DIVISION V
EVIDENCE

Section 232.— The accused may not be called as a witness by the prosecutor.

Section 233.— The accused may testify as a witness on their own behalf. Where the accused elects to testify, the Court may take their testimony before that of the other defence witnesses.

If the accused’s testimony incriminates or prejudices another accused person, that other accused person may cross-examine them.

Where the accused testifies as a witness, their testimony may be used as evidence against them. The Court may also admit such testimony as corroborative evidence supporting the prosecutor’s other evidence.

Section 234.— A witness is not required to answer any question that may directly or indirectly incriminate them. Where such a question is asked, the Court shall warn the witness.

Section 235.— During a trial, the Court may, where it considers appropriate, put questions to the prosecutor, the accused or any witness.

Questions shall not be put to the accused merely to remedy defects in the prosecution’s case, except where the accused is testifying as a witness.

Section 236.— During a trial, the Court may order any person other than the accused who is to be called as a witness to leave the courtroom and remain outside until called to testify.

After the witness has testified, the Court may order the witness to remain in the courtroom.

Section 237.— The record of a witness’s testimony given during a preliminary examination or trial shall be read by the Court to the witness in the presence of the accused, except in a case provided for under Section 165, paragraph three.

With the agreement of the parties, the Court may permit the record of testimony given during a preliminary examination to be treated as the witness’s testimony at trial. The witness shall not be required to testify again or may proceed immediately to answer the accused’s cross-examination.

This shall not apply to an offence punishable by a minimum term of imprisonment of five years or by a more severe punishment.

Section 237 bis.— Before a charge is filed before the Court, the Public Prosecutor may apply to the Court for an order that a witness’s testimony be taken promptly where there are reasonable grounds to believe that:

The witness will leave the Kingdom;

The witness has no habitual residence;

The witness resides far from the Court that will try the case;

The witness may be subjected to direct or indirect interference; or

There is another necessary reason that may make it difficult to obtain the witness’s testimony in the future.

The Public Prosecutor may make the application on their own initiative or upon the application of the injured person or the inquiry official. The application shall specify all the acts alleged to have been committed by the alleged offender.

Where the alleged offender has been identified and is being held in the custody of the inquiry official or Public Prosecutor, the Public Prosecutor shall bring the alleged offender before the Court. Where the alleged offender is in the custody of the Court, the Court shall summon them to attend.

Upon receiving the application, the Court shall take the witness’s testimony promptly. The alleged offender may cross-examine the witness personally or appoint counsel to conduct the cross-examination.

Where the alleged offence is one for which the Court is required to appoint counsel, or for which the alleged offender would be entitled to request the appointment of counsel under Section 173, the Court shall ask the alleged offender whether they have counsel before taking the witness’s testimony.

Where the Court is required to appoint counsel and considers that counsel can be appointed in time, it shall appoint counsel and proceed promptly with the taking of the witness’s testimony.

Where counsel cannot be appointed in time, or the alleged offender cannot appoint counsel in time, the Court shall itself examine the witness on behalf of the alleged offender.

The record of the witness’s testimony shall be read to the witness. Where the alleged offender is present before the Court, the record shall also be read in their presence.

If the alleged offender is subsequently charged as the accused in relation to the offence, the testimony may be admitted as evidence at trial.

Where an alleged offender considers that a person whom they may need to call as a witness will leave the Kingdom, has no habitual residence, resides far from the Court that will try the case, may be subjected to direct or indirect interference, or may otherwise be difficult to bring before the Court in the future, the alleged offender may apply to the Court for an order that the witness’s testimony be taken promptly. The application shall state the reasons and necessity for taking the testimony in advance.

Where the Court considers it appropriate, it may order that the witness’s testimony be taken and shall notify the inquiry official and the Public Prosecutor concerned.

The Public Prosecutor may cross-examine the witness. The provisions of paragraphs three, four and five shall apply with the necessary modifications.

Section 172 ter shall apply with the necessary modifications to the taking of testimony from a witness who is under eighteen years of age.

Section 237 ter.— Section 237 bis shall apply with the necessary modifications to the taking of testimony from an expert witness and to the taking of other evidence.

It shall also apply where proceedings have already been instituted but there is a necessary reason to take evidence before the date normally fixed for taking evidence under Section 173/2, paragraph two.

Where scientific evidence may establish a significant fact in the case, or where there are reasonable grounds to believe that delaying the taking of important scientific evidence may result in the evidence being damaged or becoming difficult to examine, the accused or the Public Prosecutor may apply to the Court for an order directing a scientific examination under Section 244/1.

The Public Prosecutor may make the application on their own initiative or upon receiving an application from the inquiry official or the injured person. Section 237 bis shall apply with the necessary modifications.