XN000022-1990-04-04 — Page 41

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WEDNESDAY, APRIL 4, 1990

IF THE LAW PERMITS TO GIVE EVIDENCE

"A WITNESS IS COMPETENT TO GIVE EVIDENCE HIM TO DO SO. SUCH A WITNESS CAN ONLY BE COMPELLED IF THE LAW REQUIRES HIM TO DO SO," MR MATHEWS SAID.

COMPELLABILITY OF

"THE PRESENT LAW GOVERNING COMPETENCE AND SPOUSES TO TESTIFY IN CRIMINAL PROCEEDINGS IS GOVERNED BY A MIXTURE OF COMMON LAW RULES AND STATUTE," HE ADDED.

THE CRIMINAL PROCEDURE ORDINANCE PROVIDES THAT A PERSON IS COMPETENT TO TESTIFY ON BEHALF OF HIS OR HER SPOUSE WHERE THAT SPOUSE IS A DEFENDANT IN A CRIMINAL TRIAL. UNDER THE PRESENT LAW, A PERSON CANNOT BE COMPELLED TO GIVE EVIDENCE AGAINST HIS OR HER SPOUSE UNDER ANY CIRCUMSTANCES.

MR MATHEWS SAID THE ARBITRARY RESULTS.

PRESENT LAW COULD PRODUCE

UNJUST AND

"FOR EXAMPLE, IF A MURDERING SOMEBODY OVER THE

PERSON WITNESSED HIS OR

HER SPOUSE AGE OF 16. HE OR SHE WOULD NOT BE COMPETENT TO TESTIFY AGAINST THAT SPOUSE. IN THE ABSENCE OF OTHER EVIDENCE, NO CRIMINAL PROCEEDINGS COULD BE BROUGHT AND THE MURDERER WOULD EVADE JUSTICE, HE SAID.

**

"FURTHER, EVEN THOUGH COMPETENT TO DO SO, A WITNESS MAY REFUSE TO TESTIFY ON BEHALF OF HIS OR HER SPOUSE WHERE THAT SPOUSE IS A DEFENDANT IN A CRIMINAL TRIAL, HE ADDED.

"IT MATTERS NOT WHETHER THAT REFUSAL IS FOR GOOD OR FOR WHOLLY ARBITRARY REASONS; THE RULE APPLIES REGARDLESS OF HOW IMPORTANT THAT TESTIMONY MIGHT BE TO THE DEFENCE OF THE ACCUSED SPOUSE. AN INJUSTICE TO THE ACCUSED MAY RESULT, THE ATTORNEY GENERAL SAID.

THE LAW REFORM COMMISSION MADE THREE MAIN RECOMMENDATIONS:

*

FIRST, THAT A PERSON SHOULD, IN LIMITED TYPES OF CRIMINAL PROCEEDINGS, BE COMPELLABLE TO GIVE EVIDENCE FOR THE PROSECUTION;

SECOND, THAT A PERSON SHOULD BE

COMPELLABLE ΤΟ GIVE

EVIDENCE FOR THE DEFENCE OF HIS OR HER SPOUSE IN ALL CRIMINAL PROCEEDINGS; AND

THIRD, THAT A PERSON SHOULD BE, COMPETENT TO GIVE EVIDENCE FOR THE PROSECUTION IN ALL CRIMINAL CASES AGAINST HIS OR HER SPOUSE.

IN ACCORDANCE WITH THE RECOMMENDATIONS, CLAUSE 3 OF THE BILL PROVIDES THAT A PERSON WHO IS COMPETENT TO GIVE EVIDENCE AGAINST HIS OR HER ACCUSED SPOUSE MAY ALSO BE COMPELLED ΤΟ DO SO WHERE THAT SPOUSE IS CHARGED WITH ASSAULTING, INJURING OR THREATENING INJURY ΤΟ THAT PERSON OR A CHILD OF THE FAMILY UNDER 16 YEARS OF AGE. THE RULE APPLIES TO SEXUAL OFFENCES AGAINST SUCH A CHILD.

SAMB

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