Section 18 of the Evidence Act 1995 governs spousal compellability even where the events predated the Act's commencement; the repeal of s 407 of the Crimes Act 1900 did not preserve any common law immunity or right. Where a prior inconsistent statement under s 38 contains representations of what the accused told the witness, Lee v The Queen requires that the jury be directed those representations are not evidence of the truth of the facts asserted. However, failure to give such a direction will not necessarily constitute a fundamental miscarriage of justice where the Crown case is otherwise overwhelming. The parity principle in sentencing is not absolute and the court retains a discretion not to reduce a sentence where the co-offender's sentence was inadequate.
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