Can I be forced to testify against my family?

Receiving a subpoena to appear as a witness in court can be daunting.

The experience can be even more stressful if you are called to testify against your loved-one.

But there are laws that restrict the prosecution’s ability to force family members to testify.

Under section 18 of the Evidence Act, a witness may object to giving evidence altogether, or to giving evidence of a communication between themselves and the defendant, if:

• They are a called by the prosecution as a witness, and
• The defendant is their spouse, de facto partner, child or parent, and
• There is likely to be harm caused to their relationship with the defendant

The section recognises that forcing family members to testify against one another can harm the family unit, and that harming the family unit is undesirable.

However, the protection does not apply in all situations. Rather, the court can force a family member to give evidence if the nature and extent of the harm caused is outweighed by the desirability of having the evidence given.

In making that assessment, the court will consider factors such as:

• The nature and gravity of the offence;
• The nature of evidence that the person might produce;
• The weight that such evidence is likely to be given;
• Whether there is another source of the evidence that is likely to be given;
• The nature of the relationship between the defendant and the person; and
• Whether the person would be disclosing a matter received in confidence from the defendant.

In order to take advantage of the section, a witness must object before they give evidence or as soon as practicable thereafter.

What about spousal privilege?

Spousal privilege is a principle that says that a husband and wife cannot not be compelled to testify against each other.

One of the historical justifications for the privilege was that the law considered the interests of a husband and wife to be one and the same.

Another justification was that the law should not interfere with the most sacred and holy of unions – the institution of marriage.

Spousal privilege existed in legal jurisprudence for hundreds of years, but in 2011 the High Court found that it is not actually an enforceable rule.

The High Court case

In 2009, Ewan Stoddart was summonsed to appear before the Australian Crime Commission after being investigated for tax fraud.

His wife was also summonsed to answer the Commission’s questions, but refused to answer on grounds of spousal privilege.

The Federal Court found in favour of Mrs Stoddart, but the High Court appeal went the other way.

The High Court found that spousal privilege is not a valid excuse for refusing to give evidence in court. It found that all family members must rely on statutory exemptions even though they may not offer the same level of protection as common law privileges.

So whether you are a spouse or another family member, the court must take into account the list of factors contained in legislation before deciding whether or not to force you to testify against your loved-one.