Acts Amendment (Evidence) Act 1991 (WA)
WESTERN AUSTRALIA
ACTS AMENDMENT (EVIDENCE)
ACT 1991
No. 48 of 1991
AN ACT to amend
the Evidence Act 1906;
The Criminal Code; and
the Justices Act 1902,
in relation to the competence and compellability of
spouses to give evidence in legal proceedings and for
related purposes.
[Assented to 17 December 1991]
The Parliament of Western Australia enacts as follows:
PART 1—PRELIMINARY
Short title
1. This Act may be cited as the Acts Amendment (Evidence) Act
1991.
Commencement
2. This Act shall come into operation on such date as is fixed by
proclamation.
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Amendments not to apply
to certain proceedings
3. (1) In subsection (2) "prescribed proceedings" means
|
(2) Prescribed proceedings shall be heard, dealt with and
determined as if this Act had not been enacted.
PART 2—EVIDENCE ACT 1906
Principal Act
4. In this Part the Evidence Act 1906* is referred to as the
principal Act.
(*Reprinted as at 14 August 1986 and amended by Acts Nos. 81 of
1986, 66 of 1987, 70 of 1988, 34 of 1989 and 47 of 19901
Section 7 amended
5. Section 7 of the principal Act is amended by deleting
"husbands and wives" and substituting the following
wives, former wives, husbands and former husbands ".
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Section 8 amended
6. Section 8 of the principal Act is amended in subsection (1)-
| (a) | by deleting ", and the wife or husband, as the case may be, of the person so charged,"; |
| (b) | by repealing paragraph (b) of the proviso; and |
| (c) | in paragraph (c) of the proviso by deleting ", or of the wife or husband, as the case may be, of the person so charged". |
Section 9 repealed and a section substituted
7. Section 9 of the principal Act is repealed and the following
section is substituted
Evidence of wife or husband
of defendant in criminal cases
9. (1) In any criminal proceeding (and at every stage of
the proceeding), the wife or husband of a defendant shall,
subject to this Act, be
| (a) | competent to give evidence on behalf of the |
prosecution, the defendant or any person being tried
jointly with the defendant;
| (b) | compellable to give evidence on behalf of the defendant or any person being tried jointly with the defendant; and |
| (c) | compellable to give evidence on behalf of the prosecution against the defendant or any person being tried jointly with the defendant if- |
(i) the defendant is charged with an offence under a provision mentioned in the Second Schedule;
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(ii) the defendant is charged with attempting or conspiring to commit, or with inciting the commission of, an offence under a provision mentioned in the Second Schedule;
(iii) the defendant is charged on the complaint of the wife or husband with an offence committed with respect to the property of the wife or husband; or
(iv) the wife or husband is compelled, under another enactment, to give that evidence.
(2) In any criminal proceeding (and at every stage of the proceeding), a former wife or former husband of a defendant shall, subject to this Act, be competent and compellable to give evidence on behalf of the prosecution, the defendant or any person being tried jointly with the defendant.
(3) A reference in subsection (1) or (2) to a person being tried jointly with the defendant includes a reference to a person appearing with the defendant at a preliminary hearing under Part V of the Justices Act 1902.
(4) Nothing in this section shall operate to compel a defendant in any criminal proceeding to give evidence in the proceeding.
(5) If the wife or husband of a defendant in any criminal proceeding is called as a witness for the prosecution but is not a compellable witness for the prosecution, it is the duty of the Judge to inform the wife or husband that she or he is not compellable to give evidence on behalf of the prosecution if she or he is unwilling to do so. ".
Section 10 repealed
8. Section 10 of the principal Act is repealed.
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Section 18 amended
9. Section 18 of the principal Act is amended
| (a) | by inserting after "his wife" the following- |
, or by him to his wife, "; and
| (b) | by inserting after "her husband" the following- |
, or by her to her husband, ".
Second Schedule repealed and
a Schedule substituted
10. The Second Schedule to the principal Act is repealed and the
following Schedule is substituted
11
Section 9
THE SECOND SCHEDULE
PART 1—OFFENCES UNDER THE CRIMINAL CODE
| Provision | Description of offence |
| s. 58 | Threatening a person who is to give, or has given, evidence before Parliament |
| s. 68 | Going armed in public so as to cause fear |
| s. 74 | Threatening violence in relation to a dwelling house |
| s. 98 | Undue influence of an elector |
| s. 123 | Threatening a juror or corruption of or by a juror |
| s. 128 | Threatening a witness before a Royal Commission or public inquiry |
| s. 144 | Using force to rescue a person undergoing, or liable to, strict security life imprisonment |
| s. 185 | Unlawful carnal knowledge of a child under 13 |
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| s. | 186 | Occupier or owner permitting a young person to be on premises for unlawful carnal knowledge |
| s. 187 | Unlawful carnal knowledge of a child under 16 or a male under 21 |
| s. 188 | Unlawful carnal knowledge of a girl or woman who has a mental or intellectual incapacity |
| s. 189 | Indecent dealing |
| s. 190 | Unlawful carnal knowledge of a female under 17 by a guardian, employer, teacher or schoolmaster |
| s. 191 | Procuration |
| s. 192 (1), | Procuring unlawful carnal knowledge of a person by |
| (3) & (4) | threats, intimidation or drugs |
| s. 197 | Incest by a male |
| s. 198 | Incest by an adult female |
| s. 199 | Attempt to procure the miscarriage of a woman |
| s. 200 | Attempt by a woman to procure her own miscarriage |
| s. 201 | Supplying any thing for use in procuring the miscarriage of a woman |
| s. 278 (as | Wilful murder |
| read with s. 282) | |
| s. 279 (as | Murder |
| read with s. 282) | |
| s. 280 (as | Manslaughter |
| read with s. 287) | |
| s. 281 (as | Killing on provocation |
| read with s. 287) | |
| s. 281A (as | Infanticide |
| read with s. 287A) |
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| s. 283 | Attempt to murder | ||
| s. 288 | Procuring, inducing or aiding suicide | ||
| s. 290 | Killing an unborn child | ||
| s. 292 | Disabling in order to commit an indictable offence or facilitate the flight of an offender | ||
| s. 293 | Stupefying in order to commit an indictable offence or facilitate the flight of an offender | ||
| s. 294 | Acts intended to maim, disfigure or disable, do grievous bodily harm, or resist or prevent arrest | ||
| s. 294A | Offences relating to dangerous goods on aircraft | ||
| s. 295 | Preventing or obstructing escape or rescue from a wreck | ||
| s. 296 | Intentionally endangering the safety of persons travelling on a railway | ||
| s. 296A | Intentionally endangering the safety of persons travelling on an aircraft | ||
| s. 297 | Grievous bodily harm | ||
| s. 298 | Causing an explosion likely to endanger life | ||
| s. 299 | Attempting to cause an explosion likely to endanger life or possessing an explosive substance with intent to endanger life | ||
| s. 300 | Endangering life by unlawful administration of poison etc., with intent to injure or annoy | ||
| s. 301 (1) | Unlawful wounding | ||
| s. 301 (2) |
| ||
| injure or annoy | |||
| s. 302 |
| ||
| necessaries | |||
| s. 303 |
| ||
| apprentice under 16 |
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| s. | 304 | Endangering the life or health of a child under 7 by abandonment or exposure |
| s. 305 | Setting mantraps |
| s. 306 | Causing bodily harm by unlawful act or by omission to perform duty |
| s. 307 | Endangering the safety of persons travelling on a railway by unlawful act or omission to perform duty |
| s. 308 | Sending or taking an unseaworthy ship to sea |
s. 309 Endangering the safety of persons on board a steam vessel by unlawful act or omission to perform a duty relating to machinery
| s. 310 | Offence by engineer where there is a contravention of section 309 |
| s. 313 | Common assaults |
| s. 317 | Assaults occasioning bodily harm |
| s. 318 | Serious assaults |
| s. 318A | Assaulting or threatening a member of the crew of an aircraft |
| s. 324B | Indecent assault |
| s. 324C | Aggravated indecent assault |
| s. 324D | Sexual assault |
| s. 324E | Aggravated sexual assault |
| s. 332 | Kidnapping |
| s. 333 | Deprivation of liberty |
| s. 336 | Procuring the apprehension or detention of a person not suffering from mental disorder |
| s. 337 | Unlawfully detaining or taking custody of a person suffering from mental disorder |
| s. 338A | Threats with intent to influence |
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| s. 338B | Threats |
| s. 338C | False statements as to the existence of threats or plans to harm persons or property |
| s. 343 | Child stealing |
| s. 344 | Desertion of a child |
| s. 391 (as | Robbery |
| read with s. 393) | |
| s. 394 | Assault with intent to commit robbery |
| s. 395 | Assault with intent to steal |
| s. 396 | Demanding property with threats with intent to steal |
| s. 397 | Demanding property with threats with intent to extort or gain |
| s. 399 | Procuring execution, destruction etc., of documents by violence or restraint or by threats |
| s. 444 | Criminal damage |
| s. 449 | Casting away, destroying or endangering vessels |
| s. 451 | Obstructing or damaging railways |
| s. 451A | Endangering the safe use of aircraft |
| s. 451B | Unlawful interference with mechanism of aircraft |
| s. 454 | Causing explosion likely to do serious damage to property |
| s. 455 | Attempting to cause explosion likely to do serious damage to property |
| s. 456 | Attempts to damage or obstruct mines |
| s. 457 | Interfering with marine signals |
| s. 458 | Interfering with navigation works |
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PART 2—OFFENCES UNDER THE ROAD TRAFFIC ACT 1974
| Provision | Description of offence |
| s. 54 | Failure to stop when a vehicle is involved in an accident |
| s. 56 | Failure to report an accident involving a vehicle whereby bodily injury is caused |
s. 57 Failure of the owner etc., to identify the driver or person in charge or control of a vehicle involved in an accident
| s. 59 | Dangerous driving causing death or grievous bodily harm |
| s. 59A | Dangerous driving causing bodily harm |
| s. 60 | Reckless driving |
| s. 61 | Dangerous driving |
PART 3—OFFENCE UNDER THE POLICE ACT 1892
| Provision | Description of offence |
| s. 57 | Negligent, careless or furious driving or riding |
PART 4—OFFENCE UNDER THE CHILD WELFARE ACT 1947
| Provision | Description of offence |
| s. 31A | Misconduct or neglect causing a child to become an offender or be in need of care and protection |
PART 5—OFFENCES UNDER THE MISUSE OF DRUGS ACT 1981
| Provision | Description of offence |
| s. 6 (1) | Indictable offences concerned with prohibited drugs |
| s. 7 (1) | Indictable offences concerned with prohibited plants |
| s. 18 (2) | Dealing with property to which an embargo notice relates |
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s. 33 (1) Attempting, or inciting another, to commit, or becoming an accessory after the fact to, an indictable offence under section 6 (1) or 7 (1)
| s. 33 (2) | Conspiring with another to commit an indictable offence under section 6 (1) or 7 (1) ". |
PART 3—THE CRIMINAL CODE
The Code
11. In this Part "the Code" means The Criminal Code*.
[*Reprinted as approved 13 December 1983 as the Schedule to the Criminal Code Act 1913 appearing in Appendix B to the Criminal Code Act Compilation Act 1913, and amended by Acts Nos. 87 of 1982, 13, 52 and 121 of 1984, 14, 74 and 119 of 1985, 89 of 1986, 47, 74, 106 and 129 of 1987, 49 and 70 of 1988, 32 of 1989 and 33 and 101 of 19903
Various sections amended or repealed
12. (1) Section 35 of the Code is amended by deleting the
following
Upon the prosecution of a husband on the complaint of his wife for an offence committed with respect to her property, and upon the prosecution of a wife on the complaint of her husband for an offence committed with respect to his property, the wife or husband, as the case may be, is a competent and compellable witness. ".
(2) Section 185 of the Code is amended by repealing subsection (3). (3) Section 187 of the Code is amended by repealing subsection (5).
(4) Section 188 of the Code is amended by repealing subsection (3).
(5) Section 189 of the Code is amended by repealing subsection (6).
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(6) Sections 190 and 197 of the Code are amended by deleting the
following
CI The wife of the accused person is a competent and
compellable witness. ".
(7) Sections 191 and 192 of the Code are amended by deleting the
following
II The husband or wife of the accused person is a competent
and compellable witness. ".
(8) Section 198 of the Code is amended by deleting the following-
" The husband of the accused person is a competent and compellable witness. ".
(9) Section 3241 and Chapter XXXII of the Code are repealed.
(10) Section 697 of the Code is amended in paragraph (c) by deleting "the evidence of the wife or husband of a convicted appellant" and substituting the following
It where the wife or husband of a convicted appellant would
not have been a compellable witness for the prosecution at
the trial her or his evidence ".
PART 4—JUSTICES ACT 1902
Section 71 repealed
13. Section 71 of the Justices Act 1902* is repealed.
[*Reprinted as approved 9 November 1984 and amended by Acts
Nos. 87 of 1982, 69 of 1984, 15 and 119 of 1985, 71 and 81 of 1986,
65 of 1987, 27, 38, 49 and 70 of 1988 and 8, 61 and 101 of 19901
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