo could object Jessica’s
voluntarily giving any part(s) of the testimony held in question 1 and 2.
Rule
Section 18 of the Evidence Act 1995 discusses about the compulsion that a spouse,
partner, parents or children of a person may face in regard to testifying against him8. The
section states that a person who is a partner, spouse, child or parent of a defendant could
object to testify or give an evidence of a communication that he had with the defendant, as it
may furnish information to incriminate the defendant9. A partner, spouse, parent or child of
the defendant, therefore, cannot be coerced to testify against the defendant, with a view to
incriminate him. The person asked to testify must object to do so before furnishing evidences
against the defendant or as soon as he comes to know his right to object10.
The provisions of the Evidence Act allow the spouse to object giving testimony
against his partner, in order to facilitate the notion of spousal felicity and the privacy of
relationships. However, it does not allow a spouse to prevent his partner from testifying
voluntarily against him, if such partner wants to do so before the honourable court, under free
consent.
It is be, however, noted that the court may disallow a person to testify against his spouse on
the grounds that: a) the evidence so given would cause a harm to the person or to his/her
relationship with the defendant; and b) the effect of such harm would out-weigh the reason
8 Evidence Act 1995 (Cth), s 18(1).
9 Evidence Act 1995 (Cth), s 18(2).
10 Evidence Act 1995 (Cth), s 18(3).

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for receiving the evidence11. The court may disallow the objection of the spouse to testify
against his/her partner as discussed under section 18(7) of the Evidence Act 12.
Application
Leo is Jessica’s husband, who is being prosecuted for allegedly man-slaughtering
Vlad, who had an enmity of power struggle between each other as opined by Alfred [28].
Most circumstantial evidences as well as testimony of witnesses are speaking against Leo’s
innocence. The only expectation that he could hold is from his wife, Jessica who testified that
her husband had gone out for fetching diapers for their baby. Jessica could object to give
evidences and testimony against Leo, in regard to refraining from furnishing information that
might incriminate him13.
However, as Jessica is voluntarily looking forward to testify against her husband,
calling him a ‘murderer’ [17], in that case she cannot be prevented by her husband from
testifying.
However, the court may disallow Jessica from testifying, which depends upon the
discretion of the court. The court in this case would certainly see whether such testimony is
biased and arising out of a bitter marriage or whether such testimony would harm Jessica in
such a way that such harm would overweigh the reason for receiving the testimony14.
Conclusion
Therefore, Leo cannot stop Jessica from testifying voluntarily against him on the
grounds of section 18 of the Evidence Act.
11 Evidence Act 1995 (Cth), s 18(6).
12 Evidence Act 1995 (Cth), s 18(7).
13 Lusty, David. "Is There a Common Law Privilege against Spouse-incrimination." (2004) 27 UNSWLJ: 1.
14 Cave, Heather, and Peter Sankoff. "What's Left of Marital Harmony in the Criminal Courts: The Marital
Communications Privilege after the Demise of the Spousal Incompetence Rule." (2019) 42 Man. LJ: 1.

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Question 5
Issue
The issue is ton determine whether the testimony given by Sharni shall be admissible
in the court.
Rule
An opinion is the personal perspective of an individual or a group of individuals,
which may or may not be true that cannot be proven by any kind of evidence. An opinion of a
person could be coupled with bias, which cannot be allowed to decide the fate of a person
awaiting a criminal trial.
Section 76 of the Evidence Act, moreover, states that an evidence in the form of an
opinion cannot be admissible in the court of law for proving the existence of a fact, as
expressed by such opinion15. The opinion of a person is not permitted to decide whether a
piece of information is true or factual. Therefore, any opinion expressed by a person and
testified as an evidence shall be dismissed by the court.
However, an opinion shall be admissible as an evidence when furnished in the form of
a certificate or document (not under the Evidence Act, but under any other legislation) as
directed by regulations of having evidentiary effect16. Exception to this provision, certain
opinions are admissible before the court, like lay opinion, expert opinion, admissions, et
cetera.
A lay opinion is the opinion of a person expressed as: a) seen, heard or perceived by
the person in regard to a matter or an event; and b) it is necessary for understanding the
person’s perception a particular matter17.
15 Evidence Act 1995 (Cth), s 76(1).
16 Evidence Act 1995 (Cth), s 76(2).
17 Evidence Act 1995 (Cth), s 78.

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Application
In context to the given scenario, Sharni furnishes her personal opinion about Leo. The
electronic record of the Seven-Eleven Store shows that Leo had bought a packet of diaper at
around 11.13 pm on the night of Vlad’s death [24]. However, such purchase does not signify
that Leo had anything to do with Vlad’s death, even though the Seven-Eleven Store and the
place where Vlad’s dead body was discovered were close by [11-12].
Sharni’s opinion about Leo being ‘suspicious’ while purchasing the diaper, however,
could not be verified as a fact [25]. An opinion could be a personal bias or wrong intuition
that are often based upon impractical or baseless story. The court of law cannot decide Leo’s
fate on the basis of stories or intuition of Sharni. Nevertheless, Sharni’s opinion in this
circumstance could be seen as a ‘lay opinion’ as her observation of Leo’s suspicion could be
true, which could be supported with the fact that Leo was agitated on the night of Vlad’s
death. Her observation of Leo’s suspicion is significant in this matter, as it was perceived in
terms of a specific event.
Conclusion
Therefore, Sharni’s testimony shall be admissible in a court of law as it is a lay
opinion as held under section 78 of the Evidence Act 1995.
Question 7
Issue
The issue is to determine the circumstances under which Duncan can make the court
aware about certain incidents in respect to Leo’s peculiarities pertaining to ‘“dawdling”
pedestrians’.
Rule

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Section 59 of the Evidence Act disallows hearsay evidence, which are referred to as
‘evidence of previous representation’ provided a person in order to establish the existence of
a fact in such hearsay evidence18. The court may give regard to the situation in which such
hearsay evidence was given in order to determine whether to accept or dismiss such hearsay
evidence19.
Exception to the rule of dismissal of hearsay evidence are first-hand hearsay, tags and
labels, business records, electronic communication, public rights, marriage, family
relationship or family history, admission, evidence in interlocutory proceeding, expert
opinion about an accused20.
Section 81 of the Act dismisses the hearsay rule pertaining to an admission given by a
person as evidence21. In addition, hearsay rule and the opinion rule are also not applicable to
previous representation given as an evidence22. Certain kinds of admission are excluded from
being allowed as an evidence before the court, that are: a) evidences that are not first-hand; b)
admission given against a third party; c) coerced admission; d) admissions made by accused
persons that are unreliable; e) oral questioning records of accused23.
Application
Duncan is Leo’s fishing mate who would like to furnish evidences in the form of
admission voluntarily. He would like to inform the court about Leo’s peculiarity towards the
‘dawdling pedestrians’ who were quite slow while crossing the road while Leo was driving
[30]. Duncan’s testimony about Leo deliberately increasing the speed of his car whenever he
saw someone crossing the road slowly and eventually pressing the brake an inch away before
18 Evidence Act 1995 (Cth), s 59.
19 R. v Hannes (2000) 158 FLR 359.
20 Evidence Act 1995 (Cth), s 59(3).
21 Evidence Act 1995 (Cth), s 81 (1)
22 Evidence Act 1995 (Cth), s 81(2)
23 Ibid.

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hitting the person, could build incrimination for Leo, as it certainly determines Leo’s
character as an impulsive person who would be vindictive towards slow pedestrians. Further,
Duncan’s claim about Leo saying about frightening the slow pedestrians as he has ‘got places
to be’ gives an evidence of he is not sympathetic towards slow or old pedestrians, and
therefore, he could really hit someone out of aggression.
Duncan’s statements made in regard to Leo’s character could be taken as an
admission of evidence against Leo as all of the statements furnish information which may
incriminate him.
The statements made by Leo are first hand admissions, which was directly conveyed
by Leo to Duncan, and not to some other representative. Therefore, Duncan’s statements shall
be permissible as an admission of evidence by the court. Duncan could be asked by the court
to furnish the evidences in the course of the trial24.
Conclusion
Therefore, Duncan could inform the court about these incidents by way of furnishing
evidence of admission to the court, in the course of trail.
24 Wilson, Nigel. "The influence of Professor JH Wigmore on evidence law in Australia." (2015) 19.1 The
International Journal of Evidence & Proof: 29-51.

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BIBLIOGRAPHY
A. Cases
Australian Crime Commission v Stoddart [2011] HCA 47
R. v Hannes (2000) 158 FLR 359
B. Legislation
Evidence Act 1995 (Cth)
C. Books and Journal Articles
Cave, Heather, and Peter Sankoff. "What's Left of Marital Harmony in the Criminal Courts:
The Marital Communications Privilege after the Demise of the Spousal Incompetence Rule."
(2019) 42 Man. LJ: 1
Lusty, David. "Is There a Common Law Privilege against Spouse-incrimination." (2004) 27
UNSWLJ: 1
Wilson, Nigel. "The influence of Professor JH Wigmore on evidence law in Australia."
(2015) 19.1 The International Journal of Evidence & Proof: 29-51