Evidence Act 1908

  • repealed
  • Evidence Act 1908: repealed, on 1 August 2007, by section 215 of the Evidence Act 2006 (2006 No 69).
5 Evidence of accused and spouse in criminal cases
  • (1) Except as provided by or under this or any other Act, neither the person charged with any offence nor that person's spouse shall be a competent or compellable witness for the prosecution or defence in any proceeding in connection with the offence.

    (2) Subject to subsection (3) of this section, where any person is charged with an offence, whether solely or jointly with any other person,—

    • (a) The person charged shall be a competent witness for the defence; and

    • (b) That person's spouse shall be a competent and compellable witness for the defence—

    at every stage of the proceedings.

    (3) Neither the person charged nor that person's spouse shall be called as a witness in pursuance of subsection (2) of this section except upon the application of the person charged.

    (4) A person charged and called as a witness in pursuance of subsection (2) of this section—

    • (a) May be asked any question in cross-examination notwithstanding that it would tend to incriminate that person as to the offence charged; and

    • (b) Is liable to be cross-examined like any other witness on any matter, though not arising out of that person's examination in chief; but so far as the cross-examination relates to any previous conviction of that person, or to that person's credit, the Court may limit the cross-examination as it thinks proper, although the cross-examination may be permissible in the case of any other witness.

    (5) Every person called as a witness in pursuance of subsection (2) of this section shall, unless otherwise ordered by the Court, give evidence from the witness box or other place from which the other witnesses give evidence.

    (6) The spouse 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.

    (7) Subject to subsection (8) of this section, where any person is charged with an offence jointly with any other person (hereafter in this section referred to as the co-accused), that person shall be a competent and compellable witness for the prosecution against the co-accused, and without the consent of the co-accused, or for the defence of the co-accused, at every stage of the proceedings, if—

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

    • (b) That person has been acquitted of the offence; or

    • (c) That person has pleaded guilty to the offence; or

    • (d) That person is being tried separately from the co-accused.

    (8) The spouse of the co-accused shall not—

    • (a) Be called as a witness for the defence in pursuance of subsection (7) of this section except upon the application of the co-accused; and

    • (b) Be a compellable witness for the prosecution against the co-accused.

    (9) Where 2 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.

    (10) 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.

    This Act was repealed, as from 1 August 2007, by section 215 Evidence Act 2006 (2006 No 69). See clause 2(2) Evidence Act 2006 Commencement Order 2007 (SR 2007/190).

    Subsection (1) was amended, as from 28 July 1926, by section 2 Evidence Amendment Act 1926 (1926 No 5) by substituting in any proceeding in connection with for upon his trial for,, and the words in such proceeding for upon such trial,.

    Section 5 was substituted, as from 1 January 1953, by section 2(1) Evidence Amendment Act 1952 (1952 No 50).

    Subsection (2) proviso, paragraph (f), was repealed, as from 1 January 1967, by section 5(2) Crimes Amendment Act 1966 (1966 No 98).

    Subsection (3)(c) was amended, as from 5 December 1962, by section 2(2) Evidence Amendment Act 1962 (1962 No 34) by inserting or.

    Subsection (3)(c) was amended, as from 1 February 1977, pursuant to section 57(1) Matrimonial Property Act 1976 (1976 No 166) by substituting Matrimonial Property Act 1976 for Married Women's Property Act 1952.

    Subsection (3)(d) was inserted, as from 5 December 1962, by section 2(1) Evidence Amendment Act 1962 (1962 No 34).

    Subsection (4) was amended, as from 18 September 1958, by section 2 Evidence Amendment Act 1958 (1958 No 17) by substituting woman or girl for girl who was under the age of sixteen years at the time of the alleged offence and.

    Subsection (4) was amended, as from 1 January 1962, by section 411(1) Crimes Act 1961 (1961 No 43) by substituting the provisions of sections 128 to 135 of the Crimes Act 1961 for the following sections of the Crimes Act 1908 - that is to say, sections one hundred and fifty-five, two hundred and eight, two hundred and twelve, two hundred and thirteen, two hundred and fourteen, two hundred and fifteen, and two hundred and sixteen.

    Subsection (4) was substituted, as from 5 December 1962, by section 2(3) Evidence Amendment Act 1962 (1962 No 34).

    Subsection (4)(a) was amended, as from 1 January 1970, by section 12(2) Status of Children Act 1969 (1969 No 18) by omitting , whether the relationship is traced through lawful wedlock or not.

    Section 5 was substituted, as from 10 July 1987, by section 2(1) Evidence Amendment Act 1987 (1987 No 138).