EVIDENCE ACT 1929 - SECT 21
EVIDENCE ACT 1929 - SECT 21
21—Competence and compellability of witnesses
(1) A close relative
of a person charged with an offence is competent and compellable to give
evidence for the defence and, subject to this section, is competent and
compellable to give evidence for the prosecution.
(2) If a person is
charged with an offence and a close relative of the accused is required by law
(whether by subpoena or other process) to give evidence against the accused in
any proceedings related to the charge (including proceedings for the grant,
variation or revocation of bail, or an appeal at which fresh evidence is to be
taken), the prospective witness may apply to the court for an exemption from
the requirement to give evidence against the accused in the proceedings.
(3) If, on an
application under subsection (2), the court considers that—
(a) if
the prospective witness were to give evidence, or evidence of a particular
kind, against the accused, there would be a substantial risk of—
(i)
serious harm to the relationship between the prospective
witness and the accused; or
(ii)
serious harm of a material, emotional or psychological
nature to the prospective witness; and
(b)
having regard to the nature and gravity of the alleged offence and the
importance to the proceedings of the evidence that the prospective witness is
in a position to give, there is insufficient justification for exposing the
prospective witness to that risk,
the court may exempt the prospective witness (wholly or in part) from the
requirement to give evidence against the accused in the proceedings before the
court.
(4) A court may, on
its own initiative, grant an exemption under subsection (3) where no
application has been made under subsection (2) if—
(a) the
prospective witness who is required by law to give evidence against the
accused is a young child or is cognitively impaired; and
(b) the
court is of the opinion that such an exemption should be granted.
(5) Despite
subsection (4), in proceedings in which a close relative of an accused
person is called as a witness against the accused, the court is not required
to make any inquiry about whether the prospective witness—
(a) is
aware of his or her right to apply for an exemption under this section; or
(b) is
incapable (whether by reason of age or some other reason) of understanding his
or her right to apply for an exemption under this section.
(6) If a court is
constituted of a judge and jury—
(a) an
application for an exemption under this section must be heard and determined
by the judge in the absence of the jury; and
(b) the
following matters may not be made the subject of a question put to a witness
in the presence of the jury or of any comment to the jury by counsel or the
judge:
(i)
whether or not a person applied for an exemption under
this section;
(ii)
whether or not the court considered granting an exemption
under this section;
(iii)
whether a person has been granted or refused an exemption
under this section.
(7) A decision or
order of a court made under this section, or the failure of a court to make an
inquiry under subsection (5), does not give rise to a ground of appeal
under section 157(1)(a)(i) or (ii) of the Criminal Procedure
Act 1921 .
(8) This section does
not operate to make a person who has been charged with an offence compellable
to give evidence in proceedings related to that charge.
(9) In this
section—
"close relative" of an accused person means a spouse, domestic partner, parent
or child.