It hath beene resolved by the Justices that a wife cannot be produced either against or for her husband...[for they are two souls in one flesh], and it might be a cause of implacable discord and dissention betweene the husband and the wife, and a meane of great inconvenience. (Lord Coke, 1628, cited in David Lusty, 2004)
As a result of the Biblical principle that husband and wife are 'two souls in one flesh', there is a common law tradition whereby women may not be obliged to give evidence against their husbands. This principle has apparently extended to apply to men giving evidence against their wives.
There are different bases on which a person may be required to or be excused from giving evidence. Their competence differs from their compellability which differs from whether privilege attaches to their evidence, once they are giving testimony. I am not seeking to explore these legal differences - and for the purposes of this post, will refer to these laws by a non-technical use of the term 'privileges'. I recognise that this term in itself has in part created the ambiguity in aspects of the common law in the area of spousal privileges.
The issue of spousal privilege has recently arisen in Australia, in the 2011 High Court decision Australian Crime Commission v Stoddart. This decision found that (the technical legal) spousal privilege does not exist in Australia. (Others have discussed the case: eg here and here.) However the case did, particularly in Heydon J's dissenting judgement, discuss the nature, genesis and evolution of spousal privileges (in their generic sense).
While I have little, if any, expertise in the law or practice of evidence, what interested me about this topic and the High Court's recent decision on it, was the foundation of spousal privilege laws - that husband and wife are 'two souls in the one flesh'. In considering the idea of spousal privilege laws and the Court's approach to them, I am therefore interested in the notion of status-based laws, and their implications.
