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10 Incrimination of Spouses

240 IT IS NOT CLEAR whether the privilege against self-incrimination can be claimed by a witness on behalf of his or her spouse under common law in New Zealand. There is an English case to the effect that the privilege would extend to disclosure tending to incriminate spouses. In R v Inhabitants of All Saints, Worcester (1817) 6 M & S 194, 200, Bayley J said:

If she had thrown herself on the protection of the Court on the ground that her answer to the question put to her might criminate her husband, in that case I am not prepared to say that the Court would have compelled her to answer; on the contrary, I think she would have been entitled to the protection of the Court.

More contemporary statements, suggest that the common law privilege may be “restricted to the person claiming it and not anyone else.”[52]

241 Historically, a wife and husband were treated as one for legal purposes:

see Blackstone, Commentaries (19th ed, Sweet, London, 1836) vol 1, 442. Therefore, at common law, the privilege could be said to be restricted to the person claiming it, yet still extend protection to the spouse of that person. Furthermore, under common law, spouses were incompetent to testify against one another. By virtue of ss 4 and 5 of the Evidence Act 1908, and s 29 of the Evidence Amendment Act (No 2) 1980, a person is now competent to testify against his or her spouse but cannot be compelled to do so. The Commission will be considering the separate issue of spousal compellability in upcoming work within the evidence reference.

242 In the United Kingdom, s 14(1)(b) of the Civil Evidence Act 1968 extends protection in civil cases to cover incrimination of the spouse of the person questioned. However, the Commission does not favour this approach and is of the view that the privilege against self-incrimination should be removed in relation to spouses.

243 Essentially, the privilege is a privilege against self-incrimination. Nowadays, the argument that the incriminating disclosures about one spouse could somehow self-incriminate the other spouse making them is not compelling. This is not to discount the possibility that evidence given by one spouse in proceedings brought against the other could have undesirable consequences, both social and financial for the family unit. However, the competence and compellability provisions, already alluded to, largely address this concern.

244 The English position is also open to the criticism that it is out of date. It makes no provision for de facto relationships in the nature of marriage, including same-sex relationships.

245 The scope and efficacy of the privilege for communications between husband and wife is discussed fully in chapter 10 of the Commission’s discussion paper Evidence Law: Privilege (NZLC PP23, 1994). Briefly, the Commission recommended that the spousal privilege recognised in s 29 of the Evidence Amendment Act should not be carried forward into the proposed Evidence Code. Where necessary, the court should be able to excuse a person living with the defendant in an intimate relationship in the nature of marriage from giving evidence in criminal proceedings if the public interest does not require such evidence to be given (paras 245, 263). This approach is distinct, and gives rise to separate issues, from the privilege against self-incrimination.

246 There are a limited number of statutory provisions in New Zealand that extend the privilege against self-incrimination to answers which incriminate the spouse of a witness in specific circumstances. Section 18 of the Petroleum Demand Restraint Act 1981, for example, provides that no person shall be required under ss 13 or 17 to answer any question if the answer would tend to incriminate the person or his or her spouse (for further examples, refer to Appendix B). These provisions should be examined, with a view to removing the privilege for spouses.

CONCLUSIONS

• The issue of whether the privilege against self-incrimination can be claimed by a person to protect his or her spouse from criminal liability or civil penalty should not be confused with the completely distinct spousal privilege or with the issue of spousal compellability.
• It is unclear whether the common law privilege any longer applies to prevent claimants’ spouses from being incriminated.
• The Evidence Code should restrict the protection given by the privilege against self-incrimination to the person claiming it.
• In relation to the privilege against self-incrimination, the idea that a person’s identity should not be legally separate from his or her spouse is out-dated and discriminates between married couples and de facto, including same-sex, couples.
• The statutory provisions in New Zealand legislation which extend the protection given by the privilege against self-incrimination to spouses in particular situations should be examined, with a view to removing the privilege for spouses.