R v Hallett

[2013] NZHC 1076

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IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2011-063-005475 [2013] NZHC 1076

THE QUEEN

v

MENZIES REGINALD JOHN HALLETT

Hearing:         26 April 2013

Counsel:         A F Pilditch and A J Gordon for the Crown

P G Mabey QC for the Accused

Judgment:      26 April 2013

Reasons:        14 May 2013

REASONS JUDGMENT OF DUFFY J [Re Evidence Admission]

This judgment was delivered by Justice Duffy on 14 May 2013 at 2.00 pm, pursuant to

r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Counsel:     P G Mabey QC P O Box 13199 Tauranga 3141 (DX HP40075) for the Accused

Solicitors:    Gordon Pilditch P O Box 740 Rotorua 3040 for the Crown

R v HALLETT HC ROT CRI-2011-063-005475 [26 April 2013]

[1]      In 2013 Mr Hallett stood trial for the murder of Rodney Tahu in August 1979. The Crown’s evidence against Mr Hallett included a statement he made to his former wife (now Mrs Sharpe) in 1979, shortly after Mr Tahu was murdered. This statement was tantamount to a confession that he had committed the murder.

[2]      In  1979  the  common  law  and  the  Evidence  Act  1908  (the  1908  Act) prevented Mrs Sharpe from giving evidence against Mr Hallett on the charge of murder.  Without her evidence, the prosecution case against Mr Hallett was weak.  A charge was laid against him, but at a committal hearing in the Magistrate’s Court in October 1979 the charge was dismissed for want of proof.

[3]      The Evidence Act 2006 (the 2006 Act) removed the barrier prohibiting one spouse from testifying against his or her spouse.  After the enactment of this legislation, the Police laid a fresh charge of murder against Mr Hallett.  At his trial the Crown proposed to call Mrs Sharpe to give evidence of the confession Mr Hallett had  made  to  her.    Mr  Hallett’s  counsel  took  the  view  that  her  evidence  was admissible under s 71 of the 2006 Act, so no pre-trial steps were taken to have the Court determine if this evidence was indeed admissible.   During the course of the trial, however, Mr Hallett changed his stance.   He objected to the admissibility of Mrs Sharpe’s evidence on the grounds that the 2006 Act did not apply; and therefore the legal impediment that had prevented her from testifying earlier was still in place. Time was made available to hear and determine this objection.

[4]      The question I had to determine was whether s 71 of the 2006 Act enables a willing witness to testify in a criminal trial against a former spouse about matters that she learned from that spouse at a time when the law precluded her from giving this testimony.  This entailed an analysis of the protection that the law in 1979 gave to spousal communications.  If the protection were characterised as an evidential or procedural rule, there would be little or no difficulty in finding that the 2006 Act would apply: see R v Bain [2008] NZCA 585 at [15]. But if the protection were to be characterised as a substantive right or entitlement that was enjoyed by Mr Hallett, matters might be quite different. Unless the 2006 Act plainly provided for s 71 to apply retrospectively, there would be great difficulty reading the provision that way, as to do so would run up against the well settled principle of statutory interpretation

that a Court “should be slow to impute to Parliament an intention to override established rights and principles where that is not clearly spelt out”: see Cropp v Judicial Committee [2008] NZSC 46, [2008] 3 NZLR 774 at [26]. This is especially so where the removal of such rights and principles would be retrospective in operation.

[5]      Further, s 7 of the Interpretation Act 1999 provides that enactments do not have  retrospective  effect,  though  the  provision  is  subject  to  legislation  to  the contrary.   Thus, whilst Parliament has the power to pass retrospective legislation, when it affects pre-existing substantive rights and entitlements, clear language is required before legislation will be understood to have retroactive effect.   There is therefore a need for a clear understanding of the character of the protection given to spousal communications in 1979.

[6]      After hearing from counsel, I delivered a result ruling in which I found that the 2006 Act cleared the way for the Crown to call Mrs Sharpe to testify against Mr Hallett.  I stated that my reasons for this finding could be categorised as follows:

(a)      Section 71 of the 2006 Act did no more than make a change to the evidential rules by which a Court conducts proceedings before it, and as such it was a procedural change that did not affect any substantive rights that Mr Hallett may have held before the commencement of s 71.

(b)Insofar as it might be thought that the changes brought about by s 71 affect substantive law, they are better seen as changes affecting a privilege that Mrs Sharpe previously enjoyed, rather than one enjoyed by the accused.  She was willing to give evidence and so was entitled to waive any privilege given to her.   Thus, any issue regarding retrospective loss of the privilege was irrelevant.

(c)      Insofar as the changes might be seen to affect a substantive right or entitlement enjoyed by Mr Hallett, rather than Mrs Sharpe, the legal foundation for seeing matters in that way was based on a legal fiction,

now in disuse, namely that on marriage, a husband and wife become one person with the result that if one spouse gave evidence against the other, it was tantamount to self-incrimination.  Such a way of looking at matters is no longer supported by how the law and society view marriage, and is inconsistent with present principles, including the principle that every person who has relevant evidence to offer should participate in the proceeding.  Protecting this principle is of far more importance and outweighs any benefit that accused persons might enjoy simply by reason of a legal fiction that would see their spouses prohibited from giving evidence against them.

[7]      Mr Hallett then made a fresh objection in the form of a request to have

Mrs Sharpe’s evidence excluded as a confidential communication under s 69 of the

2006 Act.  After hearing from counsel, I delivered a result ruling in which I ruled

against Mr Hallett’s request.

[8]      For both rulings, counsel were content for me to delay issuing reasons until after the trial.   My reasons for these rulings now follow.   I shall deal with the application of the 2006 Act first, and then the refusal to exclude the evidence under s 69 of that Act.

Background facts

[9]      Mr Tahu was killed in the early hours of the morning of 16 August 1979.  At the time, Mr Hallett and Mrs Sharpe were legally married, but they had been separated for approximately 18 months.  The Crown’s evidence is that after killing Mr Tahu, Mr Hallett drove to Mrs Sharpe’s home in Wellington where he gave her a full account of how he had come to kill Mr Tahu.

[10]     In short, Mr Hallett told Mrs Sharpe that at about 1.00 am he was on his way south from Taupo.  He was upset because he had received a letter from Mrs Sharpe the previous day informing him that their elder daughter did not want to live with him, and that Mrs Sharpe would be having custody of their two daughters.  He was driving  either  to  see  Mrs  Sharpe  in  Wellington,  or  his  elder  daughter  in

Palmerston North to “sort it out”.  While he was driving, his car engine developed a rattle.  He drove into the petrol station in Turangi where Mr Tahu worked and sought to buy oil to alleviate the rattle.  Mr Tahu was in the process of shutting the station and so he refused to serve Mr Hallett.  Mr Hallett was infuriated by this.  He later described it to Mrs Sharpe as his “flash point”.  He called Mr Tahu a “black bastard”. Mr Tahu walked towards him.  Mr Hallett was carrying a loaded pistol on his person. He pulled the pistol out and fired a shot which missed Mr Tahu.  Mr Tahu ran away from Mr Hallett.  He followed Mr Tahu, firing again and hitting him in the shoulder. Mr Tahu fell to the ground.  Mr Hallett walked up to Mr Tahu and fired a fatal shot to his head, just above the inner corner of his left eye.

[11]     Shortly after hearing this confession, Mrs Sharpe contacted the Police and relayed to them what Mr Hallett had told her.  Quite soon thereafter, on 20 August

1979, Mrs Sharpe signed a Police statement recording her account of Mr Hallett’s

confession to her.

The law before 2006

[12]     In 1979, Mrs Sharpe could not testify against Mr Hallett.  At the time, the

1908 Act was in force.  Save for some expressed exceptions (none of which applied to Mrs Sharpe’s testimony), s 5(1) of that Act stipulated that a spouse was not competent, and therefore not compellable, to testify against his or her spouse in a criminal prosecution. The section provided (emphasis added):

5        Evidence of accused and wife or husband in criminal cases

(1)       Except as provided by or under this or any other Act, neither the person charged with any offence nor the wife or husband, as the case may  be,  of  the  person  so  charged  shall  be  a  competent  or compellable   witness   for   the   prosecution   or   defence   in   any proceeding in connection with the offence.

(2)       Where any person is charged with an offence, whether solely or jointly with any other person, the person so charged shall be a competent witness for the defence, and the wife or husband, as the case may be, of the person so charged shall be a competent and compellable witness for the defence, at every stage of the proceedings:

Provided that—

(a)       A person  so  charged  shall  not  be  called  as  a  witness  in pursuance   of   this   subsection   except   upon   his   own application:

(b)       The wife or husband of a person so charged shall not be called as a witness in pursuance of this subsection except upon the application of the person so charged:

(c)       A person charged and called as a witness in pursuance of this subsection may be asked any question in cross-examination notwithstanding that it would tend to incriminate him as to the offence charged:

(d)       A person charged and called as a witness in pursuance of this subsection is liable to be cross-examined like any other witness on any matter, though not arising out of his examination in chief; but so far as the cross-examination relates to any previous conviction of the person so charged, or to his credit, the Court may limit the cross-examination as it thinks proper, although the proposed cross-examination may be permissible in the case of any other witness:

(e)       Every  person  called  as  a  witness  in  pursuance  of  this subsection shall, unless otherwise ordered by the Court, give his evidence from the witness box or other place from which the other witnesses give their evidence:

(f)       Repealed.

(3)       The wife or husband of a person charged with an offence shall be a competent but not compellable witness for the prosecution, and without the consent of the person charged, at every stage of the proceedings, where the offence charged is—

(a)       An  offence  against  the  wife  or  husband  or  affecting  the person  or  liberty  of  the  wife  or  husband,  whether  the marriage took place before or after the time of the alleged offence; or

(b)      Bigamy; or

(c)       An offence in respect of the property of the wife or husband for which proceedings are taken by virtue of the [[Matrimonial Property Act 1976]]; [[or]]

[[(d)     An offence against section 195 of the Crimes Act 1961.]] [[(4)      The wife of a person charged with an offence shall be a competent

but not compellable witness for the prosecution, and without the

consent of the person charged, at every stage of the proceedings, where the person against whom or in respect of whom the offence is

alleged to have been committed is a woman or a child under the age

of 21 years at the time of the alleged offence who—

(a)       Is a daughter or grand-daughter or son or grandson of the

person charged or of his wife…; or

(b)       Was at the time of the alleged offence under the care or protection of the person charged or of his wife,—

and the offence is an offence, or an attempt to commit an offence, under any of the provisions of sections 128 to 135 or sections 140 to

142 of the Crimes Act 1961.]]

(5)       Where any person is charged with an offence jointly with any other person, he shall be a competent and compellable witness for the prosecution against the other person, and without the consent of the other person, or for the defence of the other person, at every stage of the proceedings, if—

(a)       The proceedings against him have been stayed or, in the case of an offence punishable on summary conviction, the information against him has been withdrawn or dismissed; or

(b)       He has been acquitted of the offence; or

(c)       He has pleaded guilty to the offence; or

(d)       He is being tried separately from the other person:

Provided that any person who is the wife or husband of the other person so charged shall not be a compellable witness for the prosecution against the other person in any case, and shall not be a competent  witness  for  the  prosecution  against  the  other  person except as provided in subsections three and four of this section:

Provided also that no person who is the wife or husband of the other person so charged shall be called as a witness for the defence in pursuance  of  this  subsection  except  upon the  application  of that other person.

(6)       Where two or more persons are jointly charged with any offence, the evidence of any person called as a witness for the prosecution or the defence in pursuance of this section may be received as evidence either for or against any of the persons so charged.

(7)       The provisions of this section shall not affect the operation of any other provision of this Act or of any other enactment, but shall apply notwithstanding any rule of law to the contrary.

[13]     Further, under s 6 of the 1908 Act, communications made between spouses during the marriage were protected from disclosure under compulsion in any proceedings:

6         Communications during marriage

A husband  shall  not  be  compellable  in  any  proceeding  to  disclose  any communication made to him by his wife during the marriage, and a wife shall not be compellable in any proceeding to disclose any communication made to her by her husband during the marriage.

[14]     Before the 1908 Act, the common law precluded one spouse from testifying against the other in a criminal proceeding. The principle was traceable to the mid- seventeenth century.  Over the passage of time, it was modified to allow one spouse to testify against the other spouse in cases of treason, abduction (forcible marriage) and violent offending by one spouse against the other.

[15]     Originally, the protection against spousal testimony in the 1908 Act may have simply reflected the state of the common law at that time.  Over time, however, this statutory protection was diluted.   By 1979, the 1908 Act contained a number of exceptions in s 5(3) and (4) to the lack of “competency” that s 5(1) imposed on a spouse’s testimony.  Under s 5(3), a spouse was competent to testify against his or her spouse where: the offence was against the other spouse, or affected that spouse’s person or liberty; the offence of bigamy; an offence in respect of property of the spouse for which proceedings were taken under the Matrimonial Property Act 1976; or an offence of ill-treatment or neglect of a child or a vulnerable adult.   Under s 5(4), a wife of an accused was a competent witness against him when he was being prosecuted for an offence against a daughter, granddaughter, son or grandson of offences under ss  128 to 135 or ss  140 to 142 of the Crimes Act 1961; these provisions covered a range of sexual crimes.

[16]     Further, in 1979 the protection the 1908 Act gave to marital communications did not go beyond regulating spousal testimony in proceedings.  The action of breach of confidence protected marital information from broader disclosure if it met the action’s tests for protecting confidential information: see Duchess of Argyll v Duke of Argyll [1967] Ch 302. However, if the spousal disclosure pertained to an “inquity”, the protection would be lost as “there is no confidence as to the disclosure of inquity”: see Gartside v Outram (1856) 26 LJ Ch 113 at 114. Some later cases limited the inquity or public interest defence (as it later came to be known) in favour of disclosure to those cases where the disclosure was to an authority having an

interest in receiving the information rather than to the public at large, (through the media, for example): see Initial Services Ltd v Putterill [1968] 1 QB 396.

[17]     Thus,  in  1979  there  was  no  legal  impediment  to  Mrs  Sharpe  disclosing Mr Hallett’s confession to the Police.  They were the authority having an interest in receiving this information.  It is also arguable that the broader view of the inquity defence would have allowed wider disclosure of the confession, including to the media, had she wished to do so.

Present law

[18]     On 1 August 2007, the 2006 Act came into force.   Section 71 of that Act provides that any person is eligible to give evidence and they are compellable too:

71       Eligibility and compellability generally

(1)      In a civil or criminal proceeding, —

(a)      any person is eligible to give evidence; and

(b)      a person who is eligible to give evidence is compellable to give that evidence.

(2)      Subsection (1) is subject to sections 72 to 75.

[19]     In reliance on this section being applicable, and thus allowing the admission of Mrs Sharpe’s evidence against Mr Hallett, the Police laid a fresh charge of murder against him.  Whilst there was other evidence to support the Crown’s case against Mr Hallett,  the  Crown’s  case  still  hinged  to  a  large  degree  on  the  evidence  of Mrs Sharpe.  So the admissibility of her evidence at the trial would have a significant effect on the trial’s outcome.

Section 71 no more than a change in evidential rules

[20]     The starting point for admissibility of evidence is now s 7 of the 2006 Act. This provision states the Act’s fundamental principle that all relevant evidence is prima facie admissible.   The only exceptions to admissibility are where the Act provides to the contrary.   The section contemplates that evidence will be rejected

only if it is not relevant, or for reasons of policy stipulated in the Act: see Bain v R

[2009] NZSC 16, [2010] 1 NZLR 1 at [71].

[21]     Mr Hallett’s confession of guilt to Mrs Sharpe is clearly relevant as it has a

“tendency to prove” that he has committed a culpable homicide: see s 7(3) of the

2006 Act.   Thus, I have no doubt that Mrs Sharpe’s evidence meets the test of relevance in s 7, and would for this reason be admissible against Mr Hallett under the Act.

[22]     Whilst the confession and its disclosure to the Police occurred in 1979, the charge on which Mr Hallett now stands trial was laid after the 2006 Act came into force. Section 5(3) of the 2006 Act provides (emphasis added):

This Act  applies to all proceedings commenced before, on, or after  the commencement of this section except –

(a)       the   continuation   of   a   hearing   that   commenced   before   the commencement of this section and

(b)      any appeal from, or review of, a determination made at a hearing of that kind.

None of the exceptions in s 5(3) are applicable.

[23]     I consider that the words “applies to all proceedings”, be they commenced “before on or after the commencement” of s 5, is a clear and express indication from Parliament  that,  save  for  the  specified  exceptions,  the  2006 Act  is  to  apply  to proceedings about matters that occurred before the Act’s commencement. Alternatively, I consider that this outcome is a necessary implication of the wording of s 5.  Under s 4, “proceeding” includes a criminal prosecution.  As Parliament has provided in s 5(3) that the 2006 Act will apply to criminal proceedings that were commenced before the Act’s commencement, the necessary implication is that proof of acts done and circumstances that have occurred before the 2006 Act came into force will, nonetheless, fall under the Act’s provisions.   This is how the Court of Appeal approached the matter in R v Bain [2008] NZCA 585 when it found that the hearsay provisions of the 2006 Act could be applied to admit hearsay evidence for the prosecution in the retrial of Mr Bain, despite such evidence having been inadmissible at the time of his first trial:

[10]      The appellant’s case is one of a number which were first tried before

1 August 2007 and where there is to be (or has been) a post-1 August 2007 retrial as a result of an appellate court having allowed a conviction appeal

and directing pursuant to s 385(2) of the Crimes Act that “a new trial” take

place. In a number of cases it has been assumed, without being decided, that the 2006 Act would apply to such retrials (see R v Rajamani [2008] 1 NZLR

723 at [21] (SC), R v Ngan [2008] 2 NZLR 48 at [67] (SC) and R v E (CA

308/06) [2008] 3 NZLR 145 at [45] (CA)). We think it clear that the true position must be that the 2006 Act either applies to all such cases or none of them. Accordingly we do not think it relevant to consider whether the appellant is better or worse off under the 2006 Act than under the former law.

[11]      We accept that there may sometimes be scope for doubt or argument as to whether a particular change to the law should be seen as substantive or procedural, cf Newell v R (1936) 55 CLR 707 and Carmell v Texas 529 US

513 (2000). But there can be no doubt that where a change is procedural, the usual  rule  is  that  it  applies  to  trials  which  take  place  after  the  change

irrespective of when the offence is alleged to have occurred. And this is the

usual approach taken by the courts to changes in evidential rules, see for instance R v Cann [1989] 1 NZLR 210 (CA), T (CA175/97) v Attorney-

General CA175/97 27 August 1997 and Rodway v R 1990) 169 CLR 515.

[24]     The logic of this statement is apposite here.  The impediment that the 1908

Act imposed on a spouse’s ability to testify against the other spouse in a criminal proceeding was removed by the Evidence Amendment Act 1987, which made a spouse a competent but not compellable witness against his or her spouse. So, unless s 71 is understood to apply to all criminal proceedings that follow its commencement, there is the prospect that when it comes to the admission of spousal testimony for the prosecution there could three evidential rules in operation: (a) one governing testimony about events and communications occurring before 1987; (b) another governing testimony of events and communications occurring between 1987 and when s 71 came into force; (c) and the third governing testimony of events and communications occurring after s 71 came into force. Since there is no statute of limitations for serious criminal offending in New Zealand, there is the prospect of criminal prosecutions being brought now for criminal conduct that has occurred over two or more of those timeframes. It would be nonsensical if proof of such conduct were subject to different evidential rules when it came to the spouse of an accused testifying for the prosecution.

[25]     The  Court  of  Appeal  in  Bain  rejected  the  idea  that  to  admit  previously inadmissible evidence on retrial would offend the principle against retrospective

legislation.   The Court found instead that the legislative change allowing such admission was procedural, and therefore unaffected by the principle.   At [15], the Court stated:

Relevant to all of this is the following passage from the opinion of the Privy Council in Humphreys v The Attorney General of Antigua and Barbuda [2008] UKPC 61:

[4]       …  [A]  court  will  generally  not  construe  legislation  as intended to operate retrospectively if doing so would have an unfair result. The leading authority on this doctrine is the speech of Lord Mustill in L'Office Cherifiendes Phosphates v. Yamashita-Shinnihon Steamship Co. Ltd [1994] 1 AC 486 at pp. 523-529. From the authorities examined by Lord Mustill, it would appear that the presumption will rarely, if ever, apply to changes in court procedure. Prospective litigants (or defendants in criminal proceedings) do not have a vested right to any particular procedure and there will generally be nothing unfair in applying whatever procedure is in force when the case comes to court. It is however unnecessary to examine the scope of the doctrine because on any view it is a principle of construction which must yield to the express language of the statute. In this case the language of the statute could hardly be clearer. ….

[26]     If  s  71  is  viewed  as  being  no  more  than  a  change  to  evidential  rules, regarding when a spouse can give evidence against another spouse, and therefore procedural  in  character,  there  is  no  difficulty  in  concluding  that  the  provision governs the admissibility of Mrs Sharpe’s evidence in this trial.  In R v Cann [1989]

1 NZLR 210 (CA), a change to legislation governing when officers of the Inland Revenue Department could give evidence against a taxpayer was found to allow them to give evidence against a taxpayer of unlawful conduct that had occurred before the legislation came into force, even though they could not have done so previously. At 214, the Court of Appeal said:

Secondly, it was submitted that the Inland Revenue Department Amendment Act (No 2) 1988 should not be given retrospective effect.  As already mentioned, it was not in issue that the relevant evidence was not admissible at the date when the depositions were taken.  Mr Howley contended that to admit it at the trial would be to take away the appellant’s right to have the case against him determined according to the law as it was at that date.

The general rule of the common law is:

“… that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had

defined by reference to the past events” (Maxwell v Murphy (1957)

96 CLR 261 per Dixon CJ at p 267). (Emphasis added.)

But the amendment is quite clear in its terms.  It relates to the divulgence or communication of any matter or thing or the production of any book or document in any Court on or after 11 October 1988.  It does not make an act illegal which was legal at the time it was committed. At the time the offence alleged was committed on 25 May 1987 the Crown alleges that what the appellant did was already an offence.   It does not need retrospective legislation to make that claim.  The amendment is not a matter which goes to the substance of the offence but rather to the admissibility of the evidence tendered  in  proof  of  its  commission.    Therefore  in  no  sense  can  the amendment be said to be retrospective.

A number of instances may be cited to show that amendments to the law of evidence come into operation either on the day of the passing of the amending statute or some date designated therein. The provisions of the Evidence Amendment Act 1966 (passed to overcome the decision of the House of Lords in R v Myers [1965] AC 1001) came into operation on the day of its passing. The provisions of s 23A of the Evidence Act, providing that no corroboration of an accomplice’s evidence shall be required nor any warning be given as to the absence of such, came into operation on the date designated in s 1(2) of the Evidence Amendment Act (No 2) 1985; the provisions of s 2 of the Misuse of Drugs Amendment Act 1987 which made admissible certain intercepted communications came into force on 1 August

1987.  The provisions of these amendments operated to admit evidence even though they came into force long after the happening of the substantive event

which was the subject of the prosecution.  For these reasons, Mr Howley’s

second submission is without substance.  (Emphasis added.)

[27]     I consider that there is every reason to view s 71 as nothing more than a change to evidential rules which is procedural in character.  First, the language of the

2006 Act makes it clear that it is to apply to criminal proceedings about events and conduct that occurred before the Act’s commencement.  In this regard, the 2006 Act is like the legislation that was before the Privy Council in Humphries and the Court of Appeal in Cann, as well as the cases discussed in Cann where earlier amendments to the 1908 Act that altered the previous evidential rules were found to effect procedural changes only.   Secondly, if the 2006 Act is not seen to apply comprehensively it opens up the possibility referred to in Bain of different evidential rules being applied in some cases, and even in the same case, as here, where apart from Mrs Sharpe’s testimony, the proof of other evidence would be in accordance with  the  2006  Act.    Such  an  outcome  would  lead  to  procedural  inconsistency. Thirdly, by 1979 the in-roads that Parliament had already made on the common law principles regarding admission of spousal testimony had modified the underlying character of the applicable rules of evidence to such an extent that they could no

longer be characterised as vesting Mr Hallett with a substantive right or entitlement, which in turn leaves them open to being characterised as procedural.

Application of s 71 to admit Mrs Sharpe’s testimony can affect only her rights

[28]     In  1979,  s  5  of  the  1908  Act  protected  a  spouse  from  the  invidious circumstance of being a prosecution witness who was faced with the choice of: either giving damaging evidence against his or her spouse in a criminal prosecution; or choosing instead to lie, thereby committing perjury, or refusing to give any evidence, thereby being in contempt of court.  This protection was of immediate benefit to the spouse of an accused.  It had beneficial consequences for the accused as well, but I do not consider that those consequences can be equated with a right or an entitlement which belonged to him or her.  Thus, the benefit of s 5’s protection belonged to Mrs Sharpe and not to Mr Hallett: see R v Bradley [1996] 1 NZLR 441 (HC) at 443 where Anderson J reviewed the case law and commented:

The common law principle that a person could not give evidence of spousal communication has its foundation in the concept of unity of husband and wife, but the common law principles have not in reasonably modern times gone beyond that privilege (vested, perhaps paradoxically, in the spouse who intends to give evidence about spousal communications) … (Emphasis added.)

[29]     Moreover,  any  protection  s  5  gave  to  Mrs  Sharpe  by  deeming  her  not competent  to  give  evidence  against  Mr  Hallett  carried  with  it  a  concomitant disability  which  precluded  her  from  exercising  her  own  choice  in  this  matter. Section 71 enables her to come forward as a willing witness.   In this way, s 71 elevates her to an equal status with other citizens by making her eligible to provide relevant testimony to a Court that is interested in hearing her evidence.  Therefore, if there is any question of her being able to rely on the protected status that the law gave to her in 1979 (on the ground s 71 cannot remove this status retrospectively) her willingness to testify against Mr Hallett amounts to a waiver of that status.  She should be free to exercise this waiver if she so wishes, in which case her evidence would be admissible under s 71.

Spousal immunity no longer a substantive right or entitlement

[30]     Other than the spouse of an accused, any adult person having full possession of his or her faculties has always been competent and compellable as a witness against the accused in a criminal trial.  The common law historically treated a spouse as neither competent nor compellable to give evidence against his or her spouse (I shall refer to this principle as spousal immunity).   In Hoskyn v Commissioner of Police for the Metropolis [1979] AC 474 at 484, the House of Lords traversed the history of the principle of spousal immunity. Lord Wilberforce opined:

My Lords, we start from two certain points.  First, in principle, anyone who is a competent witness is a compellable witness: see Ex parte Fernandez (1861) 10 CBNS 3; this general rule is a constitutional principle underlying our whole system of justice, but, as Willes J in his judgment adds it applies

‘unless he can shew some exception in his favour’ … The only certain exceptions seem to be the Sovereign and persons protected by diplomatic immunity, but, except that they show that the law recognises that certain persons, undoubtedly competent, may by virtue of their status not be compellable, these cases provide no analogy for the treatment of a wife. The case of a spouse is, however, capable of inclusion under the words “some exception”: the question is whether it is so included.   Secondly, a wife, at common  law,  was  incompetent  to  give  evidence  against  her  husband. Broadly the incompetence according to the authorities can be said to rest upon  the  doctrine  of  the  unity  of  husband  and  wife,  coupled  with  the privilege against self-incrimination.  The danger of perjury is also invoked (Hawkin’s Pleas of the Crown (1824), involve II, p 600), and the repugnance likely to be felt by the public seeing one spouse testifying against the other. (Emphasis added.)

Later, at 484, Lord Wilberforce said:

Dean Wigmore declares that the history of the privilege not to testify against a spouse is involved “in a tantalising obscurity” (Evidence, para. 2227).  But it was established by the time of Coke.  In a passage disparaged by Wigmore as mouthing “a few Latin words of mediaeval scholasticism” and described by Bentham [in Rationale of Judicial Evidence (1827), involve. 5, p. 344] as “the grimgribber, para. 2228, nonsensical reason”, Coke said:

“Note, it hath been resolved by the justices, that a wife cannot be produced either against or for her husband, quia sunt duae animae in carne una, and it might be a cause of implacable discord and dissention between the husband and the wife, and a means of great inconvenience.”  …

Lord Salmon, whose speech expresses what is the argument for Mr Hallett at its highest, said (at 495):

At common law, the wife of a defendant charged with a crime however serious was not, as a general rule, a competent witness for the Crown.  If a man were charged with murder, for example, much as it would be in the public interest that justice should be done, his wife, whatever vital evidence she might have been able to give was not at common law a competent, let alone a compellable witness at his trial.

This rule seems to me to underline the supreme importance attached by the common law to the special status of marriage and to the unity supposed to exist between husband and wife.   It also no doubt recognised the natural repugnance of the public at the prospect of a wife giving evidence against her husband in such circumstances.

[31]     Nonetheless, historically, there were exceptions to the principle.  It seems that in cases of high treason, a wife’s evidence would be admitted against the husband (Hoskyn at 476–477). At 477, Lord Wilberforce identified two other common law exceptions to the rule of non-competence, these being violence and abduction.

[32]     Hoskyn is not a case about the general principle of spousal immunity as it affects the competency of a spouse to give evidence against the other spouse.  The issue before the House of Lords was whether a wife could be compelled to give evidence against her husband in circumstances where before marriage he seriously wounded her and two days before his trial, she had married him.  As the offence involved injury to the spouse, it came within the exception to the common law principle of spousal immunity. At the trial when she was called by the prosecution as a witness, she was reluctant to give evidence against her husband.  The trial Judge ruled that she was not only a competent witness but also a compellable witness and he ordered her to give evidence.   Part of her evidence, if believed, was highly damaging to her husband. As a result, he was convicted of the charge of wounding a woman with intent to cause her grievous bodily harm.  On appeal to the House of Lords,  the  conviction  was  quashed  on  the  grounds  she  was  not  a  compellable witness.     Lord  Edmund-Davies  dissented.     His  view  was  that  once  the  law recognised the exception permitting a spouse to give evidence against an accused spouse  for  violence  against  the  testifying  spouse,  he  or  she  was  then  also compellable as a witness.

[33]     Hoskyn is interesting for present purposes for the discourse it provides on the common law principle of spousal immunity.   The opinion of the majority of the House of Lords influenced this Court in Hawkins v Sturt [1992] 3 NZLR 602 (HC)

to find that in New Zealand, there was a similar common law principle.  In that case, Tompkins J relied on the statements in Hoskyn to find that the common law principle of spousal immunity could amount to a “lawful justification or excuse” under the Serious Fraud Office Act 1990 for Mrs Hawkins to refuse to answer any questions regarding her husband, Alan Hawkins, even though the legislation had removed Mr Hawkins’ right to silence.  At 606, Tompkins J, referring to the discussion on the principle in Hoskyn, said: “It has, for centuries, been a basic principle of the common law that a spouse was incompetent to give evidence against the other spouse”.

[34]     Tompkins J also referred to the judgment of Lord Alvanley CJ Monroe v Twistleton (1802) Peake Add Cas 219 (HL) in which his Lordship found that a divorced woman could not give evidence against her husband of things learned during their marriage, and the approval given to this approach by Viscount Radcliffe in his dissenting judgment in Rumping v Director of Public Prosecutions [1964] AC

814 (HL) at 839:

This decision [Monroe v Twistleton] is the first of several in which the principle of preserving the confidence of the conjugal relation was applied in circumstances  in  which  there  was  no  existing  conjugal  relationship  to disturb.   I infer from this that the court’s concern was that no marriage relation, while it subsisted, should be infected by the fear or suspicion that things said only by reason of the special confidence of that relation might later become  the material of legal evidence affecting the speaker.

[35]     For Tompkins J, the strength of the common law principles protecting a spouse from  being  either  a competent  or  compellable witness  against  the other spouse were such that before the protection could be overridden by the Serious Fraud Office Act, there needed to be a clear statement to that effect, which there was not. At 610, he questioned whether the wife could rely on the common law principle as a justification:

It is my conclusion that she can.  Relying on the dicta of the Earl of Halsbury and  Lord Atkinson  in  [Leach  v  R  [1912] AC 305],  I  consider  that  the fundamental common law principle that a spouse is not to be compelled to give evidence against the other spouse is not to be overturned, save by a clear, definite and positive enactment to that effect. There is no such express provision in the Act.  I recognise that the cases I have cited and others on this issue are referring to a spouse being compelled to give evidence in Court. But I see no reason why the common law should be applied differently in the case of a spouse being compelled to answer questions that, although the

answers themselves cannot be given in evidence, may lead to evidence being given against his or her spouse.

[36]     Thus, Tompkins  J  was  prepared  to  extend the  common  law principle  of spousal immunity to include an immunity from being subject to the compulsion to answer questions that was provided in s 45 of the Serious Fraud Office Act.  This case is the high water mark of the recognition given by New Zealand courts to spousal immunity as a substantive right, entitlement or privilege.

[37]     In Bradley, Anderson J declined to apply the principle of spousal immunity in circumstances where a woman was being called as a prosecution witness at the re- trial  of her spouse’s  co-accused  and  her evidence would  in  general  terms  have touched on her husband’s conduct.  He had been acquitted of murder at the first trial. The Judge was not prepared to expand the principle beyond its existing confines.

[38]     In Rumping v Director General of Public Prosecutions, the House of Lords was not prepared to extend the principle of spousal immunity to apply to an intercepted communication between spouses  which contained  an  admission of a crime.  The appellant wrote to his wife making a virtual admission of his guilt of the murder of a young woman.  The letter was intercepted before it reached his wife.  A majority of the House of Lords held there was neither a rule of law nor a principle of public policy which precluded the reception in evidence of communication between spouses.  At 860, Lord Morris of Borth-y-gest referred to the competing aspects of public policy to be weighed:

Respect is due to the confidences of married life: but so is respect due to the ascertainment of the truth.   Marital accord is to be preserved: but so is public security.  If the police found stolen goods in a house and saw on a table a note from a husband to his wife clearly indicating that it was he who had stolen the goods and directing her as to their disposal I cannot think that public policy would require that in court proceedings against the husband no evidence as to the note should be given.   If after a murder a dangerous murderer were at large and if what was intended by a husband to be a private admission to his wife of guilt of the murder was by chance overheard by a third person I cannot think that public policy would demand that the third person should be excluded from giving evidence as to what he had heard.    Public  policy  and  public  safety  would  alike  require  that  vital evidence should not be withheld.

In the present case the stage of a confidence between husband and wife was never  reached  but  the  case  can  be  decided  without  regard  to  that

circumstance.   The wife was not a witness.   No question of any statutory privilege arose.  There was no doubt as to the competency as witnesses of those who gave evidence.  In my judgment there was neither rule of law nor requirement of public policy which precluded the reception in evidence of what the appellant had written.  (Emphasis added.)

[39]     In dissent, Viscount Radcliffe (whose judgment was in part relied on by Tompkins J in Hawkins) referred to the early judgments relating to the legal policy of marriage and said at 838:

In Rex v Cliviger (Inhabitants), Ashurst J said:

“But the ground of her incompetency arises from a principle of public policy which does not permit husband and wife to give evidence that may even tend to criminate each other.  Grose J said in the same case: “We find the general rule as to [husband and wife] to be founded, not on the ground of interest, but of policy; by which it is established that a wife shall not be called to give testimony in any degree to criminate her husband; and Lord Hale says, that she  shall  not  be  called  even  indirectly  to  criminate  him.”    (Footnotes omitted).

[40]     It is against this background that the present assessment of the character of spousal immunity needs to be assessed.   If spousal immunity is to be viewed as a substantive right, entitlement or privilege of Mr Hallett, this view would have to be based  on  the  “historically  developed  principle  of  incompetency  based  on  the privilege against self-incrimination and the unity of spouses”: see Bradley at 443. The other bases of the principle, namely avoiding the predicament of a spouse having to choose between giving damaging evidence on the one hand, or committing perjury or contempt on the other is a public policy principle that relates more to the testifying spouse than to the accused.

[41]     It is hard to see how a present day substantive right, entitlement or privilege of spousal immunity vested in an accused could be fashioned from a now discarded legal fiction that once treated husband and wife as one person at law, so that incriminating evidence given by a spouse could be seen as being akin to the accused giving such evidence involuntarily.

[42]     In general, the principle against retrospective removal of existing substantive rights and entitlements pertains to those that are recognised as such at the time the legislation in question (here the 2006 Act) comes into force.   In JF Burrows and

RI Carter Statute Law In New Zealand (4th  ed, LexisNexis, Wellington, 2009) at

319–320, the authors state that:

Courts  strive  to  ensure  that,  if  possible,  the  interpretation  placed  on legislation should accord with certain accepted values and principles of our legal system … Many of them have been fundamental in our law for a very long time.

[43]     The fundamental rights and entitlements that the authors list are: the liberty of the subject (R v Secretary of State for the Home Department ex parte Daly [2001]

3 All ER 433 (HL) applied in R v Allison [2002] 1 NZLR 679 (CA)); freedom of property (Choudry v Attorney-General [1999] 2 NZLR 582 (CA)); the right to a fair hearing (Drew v Attorney-General [2002] 1 NZLR 58 (CA)); right of access to the courts (Ngati Apa Ki Te Waipounamu Trust v The Queen [2000] 2 NZLR 659 (CA) at [81]); the right of privacy (R v Holland [2012] NZHC 2155, [2012] 3 NZLR 672); freedom of speech (Mafart v Television New Zealand Ltd [2006] NZSC 33, [2006] 3

NZLR 534); legal adviser-client privilege ( B v Auckland District Law Society [2004]

1 NZLR 326 (PC)); the maxim no one can take advantage from his or her own wrong (H v T HC Christchurch CIV-2006-409-002615, 5 June 2007); and the presumption against retrospectivity (BNZ v Board of Management of the BNZ Officers’ Provident Association [2004] 1 NZLR 577 (PC) at [26]), which includes the right now found in s 26 of the New Zealand Bill of Rights Act 1990 not to be subject to a penalty not in existence at the time the conduct occurred.

[44]   Burrows and Carter do not claim to have provided an exhaustive list. Nonetheless,  I have difficulty seeing how the principle of spousal  immunity as expressed in Hoskyn and in Hawkins can be seen to sit with the listed rights and entitlements.  Whilst some of those rights and entitlements have their genesis in the same  period  as  spousal  immunity,  they  also  have  current  relevance  as  their importance is as well recognised today as it was when they were first developed. But that is not the case with spousal immunity.   The original basis for spousal immunity has long been discarded, and nothing new to replace it has emerged in recent times.   Indeed the trend is in favour of recognising the individual rights of married persons.   I have found no occasion where the principle of statutory interpretation that fundamental rights are not to be overridden by Parliament without clear  language  to  that  effect  has  been  applied  to  preserve  historical  rights  and

entitlements.  As Burrows and Carter comment at 328, the values that gave rise to these rights and entitlements do not stand still; instead they may become weaker or stronger as time goes by.  So it is with the values that lie behind the notion of spousal immunity, especially regarding the question of a spouse’s eligibility to give evidence against another spouse.   Analysis of the case-law on spousal immunity and the statutory modifications that had been made to the principle by 1979 show that the idea of it being a right enjoyed by the accused spouse, rather than being for the benefit of the testifying spouse, had weakened by 1979 and continued to do so up to the 2006 Act, which saw all aspects of spousal immunity brought to an end.

[45]     Furthermore,  spousal  immunity  is  different  in  another  way  from  the fundamental rights and entitlements that are usually protected by the interpretation principles mentioned above.  The fundamental rights and entitlements listed above belong to the individual.  Here, the right and entitlement that Mr Hallett lays claim to (protection from his former spouse’s testimony against him) is accompanied by a disability that would see Mrs Sharpe prevented from giving evidence that she is willing  to  give.    Looked  at  in  this  way,  I  find  that  whatever  it  might  be  that Mr Hallett lays claim to, it cannot be regarded as one of the group of fundamental rights to which the principle against retrospective legislation is commonly applied.

[46]     In BNZ v Board of Management of the BNZ Officers’ Provident Association at [26], the Privy Council expressed the modern formulation of the principle against retrospective legislation as being concerned with achieving fairness in a particular case, rather than the application of formulaic reasoning:

Modern authority (as reviewed and summarised by Lord Mustill in L’Office Cherifien  des  Phosphates v Yamashita-Shinnihon Steamship  Co  Ltd) has recognised that when the law raises a presumption against the retrospective operation of an enactment or a disposition ... it is concerned with fairness in the circumstances of the particular case, rather than with the application of some general formula.  (Citations omitted).

[47]     If s 71 is applied to admit Mrs Sharpe’s evidence, it will not lead to the type of  “unfair  result”  to  which  Lord  Mustill  referred  in  L’Office  Cherifien  des Phosphates.  Here, the consideration of fairness must involve considering whether it is fair for the spouse or former spouse to be disqualified from giving evidence against the other spouse.  In this regard, I consider that the retrospective operation of

s 71 would remedy a pre-existing “unfairness” inasmuch as it evidences Parliament’s intent to put an end to the application of common law concepts of spousal incompetence and non-compellability that were rooted in the 17th to 19th centuries, and which had the effect of depriving individuals of playing their part in our criminal justice system by providing the court with helpful and relevant testimony.

[48]     In Barber v Pigden [1937] 1 KB 664 (CA), the Court of Appeal of England and Wales were dealing with a completely different issue, namely whether an Act of Parliament applied retrospectively to relieve husbands from liability for their wives’ torts, irrespective of when the torts were committed, or whether it gave relief only to torts committed after the date of the statute. However, the reasoning the court applied to the question facing it is equally applicable to the present question.

[49]     Scott  LJ  had  no  difficulty  finding  that  the  Act  applied  retrospectively. Counsel submitted that the rule against retrospective operation of legislation applied, so that in the absence of express words to the contrary, the legislation only applied to torts committed after the statute came into effect (at 677):

He then addressed to us a forceable argument to this effect: (i.) Sect. 3, paragraph (a), does not say “whether before or after the passing of this Act; (ii.) nothing short of words to that effect will suffice to take away accrued rights … (iii.) that Parliament had the subject of retrospective operation well in mind and expressed itself unambiguously when it intended to say anything which would make the question of dates material is clearly shown by s. 4, sub-s.  I (b):  “Nothing in this  part  of  this Act  shall  …  affect  any legal proceeding  in  respect  of  any  tort,  if  proceedings  had  been  instituted  in respect thereof before the passing of this Act.”  Therefore, says Mr Slade: (iv.) It would be wrong to attribute retrospective effect to s. 3.

[50]     Scott LJ rejected Mr Slade’s argument.   His view of the legislation was as

follows (at 677):

The language of Part I. discloses an intention to make a clean sweep of the old legal fiction of our common law that a woman on marrying became merged in the personality of her husband, and ceased to be a fully qualified and separate human person … as far as the present case is concerned, the dominant intention of the Act is clear beyond all doubt: it is to effect a drastic reform of our law in a branch where there has been too much legal fiction and too much technicality of legal procedure; and I do not think the rule  against  retrospective  interpretation,  on  which  Mr  Slade  relies,  is properly applicable to such a statute abolishing legal fictions any more than to a procedural statute.  The purpose of Part I. of the Act is to give back to a woman, though married, the full human status allowed by the common law

to a man, a maiden or a widow, of which the common law had robbed her; in short, it restores to her the  natural status  and capacity.   It does so  by sweeping away a host of legal fictions – fictions which in origin were inextricably mixed with old procedural law.   It is well recognized that the canon against retrospective interpretation does not apply to the statute dealing with adjective law, i.e., procedure, and I think that a statute abolishing old legal fictions is so nearly akin to a procedural statute that the canon can have little, if any, application.  After all, the canon expresses no rigid or absolute rule.  It rests on a presumption of common-sense in a well- ordered and civilized society; and that presumption does not seem germane to the root-and-branch view Parliament was obviously taking when it passed this Act, of the historical interferences by lawyers with the natural rights of woman.  (Emphasis added.)

[51]     A case particularly on point is R v Cruttenden [1991] 3 All ER 242 (CA). In that case, the appellant was charged with corruption. The offences were alleged to have been committed between 1983 and 1985. At his trial, the Crown sought to call as a witness his former wife to whom he had been married at the time of the alleged offences, but from whom he was divorced at the time of the trial. The wife was the only witness in respect of the charge for which the Crown wished to call her. The Crown contended it was entitled to call her as a witness by virtue of s 80(5) of the Police and Criminal Evidence Act 1984 (the 1984 Act), which had come into force on 1 January 1986. Section 80(5) provided that a person who had been but was no longer married to the accused, was competent and compellable to give evidence “in any proceedings” as if that person and the accused had never been married. The appellant contended that the 1984 Act was not retrospective and, therefore, his former wife was only a competent and compellable witness in respect of events which occurred after that Act came into force. In respect of the offences alleged to have occurred between 1983 and 1985, his wife (being then married to him) was at common law neither competent nor compellable as a witness.

[52]     The trial Judge found that the appellant’s former wife was a competent and compellable witness, and the appellant was convicted.  On appeal against the Judge’s ruling, the Court of Appeal dismissed the appeal.   The decision was delivered by Glidewell LJ, who found that the 1984 Act did not in terms limit its operation to evidence about matters which took place after s 80(5) came into effect.  It followed that s 80(5) provided for a divorced wife or husband to be a competent and compellable witness in any proceeding which took place after that section came into

effect, regardless of whether the events about which he or she was to give evidence occurred before it came into effect.

[53]     At 246, the Court discussed the common law principle of spousal immunity. The Court referred to the exceptions which had developed in relation to personal violence against the wife and possible exceptions of treason and abduction.   The Court accepted that at the time when the appellant and his former wife had the conversation to which her evidence related, she would not have been competent to give evidence against him in relation to the matter.  The Court then referred to s 80 of the 1984 Act which had come into force. The relevant provisions said:

(1)       In any proceedings the wife or husband of the accused shall be competent to give evidence – (a) subject to subsection (4) below for the prosecution [which did not apply in this case].

[54]     However, s 80(5) read:

(5)       In any proceedings a person who has been but is no longer married to the accused shall be competent and compellable to give evidence as if that person and the accused had never been married.

[55]     At 247, Glidewell LJ referred to the appellant’s reliance upon the general principle that statutes should not normally be given a retrospective effect, unless that effect cannot be avoided without doing violence to the language of the statute:

If, however, the language or the dominant intention of the enactment so demands, the Act must be construed so as to have a retrospective operation for  the  rule  against  the  retrospective  effect  of  statute  is  not  a  rigid  or inflexible rule but is one to be applied always in the light of the language of the statute and the subject matter with which the statute is dealing.

[56]     Later, Glidewell LJ referred to the comments of the majority in  Hoskyn. Having considered the common law as described by the majority in Hoskyn and the principle regarding retrospectivity, Glidewell LJ concluded at 249:

It should be noted that in the passage quoted in Maxwell on Interpretation of Statutes from Athlumney, ex P Wilson, Wright J said: ‘…   a retrospective operation is not to be given to a statute so as to impair an existing right or obligation, otherwise than as regards matter of procedure …’.   (Citations omitted).

[57]     The Crown had argued that the wording of s 80(5) of the 1984 Act provided clearly than an ex wife or ex husband is competent and compellable to give evidence at a trial, whether or not the events about which he or she was giving evidence occurred before the subsection came into force.   Secondly, it was submitted the alteration of the law affected by s 80(5) was a matter of procedure.  Thus, it came within the exception to the normal rule against statutes having retrospective effect. Here the Crown relied on a statement of Harman LJ in Blyth v Blyth [1965] 2 All ER

817 (CA) at 826, which was a case dealing with spousal evidence in an adultery action:

The true view seems to me to be that, where an Act is dealing with a matter of the admissibility of evidence, it points quite clearly to the date of the trial, and the date of the happening of the event on which evidence may or may not be given is in truth irrelevant.  This is not in my judgment really retrospective legislation at all but an instruction to the court to be observed at the hearing of suits before it.

[58]     However, unlike this Court, Glidewell LJ was bound by the House of Lords and, therefore, he considered that the comments of the majority in Hoskyn required him to treat s 80(5) as doing something more than a procedural change in the law. At

250 he stated:

The issue in Blyth v Blyth was whether evidence which would formerly have been inadmissible was at the date of the trial admissible and relevant as a result of the change in the law brought about by statute.  The issue in the present case is rather different, namely whether a witness who stands in a particular relationship to the defendant is a competent witness at the time of trial.  In Hoskyn … the House of Lords clearly did not take the view that the question whether a wife who was a competent witness was also compellable was purely procedural.  Thus, we very much doubt whether it can properly be said that the change in the law brought about by s 80(5) of the 1984 Act was a change of a purely procedural nature.

[59]     Nevertheless, Glidewell J accepted the Crown’s first submission.  He read the words “in any proceedings” in s 80(5) as being sufficient indication from Parliament that s 80(5) was to have a retrospective effect:

To repeat, s 80(5) reads:

“In any proceedings, a person who has been but is no longer married to the accused shall be competent and compellable to give evidence as if that person and the accused had never been married,

In our view the phrase “in any proceedings” clearly means any proceedings which take place after the subsection came into effect. If it was intended to limit the operation of the subsection to evidence only about matters which took place after the subsection came into effect, we think this would have required some additional words in the statute which are not present.  (Emphasis added.)

[60]     Thus, Glidewell LJ concluded that the Judge was right in ruling that the former wife was a competent witness against the appellant at his trial.  The reasoning that led the Judge to this result is helpful to the present case.  Here the language of s 5 of the 2006 Act is even stronger than it was in s 80(5) of the 1984 Act (UK) as s 5 expressly states that the Act is to apply to proceedings commenced before the Act’s commencement, which is more than was said in s 80(5).  Thus, the decision provides persuasive authority for reading s 5 as making s 71 retrospective.  More importantly, however, Cruttenden clearly shows a Court in 1991 trying to avoid the result of a former spouse being prevented from voluntarily giving evidence of the criminal conduct of her former spouse in circumstances where it considered itself bound by Hoskyn.

[61]     This Court is not bound by Hoskyn.  Nor is it bound by Hawkins v Sturt.  I know of no binding authority that would require me to treat spousal immunity as something that would shield Mr Hallett from the potentially damaging effect of Mrs Sharpe’s evidence.  In the absence of such authority and for the reasons I have already expressed, I consider that to find that s 71 could not apply to this circumstance is an outcome that would seem contrary to common sense, it would lead to an unfair and absurd result, and such a result would invoke in the eyes of the public the very type of repugnance that was once regarded as an inevitable consequence  of  compelling  a  spouse  to  give  evidence  against  the  other.    First, because it deprives a Court of relevant evidence of criminal conduct, the disclosure of which would enhance public security.   Secondly, because it prevents a spouse from fulfilling one of the important functions of membership in a democratic society, namely  upholding  the  rule  of  law  through  participation  in  the  criminal  justice process as a witness for the prosecution.  The criminal justice system depends upon persons having relevant knowledge of criminal conduct being prepared to come forward by reporting criminal conduct, and by being prepared to give evidence of that conduct should a prosecution eventuate.   The person who withholds relevant

evidence because he or she does not want to get involved shirks this responsibility. In this case, Mrs Sharpe did come forward.  I see no reason why in the 21st century she should be held back from testifying in Court, and so treated differently from others with relevant evidence to offer, because of historical notions of the unity of spouses  combined  with  the  right  against  self-incrimination.     Whilst  spousal immunity might once have held the status of a legal right and entitlement that ranked alongside the privilege against self-incrimination, that is not the case today.  For this reason, I do not consider that it can qualify as the type of substantive right and entitlement that is protected by the principle against retrospective legislation.

Spousal immunity different from legal privilege

[62]     For completeness, I have considered the cases in which a different approach has been taken to the 2006 Act.  The only cases since the 2006 Act that suggest this Act might not apply to matters that existed before the Act came into force are those dealing with legal professional privilege.   The first hint of this is in Bain at [70] where the Court of Appeal in an obiter statement left open the notion that the provisions of the 2006 Act regarding waiver of privilege (s 65) might not apply to situations where a waiver of legal privilege had occurred before s 65 came into force:

It is open to question whether s 65 applies where the alleged waiver of privilege occurred prior to 1 August 2007. Privilege might be thought to involve substantive rights and the associated rules are therefore not merely procedural, see for instance the comments of Gummow J in Goldberg v Ng (1995) 185 CLR 83 at 121, although cf the discussion in Auburn Legal Professional Privilege: Law & Theory (2000) at 31 – 32. So there is scope for the view that the question whether privilege in relation to page 101 was waived should be determined under the former law rather than under the

2006 Act. This, however, is a dry debate as there is no indication that s 65 was intended to change the existing law in any material respect.

[63]     Then in MA v Attorney-General [2009] NZCA 490, the Court of Appeal again in an obiter statement at [25] characterised legal privilege as a substantive entitlement that was not to be readily removed retrospectively by legislation:

Section 7 of the Interpretation Act 1999 states that an enactment does not have retrospective effect. Nothing in the Evidence Act suggests that ss 54 and 56 would operate retrospectively. While procedural rights may more easily be held to be altered retrospectively we prefer the approach that entitlement  to legal  privilege  is a  substantive  entitlement  to  which such approach  does  not  apply:  see  Burrows  and  Carter  Statute  Law  in  New

Zealand (4ed 2009) at 594-596. Insofar as there was any advantage to the appellant under the common law, ss 54 and 56 would not be construed as having retroactive effect to remove it.

[26]     But the Law Commission did not suggest that it was proposing to change rather than codify the common law. The iniquity exception applies to each.

[64]     Thus, it would have been open to the Court of Appeal to deal with the question  in  terms  of  the  2006  Act’s  provisions;  ultimately  it  decided  that  the outcome would be the same whether the matter was dealt with under the pre-existing law or under the 2006 Act.

[65]     In Todd Pohokura Ltd v Shell Exploration Ltd (2008) 18 PRNZ 1026 (HC), after a comprehensive review of the question of retrospective application of the 2006

Act, Dobson J concluded that the Act’s provisions regarding legal privilege did not apply retrospectively as pre-existing legal privilege was a substantive right: see [66]– [92] of the judgment.  The reasoning was adopted by Heath J in Jung v Templeton HC Auckland CIV-2007-404-5383, 21 September 2009.

[66]     Here, the Crown sought to distinguish this line of authority by submitting that those cases turned on the special nature of legal professional privilege, and so the same reasoning cannot be applied to spousal immunity.

[67]   I accept that the cases dealing with legal professional privilege are distinguishable, as that privilege is readily distinguishable from spousal immunity. First, the Privy Council in B v Auckland District Law Society confirmed the status of professional legal privilege as a fundamental right; there is no such confirmation of spousal immunity.  Secondly, the protection that legal professional privilege gives to communications to which the privilege applies is all encompassing.   In R v Uljee [1982] 1 NZLR 561 (CA), the Court of Appeal found that an incriminating oral communication between a solicitor and an arrested person was inadmissible at his trial. This is the reverse of what occurred in Rumping in relation to the intercepted marital communication.  Thirdly, whilst with professional legal privilege a lawyer is obliged to maintain the privilege at all times, the same never applied to communications between spouses.   As mentioned earlier, there was no absolute prohibition  covering all  circumstances  on  disclosure of marital  communications.

Thus I see the cases involving legal professional privilege as distinguishable from the present.  Furthermore, insofar as it might be thought that their reasoning warrants a broader application, I would with respect not follow it.  To do so here would result in a perverse outcome, for the reasons I have already outlined.  The Court of Appeal statements are obiter and so not binding on me.  Nor are the decisions of this Court binding on me.

Exclusion of Mrs Sharpe’s evidence under s 69 of the 2006 Act

[68]     Once he knew that Mrs Sharpe’s evidence was admissible under s 71 of the

2006 Act, Mr Hallett sought to have this evidence excluded under s 69 of that Act. The  section  provides  a  judge  with  an  overriding  discretion  to  order  the  non- disclosure of confidential information.

[69]     Counsel accepted for the purposes of this argument that the circumstances in which Mr Hallett’s confession was imparted to Mrs Sharpe meant that it would qualify  as  a  confidential  communication  under  s  69(1)(a).     Further,  as  the information was secret and not known to anyone else, it would also amount to confidential information in terms of s 69(1)(b).

[70]    Section 69(2) sets out the conditions under which the discretion can be exercised,  and  s  69(3)  provides  the  mandatory  considerations  to  be  taken  into account before doing so:

69       Overriding discretion as to confidential information

…

(2)       A  Judge  may  give  a  direction  under  this  section  if  the  Judge considers that the public interest in the disclosure in the proceeding of the communication or information is outweighed by the public interest in—

(a)       preventing harm to a person by whom, about whom, or on whose behalf the confidential information was obtained, recorded, or prepared or to whom it was communicated; or

(b)      preventing harm to—

(i)       the particular relationship in the course of which the confidential  communication     or     confidential

information   was   made,   obtained,   recorded,   or prepared; or

(ii)      relationships that are of the same kind as, or of a kind similar to, the relationship referred to in subparagraph (i); or

(c)       maintaining activities that contribute to or rely on the free flow of information.

(3)      When considering whether to give a direction under this section, the

Judge must have regard to—

(a)       the likely extent of harm that may result from the disclosure of the communication or information; and

(b)       the nature of the communication or information and its likely importance in the proceeding; and

(c)      the nature of the proceeding; and

(d)       the availability or possible availability of other means of obtaining evidence  of  the communication  or information; and

(e)       the availability of means of preventing or restricting public disclosure of the evidence if the evidence is given; and

(f)       the sensitivity of the evidence, having regard to—

(i)        the time that has elapsed since the communication was made or the information was compiled or prepared; and

(ii)      the extent to which the information has already been disclosed to other persons; and

(g)       society's  interest  in  protecting  the  privacy  of  victims  of offences and, in particular, victims of sexual offences.

Under s 69(4), a judge may have regard to any other matters that he or she considers relevant.

[71]     Counsel were agreed that the communication that Mr Hallett sought to have protected from disclosure could only qualify for consideration under s 69(2)(b)(ii). Thus, I would need to be satisfied that the public interest in disclosing the contents of the communication was outweighed by the public interest in preventing harm to relationships of the same kind or of a similar kind to the relationship then subsisting between Mr Hallett and Mrs Sharpe.

[72]     As s 71 has removed the protection the previous legislation presumptively gave to spousal communications, this is a clear indication from Parliament that there must be something else favouring protection before such communications are protected under s 69; marital status is no longer determinative of when disclosure will not be required.  The assessment of harm under s 69(2)(b)(ii) entails looking at the impact of disclosure on relationships of the same kind, or of a similar kind to the relationship of the persons between the communication occurred.  Here, Mr Hallett and Mrs Sharpe were legally married, but they had been separated for approximately

18 months.  This is the type of relationship I should have in mind when making the assessment under s 69(2).

[73]     Regarding the considerations under s 69(3), I consider that the disclosure of the communication made here will do no harm in terms of s 69(3)(a).   The relationships of separated spouses will not be harmed if it becomes known that confidential disclosures one might make to the other could later be given in evidence in a criminal prosecution of the confider.

[74]     In terms of s 69(3)(b), the communication here is tantamount to a confession of guilt of culpable homicide.  The communication is of vital importance in this trial as it is a pivotal piece of evidence for the jury to consider.  The fact that Mr Hallett was not brought to trial before when the previous legislation prevented Mrs Sharpe from giving evidence shows its importance in this trial.

[75]     Regarding s 69(3)(c), I note that the communication is wanted for disclosure involving a trial of murder and in terms of s 69(3)(d), having Mrs Sharpe give evidence of the communication is the best way of obtaining this evidence.  I accept that the Crown has in its possession her written statement outlining the details of the communication Mr Hallett made to her.   I also realise that in terms of Bain, it is possible to admit hearsay evidence in a criminal proceeding if the Court is satisfied that the requirements of the Act in this regard are satisfied.   So, if I directed that Mrs Sharpe was not to give evidence of the communication from Mr Hallett, it would be open to the Crown to apply to introduce her written statement made to the Police in 1979 as evidence against Mr Hallett.  However, the form of the evidence would be second-hand and there would be no possibility of cross-examination to test

any aspect of it that Mr Hallett sought to challenge.   Accordingly, I consider that there is no comparable means of providing evidence of the communication to the jury.

[76]     I do not see any matters that are relevant to s 69(3)(e), though I note that if it were thought that preventing or restricting public disclosure of the evidence were necessary, the means to do so are available to me.

[77]     Regarding s 69(3)(f) and the sensitivity of the evidence, the communication was made in 1979, so a considerable period of time has elapsed since it was made. There is nothing to inform me that the information has already been disclosed to anyone other than the Police.

[78]     Section 69(3)(g) is not relevant.

[79]     In terms of s 69(4), another matter that I consider to be relevant is the interest of the deceased victim’s family in having the circumstances of the victim’s death disclosed at trial and having the accused’s criminal responsibility for that death determined.

[80]     When  I  weigh  the  relevant  considerations  in  s  63(9)  and  the  other consideration I have considered relevant pursuant to s 69(4), I find that all considerations weigh in favour of the disclosure of the communication.  The public interest in its disclosure in this trial far outweighs the public interest in preventing harm to the relationship of separated spouses.

Conclusion

[81]     For the reasons outlined herein, I concluded that the evidence of Mrs Sharpe was properly admissible against Mr Hallett in this trial.

Duffy J