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12 1992

CRIMINAL EVIDENCE ACT, 1992

PART IV

Competence and Compellability of Spouses and Former Spouses to give Evidence

Definitions (Part IV).

20. —In this Part—

decree of judicial separation” includes a decree of divorce a mensa et thoro or any decree made by a court outside the State and recognised in the State as having the like effect;

former spouse” includes a person who, in respect of his marriage to an accused—

(a) has been granted a decree of judicial separation, or

(b) has entered into a separation agreement;

separation agreement” means an agreement in writing which provides for the spouses concerned living separately and apart from each other.

Competence of spouses and former spouses to give evidence.

21. —In any criminal proceedings the spouse or a former spouse of an accused shall be competent to give evidence at the instance—

(a) subject to section 25 , of the prosecution, and

(b) of the accused or any person charged with him in the same proceedings.

Compellability to give evidence at instance of prosecution.

22. —(1) In any criminal proceedings the spouse of an accused shall, subject to section 25 , be compellable to give evidence at the instance of the prosecution only in the case of an offence which—

(a) involves violence, or the threat of violence, to—

(i) the spouse,

(ii) a child of the spouse or of the accused, or

(iii) any person who was at the material time under the age of 17 years,

(b) is a sexual offence alleged to have been committed in relation to a person referred to in subparagraph (ii) or (iii) of paragraph (a), or

(c) consists of attempting or conspiring to commit, or of aiding, abetting, counselling, procuring or inciting the commission of, an offence falling within paragraph (a) or (b).

(2) In any criminal proceedings a former spouse of an accused shall, subject to section 25 , be compellable to give evidence at the instance of the prosecution unless—

(a) the offence charged is alleged to have been committed at a time when the marriage was subsisting and no decree of judicial separation or separation agreement was in force, and

(b) it is not an offence mentioned in subsection (1).

(3) The reference in subsection (1) to a child of the spouse or the accused shall include a reference to—

(a) a child who has been adopted by the spouse or the accused under the Adoption Acts, 1952 to 1991, or, in the case of a child whose adoption by the spouse or the accused has been effected outside the State, whose adoption is recognised in the State by virtue of those Acts, and

(b) a person in relation to whom the spouse or the accused is in loco parentis.

Compellability to give evidence at instance of accused.

23. —Subject to section 25 , in any criminal proceedings the spouse or a former spouse of an accused shall be compellable to give evidence at the instance of the accused.

Compellability to give evidence at instance of co-accused.

24. —(1) Subject to section 25 , in any criminal proceedings—

(a) the spouse of an accused shall be compellable to give evidence at the instance of any person charged with the accused in the same proceedings only in the case of an offence mentioned in section 22 (1),

(b) a former spouse of an accused shall be compellable to give evidence at the instance of any person charged with the accused in the same proceedings unless—

(i) the offence charged is alleged to have been committed at a time when the marriage was subsisting and no decree of judicial separation or separation agreement was in force, and

(ii) it is not an offence mentioned in section 22 (1).

(2) Subsection (1) is without prejudice to the power of a court to order separate trials of persons charged in the same proceedings if it appears to it to be desirable in the interests of justice to do so.

Saving.

25. —Where persons (being either a husband and wife or persons who were formerly husband and wife) are charged in the same proceedings, neither shall at the trial be competent by virtue of section 21 (a) to give evidence at the instance of the prosecution, or be compellable by virtue of section 22 , 23 or 24 to give evidence, unless the person concerned is not, or is no longer, liable to be convicted at the trial as a result of pleading guilty or for any other reason.

Right to marital privacy.

26. —Nothing in this Part shall affect any right of a spouse or former spouse in respect of marital privacy.