They also observed that the Act’s privilege against self-incrimination is founded on the common law and is limited to the person claiming it and not to anyone else. Their Honors differentiated the concepts of competence, compatibility and privilege as explained in Cross on Evidenced while specifying that only the existence of privilege was the issue in the case. Their Honors referred to the decision in R v Inhabitants of All Saints, Worcester which was a critical authority support for spousal privilege.In this case, Quarter Sessions confirmed an order for removal of a pauper, Esther Newman from Challenges to All Saints.
All Saints sought to avoid this transfer by establishing her subsequent marriage to George Willis, who had a settlement in a third parish that was his birthplace. Esther would have retained her All Saints settlement if her marriage to George was bigamous. Challenges sought to establish this by calling a witness, Ann Willis, to prove her earlier marriage to George.All Saints objected to Ann.’s competency but as unsuccessful when the court held that a wife was only incompetent to incriminate her husband in proceedings brought directly against him.
In this case, the litigation was only between Challenges and All Saints and neither George nor Ann were parties to it nor did they have interest in the decision. However, the subsequent significance of the case is the obiter dicta of Bayle J, regarding the compatibility of Ann. 10 If Ann had gone to court and said she did not want to incriminate her husband, the court might say that it will not compel her to give evidence.It would potentially recognize that as an exception to compatibility. However, she did not object to being compelled on the policy of the law, therefore, it wasn’t necessary for the court to decide that exception. In this hypothetical situation, her argument was about to be competent and the argument of exception to compatibility was not brought before the court, she was required to give the evidence. 5 Concepts defined in the Australian