Evidence Act 1929

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.

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.

If, on an application under subsection (2), the court considers 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—

serious harm to the relationship between the prospective witness and the accused; or

serious harm of a material, emotional or psychological nature to the prospective witness; and

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.

A court may, on its own initiative, grant an exemption under subsection (3) where no application has been made under subsection (2) if—

the prospective witness who is required by law to give evidence against the accused is a young child or is cognitively impaired; and

the court is of the opinion that such an exemption should be granted.

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—

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

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.

If a court is constituted of a judge and jury—

an application for an exemption under this section must be heard and determined by the judge in the absence of the jury; and

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:

whether or not a person applied for an exemption under this section;

whether or not the court considered granting an exemption under this section;

whether a person has been granted or refused an exemption under this section.

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

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.

In this section—