Division 2—Examination of Witnesses

Power to summon material witness or examine person present
116.— (1) At any stage of trial or other proceeding under this Decree, any court may —
(a) summon or call any person as a witness; or
(b) examine any person in attendance though not summoned as a witness; or
(c) recall and re-examine any person already examined —
and the court shall summon and examine, or recall and re-examine any such person if the evidence appears to the court to be essential to the just decision of the case.

(2) The prosecution or the defence shall have the right to cross-examine any person giving evidence in accordance with sub-section (1), and the court shall adjourn the case for such time (if any) as it thinks necessary to enable the cross-examination to be adequately prepared if, in its opinion, either party may be prejudiced by the calling of any such person as a witness.

Evidence to be given on oath
117.— (1) Every witness in any criminal cause or matter shall be examined upon oath or affirmation, and the court before which any witness shall appear shall have full power and authority to administer the usual oath or affirmation.
(2) The court may at any time, if it thinks it just and expedient, take without oath the evidence of any person—
(a) declaring that the taking of any oath whatsoever is according to religious belief unlawful or impermissible; or
(b) who by reason of immature age or want of religious belief ought not, in the opinion of the court, to be admitted to give evidence on oath.
(3) The court shall record the fact that evidence has been taken in accordance with sub-section (2), and the reasons for allowing the evidence to be taken without oath.

Uncooperative witnesses
118.— (1) Whenever any person, appearing either in obedience to a summons or by virtue of a warrant, or being present in court and being verbally required by the court to give evidence —
(a) refuses to be sworn; or
(b) having been sworn, refuses to answer any question put to him or her; or
(c) refuses or neglects to produce any document or thing which the person is required to produce;
or
(d) refuses to sign his or her deposition
without in any such case offering any sufficient excuse for such refusal or neglect, the court may adjourn the case for any period not exceeding 8 days, and may in the meantime commit the person to prison, unless he or she sooner consents to do what is required.
(2) If such person, upon being brought before the court at or before the adjourned hearing, again refuses to do what is required, the court may again adjourn the case and commit the person for the same period, and so again from time to time until the person consents to do what is so required.
(3) Nothing in this section shall affect the liability of any such person to any other punishment or proceeding for refusing or neglecting to do what is so required, or shall prevent the court from disposing of the case in the meantime according to any other sufficient evidence taken before it.
Spouses may be called without the consent of the accused

119. In any trial the spouse of the accused person shall be a competent witness for the prosecution or defence without the consent of the accused person and may be compelled to give evidence in accordance with the provisions of this Decree.

Division 3—Commissions for the Examination of Witnesses

Parties may examine witnesses
121. — (1) Any of the parties to any proceeding under this Decree in which a commission is issued may forward any interrogatories in writing which the judge or magistrate directing the commission may think relevant to the issue, and the magistrate to whom the commission is directed shall examine the witness upon the interrogatories.
(2) Any party may appear before such magistrate by their lawyer, or in person (if not in custody), and may examine, cross-examine and re-examine (as the case may be) the witness.

Division 1—Compelling Attendance of Witnesses

Summons to witness
110.—(1) If a court is satisfied that material evidence can be given by or is in the possession of any person, it shall be lawful for a court having jurisdiction in any criminal case to issue a summons to the person requiring —
(a) attendance of the person before the court; or
(b) the person to bring and produce to the court all documents and writings in his or her possession
or power which are specified or otherwise sufficiently described in the summons, for the purpose of evidence in the case.
(2) A summons under sub-section (1) may be issued under the signature of a judge or magistrate, or an authorised court officer acting in accordance with an order made by a judge or magistrate.

Warrant for witness who disobeys summons
111.—(1) If, without sufficient excuse, a witness does not appear in obedience to a summons, the court may issue a warrant to bring the person before the court at such time and place as is specified in the warrant.
(2) Prior to issuing a warrant under sub-section (1), the court shall determine that there has been proper service of the summons a reasonable time before the date on which the witness has been required to appear.

Warrant for witness in first instance
112. If the court is satisfied by evidence on oath that a person will not attend unless compelled to do so, it may at once issue a warrant for the arrest and production of the witness before the court at a time and place specified in the warrant.
Mode of dealing with witness arrested under warrant
113.— (1) When any witness is arrested under a warrant the court may, on the furnishing of security by recognisance to the satisfaction of the court for the appearance of the person at the hearing of the case, order the person to be released from custody.
(2) If the witness fails to furnish security under sub-section (1), the court shall order the person to be detained and to be brought to the hearing.

Power of court to order prisoner to be brought for examination
114.— (1) In any case pending before it, a court wanting to examine as a witness any person confined in any prison may issue an order to the officer in charge of the prison requiring the prisoner to be brought in proper custody, at a time to be named in the order, before the court for examination.
(2) The officer in charge of the prison, on receipt of an order under sub-section (1), shall act in accordance with its terms, and shall provide for the safe custody of the prisoner during his or her absence from the prison.

Penalty for non-attendance of witness
115.—(1) Any person summoned to attend as a witness who —
(a) without lawful excuse, fails to attend as required by the summons; or
(b) having attended, departs without having obtained the permission of the court; or
(c) fails to attend after adjournment of the court after being ordered to attend —
shall be liable by order of the court to a fine not exceeding 10 penalty units, and to imprisonment for a term not exceeding 12 months, or both.
(2) If good cause is shown, the High Court may remit or reduce any fine imposed under this section by a Magistrates Court.

Division 2—Examination of Witnesses
Power to summon material witness or examine person present
116.— (1) At any stage of trial or other proceeding under this Decree, any court may —
(a) summon or call any person as a witness; or
(b) examine any person in attendance though not summoned as a witness; or
(c) recall and re-examine any person already examined —
and the court shall summon and examine, or recall and re-examine any such person if the evidence appears to the court to be essential to the just decision of the case.
(2) The prosecution or the defence shall have the right to cross-examine any person giving evidence in accordance with sub-section (1), and the court shall adjourn the case for such time (if any) as it thinks necessary to enable the cross-examination to be adequately prepared if, in its opinion, either party may be prejudiced by the calling of any such person as a witness.

Evidence to be given on oath
117.— (1) Every witness in any criminal cause or matter shall be examined upon oath or affirmation, and the court before which any witness shall appear shall have full power and authority to administer the usual oath or affirmation.
(2) The court may at any time, if it thinks it just and expedient, take without oath the evidence of any person—
(a) declaring that the taking of any oath whatsoever is according to religious belief unlawful or impermissible; or
(b) who by reason of immature age or want of religious belief ought not, in the opinion of the court, to be admitted to give evidence on oath.
(3) The court shall record the fact that evidence has been taken in accordance with sub-section (2), and the reasons for allowing the evidence to be taken without oath.

Uncooperative witnesses
118.— (1) Whenever any person, appearing either in obedience to a summons or by virtue of a warrant, or being present in court and being verbally required by the court to give evidence —
(a) refuses to be sworn; or
(b) having been sworn, refuses to answer any question put to him or her; or
(c) refuses or neglects to produce any document or thing which the person is required to produce;
or
(d) refuses to sign his or her deposition
without in any such case offering any sufficient excuse for such refusal or neglect, the court may adjourn the case for any period not exceeding 8 days, and may in the meantime commit the person to prison, unless he or she sooner consents to do what is required.
(2) If such person, upon being brought before the court at or before the adjourned hearing, again refuses to do what is required, the court may again adjourn the case and commit the person for the same period, and so again from time to time until the person consents to do what is so required.
(3) Nothing in this section shall affect the liability of any such person to any other punishment or proceeding for refusing or neglecting to do what is so required, or shall prevent the court from disposing of the case in the meantime according to any other sufficient evidence taken before it.

Spouses may be called without the consent of the accused
119. In any trial the spouse of the accused person shall be a competent witness for the prosecution or defence without the consent of the accused person and may be compelled to give evidence in accordance with the provisions of this Decree.

Division 3—Commissions for the Examination of Witnesses
Issue of commission for examination of witness
120.—(1) Whenever in the course of any proceeding under this Decree, a judge or magistrate is satisfied that—
(a) the examination of a witness is necessary for the ends of justice; and
(b) the attendance of such witness cannot be procured without an amount of delay, expense or
inconvenience which, under the circumstances of the case, would be unreasonable—
the judge or magistrate may with the consent of the parties issue a commission to any magistrate, within the locality where such witness resides, to take the evidence of the witness.
(2) The magistrate to whom the commission is issued shall proceed to the place where the witness is or shall summon the witness before the court, and shall take down the evidence in the same manner, and may for this purpose may exercise the same powers as in the case of a trial.

Parties may examine witnesses
121. — (1) Any of the parties to any proceeding under this Decree in which a commission is issued may forward any interrogatories in writing which the judge or magistrate directing the commission may think relevant to the issue, and the magistrate to whom the commission is directed shall examine the witness upon the interrogatories.
(2) Any party may appear before such magistrate by their lawyer, or in person (if not in custody), and may examine, cross-examine and re-examine (as the case may be) the witness.

Return of commission
122.— (1) After any commission issued under this Division has been duly executed it shall be returned, together with the deposition of the witness examined, to the judge or to the magistrate (as the case may be), and all documents relating to the commission shall be open at all reasonable times to inspection of the parties, and may, subject to all just exceptions, be read in evidence in the case by either party, and shall form part of the record.
(2) Any deposition taken under the provisions of this Division may also be received in evidence at any subsequent stage of the case before another court.

Adjournment of trial
123. In every case in which a commission is issued under this Division, the proceedings may be adjourned for a specified time reasonably sufficient for the execution and return of the commission.