Law of evidence

FACTS

Dora is charged with murder for shooting Thomas which she claims to have committed in
self defence. George (Dora’s husband ) original gave a statement that proved that Dora shot
Thomas unprovoked but is now refusing to testify against Dora .

LEGAL ISSUES

Whether or not George can be compelled to testify against Dora ?

RULE OF LAW

Law of evidence provides that a spouse can not be compelled to testify against another
spouse. The general rule is any person is competent and compellable as a witness .1 Criminal
Procedure and Evidence Act provides that “the wife or husband of an accused person shall
be competent, but not compellable, to give evidence for the prosecution without the consent
of the accused person where such person is prosecuted for an offence against the separate
property of the wife or husband of the accused person.” 2This means that a spouse of an
accused person can not testify on behalf of the prosecution .As a general rule , a wife is not
compellable against the husband .3Subject to comparatively unimportant exceptions which
was confined to criminal cases , a party’ s spouse was incompetent as a witness for or
against him at common law . 4A spouse can not testify against an accused person due to
marital priviledge . Under common law , the spouse of the accused was generally
incompetent as a prosecution witness . 5Permiting one’s spouse to testify against each other
is breach of the principle resulted in the reversal of the conviction on appeal .6 The rule grew
up partly because as a legal fiction of the unity of husband and wife and partly because of
the policy of the law in preserving and upholding the intergrit of the matrimonial relationship
1
May R , Criminal Evidence (1990) , 2nd ed , page 284
2
Criminal Procedure and Evidence Act [9:07] , section 247 (3)
3
R v Fenandez ( 1861)
4
Cross R, Cross on Evidence (1985) , 6th ed , page 190
5
Murphy P , Murphy on Evidence , 8th ed , page 531
6
Ibid

,
.7In R v Pitt , 8it was held that the wife was competent but not compellable witness for the
prosecution against her husband the chance open to the wife whether to testify or not to
testify existed up to the moment she entered the witness box was unaffected by the fact that
might have previously made witness statement or given evidence at committed pleading .The
wife has a right to refuse to give evidence against her husband .9 In Zimbabwe , marital
priviledge has an exception in which a spouse can be a competent witness and be compelled
to give evidence against an accused spouse . Section 247 (2) states that “The wife or
husband of an accused person shall be competent and compellable to give evidence for the
prosecution without the consent of the accused person where such person is prosecuted for
any offence against the person of either of them or any of the children of either of them, or
for any of the following offences—

(a) rape;

(b) aggravated indecent assault;

(c) sexual intercourse or performing an indecent act with a young person;

(d) sexual intercourse within a prohibited degree of relationship;

(e) kidnapping or unlawful detention of a child;

(f) bigamy;

(g) perjury committed in connection with or for the purpose of any judicial proceedings
instituted or to be instituted or contemplated by the one of them against the other, or in
connection with or for the purpose of any criminal proceedings in respect of any offence
included in this subsection.”10

An admission made by one spouse is inadmissible against the other spouse unless it relates to
the joint interests of the spouses in the community estate .11 Section 199 of the Criminal
Procedure Act 1977 12 provides that ‘ No person shall at criminal be compelled to answer
any questions or give any evidence , if the questions or evidence is such that under the
circumstances the husband or wife of such person , if under examination the witness may

7
Ibid

8
[ 1983] QB 25
9
May R , Criminal Evidence (1990) , 2nd ed , page 300
10
Criminal procedure and Evidence Act [9:07] , Section 274(2)
11
Schwikkard et al , Principles of Evidence , 3rd ed , page 320
12
Criminal Procedure Act 1977 of South Africa

,
lawfully refuse and may not be compelled to answer to give it’ .This section allows the
husband or wife to refuse to answer any questions in any circumstances in which his or her
spouse would be entitled to claim priviledge.13The adverse spousal testimony priviledge can
entirely prevent the spouse from taking a stand as a witness adverse to the other connubial
partner , regardless of the subject matter of the expected testimony .14 Section 292 provides
that “No person shall be compelled to answer any question or to give any evidence if the
question or evidence is such that under the circumstances the husband or wife of such
person, if under examination as a witness, might lawfully refuse and could not be compelled
to answer or give.”15

APPLICATION OF LAW TO THE FACTS

George can not be compelled to testify as a prosecution witness . George had provided a
statement to the police and he can not be compelled to testify regardless of the statement as
decided in the case of R v Pitt . Criminal Procedure and Evidence Act clearly excludes
evidence to be tendered against the accused by the spouse based on marital priviledge . 16
George can not be compelled to testify against Dora based on the maxim expressio unius
est exclusio alterius . This means that as Section 247( 2)17 clearly excludes murder from the
crimes that marital priviledge can waivered thus he can not be compelled to be a
prosecution witness . In Leach v R , The House of Lords held that where the spouse was
competent by virtue of section 4 of and schedule of Criminal Evidence Act 1898 , the
spouse was nonetheless not compellable . 18 The case clearly shows that George can not be
a prosecution witness by the operation of law . It has been suggested that the priviledge
not to answer questions which tend to incriminate the other spouse must be regarded as
excluded by implication in those cases in which one spouse is a compellable witness in a
prosecution against the other . 19 At common law , the husband or wife of the a party to
proceedings civil or criminal is incompetent to give evidence either for or against such

13
Hoffman L H and Zefferts D , The South African Law of Evidence ( 1988) 4th ed , page 245
14
Rothstein P F et al , Evidence in a nutshell (2007) , 5th ed , page 219
15
Criminal Procedure and Evidence Act [9:07]
16
Criminal procedure and Evidence Act [9:07] , section 274( 3)
17
Criminal procedure and Evidence Act [9:07]
18
[1912] AC 305
19
Gardiner and Lansdown , South African Criminal Law and Procedure , 6th ed , page 513

,
party except on a charge of personal injury or violence alleged to have been done or
committed by the wife of husband of the complainant in which case the latter can give
evidence against the person charged . 20 In Bentley v Cooke ,21 Lord Mansfield ,C J, held that
‘there has been an instance either in a civil or criminal case where the husband or wife has
been permitted to be a witness for or against the other , except in case of necessity , and
necessity is not general necessity as where there areother witness can be had ,but a
particular necessity , as where, for instance , the wife would be exposed without remedy to
personal injury . I think the husband was not a competent witness.’ The case clearly shows
that George is not a witness for necessity .George may not be compelled to testify based on
the adverse spousal testimony priviledge . Adverse testimony priviledge can prevent only
testimony detrimental to the spouse .22 This shows that George may testify on behalf of
Dora .In R v Naudeer , the court held that failure of the wife of the accused to give
evidence shall not be made subject of any comment by the prosecution .23 Also in Hoskyn v
Commissioner of Police 24, the court corrected the position in R v Lapworth 25 by deciding
that “even where the spouse was competent , by the virtue of common law or statutory rule ,
he or she was nonetheless a competent witness for the prosecution .” These cases mentioned
above further solidify the ground that a spouse may not testify against another as in this
case ,George may not testify against Dora .The spouse is a compellable prosecution witness
only when the charge falls under one of the categories listed in section 80(3) of the Police and
Criminal Evidence Act 1984 and is not otherwise compellable for prosecution even when
competent .26 In this scenario , George falls on the latter as the crime was committed against
him or their children .Section 291 (1) of Criminal Procedure Act further prohibits George
from testifying against Dora . It provides that “ a husband shall not be compelled to
disclose any communication made to him by his wife during marriage and a wife shall not
be compelled to disclose any communication made to her by her husband during marriage.”
27
This can be supported by that an unwilling spouse called to testify against the other spouse
may have priviledge to refuse to do so ( whether or not the testimony involves confidential
information )so as to avoid rupture of the relationship.28 Based on the maxim contemporanea
20
Sturge L .F , Cockle’s Cases and Statutes of Evidence (1952) , 5th ed , page 257
21
[1784] KB 3 Douglas 422
22
(n at 14)
23
[1984]3 All ER 1036
24
[1979] AC 474
25
[1931] 1 KB 117
26
Murphy P , Murphy on Evidence , 6th ed , page 430
27
Criminal Procedure and Evidence Act [9:07] , section 291(1)
28
Rothstein P F et al , Evidence in a nutshell (2007) , 5th ed , page 214

,
expositio 29, the section was enacted so as to protect the sanctity of the marriage
institution .This means in a bid to preserve marriages , George may not testify against his
spouse by the operation of law . Furthermore the notion is supported in the case of S v
Chinhara 30 where it was stated that “ a spouse is also competent and compellable to give
evidence without the consent of the accused where certain offences that are specified in
S247 of the Act have been committed against such spouse or any one of their
children .Whilst in terms of S248 of the Act an accused person or their husband or wife
may be witness for the defence at every stage of the proceedings .”

CONCLUSION

In the operation of law , George may not be compelled to testify against Dora due to
marital priviledge . Therefore I would advise you to find another witnesses as George’s
statement is not admissible in court as the crime is not mentioned in Section 247 (2) of the
Criminal Procedure and Evidence Act [9:07] .

BIBLIOGRAPHY

BOOKS

29
A ‘contemporaneous exposition’ is the meaning of a provision as
understood at the time it was originally enacted or shortly thereafter.
30
HH 73-17

,
Gardiner and Lansdown , South African Criminal Law and Procedure , 6th ed

L .H .Hoffman and D Zefferts , The South African Law of Evidence ( 1988) 4th ed ,
Butterworths , Durban , South Africa

L .F Sturge, Cockle’s Cases and Statutes of Evidence (1952) , 5th ed , Legal Publication
Ltd , Wellington , New Zealand

P. F Rothstein et al , Evidence in a nutshell (2007) , 5th ed, Thompson and West , 610
Opperman Drive , ST Paul , Minnesota

P . Murphy , Murphy on Evidence , 8th ed , Blackstone Press Limited , London , Great

Britain .

Murphy P , Murphy on Evidence (1997), 6th ed , Blackstone Press Limited , London , Great
Britain

R . May , Criminal Evidence (1990) , 2nd ed , Sweet and Maxwell , London

R. Cross , Cross on Evidence (1985) , 6th ed

Schwikkard et al , Principles of Evidence , 3rd ed

STATUTES

Criminal Procedure Act 1977 of South Africa

Criminal Procedure and Evidence Act [9:07]