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Competence and Compellability of the Spouse of the Accused as a Witness in Criminal Proceedings in Papua New Guinea [1997] MLJ 5; [1997] 25 MLJ 87 (1 January 1997)

Competence And Compellability Of The Spouse Of The Accused As A Witness In Criminal Proceedings In Papua New Guinea

A J Regan*

Because almost all evidence is presented to a court by or through witnesses, it follows that:

(a) any limits on the classes of persons who can be witnesses - that is, rules limiting the competence of persons to be witnesses[1]; and

(b) the adequacy of the means available to ensure that people do give evidence as required in particular cases - that is, the means of ensuring the compellability of competent witnesses[2],

are issues of central importance to the administration of justice in general and so to the law of evidence in particular.

The general rule in common law jurisdictions is that all persons are both competent and compellable as witnesses in all forms of court proceedings, and that is also the position in Papua New Guinea. There are, however, often exceptions to that rule. One of the most important of these concerns the spouse of the accused in criminal proceedings.
In Papua New Guinea the rules about the competence of spouse witnesses are found mainly in s 13 of the Evidence Act (Ch 48). While the spouse of the accused in criminal proceedings (the spouse witness) is competent to give evidence, in general the consent of the accused is required except in certain exceptional cases. That consent is frequently withheld, usually with the result that the most crucial prosecution witness is unavailable.
The compellability of the spouse witness is generally understood to be, in the main, the subject of common law rules adopted at Independence as part of Papua New Guinea’s underlying law.[3] Although the position is not altogether clear, it seems that such a witness is probably compellable only in exceptional circumstances. Additional special rules on competence and compellability of spouse witnesses are contained in certain provisions of the Criminal Code Act (Ch 262).

Neither the policy basis for the exceptional situation in relation to both competence and compellability of the spouse witness in criminal cases, nor the complex wording of s 13, nor the relationship of s 13 to the relevant provisions of the Criminal Code Act (Ch 262) are well understood, despite the issues having been examined by the Supreme Court. They are among the key issues addressed by this article, which also discusses the need for reform of this aspect of the law in Papua New Guinea and options that might be considered in that regard.

A. Introductory Issues

1. Competence and Compellability - Background

The present mainly statutory rules about competence of witnesses operating in many common law jurisdictions, as well as in Papua New Guinea, are remnants of much more comprehensive common law rules on the subject operating until the 19th century. Indeed until then the common law rules on evidence were to a large extent made up of rules about competence of witnesses. Five main classes of persons were wholly or partially prohibited from becoming witnesses, namely: non-Christians; convicts; persons interested in the outcome of the proceedings; parties; and spouses of parties.[4]

From the mid-19th century, the common law was modified by statute in all jurisdictions to make almost all classes of witnesses both competent and compellable. In the various common law jurisdictions around the world, however, remnants of the common law rules continue to apply, especially (but not only) in relation to compellability.
The major policy consideration underlying the modern rules on both competence and compellability concerns the need to ensure the availability of the widest possible range of witnesses so as to assist courts and tribunals in the process of finding the truth when settling disputes. In the exceptional cases where the common law rules retain some influence, competing policy considerations apply, none more so than in the case of the rules about spouse witnesses.

2. The Common Law Rules on Competence and Compellability of the Spouse Witness

The common law position was that the spouse of an accused person was neither a competent nor a compellable witness against the accused except in a few exceptional cases. The only undisputed exception in relation to competence concerned offences involving allegations of violence against the spouse witness. There were two other possible exceptions which were less certain, namely charges of treason and of abducting and marrying a girl against her will, where old cases suggest the spouse of the accused may be competent.[5]

As for compellability, there has never been any doubt that the common law position was that the spouse witness was not compellable where he or she was not competent. The only argument has been about compellability in the exceptional cases where the spouse was competent under the common law. In other words, could he or she be forced to give evidence - for either the prosecution or the defence - against his or her wishes in those few cases of competence?
The basic common law rule on compellability is that any competent witness is also compellable.[6] Until 1978 that principle was accepted as applicable to the spouse of the accused. The leading UK case was R v Lapworth [1931] KB 117 (hereafter Lapworth) where the Court of Criminal Appeal had held that in any situation where a spouse was a competent witness, he or she was also compellable.[7] The 1978 majority decision of the House of Lords in Hoskyn v Commissioner of Police for the Metropolis [1979] AC 474 (hereafter Hoskyn) reversed the rule in Lapworth, so that a spouse witness was no longer compellable, even in the exceptional common law cases where he or she was competent.[8]

There were two main policy concerns underlying the common law rules severely limiting the competence and compellability of spouses. One concerned the likely partiality of the spouse witness and the other involved the sanctity of marriage.[9] In the main exceptional cases of competence (allegations of violence by the accused spouse against the spouse witness), different policy considerations were given precedence. The emphasis was on the public interest in convicting wrong-doers of a type who could not normally be convicted except on the evidence of the victim, who was highly likely to be the only witness. Such a spouse needed to be both competent and compellable to ensure that pressure from the accused spouse did not prevent the spouse witness giving evidence.[10] As for the other two possible exceptions to the rule against competence of the spouse witness, the same policy considerations presumably applied in respect of abducting and marrying a girl against her will (in that “something in the nature of personal violence was involved”[11]) while in relation to treason the “public interest in the safety of the state outweighs whatever public interests are promoted by preventing one spouse from testifying against the other”.[12]

As for the common law rules either restricting compellability to the limited cases of competence or - since Hoskyn [1979] AC 474 in 1978 - against compellability of the spouse, the basic policy concerns are similar. The majority in Hoskyn emphasised concerns about the futility of compelling a spouse to testify against an accused spouse in situations where the proposed witness was disposed to protect the accused, or was concerned about the consequences for the marriage if testimony given was adverse to the accused - in essence a repetition of the partiality and sanctity of marriage arguments.[13]

The common law rules on the competence of the spouse of the accused as a witness were altered fundamentally by statute in almost all jurisdictions in the 19th century. However, the common law rules on compellability of such spouses were in general retained. Despite statutory modification, the common law rules on competence retained some influence. This was because the relevant 19th century statutes tended to be based upon common law exceptions to the rules on competence of the spouse witness. In particular, they usually provided that consent of the person charged was required before the spouse could be called as a witness, save in exceptional circumstances, one being any situation where a spouse witness was both competent and compellable under the common law (see Part B 2.(a), below).

3. Competence and Compellability in Papua New Guinea - History and Overview

The general position in Papua New Guinea is much the same as in common law jurisdictions such as England and Australia. Statutes modifying the common law were part of the legislative framework introduced separately into the territories of Papua and New Guinea in the early colonial days. A few weeks before Independence in September 1975, the statutory provisions on evidence scattered through numerous statutes (many applying in one only of the two territories combining to become Papua New Guinea) were consolidated into the Evidence Act 1975.[14] In 1982, a re-numbered and edited version of that Act became the Evidence Act (Ch 48).[15]

Under the Evidence Act (Ch 48) (hereafter the Evidence Act), all persons, subject to very limited exceptions, are competent to give evidence as witnesses and are also compellable. Some of the categories of witnesses incompetent under the old common law are the subject of specific statutory provisions. The common law rules as to the incompetence of parties, persons with an interest in a matter before the court, and convicts are ousted by ss 9 and 11. As a result, and by contrast with the situation in criminal cases, the position of spouses of parties as witnesses in civil proceedings is straight forward. Section 11(1) provides for both the competence and compellability of several groups of witnesses which were not competent under the common law. They include husbands and wives of “the parties or persons on whose behalf the proceedings are brought”. Section 11(2) simply provides that the privilege against self-incrimination is not affected by competence and compellability being extended to spouses.[16]

The main exceptions to the general rule that all persons are both competent and compellable as witnesses involve:

(a) the accused, who is a competent but not a compellable witness for the prosecution;[17]
(b) an accomplice of the accused who will not normally be compellable as a witness against the accused where a joint trial of accused and accomplice is conducted;[18]
(c) persons who are unable to understand the oath or the solemn declaration administered under the Oaths, Affirmations and Statutory Declarations Act (Ch 317) to persons called as witnesses (normally children or persons with mental disabilities);[19] and
(d) the spouse of an accused person in criminal proceedings, as provided for by s 13 of the Evidence Act and certain provisions of the Criminal Code Act (Ch 262).

4. Section 13 of the Evidence Act (Ch 48)

Until 1975, separate statutory provisions on competence of spouses as witnesses had applied in Papua[20] and in New Guinea.[21] The relevant provisions of the New Guinea legislation became s 71 of the Evidence Act 1975, which in turn became s 13 of the Evidence Act (Ch 48) when the Revised Laws of Papua New Guinea came into effect.

Section 13 of the Evidence Act is in the following terms:

“(1) The wife or husband of a person charged with an offence is a competent witness in any legal proceedings in connexion with an offence.

(2) Notwithstanding Subsection (1), the wife or husband of a person charged with an offence shall not be called as a witness in any legal proceedings in connexion with the offence without the consent of the person, except-

(a) where the wife or the husband, as the case may be, is compellable to give evidence; or

(b) where the husband or the wife is charged with being a party to an offence against the other.

(3) Notwithstanding Subsections (1) and (2), the wife or husband of a person charged with bigamy may be called as witness for the prosecution or for the defence without the consent of the accused.”

While s 13(1) provides for a spouse to be a competent witness, s 13(2) seems to severely restrict that general principle. It limits the circumstances in which a spouse is likely to be able to be called. At first glance, however, it is not at all clear whether s 13(2) is in fact intended to restrict the scope of the principle of competence stated in s 13(1), or whether it is intended to operate in some other manner. Efforts to make sense of the provision are further complicated if an attempt is made to reconcile it with the provisions of the Criminal Code Act (Ch 262) which also deal with competence and compellability of spouses.
An understanding of s 13 is not assisted greatly by reference to evidence statutes operating in Australian jurisdictions, as the statutory provisions on spouses as witnesses in criminal proceedings are all quite different from the Papua New Guinean provision. Rather, s 13 is much closer in its terms to the 19th century UK legislation long since repealed and replaced.[22] Only when it is understood that rather than completely displacing the common law rules on competence and compellability of spouse witnesses, s 13 and the UK Act it is modelled upon are in part based upon those rules, does s 13 start to make sense.

B. Competence of Spouses in Criminal Proceedings in Papua New Guinea

1. Section 13(1) and the Principle of Competence

The main effect of s 13(1) is to reverse the basic common law rule on the lack of competence of a spouse witness, who now becomes “a competent witness” in any legal proceedings in connexion with the relevant offence. This general wording would suggest that the spouse witness is competent to be called by either the prosecution or the accused.[23] Section 13(1) is not concerned with compellability, something left mainly to the common law.[24]

However, the apparent general effect of the principle of competence stated in s 13(1) is truncated severely by s 13(2), a provision which needs to be analysed with some care.

2. Consent Requirement and the Principle of Competence

a. Origins of s 13(2)

The requirement in s 13(2) that the accused give consent before the spouse witness is called probably derives from the Criminal Evidence Act 1898 (UK), which was the model for laws on the competence of spouses and other classes of witnesses in many common law jurisdictions. While the 1898 Act made the spouse witness competent, he or she could not be called “except upon the application of the person ... charged”,[25] apart from two sets of exceptional cases. The first of these was a list of offences set out in a Schedule to the Act where the spouse witness could be called by either prosecution or defence without consent of the accused.[26] The second set of exceptions involved any offence where at common law the spouse witness could be called without consent of the accused[27] - in other words, any offences where the common law exceptions had long been understood to make the spouse witness both competent and compellable.

b. Scope of the consent requirement and its impact on both competence and compellability

The words “in any proceeding in connexion with that offence” used in s 3(2) are broad, covering preliminary hearings as well as trials.
Although the word “competence” is not used in s 13(2), the provision has the effect of reducing the scope of the principle of competence of the potential spouse witness stated in s 13(1). The introductory words to s 13(2) – “Notwithstanding Subsection 1” - indicate that it restricts what is provided for in s 13(1). The restriction is that the spouse of an accused person “shall not be called as a witness”, except where the accused consents to the spouse witness giving evidence, subject only to narrow exceptions to the requirement for consent of the accused. Remembering that the concept of competence concerns the persons or classes of persons who may lawfully give evidence, the consent requirement in s 13(2) involves a considerable limit on the extent to which the spouse of the accused can lawfully give evidence.
The consent requirement also restricts the compellability of spouse witnesses, for otherwise the basic proposition of competence in s 13(1) would result in such a witness always being compellable (assuming that the common law principle of compellability following competence applies in Papua New Guinea, an issue discussed below).
It is not uncommon for the consent requirement to be invoked by the accused to prevent a spouse giving evidence, usually in circumstances where the spouse can be expected to be a vital prosecution witness. This occurred in the National Court trial considered in the Supreme Court decision in State v Kamugaip [1985] PNGLR 278, preventing the spouse being called against an accused charged in respect of serious sexual offences alleged to have been committed against a 10 year old child living in the house of the accused.[28]

The basic policy consideration underlying the consent requirement is presumably the sanctity of marriage rather than any concern about possible partiality of the witness.

c. Competence as witness for both prosecution and defence

As with s 13(1), an implication of the introductory words of s 13(2) is to prevent a spouse being called as a witness for either prosecution or defence unless the accused consents. As a result, consent is needed before the spouse can be called by a co-accused.[29] In a joint trial, the calling of the spouse witness would involve him or her being called as a witness in a “proceeding in connexion with” the offence with which the accused spouse is charged. More importantly, there will often be the possibility of unfairness to the accused spouse. Evidence by the spouse witness either for the co-accused or under examination by the prosecution might implicate the accused spouse, thereby undermining the goal of protecting the sanctity of marriage which the consent requirement is at least in part directed to. The appropriate course in such a case is to hold separate trials so that the spouse witness can be called as a witness against the co-accused.[30]

3. Exceptions - Spouse Competent Without Consent of Accused

There are just three exceptional situations provided for in s 13 where the consent of the accused is not required for a spouse to be a competent witness (ss 13(2)(a) and (b) and s 13(3)). It is the provisions of ss 13(2)(a) and (b) which cause the most difficulty in giving a coherent interpretation of s 13.

a. Spouse witness “compellable to give evidence”- s 13(2)(a)

The spouse witness is made competent without the consent of the accused where he or she “is compellable to give evidence”. The wording of s 13(2)(a) is a little different from that of the Criminal Evidence Act 1898 (UK) from which it derives, where consent of the accused was not required in relation to any offence where the spouse could be called as a witness “at common law”, or an offence provided for in a schedule of offences where consent was not needed.[31]

As compellability of the spouse in criminal proceedings is not dealt with in the Evidence Act, the reference to the spouse being compellable contained in s 13(2)(a) must be directed towards provision about compellability made elsewhere - in the underlying law or statutory provisions.
The rules on compellability in Papua New Guinea are discussed in more detail below. Suffice it to say here that compellability is generally understood to be in the main a matter determined by the common law rules adopted into the underlying law at Independence, with the exception of a few provisions of the Criminal Code Act (Ch 262) which make specific provision on the matter (discussed in more detail below).
The underlying law rule appears to be that compellability still follows competence – that is, a spouse is compellable in the few cases where he or she is competent.[32] If so, then s 13(2)(a) probably means that consent of the accused is not required for the spouse to be called for any of the exceptional common law offences where the spouse was competent and therefore compellable. As for statutory provisions on compellability, two sections of the Criminal Code Act (Ch 262) make the spouse witness both competent and compellable. They concern offences involving the property of the spouse witness (s 36(5)) and bigamy (s 360(6)).[33] Again, s 13(2)(a) makes those offences exceptions where consent of the accused is not required for the spouse to be competent.

In other words, the provision is of similar effect to the 1898 UK Act in relation to the common law exceptions, but rather than there being a schedule of statutes where consent is not required, it envisages the possibility of other statutes providing for compellability in particular instances.

b. Accused spouse “charged with being a party to an offence against” the spouse witness - s 13(2)(b)

Curiously, the major recognised common law exception where the spouse was competent - cases involving violence against a spouse - is encompassed by s 13(2)(b). However, because that provision is not restricted to offences involving violence against the spouse, it goes beyond the common law exception, extending to crimes against the property of the spouse, for example. That being the case, the main likely reason for seeking to save the common law exceptions under s 13(2)(a) would be to ensure that any of the lesser known and less certain common law exceptions were also excepted from the requirement of consent of the accused for the spouse witness to be called as a witness.

c. Accused spouse charged with bigamy - s 13(3)

The third exception where consent of the accused is not required for the spouse to be called as a witness concerns the charge of bigamy. Under s 13(3), the spouse witness in such cases “may be called as witness for the prosecution or the defence without the consent of the accused”.[34] It is not clear why this exception is set out on its own in s 13(3), a subsection separate from the two exceptions contained in s 13(2), nor why s 13(3) is expressed to be “notwithstanding” not only s 13(1) but also s 13(2). Apart from the identity of the offences which ss 13(2) and 13(3) list as exceptions to the rule in s 13(1), the major differences between them are, first, that s 13(2) is expressed in the negative (the husband or wife “shall not be called”) while s 13(3) is expressed in the positive (the husband or wife “may be called”), and secondly that s 13(3) is specific in that the spouse witness can be called “for the prosecution or defence”, while s 13(2) is not specific about who may call such a witness. It is not clear why such differences exist. The reasons for these anomalies may simply be that the drafting of the section is inadequate.

There is an element of overlap between s 13(3) and s 360(6) of the Criminal Code Act (Ch 262). Both provisions make the spouse witness competent in bigamy cases without consent of the accused. But whereas s 13(3) is silent on compellability, leaving it to the underlying law, s 360(6) is specific on the matter. Under the latter provision, the spouse of a person accused of bigamy is “a competent and compellable witness for the prosecution or the defence”. The reasons for this duplication probably lie in the history of enactment of the Criminal Code Act, discussed in the next section of this article.

5. Competence of Spouse Witness Under Criminal Code Act (Ch 262)

Understanding s 13 of the Evidence Act is further complicated if attention is given to the intent of the provisions of the Criminal Code Act (Ch 262) which state that a husband or wife of the accused is “a competent but not a compellable witness”. These provisions include ss 213-217, 220, 221, 223, 224, 347-352, and 361. It is not entirely clear that there is necessarily a common policy concern underlying the inclusion of the “competent but not compellable” formula in these provisions.[35] All of them do, however, involve offences of a sexual nature, and should they occur in the domestic situation could result in the spouse of the accused being a crucial witness.

For the purposes of this article the most basic question is whether it is the intention of these provisions that the spouse witness should be competent in such cases, irrespective of the consent of the accused spouse, despite the contrary provision in s 13(1) of the Evidence Act. In other words, do these sections constitute exceptions to the principle of consent of the accused additional to those stated in ss 13(2) and (3) of the Evidence Act?
The answer probably lies in the history of the two Acts. The Criminal Code Act (Ch 262) was originally adopted as a whole from Queensland - where it was enacted as The Criminal Code Act 1899 - and applied in Papua from 1902 and in New Guinea from 1921. It was only in 1974 that it was enacted as a Papua New Guinea law,[36] with revisions intended to remove anomalous provisions not relevant to Papua New Guinean circumstances.[37] The above-mentioned provisions of that Act were all derived from the Queensland version of the Act without change. It was shortly after the Criminal Code Act 1974 was passed that the Evidence Act 1975 was passed, including s 71 (now s 13 of the Evidence Act (Ch 48)).

At the time that The Criminal Code Act 1899 (Qld) was enacted in Queensland, the main legislation in that state concerning the compellability of spouses in criminal proceedings was s 3 of The Criminal Law Amendment Act 1892, which was in very different terms from the precursors of the Evidence Act applying in Papua and the Territory of New Guinea. It provided that a spouse was competent but was not compellable without the consent of the accused. Unlike s 13 of the Evidence Act (Ch 48) (and its pre-cursors), it made no provision for exceptional cases where no such consent was required. The competence and compellability provisions of The Criminal Code Act 1899 (Qld) had the effect of providing some exceptions to the general rule in The Criminal Law Amendment Act 1892, by providing one case (s 35, offences against the property of the spouse) where the spouse was compellable, and a number of offences where the spouse was apparently not compellable even with the consent of the accused.
It seems likely that the anomalies and potential inconsistencies involved, in the inclusion in the Criminal Code Act (Ch 262) of a regime on competence and compellability of spouses designed for a different statutory regime on evidence matters, were not considered either during the long period of the colonial era,[38] or in the mid-1970s when both the Criminal Code Act and the Evidence Act were being prepared in essentially their present forms as part of a rush to remove the main anomalies in the colonial statutes prior to Independence.[39]

Of course, this historical analysis might be of limited assistance to a court called upon to reconcile the two sets of provisions. The most obvious answer would be simply to apply the normal rule of statutory interpretation that the law passed later prevails in case of any inconsistency. But there is also s 2 of the Evidence Act (Ch 48) to consider. It provides that the provisions of that Act are “in addition to and not in derogation of any powers, rights or rules of evidence given or prescribed by any other law”, except and to the extent of any inconsistency. Because the Evidence Act (Ch 48) was passed after the Criminal Code Act, applying that provision might result in the requirement of consent of the spouse in s 13(2) being regarded as an additional requirement applicable to the specific instances of competence stated in the various provisions of the Criminal Code Act (Ch 262).

C. Compellability of Spouses in Criminal Proceedings

1. Underlying Law Rules on Compellability

Section 13 of the Evidence Act makes no mention of the compellability of the spouse witness which it makes competent in criminal proceedings.[40] If the spouse witness is competent, however, either because of consent of the accused under s 13(2), or by virtue of one of the exceptions to the requirement of consent provided for in s 13, compellability continues to be determined by the pre-Independence common law rules adopted as part of the underlying law.[41] The continuing application of these rules was hardly questioned by the Supreme Court in State v Kamugaip [1985] PNGLR 278, the only post-Independence case where compellability of a spouse witness in criminal proceedings has been considered.

However, in making its decision, the Supreme Court in Kamugaip failed to turn its mind to the issue of which version of the common law rules should apply - that is, the rule as understood to 1978[42] or the opposite rule as determined in 1978 in Hoskyn [1979] AC 474. Because Hoskyn is a post-Independence decision of a UK court purporting to correct an error in a pre-Independence ruling on the common law in England, there is an argument that it does state the common law received at Independence as part of Papua New Guinea’s underlying law. These issues require brief elaboration.

2. The Decision in State v Kamugaip (1985)

The ruling of the Supreme Court (Kidu CJ, Pratt and Woods JJ) in State v Kamugaip [1985] PNGLR 278 was made while determining questions reserved by the National Court in the course of a criminal trial involving three alleged sexual offences against a child, contrary to the Criminal Code Act (Ch 262). The prosecution had sought to call the wife of the accused, and defence counsel objected on the basis that the accused had not consented to his spouse being called, as required under s 13(2).
In referring the issues to the Supreme Court the trial judge apparently assumed that the only way the spouse could be called was if she was compellable at common law, thereby coming under the s 13(2)(a) exception to the requirement for consent of the accused. He further assumed that under the common law, a spouse witness was not compellable in respect of sexual offences of the type involved in the case. In summary, the questions asked were:

- first, whether the common law principle of non-compellability in such cases was inapplicable or inappropriate to the circumstances of Papua New Guinea;
- secondly, whether the underlying law principle of non-compellability would be different if the marriage involved was by custom rather than performed by a registered celebrant under the Marriage Act (Ch 280); and
- thirdly, if it was found that the common law rule was not applicable or appropriate to Papua New Guinea, whether the Supreme Court would formulate an appropriate underlying law rule under Sch 2.3 of the Constitution.

The questions about applicability or appropriateness of the common law to the circumstances of Papua New Guinea arose because, under Sch 2.2 of the Constitution, the common law of England immediately prior to Papua New Guinea becoming independent was adopted as part of the underlying law, subject to consistency with both statutes and applicable rules of custom and to the requirement that any particular rule is not “inapplicable or inappropriate to the circumstances of the country from time to time”.[43] Further, under Sch 2.3(1) the courts have the role of developing underlying law rules where no applicable or appropriate rule of law exists.

The Supreme Court observed that the second question should not have been asked, because under s 3(2) of the Marriage Act (Ch 280) a customary marriage “is valid and effectual for all purposes”. Instead it concentrated on the first question. In so doing it noted that two of the offences with which the accused was charged involved provisions of the Criminal Code Act (Ch 262) which provided that a spouse witness was not compellable,[44] and so the common law rules did not apply in any event. (The Court did not consider the problems involved in reconciling s 13 of the Evidence Act (Ch 48) and the provisions of the Criminal Code Act providing for competence but not compellability, discussed above in Part B.) There was therefore only one offence[45] involved where the application of the common law principle of lack of compellability was an issue.

In considering that issue the court could have been expected to take some care in identifying what were the relevant common law rules about compellability of a spouse witness. In fact, there was only a cursory examination of the question. Kidu CJ (with whom Pratt and Woods JJ concurred) said:

“The common law position is, of course, that a spouse is not a compellable witness (not even a competent witness) unless he or she comes under one of the very few exceptions to the rule: for example, where he or she is the victim.”[46]

This appears to be a re-statement of the common law rule on compellability as it was understood prior to Hoskyn [1979] AC 474, when a spouse witness was compellable only where he or she was competent. However, it may also involve, in part, a misunderstanding of the position. If compellability indeed follows competence, and the accused is competent in all the situations identified in the discussion of s 13 elsewhere in this article, then compellability is less restricted than it was in the early 19th century, when it arose only in relation to the common law exceptions concerning competence. Indeed, it seems likely that the spouse witness may be compellable more frequently than the Supreme Court may have realised.
Of course, Hoskyn decided that the previous understanding was wrong, and that a spouse witness was not compellable even when competent. It seems, however, that the purported correction of the error in the common law decided in Hoskyn was not argued in Kamugaip. As a result, the latter decision should not be regarded as conclusive on the question of the underlying law rule on compellability of the spouse witness (although accepting Hoskyn would not have had any impact on the outcome of the appeal, which would have been against the compellability of the spouse in any event).
The perhaps curious situation that the Supreme Court of an independent Papua New Guinea should have considered a post-Independence decision of a foreign court needs explanation. It remains possible that Hoskyn may be regarded as an authoritative statement of the common law in England “immediately before Independence Day” for the purposes of Sch 2.2 of the Constitution. The distinction between post-Independence judgments which correct errors in the common law and those which develop the common law has been discussed in several cases. The opinion of Kapi Dep CJ, expressed in three separate decisions,[47] is that the former judgments are part of the common law for the purposes of Sch 2.2, while the latter are not. That view has been criticised strongly,[48] mainly on the basis that the distinction between correcting errors in, and developing, the common law is not sustainable. If that view is accepted, then the opinions expressed in Kamugaip on compellability are correct, save that as a result of s 13(2) of the Evidence Act (Ch 48), compellability is not as restricted as the Court suggested.

Having stated his view of the common law on compellability, Kidu CJ turned to the question asked about applicability of that rule to the circumstances of Papua New Guinea. He emphasised that under the Constitution Sch 2 there was a preliminary question which had to be answered concerning the possible applicability of rules of custom.[49] While critical of lack of evidence on that issue, he nevertheless seems to have assumed that the common law applied. He also ruled that there was no evidence that the common law was inapplicable or inappropriate to the circumstances of Papua New Guinea, again mainly because there was no evidence that it was not. He noted, however, that the inclusion of the numerous provisions of the Criminal Code Act (Ch 262) stating that a spouse is not compellable “supports the argument that the principle is not inappropriate in Papua New Guinea”.[50] In concurring, Pratt J made reference to the “sanctity of marriage” as “an important element in the whole issue”, so that in a country the Constitution of which upholds Christian principles, the courts should not tamper with the area of evidence between spouses, and should leave the matter to Parliament.[51]

There has never been a definitive Supreme Court ruling on the distinction between correcting errors in the common law and developing the common law (referred to above), and as Hoskyn [1979] AC 474 was not drawn to the attention of the Supreme Court, the issue was not addressed in Kamugaip [1985] PNGLR 278. Had the court accepted the distinction, then in the light of its emphasis on policy considerations which led it to favour a restrictive view of compellability, it seems quite likely that had the Supreme Court been aware of the decision in Hoskyn - far more restrictive on the subject of compellability than the common law position as understood by the court - it may well have been disposed to accept it as a correction of the pre-Independence common law. If so, the court would have been quite likely to have found further that the corrected rule was applicable and appropriate to the circumstances of Papua New Guinea.

3. The Statutory Provisions on Compellability

Of course, the main exception to the operation of common law rules on compellability involves the various provisions of the Criminal Code Act (Ch 262) already discussed, which specify that a spouse is either a competent but not compellable witness, or - in the case of just two provisions - a competent and a compellable witness.
It seems likely that the main reason why most of these sections include specific restrictions on compellability, when compellability of the spouse witness under s 13 of the Evidence Act (Ch 48) is quite restricted in any event (by the requirement of consent of the accused), again lies in the history of adoption of statutes from other jurisdictions during the colonial period without their contents being entirely reconciled.

4. Summary

In requiring consent of the accused in most cases before the spouse witness can be called, s 13(2) limits the competence and consequently the compellability of such witnesses. But once either competent by virtue of consent from the accused, or subject to one of the s 13 exceptions to the requirement of consent, the underlying law (common law) compellability rules should apply to make such a witness compellable, subject only to the few exceptions where provisions of the Criminal Code Act (Ch 262) make specific provision against compellability of a competent spouse witness. The issue then is to determine what the common law rule is on compellability.
If Kamugaip is correct, then almost all spouse witnesses made competent by consent of the accused or subject to s 13 exceptions are compellable for either prosecution or accused. On the other hand, if Hoskyn states the underlying law correctly (because it corrects an error in pre-Independence UK common law or even because of its persuasive value), then such a spouse witness is not compellable. While there may well be good policy reasons to prefer the view that the spouse witness is compellable whenever competent, it is clear that the Supreme Court in Kamugaip favoured other policy reasons disposing it against the compellability of the spouse witness.

D. Other Issues

There are a number of situations concerning spouses of accused persons where questions about the possible application of s 13 may arise. Some, but by no means all, of them are the subject of common law rules. They include situations involving:

- a separated spouse of the accused;

- a former (divorced) spouse of an accused person;

- a person who becomes a spouse of the accused after the alleged offence but before being called to give evidence;

- a polygamous spouse of an accused;

- a de facto partner of an accused;

- spouses involved in customary marriages which may not be readily distinguished from de facto relationships;

- both wife and husband charged with the same offence;

- testimony by the spouse on behalf of accomplices of the accused spouse (persons tried together with the accused).

Because the term “spouse” as used in s 13 of the Evidence Act (Ch 48) is not defined, either in that Act or in the Interpretation Act (Ch 2), it will generally be necessary in this context to turn to the general law (in particular, the Marriage Act (Ch 280) and the underlying law).

1. Separated and Former Spouses

At common law, a spouse was incompetent to give evidence of matters occurring after a separation.[52] It seems likely that a divorced spouse is incompetent to give evidence as to matters occurring during the marriage.[53] There seems no good reason why s 13 (or any other Papua New Guinea statute) should be interpreted as intending to change these rules.[54]

2. Becoming the Spouse Before the Trial

The position of a witness who marries the accused after the alleged crime but before the trial was the focus of the decision in Hoskyn [1979] AC 474, where although the new spouse was ruled compellable at trial, that decision was ultimately overruled on appeal. While the application to Papua New Guinea of the ruling on compellability remains in doubt (see above), the ruling on the application of the rules to a witness who becomes the spouse of the accused after commission of the offence but prior to trial seems less doubtful, especially in the light of the policy concerns emphasised by the Supreme Court in Kamugaip [1985] PNGLR 278.

3. Polygamous Spouses

It is not uncommon in Papua New Guinea for a man to be married by custom to more than one wife,[55] and such marriages are generally regarded as legally valid.[56] Each wife in a polygamous marriage is married to the husband only. A “co-wife” is not the spouse of any other “co-wife”. Hence, the rules about competence and compellability of spouses do not apply as between the co-wives, but presumably do apply as between each co-wife and the husband.[57] There may be a question, however, whether much the same policy issues, concerning the special position of the relationship which could be damaged by application of the rules on competence and compellability, arise between co-wives in polygamous marriages as arise between the persons involved in a marriage relationship.

4. Customary Marriages

As observed by the Supreme Court in Kamugaip [1985] PNGLR 278, a marriage by custom is normally a valid marriage, and so the rules about competence and compellability of spouse witnesses apply to unions the result of such marriages as much as to unions resulting from marriages performed by registered marriage celebrants (sometimes referred to as “statutory marriages”).

5. De facto Partners

The position of de facto partners in Papua New Guinea is that they are not spouses at law, and so the rules about competence and compellability of spouses do not apply to them.[58]

6. Accomplices of the Accused

The problems with competence of the accused’s spouse as a witness either for or against a co-accused have already been discussed.[59]

7. Spouses Jointly Charged

The application of the rules about competence and compellability in situations where both spouses are charged with an offence can give rise to a number of problems. Presumably, the effect of s 13 of the Evidence Act (Ch 48) is that neither can give evidence without the consent of the other. It is beyond the scope of this article to do more than draw attention to the issue, one which is dealt with in the United Kingdom under s 80(4) of the Police and Criminal Evidence Act 1984. That section provides that such spouses are competent and compellable as witnesses in the proceedings only if they are not liable to conviction for an offence due to pleading guilty or for any other reason.

E. The Need For Law Reform

1. Complexity of the Present Position

In general, the position of the spouse of the accused as a witness in Papua New Guinea is difficult to unravel, both because of the complexity of s 13 of the Evidence Act (Ch 48) and the problems of reconciling that section with both the common law and the relevant provisions of the Criminal Code Act. Part of the problem is that the present provisions in both the Evidence Act and the Criminal Code date back unchanged to the early part of the 20th century, when policy concerns were in many ways somewhat different.
Whether or not one agrees with whatever policy underlies the present law, there is a need for reform to clarify and simplify the present law. A number of Law Reform reports from Australian jurisdictions and the United Kingdom have made careful analyses of the options for reforms, which have resulted in legislative changes which have been in operation for some time. These laws have sought to resolve similar problems to those still experienced in Papua New Guinea. It is clearly time that the same issues are addressed seriously by the Law Reform Commission of Papua New Guinea or some other appropriate body, and the experience of other jurisdictions may be useful in highlighting relevant issues and options.

2. Reform: Issues and Options

The issues to be considered when contemplating reform of the law concerning competence and compellability of the spouse of the accused include:

- should competence and compellability of the spouse witness continue to be limited by the requirement of consent of the accused in s 13(2) of the Evidence Act?

- in general, to what extent should the spouse witness be compellable, and more particularly should compellability continue to be in the main a common law matter?

- should the position of divorced, separated and de facto spouses and of accomplices of the accused and of co-accused spouses be covered by clear statutory rules, or left to be determined by common law rules adopted as part of the underlying law?

Of course, the answers to these and related questions will be determined on the basis of policy considerations. There may well be a need to evaluate with care the assumptions on policy which the Supreme Court seems to have relied upon in Kamugaip [1985] PNGLR 278.
More generally, the broad range of policy concerns and reform options can be illustrated from examples from Australian jurisdictions and the United Kingdom. The main competing policy concerns which drive the debate about reform of the rules about spouse witnesses ultimately continue to be core concerns that have driven the discussion on this subject since the old common law rules against competence were abolished a hundred and fifty years ago. On the one hand, there is concern to facilitate correct court decisions by ensuring that all relevant evidence disclosing offences is available, and on the other hand there is the wider social concern about protecting the institution of marriage as well as considerations about the harshness of compelling one spouse to give evidence against the other.[60]

Turning to reform options adopted in other jurisdictions in relation to competence, in general the spouse witness is competent in all such jurisdictions, without any requirement for the consent of the accused. To the extent that issues concerning the sanctity of marriage are given emphasis, it is in relation to the rules about compellability rather than competence. It tends to be assumed that it is best left to the spouse witness to decide whether or not to testify, rather than to apply rules that prevent a spouse willing to testify from entering the witness-box.
In relation to compellability, the situation varies considerably, there being three main models based on different approaches to determining the appropriate balance between the public interest in disclosing offences and concerns about the special nature of marriage.
Under the model giving most weight to the concern about disclosing offences, the spouse is compellable for both the prosecution and defence in all cases, as in the Northern Territory.[61]

By contrast, the emphasis on disclosure in the South Australian and Victorian legislation[62] is balanced by discretionary powers vested in the court. This position has been summarised as follows:

“Spouses are compellable for the defence in all cases and there is a presumption in favour of compellability for the prosecution. But in the latter situation the judge has a discretion to exempt a spouse from testifying where the interest in justice in obtaining the evidence is outweighed by the risk of serious harm or damage to the witness or the relationship between the witness and the accused. This balance can now be struck having regard to the seriousness of the offence charged and the importance of the testimony in establishing that offence. Serious harm or damage includes social, emotional or psychological, and economic or material harm or damage.”[63]

There are several versions of the third and more traditional model which gives less emphasis to disclosure and more to the competing policy concerns about the importance of the institution of marriage. One involves making the spouse witness compellable for the prosecution and defence only in relation to specified offences (usually serious offences, or ones where the evidence of the spouse is likely to be crucial). This is the situation in in New South Wales,[64] Tasmania[65] and the Australian Capital Territory.[66] The other makes the spouse compellable for the defence in all cases, but compellable for the prosecution only in relation to the specified offences (which are similar to those in New South Wales, Tasmania and the ACT), a model which applies in Queensland[67] and Western Australia.[68] Much the same model also applies in the United Kingdom where s 80 of the Criminal Evidence Act 1984 has effectively reversed the majority decision in Hoskyn [1979] AC 474.

Ligertwood summarises some of the key issues involved in the choice among approaches to compellability:

“In criminal cases there is much to be said in favour of at least a presumption of compellability in all cases. It is possible for publication of testimony to be restricted, and for testimony to be taken in camera if there is a serious risk of harm being caused by compulsion. But marriage is a special case, which may justify the exemption of a recalcitrant spouse from being compelled to testify at all. The legislation in South Australia and Victoria recognises this on a case by case basis rather than the arbitrary offence by offence basis applied in other jurisdictions. ... Whether the risk of harm to familial relationships should be considered so important that information may be withheld from a court is another matter. The power to compel must always be kept within the perspective of the difficulty a prosecutor will have in questioning an unwilling witness and the harshness of convicting the recalcitrant spouse of contempt.”[69]

3. Other Issues

In developing reform proposals, many jurisdictions have resolved uncertainties and anomalies applying to divorced and separated spouses, accomplices, spouses as co-accused and so on. In the interests of certainty and simplicity, attention also needs to be given to such issues in Papua New Guinea.
A separate question concerns whether the same policy concerns as underlie the rules on spouse witnesses should also extend to close relatives, such as parents or children of the accused. In some Australian states, such as South Australia, the rules as to competence and compellability of spouses also apply to a “close relative”. That expression is defined in South Australia[70] to include “spouse, parent or child”, and spouse is defined to include a “putative spouse” - that is, a de facto partner (as defined in relevant legislation). In Papua New Guinea an issue may arise as to whether co-wives in polygamous marriages might, in relation to one another, be classified in much the same way.

4. Domestic Violence Reform Proposals in Papua New Guinea

Limited proposals for reform of s 13 of the Evidence Act (Ch 48)in respect of the position of the spouse witness in domestic violence offence matters were made by the Law Reform Commission of Papua New Guinea in a 1992 report. The discussion and proposals involves an interesting analysis of some aspects of the main policy concerns in the Papua New Guinea context.
The focus of the Commission’s discussion was the problems experienced by the police in Papua New Guinea in getting convictions for offences involving domestic violence. The present legal position was summed up as follows:

“Under the present legislation (s 13 of the Evidence Act and s 36 of the Criminal Code), husbands and wives cannot be compelled to give evidence against each other, except for offences against each other’s property when they are no longer living together.”[71]

The “well-known unreliability of wives as witnesses against their husbands” was cited as “the main obstacle to successful prosecutions for wife-beating”.[72] Reasons for this phenomenon were said to include “pressure from relatives not to disrupt the family”;[73] fear on the part of the wife that imprisonment of the husband would result in loss of income; the wife’s belief that the threat of prosecution would not deter future violence; or threats of retaliation from the husband or his relatives if the case were not dropped (cited as the most common reason why wives refused to testify in such cases).[74]

The Commission discussed the possible solution used in some countries of making spouses compellable against each other in domestic violence cases, thereby making it clear that:

“ ... it is the State, acting in the public interest, which is responsible for taking action to stop the violence. The victim is the prime witness in the State’s case, and should therefore be obliged to give evidence in court, unless there is sufficient evidence from other sources.”[75]

While it favoured such an approach in domestic violence cases, on the other hand the Commission accepted that there were certain circumstances where it would be reasonable to permit a victim to drop charges against an accused spouse even in such cases. Accordingly, it recommended an approach similar in some respects to that operating in South Australia and Victoria (see above). A court hearing cases involving domestic violence offences would have discretionary powers “where the couple have become reconciled, provided that the Magistrate is convinced that the victim is acting of her own free will and not through fear of retaliation by her husband.”[76]

Accordingly the Commission proposed the following amendment to s 13 of the Evidence Act (Ch 48):

“(4) Notwithstanding Subsections (1) and (2), the wife or husband of a person charged with an offence of assault against the other, or against a child of either of them, is a competent and compellable witness in any legal proceedings in connection with the offence, and may be called without the consent of the accused.

(5) Where a person who is a competent and compellable witness under subsection (4) makes a statement on oath that -

(a) a genuine reconciliation has been achieved or is imminent; or

(b) other considerations make it undesirable for the person to be compelled to give evidence,

the Court may excuse the person from giving evidence.

(6) Where a person is excused from giving evidence under Subsection (5), the Court shall record its reasons in writing.”[77]

In summary, the proposal involves creating a new set of exceptions where a spouse witness will normally be a compellable witness, for either prosecution or defence, but permits the spouse witness to be excused in limited circumstances.
As is not unusual with reports of the Law Reform Commission of Papua New Guinea, there is no evidence of its report on domestic violence issues having been taken seriously by the government.

F. Conclusions

The rules on competence and compellability of the spouse witness in criminal proceedings in Papua New Guinea in the preceding sections of this article can now be summarised.
The spouse of an accused person is competent as a witness for either prosecution or defence:

a. without the consent of the accused in three exceptional situations provided for under s 13 of the Evidence Act, namely where the spouse is:

- already a compellable witness by virtue of the application of either any of the common law exceptions to the rule against competence and compellability of the spouse or statutory provisions such as ss 36 and 360 of the Criminal Code Act; or

- charged with being a party to an offence against the spouse (s 13(2)(b)); or

- charged with bigamy (s 13(3)); and

b. in all other cases, only with the consent of the accused.

As for compellability, assuming that the decision in Kamugaip [1985] PNGLR 278 is correct, then once a spouse witness is competent, underlying law (common law) compellability rules should apply in all but the few situations covered by the Criminal Code Act (Ch 262) making specific provision on compellability. The spouse witness is compellable for either prosecution or accused, whenever consent has been given by the accused or, in the absence of consent, in the exceptional cases provided for in s 13 of the Evidence Act (Ch 48). In virtually all other cases, the spouse witness is not compellable. If, however, Kamugaip was wrongly decided on this point, and the rule in Hoskyn [1979] AC 474 applies, then the spouse is never compellable except where a statute provides otherwise (ss 36 and 360 of the Criminal Code Act (Ch 262)).
It is perhaps not surprising that the only serious discussion of reform of this area of the law - the Law Reform Commission’s 1992 report - failed to comment on the problems involved in understanding and applying s 13 of the Evidence Act, and envisaged the present provision being left intact with just the proposed addition of new subsections making spouses potentially compellable in domestic violence cases. After all, the focus of the Commission was domestic violence as a social and cultural issue rather than the law of evidence.
There is clearly a need to go much further, however, and reform the law in this area, so that it is easier to understand and deals with the many practical difficulties which are at present left to the uncertainties of the common law. Consideration of the various models developed in other jurisdictions and discussed in the previous part of this article would assist such an exercise. Ultimately, of course, the starting point will have to be the policy choice between disclosure of crime and protection of the institution of marriage. If the views of the Law Reform Commission on domestic violence and those of the Supreme Court in Kamugaip are any guide, any reforms are likely to involve more emphasis on the latter than the former.

* State, Society and Governance in Melanesia Project, Research School of Pacific and Asian Studies, Australian National University, formerly of Faculty of Law, University of Papua New Guinea. I am grateful to Owen Jessep and Eric Kwa for comments provided on an early draft of this article.

1 The concept of competence of witnesses concerns the persons that may lawfully give evidence: “A person is competent if the person may lawfully be called to give evidence.” (JD Heydon, Cross on Evidence. Fifth Australian Edition (Butterworths, Sydney 1996), p 305).

[2] The concept of compellability concerns whether or not persons wanted as witnesses will be required by law to give evidence when requested to do so by any party. To put it another way: “A witness is said to be compellable if he is not only competent but may lawfully be required by the court, under sanction of penalty as a contemnor, to give his evidence.” (P Murphy, Murphy on Evidence, 5th ed (Blackstone Press, London 1995), p 411).

[3] The underlying law is the “interstitial” law of Papua New Guinea, similar in role - though not in content - to the common law in England or Australia (Sch 2 of the Constitution of Papua New Guinea), as discussed in more detail later in this article.

[4] JD Heydon, Cross on Evidence. Fifth Australian Edition, above n 1, pp 305-310.

[5] JD Heydon, Cross on Evidence. Fifth Australian Edition, above n 1, pp 308-309.

[6] Ex parte Fernandez (1861) 10 CB (NS) 3 [142 ER 349]; and Hoskyn v Commissioner of Police for the Metropolis [1979] AC 474 (Wilberforce LCJ, with whom Keith LJ concurred, at 484, Dilhorne LJ at 489, and Edmund-Davies LJ at 500-501).

[7] Lapworth [1931] KB 117 was followed in some Australian cases, despite strong obiter remarks to the contrary made by the High Court in Riddle v R (1911) 12 CLR 622.

[8] Hoskyn [1979] AC 474 has been followed in Australia - see R v Kaye [1983] 2 Qd R 202.

[9] There were other policy concerns. The 1976 report of the Law Reform Commissioner for the State of Victoria (Australia) indicates that in the long period to the middle of the 19th century, when the common law governed the competence of witnesses in criminal proceedings, there were five main reasons advanced as to why the spouse of the accused was not competent (“Spouse-Witnesses: Competence and Compellability”, Report No 6 (Melbourne 1976), pp 19-20). First, the likelihood of common interest on the part of spouses meant the spouse of an accused was likely to be biased and so likely to give perjured evidence leading to erroneous verdicts. Secondly, the power of a spouse to give evidence “would arm them with a weapon which might be used for dangerous purposes” (Id, at p 20). Thirdly, allowing the spouse to give evidence would violate the confidential relationship between husband and wife. Fourthly, admitting the evidence of a spouse could cause marital discord, contravening the public policy of stable marriages. Fifthly, the state was not justified in imposing on spouse witnesses “the extreme hardship of giving evidence against their spouses, contrary to the promptings of affection and marital duty, and with the likelihood, in many cases, of bringing upon themselves disastrous social and economic consequences” (Ibid). The Report summarises the reasons why each of these policy considerations was discarded as irrelevant when statutes changed the common law on competence of spouse witnesses in the latter part of the 19th century. However, these and similar considerations have continued to influence the retention of special rules on competence and compellability of spouses, despite critical evaluation of many of them by, among others, law reform bodies in various jurisdictions - see eg United Kingdom Criminal Law Revision Committee, 11th Report “Evidence (General)” (London, HMSO 1972), para 147. See also JD Heydon, Cross on Evidence. Fifth Australian Edition, above n 1, pp 332-33, discussing reform proposals formulated by the Australian Law Reform Commission (Australian Law Reform Commission, “Evidence”, Report No 38 (AGPS, Canberra 1987).

[10] The competing policy considerations are discussed in Hoskyn [1979] AC 474. The arguments in favour of compellability are presented cogently in the dissenting judgment of Edmund-Davies LJ.

[11] JD Heydon, Cross on Evidence. Fifth Australian Edition, above n 1, p 309.

[12] Ibid.

[13] For a trenchant critique of the analysis of the majority on these issues, see the minority judgment of Edmund-Davies LJ in Hoskyn [1979] AC 474.

[14] For a more detailed discussion of the history of the Evidence Act, see A Regan, “Understanding and Using the Evidence Act”, mimeo, paper presented to Papua New Guinea National Institute for Continuing Legal Education Seminar, 29 April 1995, Gateway Hotel, Port Moresby.

[15] This was part of a comprehensive exercise of editing and consolidating the Papua New Guinea statute laws to produce the Revised Laws of Papua New Guinea, which were introduced in 1982 under authority of the Revision of the Laws Act 1973.

[16] Section 18 uses the language of compellability, but in fact relates more to privilege. It gives statutory form to the common law privilege applying to communications made between spouses during the course of a marriage.

[17] Section 37(10) of the Constitution and ss 12 and 14 of the Evidence Act (Ch 48).

[18] For illustrations of the problems that can arise with co-accused accomplices, see State v Atu Kote [1978] PNGLR 212, and Wemp Mapa and Ors v The State [1979] PNGLR 135.

[19] See Schubert v The State [1979] PNGLR 66, State v Sipi [1987] PNGLR 357 and Beraro v The State [1988-89] PNGLR 562 for not entirely consistent decisions dealing with the application of the relevant provisions of the Oaths, Affirmations and Statutory Declarations Act (Ch 317) to situations of children unable to understand the nature of the oath or the solemn declaration, and therefore possibly not competent as witnesses.

[20] Evidence and Discovery Ordinance 1913 (Papua), s 58(1)(ii) and s 58(3).

[21] Evidence Act 1934 (Territory of New Guinea), s 6(2) and s 6(6).

[22] See Criminal Evidence Act 1898 (UK).

[23] A contrary argument could be advanced, based on the fact that s 13(3) makes specific provision in respect of the spouse being capable of being called for either prosecution or defence. But as is discussed further below, it is difficult to reconcile the wording of s 13(3) with any reasonable interpretation of the rest of s 13.

[24] As discussed below, this view seems to be supported by the Supreme Court in State v Kamugaip [1985] PNGLR 278 (Kidu CJ at 280, with whom Pratt and Woods JJ concurred).

[25] Criminal Evidence Act 1898 (UK), s 1(c).

[26] Criminal Evidence Act 1898 (UK), s 4(1).

[27] Criminal Evidence Act 1898 (UK), s 4(2).

[28] Most cases where consent of the accused is withheld do not involve significant legal rulings and so are not the subject of reported decisions. They are sometimes, however, the subject of media attention as occurred in June 1995, when the National Court (Hinchliffe J) in Lae was reported as having discharged a man charged with the wilful murder of his mother-in-law because the accused had refused to consent to his spouse giving evidence, even though she was prepared to testify (Post Courier, 22 June 1995).

[29] Wemp Mapa v The State [1979] PNGLR 135.

[30] Id.

[31] Section 4 provided as follows:

“(1) The wife or husband of a person charged with an offence under any enactment mentioned in the schedule to this Act may be called as a witness either for the prosecution or defence and without the consent of that person.

(2) Nothing in this Act shall affect a case where the wife or husband of a person charged with an offence may at common law be called as a witness without the consent of that person.”

[32] Despite some uncertainty, as discussed later in this article, this seems the most likely position.

[33] There is an element of duplication between the latter provision and s 13(3) of the Evidence Act.

[34] As s 13(3) makes the spouse witness available to the defence “without the consent of the accused”, he or she could be available for any co-accused without the consent of the accused.

[35] All save two of the relevant provisions are expressed in terms of either the husband or wife of the accused being competent. The exceptions are the offences of incest by a man, under s 223, where only the witness wife is referred to, and incest by an adult female under s 224, where only the witness husband is referred to. Almost all of them relate to sexual offences most likely to be committed against female persons (and normally a person other than the wife of an accused person). The exceptions are s 224 (above) and the offence of child-stealing, s 361. The other offences are: s 213, defilement of girls under 12; s 214, householder permitting defilement of girls on his premises; s 215, attempt to abuse girls under 10; s 216, defilement of girls under 16 and idiots; s 217, indecent treatment of girls under 16; s 220, abduction of girl under 18 with intent to have carnal knowledge; s 221, unlawful detention with intent to defile in a brothel; s 347, rape; s 348, attempt to commit rape; s 349, indecent assaults on females; s 350, abduction; and s 351, abduction of girls under 16.

[36] Criminal Code Act 1974 (No 78 of 1974). That law became the Criminal Code Act (Ch 262) when the Revised Laws of Papua New Guinea were introduced in 1982 under the Revision of the Laws Act 1973.

[37] The history of the Criminal Code Act 1974 is discussed in more detail in D Chalmers, D Weisbrot and W Andrew, Criminal Law and Practice of Papua New Guinea, 2nd ed (Sydney, Law Book Company 1985), pp 236-37.

[38] There are no reported decisions on ss 6(2) and (6) of the Evidence Act 1934 (Territory of New Guinea) (see A Regan, “Understanding and Using the Evidence Act”, above n 14, Appendix II).

[39] The suggestion that no attention was given to the anomalies is perhaps supported by the fact that the issue is not even mentioned in D Chalmers, D Weisbrot and W Andrew, Criminal Law and Practice of Papua New Guinea (above note 37), despite the fact that the book re-produces both Acts in annotated form.

[40] This is in contrast to the situation in civil proceedings which is dealt with under s 11 of the Act.

[41] As discussed elsewhere in this article, however, the introductory words of s 13(2) can be seen as restricting the compellability of spouse witnesses which in the application of the underlying law rules of compellability would otherwise flow from the statement of competence of such witnesses contained in s 13(1).

[42] R v Lapworth [1931] KB 117.

[43] Constitution, Sch 2.2(1)(b).

[44] Attempted rape (s 348) and unlawful and indecent assault (s 349).

[45] Carnal knowledge against the order of nature (s 210(a)).

[46] [1985] PNGLR 278, at 280.

[47] See Waghi Savings and Loans Society Ltd v Bank of South Pacific Ltd (1980) SC 185 at 17-19; State v Pokia [1980] PNGLR 97 at 99-100; and SCR No 4 of 1980; Re Petition of Somare [1981] PNGLR 265 at 290-291.

[48] For example, see the discussion in B Brunton and D Colquhoun-Kerr, The Annotated Constitution of Papua New Guinea (Port Moresby, UPNG Press 1985) at p 517; and DK Srivastava and D Roebuck, “The Reception of the Common Law and Equity in Papua New Guinea: The Problem of the Cut-off Date”, (1985) 34 International and Comparative Law Quarterly 850-57.

[49] The practical difficulties that might be involved for courts if they were required to consider the possible application of rules of custom whenever they consider applying a common law rule of evidence were not considered by the court. One answer may lie in ss 4 and 5 of the Customs Recognition Act (Ch 19) which, in specifying the matters in respect of which custom can be considered in criminal and civil cases respectively, makes no mention of rules of evidence.

[50] Kamugaip [1985] PNGLR 278, at 280.

[51] Id, at 281.

[52] Moss v Moss [1963] 2 QB 799.

[53] See R v Algar [1954] 1 QB 279.

[54] A Ligertwood, Australian Evidence, 2nd ed (Sydney, Butterworths 1993), p 275.

[55] Polyandry, the practice of a woman having more than one husband, is virtually unknown in Papua New Guinea - see O Jessep and J Luluaki, Principles of Family Law in Papua New Guinea, 2nd ed (Waigani, UPNG Press 1994), pp 11-12.

[56] Ibid (and also see pp 16-17, for discussion of arguments based on provisions of the Papua New Guinea Constitution which might result in such marriages being ruled to be invalid).

[57] See R v Khan (1987) 84 Cr App R 44 (Eng CA) for a ruling on competence and compellability of spouses in polygamous marriages in a jurisdiction where more than one marriage is not permitted.

[58] That position has been changed by statute in some other jurisdictions. The broader legal position of de facto partners in Papua New Guinea has been explored by O Jessep, in “De Facto Relationships and the Law in Papua New Guinea”, (1992) 41 International and Comparative Law Quarterly 460-72. It is beyond the scope of this article to explore the major practical issue of the difficulty sometimes involved in distinguishing a valid customary marriage from a de facto relationship.

[59] They are illustrated by the decision in Wemp Mapa and Ors v The State [1979] PNGLR 135.

[60] Other concerns such as the theoretical unity of spouses, the possibility of the spouse witness having an interest in the outcome of proceedings, or the likelihood of the spouse witness being partial are generally regarded as being of little contemporary relevance - see United Kingdom Criminal Law Revision Committee, 11th Report (above n 9), para 147; and JD Heydon, Cross on Evidence. Fifth Australian Edition, above n 1, pp 332-33.

[61] Evidence Act 1939 (NT), s 9.

[62] In South Australia, the Evidence Act 1929 s 21, and in Victoria the Crimes Act 1958 ss 399 and 400.

[63] A Ligertwood, Australian Evidence, above n 54, pp 276-77.

[64] Crimes Act 1900 (NSW), ss 407 and 407A.

[65] Evidence Act 1910 (Tas), ss 85 and 86.

[66] Evidence Act 1971 (ACT) ss 66 and 74.

[67] Evidence Act 1977 (QLD)s 8.

[68] Evidence Act 1906 (WA)s 9.

[69] A Ligertwood, 2nd ed, above n 54, p 277.

[70] Evidence Act 1929 (SA), s 21(7).

[71] Law Reform Commission of PNG, “Final Report on Domestic Violence”, Report No 14 (Boroko, 1992), p 49.

[72] Ibid.

[73] Ibid.

[74] Ibid.

[75] Id, at p 50.

[76] Ibid.

[77] Id, at pp 130-31.