No one, except a person charged with an offence when giving evidence on his own application, and as to the offence wherewith he is charged, is bound to answer a question if the answer would, in the opinion of the court, have a tendency to expose the witness, or the wife or husband of the witness, to any criminal charge, penalty, or forfeiture, which the court regards as reasonably likely to be preferred or sued for. Accordingly, an accomplice cannot be examined without his consent, but if an accomplice who has come forward to give evidence on a promise of pardon, or favourable consideration, refuses to give full and fair information, he renders himself liable to be convicted on his own confession. However, even accomplices in such circumstances are not required to answer on their cross-examination as to other offences. Where, under the new law, a person charged with an offence offers himself as a witness, he may be asked any question in cross-examination, notwithstanding that it would tend to criminate him as to the offence charged. But he may not be asked, and if he is asked must not be required to answer, any question tending to show that he has committed, or been convicted of, or been charged with, any other offence, or is of bad character, unless:—
(i.) The proof that he has committed, or been convicted of, the other offence is admissible evidence to show that he is guilty of the offence with which he is then charged; or,
(ii.) He has personally, or by his advocate, asked questions of the witnesses for the prosecution, with a view to establish his own good character, or has given evidence of his good character, or the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or the witnesses for the prosecution; or,
(iii.) He has given evidence against any other person charged with the same offence.
He may not be asked questions tending to criminate his wife.
The privilege as to criminating answers does not cover answers merely tending to establish a civil liability. No one is excused from answering a question or producing a document only because the answer or document may establish or tend to establish that he owes a debt, or is otherwise liable to any civil proceeding. It is a privilege for the protection of the witness, and therefore may be waived by him. But there are other privileges which cannot be so waived. Thus, on grounds of public policy, no one can be compelled, or is allowed, to give evidence relating to any affairs of state, or as to official communications between public officers upon public affairs, except with the consent of the head of the department concerned, and this consent is refused if the production of the information asked for is considered detrimental to the public service.
Again, in cases in which the government is immediately concerned, no witness can be compelled to answer any question the answer to which would tend to discover the names of persons by or to whom information was given as to the commission of offences. It is, as a rule, for the court to decide whether the permission of any such question would or would not, under the circumstances of the particular case, be injurious to the administration of justice.
A husband is not compellable to disclose any communication made to him by his wife during the marriage; and a wife is not compellable to disclose any communication made to her by her husband during the marriage.
A legal adviser is not permitted, whether during or after the termination of his employment as such, unless with his client’s express consent, to disclose any communication, oral or documentary, made to him as such legal adviser, by or on behalf of his client, during, in the course of, and for the purpose of his employment, or to disclose any advice given by him to his client during, in the course of, and for the purpose of such employment. But this protection does not extend to—
(a) Any such communication if made in furtherance of any criminal purpose; nor