South Australian Consolidated Acts

EVIDENCE ACT 1929 - SECT 21

21—Competence and compellability of witnesses

        (1)         A close relative of a person charged with an offence shall be competent and compellable to give evidence for the defence and shall, subject to this section, be competent and compellable to give evidence for the prosecution.

        (2)         Where a person is charged with an offence and a close relative of the accused is a prospective witness 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 obligation to give evidence against the accused in those proceedings.

        (3)         Where it appears to a court to which an application is made under subsection (2)—

            (a)         that, 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)         that, 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 obligation to give evidence against the accused in the proceedings before the court.

        (3a)         If the prospective witness is a young child, or is mentally impaired, the court should consider whether to grant an exemption under subsection (3) even though no application for exemption has been made and, if of opinion that such an exemption should be granted, may proceed to grant the exemption accordingly.

        (4)         Where a court is constituted of a judge and jury—

            (a)         an application for an exemption under this section shall be heard and determined by the judge in the absence of the jury; and

            (b)         the fact that a prospective witness has applied for, or been granted or refused, an exemption under this section shall not be made the subject of any question put to a witness in the presence of the jury or of any comment to the jury by counsel or the presiding judge.

        (5)         The judge presiding at proceedings in which a close relative of an accused person is called as a witness against the accused must satisfy himself or herself that the prospective witness—

            (a)         is aware of his or her right to apply for an exemption under this section; or

            (b)         is incapable, by reason of age or mental impairment, of understanding his or her right to apply for an exemption under this section.

        (6)         This section does not operate to make a person who has himself been charged with an offence compellable to give evidence in proceedings related to that charge.

        (7)         In this section—

"close relative" of an accused person means a spouse, domestic partner, parent or child.