R v Wright - [2004] ACTSC 83

R v WRIGHT
[2004] ACTSC 83 (3 September 2004)

CRIMINAL LAW – compellability – compellability of spouse - husband pleaded not guilty to charges of assault and assault occasioning actual bodily harm – domestic violence - whether spouse can be compelled to give evidence in these proceedings as a witness - s 18 Evidence Act 1995 (Cth).

Evidence Act 1995 (Cth) ss 8(4)(a), 18, 18(2), 18(6), 19

Crimes Act 1900 (ACT) ss 3,4,26

Protection Orders Act 2001 (ACT) s 9(1), 9(2), 9(3)

Domestic Violence Act 1986 (ACT) s 27

Evidence Act 1971 (ACT) s 66(3)

Acts Interpretation Act 1901 (Cth) s 10A

Magistrates Court Act 1930 (ACT)

Magistrates Court (Civil Jurisdiction) Act 1982 (ACT)

Protection Orders (Reciprocal Arrangements) Act 1992 (ACT)

Debates of the Legislative Assembly for the Australian Capital Territory (Hansard), 15 June 2001

Day v Adam; Ex Parte Day [1989] 2 Qd R 9

No. SCC 101 of 2003

Judge: Higgins CJ
Supreme Court of the ACT
Date: 3 September 2004

IN THE SUPREME COURT OF THE       )
  )          No. SCC 101 of 2003
AUSTRALIAN CAPITAL TERRITORY    )

R

v

PETER GLENN WRIGHT

ORDER

Judge:  Higgins CJ
Date:  3 September 2004
Place:  Canberra

THE COURT RULES THAT:

The accused’s spouse is, in this case, a competent and compellable witness.

On 21 June 2004, the accused, Peter Glenn Wright pleaded not guilty to charges alleging that on 29 March 2003 he assaulted his spouse Toni Kelly, occasioning actual bodily harm and, alternatively, that he assaulted her.

At trial, a question arose as to whether Ms Kelly was a compellable witness. Evidence was given following arraignment and empanelment of a jury that the accused and Ms Kelly had been lawfully married on 9 June 2002. That fact is conceded by the Crown.

Ms Kelly, in her evidence, avowed her intention, relying on the spousal privilege, apparently conferred by s 18(2) of the Evidence Act 1995 (Cth) (“Evidence Act 1995”), to decline to give evidence in the proceedings against her husband. The question is whether she can, in the circumstances, be compelled to give evidence in these proceedings.

First, I am satisfied that Ms Kelly is the accused’s spouse and that she has objected to giving evidence in the proceedings prior to commencing to give such evidence. Thus s 18(6) of the Evidence Act 1995 is activated –

(6)A person who makes an objection under this section to giving evidence or giving evidence of a communication must not be required to give the evidence if the court finds that:
(a)there is a likelihood that harm would or might be caused (whether directly or indirectly) to the person, or to the relationship between the person and the defendant; if the person gives the evidence; and
(b)the nature and extent of that harm outweighs the desirability of having the evidence given.

(7)Without limiting the matters that may be taken into account by the court for the purposes of subsection (6), it must take into account the following:

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Wright

Details

AGLC: R v Wright [2004] ACTSC 83
Case: [2004] ACTSC 83
Decision Date

CaseChat Overview and Summary

In the Supreme Court of the Australian Capital Territory, Chief Justice Higgins addressed the case of R v Wright, where the accused, Peter Glenn Wright, pleaded not guilty to charges of assault and assault occasioning actual bodily harm against his spouse, Toni Kelly. A significant legal issue arose concerning whether Kelly could be compelled to give evidence against her husband, given the spousal privilege outlined in the Evidence Act 1995 (Cth). Kelly had expressed her intention to invoke the spousal privilege to decline testifying against Wright. The court had to determine if this privilege applied and, if so, whether it could be overridden in the context of domestic violence offences.

The court examined the legislative framework, particularly the Evidence Act 1995, which generally protects spouses from being compelled to testify against each other. However, Section 19 of the Evidence Act 1995 excepts domestic violence offences from this protection. The court analysed whether the offences Wright was charged with qualified as domestic violence offences under the Protection Orders Act 2001 (ACT) and whether the repeal of the Domestic Violence Act 1986 (ACT) affected the applicability of the spousal privilege. The Protection Orders Act 2001 (ACT) had incorporated the provisions of the repealed Domestic Violence Act 1986 (ACT) and maintained the definition of domestic violence offences. The court concluded that the intent of the Commonwealth Parliament was to exclude spousal privilege in cases of domestic violence to prevent undue influence on victims.

Ultimately, Chief Justice Higgins ruled that Toni Kelly was a competent and compellable witness in this case, affirming that the spousal privilege did not apply to domestic violence offences. This ruling ensured that Kelly could be compelled to testify, thereby upholding the integrity of the criminal proceedings against Wright.

Orders