Victorian prosecutors must not call the spouse of an accused before the jury after the spouse has indicated in the absence of the jury that she or he is unwilling to give evidence; doing so will constitute a substantial miscarriage of justice not curable by judicial direction.
Later decisions that cite Demirok v R
Decisions cited by Demirok v R
DEMIROK v. THE QUEEN. [1977] HCA 21; (1977) 137 CLR 20
Criminal Law (Vict.)
High Court of Australia
Barwick C.J.(1), Gibbs(2), Stephen(3), Murphy(4) and Aickin(5) JJ.
CATCHWORDS
Criminal Law (Vict.) - Evidence - Spouse of accused - Competent as witness for prosecution - Not compellable - Witness to be informed in absence of jury that he or she not compelled to give evidence - Procedure - Crimes Act 1958 (Vict.), ss. 399, 400.
HEARING
Melbourne, 1977, February 28.DECISION
April 22.
2. It is clear, in my opinion, that apart from the provision of s. 400 (2)
of the Crimes Act 1958 (Vict.), as amended, the Crown would be entitled to
call the wife of the accused to the witness box before the jury, whether or
not the Crown had reason to believe that, if called. the wife in exercise of
her right so to do would refuse to give evidence.
(at p22)
3. It may be granted that, the wife being a competent witness, her refusal to
give evidence when called by the Crown might be
capable of weakening the case
of the accused. The trial judge in such a case would be bound to instruct the
jury that no inference
adverse to the accused could be drawn from the fact of
the wife's refusal to testify. Logically, no such inference could be drawn.
In
the administration of the criminal law, it must be accepted until the contrary
is demonstrated that the jury accept and faithfully
apply the judge's
direction. The law cannot be administered upon any other basis. (at p22)
4. But, accepting that conclusion, it may also be accepted that, none the
less, the refusal of a wife who had, or might have,
personal knowledge of the
occasion on which the crime of which the accused was charged was said to have
been committed, could be
a disadvantage to this accused. But it should not be
assumed that this would be so in every case. However, in my opinion, it should
be borne in mind that the Crown, as representing the community, has an
interest in the result of the trial. It is not in the position
of counsel
assisting a Royal Commission, with no function other than to assemble for
consideration such facts as are available
to it. Its role is that of
prosecutor, seeking by all proper means to secure the conviction of the
accused of the crime charged:
that is part of the duty of the Crown. As I have
remarked elsewhere, a criminal trial is an adversary process where each of the
adversaries are free to call such witnesses as they choose, subject, of
course, to any inhibitions placed upon them or either of
them by the law. To
secure equality between the contestants, there are statutory provisions
intended to secure a fair trial to
the accused and to protect him from
prejudicial conduct, whether by judge or prosecutor. Yet I think it important
to remember that
this does not mean that, by one means or another, the accused
must be protected from any and all disadvantage arising from the facts
of the
case and from the incidents of a properly conducted trial. (at p22)
5. Thus, s. 400 (2) apart, the calling of the wife, even if only to enable
her to exercise her privilege of refusing to give evidence,
was recognized
as
capable of disadvantage so that a specific direction of the judge was called
for. But there was nothing improper
in the course
so taken by the Crown and
the trial in that respect was not irregular because of the taking of that
course. Indeed,
using this
case as an example, it is quite conceivable that a
jury might think of the wife as a potential witness for the Crown
and that, as
between the Crown and the accused, the Crown might be expected to call her or
at least to account for her absence.
(at p23)
6. I now turn to consider the meaning and operation of s. 400 (2). I do not
think that in order to do so it is necessary to speculate
on the motivation of
those who prepared the sub-section,
or as to the purpose which the sub-section
was intended to serve, or as
to the reasons why it directed the relevant
information
to be given to the wife in the absence of the jury. It is enough
to consider
the language of the sub-section, both for what it says
and for
what it does not say. (at p23)
7. The first observation I would make is that the sub-section contemplates
not that the wife will not give evidence but, on the
contrary, that at least
she may do so. What it directs to take place is to occur before she gives
evidence. I have no need to discuss
whether or not the giving of evidence
relevantly begins with the giving of the name of the witness or with the
answering of an
admissible question relevant to the matter in issue between
the Crown and the accused. In this case what the statute directs did
occur
before the accused's wife entered the witness box in the presence of the jury.
(at p23)
8. No more is directed by the sub-section than that the wife shall be
informed of her rights. The sub-section does not require
the judge then to
ascertain whether or not she is willing to give evidence. The course it
proposes avoids the witness learning
of her relevant rights for the first time
when in the witness box in the presence of the jury: and then having
insufficient time
to consider whether or not to exercise the privilege she
has. (at p23)
9. In the next place, not only does the sub-section not require the witness
to indicate her attitude to testifying in the absence
of the jury but it does
not say that after the information has been given her not in the presence of
the jury, the wife shall not
be called, unless willing to testify. Naturally,
as it does not require her attitude to be ascertained in the absence of the
jury,
it does not say that, if she indicates that she would not give evidence,
she may not be called before the jury. If these results
were intended, it
would have been the simplest thing to specify that the attitude of the wife
should be ascertained in the absence
of the jury and that, if she indicated
that she was unwilling to give evidence, she should not be called before the
jury. Not only
were these things not said, but it seems to me that there would
exist in the minds of the legislature reasons for their not being
said. I
would think that the general contemplation at that time would have been that
all evidence in a trial should be taken before
the jury. Further, the denial
to the accused as well as to the Crown of the right to call the wife to the
witness box so as, by
her attitude to testifying, to explain the absence of
her evidence from the case, would be a step unlikely to find favour. As I
have
indirectly suggested earlier, there may well be cases in which the refusal of
a wife to testify might be regarded of advantage
by the accused or by his
advisers. Further, as I have already mentioned, having been informed of her
relevant rights, a wife may
be prepared to give evidence. Clearly she is to be
told of her rights, whether or not she is likely to testify. (at p24)
10. For these reasons, I cannot read the sub-section as precluding the
calling of a wife who has indicated in the absence of the
jury that she will
not testify. The course taken and allowed in this case was therefore, in my
opinion, not in breach of statute.
Further, there being no statutory
prohibition, the course taken by the Crown must be considered in the same
light as it would have
been before the enactment of the sub-section.
Consequently, the manner in which the possibility of disadvantage to the
accused
is to be met is by suitable direction given by the trial judge. In
this case, such a direction was given: it was, in my opinion,
adequate in the
circumstances and must be accepted as effective to restrict the use which the
jury could make of the wife's refusal
to give evidence when called by the
Crown. (at p24)
11. In my opinion, therefore, the trial did not miscarry because of the
course taken by the Crown and allowed by the trial judge.
Any disadvantage
which that course might have worked upon the case of the accused resulted from
the facts of the case and the incidents
of a properly conducted trial. The
taking of that course by the Crown was within its duty as a prosecutor on
behalf of the community.
It cannot, in my opinion, be stigmatized as having
been taken merely for tactical reasons to gain some unfair or dubious
advantage.
(at p24)
12. Being of this view I have no need in order to dispose of the appeal to
consider whether, upon the facts proved at the trial,
the convictions of the
accused resulted from a miscarriage of justice. But it is of considerable
importance that the evidence of
the wife of the deceased, including the tape
recording, remained unshaken throughout. There were no possibilities suggested
of
mistaken identity in her evidence or of any occasion for her to tell a
false story or of there being some possible culprit in the
local Turkish
community, or, for that matter, outside the community. The accused gave
evidence and clearly was not believed. I
am not convinced, even if the course
taken by the Crown were thought by others to be irregular, that it could
reasonably be regarded
as capable of turning the scales against the accused,
or of inducing disbelief of his evidence. (at p25)
13. I would dismiss the appeal. (at p25)
GIBBS J. The applicant, Duran Demirok, was convicted on two counts, namely
that at St. Kilda on the 27th August 1974 he murdered
Ibrahim Ozdemir, and
that at the same time and place he wounded Isminaz Ozdemir with intent to
murder her. His application to the
Full Court of the Supreme Court of Victoria
for special leave to appeal against his conviction was dismissed. He now seeks
special
leave to appeal to this Court. (at p25)
2. The Crown case was that on the night of 27th August 1974 the applicant,
accompanied by his wife Hanim Demirok, went to a flat
at St. Kilda occupied by
Ibrahim Ozdemir and Isminaz Ozdemir, who were husband and wife. The applicant
accused Ibrahim Ozdemir
of having interfered sexually with Mrs. Demirok, and
despite the denials of Ibrahim Ozdemire then attacked both Mr. and Mrs.
Ozdemir
with a blunt instrument such as a small hammer or axe. The only reason
suggested for the attack on Mrs. Ozdemir was to remove a
possible witness to
the murder of her husband. As a result of this attack Ibrahim Ozdemir was
killed and Mrs. Ozdemir suffered
severe injuries to the head. The only persons
present when the alleged attack occurred were the murdered man and his wife
and the
applicant and his wife. The Crown case as presented depended on the
evidence of Mrs. Ozdemir. There was some circumstantial evidence,
but it was,
in itself, inconclusive. The applicant gave evidence on oath and denied that
he had been at the flat on the night in
question or that he had attacked Mr.
and Mrs. Ozdemir. At the trial, in the absence of the jury, the Crown
Prosecutor informed
the learned trial judge that the Crown wished to call Mrs.
Demirok as a witness. After some discussion as to the proper procedure
to be
followed, the learned trial judge directed that Mrs. Demirok be sworn and
examined in the absence of the jury. Mrs. Demirok
gave evidence that she was
married to the applicant, and was then informed that she was not compelled to
give evidence for the
prosecution if she was unwilling to do so. She replied
that she did not want to give evidence. The learned trial judge directed
that
she be sworn and examined again in the presence of the jury. The jury then
returned and Mrs. Demirok again gave evidence that
she was married to the
applicant. She was again told that she was not compellable to give evidence
and said that she did not want
to give evidence. She was then directed to
leave the witness box and the court. (at p26)
3. In the course of his charge the learned trial judge directed the jury in
the following terms:
"Mrs. Hanim Demirok, the wife of the accused, was called
by the Crown. The law is that the wife of an accused man is,
in the circumstances of this case, a competent but not a
compellable witness for the prosecution. Mrs. Demirok could
not be compelled to give evidence for the prosecution. I asked
her whether she was willing to give evidence and she said she
was not. She was legally entitled to take that course, and so
she gave no evidence. You cannot speculate what her
evidence would have been if she had given it. You cannot
draw any inference that the taking of the objection implies
that her evidence would have been that she and her husband
were at the Ozdemir's flat and that her husband attacked Mr.
and Mrs. Ozdemir. The Crown called her because she is
plainly a material witness in view of Mrs. Ozdemir's
evidence. It was the Crown's duty to call a witness who could
give relevant evidence, and it took that step. However, the
result turned out to be that no evidence was forthcoming." (at p26)
4. The present application for special leave to appeal was based only on the
contention that the learned trial judge erred in
having Mrs. Demirok called
before the jury to exercise her rights under s. 400 of the Crimes Act 1958
(Vict.), as amended, and
in referring during the course of his charge to her
failure to give evidence. It was submitted that these
suggested errors led to
a miscarriage of justice. (at p26)
5. At common law, in criminal proceedings, the spouse of the accused person
was (except in certain cases) incompetent as a witness
either for the
prosecution or the defence. This rule has been altered by statute. The
relevant statutory provisions in Victoria
are contained in ss. 399 and 400 of
the Crimes Act, whose provisions were put into their present form in 1967.
Those sections,
so far as they are material, provide as follows:
"399. Every person charged with an offence, and the wife orSub-section (3) provides that the spouse of a person charged with certain specified offences may be compelled to give evidence for the prosecution, but it was accepted before us, as it had been before the Court of Criminal Appeal, that the present case does not fall within any exception created by sub-s. (3) or by any other Act. (at p27)
husband (as the case may be) of the person so charged, shall
be a competent witness for the defence at every stage of the
proceedings whether the person so charged is charged solely
or jointly with any other person:
Provided that -
...
(b) the failure of any person charged with an offence, or of
the wife or husband (as the case may be) of the person
so charged, to give evidence shall not be made the
subject of any comment by the prosecution or unless
the accused person elects to make a statement not on
oath by the judge or justice;
...
400. (1) Where a person is charged with an offence, whether
indictable or punishable on summary conviction, the
husband or wife of the person charged shall be a competent
witness for the prosecution without the consent of the person
charged but save as otherwise expressly provided in
sub-section (3) or in any other Act may not be compelled to give
evidence.
(2) Where the husband or wife of the person charged is a
competent witness for the prosecution but may not lawfully
be compelled to give evidence for the prosection, the
presiding judge magistrate or justice shall before the witness
gives evidence and, where the proceedings are being
conducted before a jury, in the absence of the jury, inform the
witness that he or she is not compelled to give evidence if
unwilling to do so."
6. It is clear from s. 400 (1) that Mrs. Demirok was a competent witness for
the prosecution, but was not a compellable witness.
She could not lawfully
have been required to give evidence. If however the section had made no
further provision, it seems that
the prosecution would have been entitled to
call her to the witness box in the presence of the jury, although she might
then lawfully
have refused to give evidence. I have not seen any case decided
in England or Australia in which it has been held that it is erroneous
for a
wife who is a competent but not a compellable witness to be called to give
evidence, or that it is the duty of the prosecution
or of the court to
ascertain, before she is called, whether she is willing to give evidence. The
judgment of the Court of Criminal
Appeal in R. v. Acaster (1912) 7 Cr App R
187, at pp 189-190 strongly suggests that there is no objection to a wife
being called
to give evidence although she is not compellable to do so. That
case indicated that it would be a desirable practice - although
it is not a
binding practice - for the judge to inform the wife that she may object to
giving evidence, but it appears to have
been contemplated that this would be
done in the presence of the jury. In R. v. Houkamau (1951) NZLR 251, at p 253
Fair J. regarded
it as doubtful whether a warning needed to be given to a wife
in every case in which she was not compellable. The law on these points
remained unsettled when s. 400 was enacted. (at p27)
7. In the United States there has been considerable discussion as to whether
it is proper for the prosecution to call the spouse
of the accused to the
witness box where, under the statute law in force, the spouse cannot testify
without the consent of the accused.
In some cases it has been held that it is
improper to require the accused to take an objection, or to withhold his
consent, in
the presence of the jury, thus leading the jury to infer that he
is suppressing evidence which would be unfavourable to his case.
On the other
hand, where the statute leaves it to the spouse and not to the accused to
consent to the testimony of the spouse being
given, a different view has been
taken; in such a case, since the accused has no power to prevent his spouse
from giving evidence,
it has apparently been thought that the jury could not
conclude that the accused was suppressing evidence, and therefore could not
logically draw any adverse inference against him, if the spouse declined to
give evidence, and it has not been regarded as improper
to call the spouse to
the witness box in the presence of the jury. The cases are discussed in a note
to People v. Ward (1958) 76
ALR 2d 911, at pp 921 et seq, esp at p 922 , and
see also Wigmore on Evidence (McNaughton Revision) (1961) par. 2243 (pp.
259-261)
and McCormick: Handbook of the Law of Evidence, 2nd ed. (1972), par.
66 (pp. 144-145). In the Full Court, the learned judges regarded
s. 400 as
comparable with statutes of the American States which gave the spouse the
right to refuse to testify and which were considered
in those cases. This is
no doubt true, but it does not appear that the statutes there considered
contained a provision similar
to that of s. 400 (2). (at p28)
8. Sub-section (2) of s. 400 appears to have no counterpart in legislation
elsewhere that has been considered in the decided cases.
The sub-section made
two things clear - first, that a wife called as a witness for the prosecution
must be informed that she is
not compelled to give evidence, and secondly that
this information must be imparted in the absence of the jury and before the
witness
gives evidence. The decision of the present question seems to me to
depend entirely on the effect of this provision. Sub-section
(2) operates on
the assumption that the witness concerned is the spouse of the accused. In
many cases that will not be in doubt.
If however any question arises on that
point it must be decided by the judge on the voir dire. It is well established
that it is
the duty of the judge to determine questions as to the competency
of a witness, and other questions on which the admissibility of
evidence
depends, and in my opinion this principle extends to the determination of the
question whether a witness is compellable.
Since the information mentioned in
s. 400 (2) is to be given to the witness in the absence of the jury, it
clearly follows that
any evidence necessary to be heard on the question
whether the witness is the wife of the accused - a question that has to be
determined
before the information is given - must be taken in the absence of
the jury. (at p29)
9. Sub-section (2) is silent as to the course to be followed once the
information has been given to the witness. But in the nature
of things it is
to be expected that the witness, once informed, would immediately declare her
attitude. If she was not willing
to give evidence, she might be expected to
say so then and there. The intention of the legislature in enacting s. 400 (2)
must
have been that the witness would indicate, in the absence of the jury,
whether or not she was willing to give evidence. If that
is so it follows, in
my opinion, that it was further intended that immediate effect should be given
to that indication of her intention.
At that stage it would have become
apparent, if it was the fact, that the witness declined to give evidence. That
would have appeared,
not as the result of some informal intimation which might
be regarded as unreliable, but as the result of something said in the
course
of the trial at the time and in the manner indicated by the statute as
appropriate. In my opinion there would be no legitimate
purpose in thereafter
calling the spouse to the witness box in the presence of the jury. The fact
that she was a wife and therefore
not a compellable witness would already have
been found by the judge. The fact that she declined to give evidence would
also have
been established. If she were then called to the witness box it
could not be for the purpose of giving evidence but only to serve
some
tactical purpose of the prosecution. That would seem to me illegitimate. (at
p29)
10. It was said in the course of argument that the prosecution would be
placed under an unfair disadvantage if it failed to call
the wife to the
witness box in case such as the present. It was suggested that counsel for the
defence might comment adversely
upon the failure of the prosecution to call
the wife as a witness, and that this course would not be forbidden by s. 399.
In my
opinion it is right to say that s. 399 does not inhibit comment upon the
failure of the prosecution to call the wife of the accused
as a witness.
Section 399 deals with evidence for the defence, and par. (b) of the proviso
to that section must be read in the
light of the opening words of the section.
So read, par. (b) relates only to the failure of the accused, or the spouse of
the accused,
to give evidence for the defence. However it does not follow that
the defence could comment unfairly on the failure of the prosecution
to call
the wife of the accused in a case in the course of which the wife had appeared
before the judge in the absence of the jury
and had indicated that she
declined to give evidence for the prosecution. It would be highly improper to
criticize the prosecution
for failing to call the wife, knowing that the
prosecution had endeavoured to call her. If such improper comment were made,
the
judge would be entitled to correct it by strong comment of his own. (at
p30)
11. Notwithstanding the view apparently taken in some of the American cases,
it seems to me that an accused person may be prejudiced
if his wife is called
by the prosecution as a witness and declines to testify. It is true that in
such a case the accused is not
necessarily responsible for the fact that his
wife does not give evidence, and that no inference can logically be drawn
against
him from that fact. However in those circumstances a jury might not
unnaturally think that the wife's evidence was favourable to
the prosecution.
Such an inference might of course be quite ill-founded. A wife might decline
to testify for a variety of reasons.
A wife whose evidence might exculpate her
husband, but who was actuated by animosity towards him, might, when called by
a prosecutor
acting with a proper sense of fairness, decline to give evidence
simply because she did not wish to assist her husband. It was argued
on behalf
of the Crown that the object of the sub-section was to ensure that a wife,
when informed that she need not give evidence,
did not blurt out in the
presence of the jury something to the accused's disadvantage, but this seems
to me an inadequate explanation
for the presence of the sub-section in the
Act. A trial judge might be expected to prevent a witness who had declined to
give evidence
from going on to make inadmissible remarks. In my opinion s. 400
(2) had a wider purpose - to protect an accused person from being
prejudiced
in any way by the fact that his spouse exercised the privilege given to her by
the sub-section and declined to give
evidence for the prosecution. (at p30)
12. It was also submitted on behalf of the Crown that the sub-section should
be construed in the light of the principle that all
evidence should generally
be given in the presence of the jury. R. v. Reynolds (1950) 1 KB 606 was
cited. In that case a question
arose as to the capacity of a child to give
evidence on oath, and evidence directed to that question was given in the
absence of
the jury. The Court of Criminal Appeal held that the taking of
evidence in the absence of the jury constituted such an irregularity
that the
conviction could not stand (1950) 1 KB, esp at pp 610-611 . With the greates
respect I agree with the criticisms of that
case offered in a note contained
in the Law Quarterly Review: see vol. 66 (1950), pp. 157-159. The question
whether a witness is
competent is solely for the judge to consider and there
is no reason why the jury should be present when evidence is being given
on
that question. Evidence which is relevant solely to the question of competence
should not be used by the jury for some other
purpose, such as determining the
credibility of the witness. If the evidence given on the voir dire happens
also to be relevant
to a question the jury has to decide, and is admissible,
it may be given again before the jury: see Basto v. The Queen (1954) 91
CLR
628, at pp 639-640 . If R. v. Reynolds (1950) 1 KB 606 has settled the
practice in England it has not done so for Australia.
If evidence which the
judge has to consider on the voir dire in deciding a question of competence or
admissibility is likely to
be prejudicial to the accused, it should be
received in the absence of the jury. (at p31)
13. For these reasons I consider that the course taken by the learned trial
judge was erroneous, and that Mrs. Demirok should
not have been called to the
witness box in the presence of the jury. It follows that what little evidence
she then gave was inadmissible.
However the direction given to the jury on the
subject by the learned trial judge seems to me to have been not only
unobjectionable
but correct. (at p31)
14. The question that then arises is whether notwithstanding this error in
procedure it can be said that no substantial miscarriage
of justice occurred.
The case was one in which the evidence of Mrs. Demirok would have been vital.
According to the Crown case
there were two eye witnesses to the crimes
committed by the accused. The evidence of one, Mrs. Ozdemir, was open to
criticism on
the ground that her head injuries may have affected her memory.
The jury were entitled, on the evidence, to be satisfied that Mrs.
Ozdemir had
not suffered any loss of memory of the events that had occurred before she was
injured, but they were of course not
bound to be so satisfied. If they had not
been satisfied that Mrs. Ozdemir was a reliable witness, it would have been
their duty
to acquit the applicant. I cannot exclude the possibility that the
jury, in deciding whether to accept Mrs. Ozdemir as a reliable
witness, were
improperly influenced by the fact that Mrs. Demirok, the other alleged eye
witness of the crimes, was called in their
presence and declined to give
evidence. It is against just such a possibility as this that s. 400 (2)
appears to me to be designed
to afford a safeguard. I am not satisfied that
the judge's direction, although adequate, would necessarily remove any such
improper
influence from their minds. I cannot be satisfied that no miscarriage
of justice occurred by reason of the failure to observe the
procedure which
the sub-section, properly construed, requires. (at p32)
15. For the reasons I have given I would grant special leave to appeal and
would allow the appeal, set aside the conviction and
order a new trial. (at
p32)
STEPHEN J. I have had the advantage of reading the reasons for judgment of
Gibbs J., with which I am in agreement. (at p32)
2. In Victoria, until 1915, the spouse of an accused was, and had been ever
since 1891, a competent witness both for the prosecution
and for the defence -
Act No. 1231 s. 34 - but might only be called as a witness with the consent of
the accused. (I ignore for
present purposes those exceptional cases
in which a
spouse might have been compellable at common law - see s. 34 (2) as explained
by Gavan Duffy J. in Sharp v. Rodwell [1947] VicLawRp 10; (1947) VLR 82, at p 85 , and see now
sub-s. (3) of the present s. 400.) In 1915 the form,
but perhaps not the
practical operation,
of the law was changed. By Act No. 2789, s. 432 of the
1915 Consolidation, which was the
successor to s. 34 of the 1891 Act, was
replaced by a new section, now represented by s. 399 of the present Act.
Unlike its predecessors
this new s. 432 dealt only with
the case of a spouse
called as a witness for the defence. (at p32)
3. Thenceforth, until 1967 there existed no general provision (the
exceptional cases above referred to aside) concerning the competence
of a
spouse when called as a witness for the prosecution. But as I have said, this
may not have represented any great change in
the practical operation of the
law since it had in any event always been necessary to obtain the assent of
the accused to the giving
of evidence by his spouse, a requirement which no
doubt greatly restricted the availability of spouses as witnesses for the
prosecution.
(at p32)
4. The position was altered radically when, in 1967, by s. 9 of Act No. 7546,
s. 400 in its present form was introduced into the
Act. Its terms appear from
the reasons for judgment of Gibbs J. Since then, the competence of spouses as
witnesses for the prosecution
has not depended upon the consent of the accused
- see sub-s. (1) - and the prosecution has become able in all cases to call a
willing spouse to give evidence against an accused without his assent. (at
p32)
5. Associated with this important change in the law was the introduction of
sub-s. (2) of s. 400. That sub-section has two functions.
The first is to
ensure that a spouse is told of her right not to give evidence if she does not
wish to. The second is revealed
by the words "in the absence of the jury".
Something, it is clear, is to be kept from the jury, but what? Not surely the
bare recounting
to the accused's spouse of her rights at law. It can matter
little to a jury what are those rights, but knowledge of the spouse's
choice
in exercise of those rights may appear to it of great importance; from it they
may think that they can infer whether a spouse's
absence from the box is due
to her refusal to testify or to some other cause innocent of the implications
which her refusal may
be thought to raise. (at p33)
6. This is, then, in itself a compelling reason identifying the fact of the
spouse's refusal as that which is to be kept from
the jury, the jury thus
being denied access to material likely to encourage speculative inference.
However, the matter does not
rest there. An unwilling spouse's refusal will,
as like as not, be expressed the moment she is told of her right to refuse. No
doubt such a reply, volunteered by her, would, strictly speaking, be uncalled
for, the mere act of informing her of her rights in
itself requiring no reply.
But this ignores the great likelihood that many spouses will perceive the
question "Do you wish to claim
the right to refuse to testify?" as implicit in
the statement of the right. This is, by the way, precisely what occurred upon
the
two separate occasions when the wife of the present appellant was informed
of her rights, first in the absence and later in the
presence of the jury.
Thus to require that the spouse be informed of her rights in the jury's
absence effectively ensures that
her refusal to testify for the prosecution
remains undisclosed; the words of the sub-section are therefore apt to
accomplish that
which must, I think, be its object. (at p33)
7. Still further support for this view derives from the policy of the
legislation as it appears from the terms of s. 399 (b).
That paragraph
ensures, in the interest of a fair trial, that when the defence chooses not to
call the accused's spouse nothing
may be said of that fact to the jury so long
as the accused does not himself make an unsworn statement. It would be curious
that
the accused, protected from comment arising from his own failure to call
his spouse, may yet be exposed to the hazard of inferences
arising from her
refusal to give evidence should the prosecution, although it may know her to
be unwilling to testify against the
accused, nevertheless seek to call her as
a witness. (at p33)
8. To require a spouse, who has declared herself in the absence of the jury
to be unwilling to give evidence, as happened in the
present case, to then do
so for a second time, on this occasion in the presence of the jury, is to
frustrate what I regard as this
particular function of the sub-section. Such a
procedure compels the trial judge, as best he may, to attempt to undo the harm
wrought
by what is said to be, wrongly I believe, the operation of the
section. He must, by an appropriate direction, instruct the jury
that they
should not draw any inferences from the fact of the refusal. It is surely
strange that s. 400 should by its operation
make necessary the giving of such
a direction by the trial judge, without which the operation of the section may
prejudice the
fair trial of the accused. Yet this is the effect for which the
Crown must contend if a spouse, already in all likelihood known
by her
statement in the jury's absence to be unwilling to testify for the
prosecution, must needs repeat that unwillingness in
the presence of the jury.
(at p34)
9. It is these reasons, and for those others stated in detail by Gibbs J.,
that I regard what I have called this second function
of the sub-section to be
that of ensuring that use of the prosecution's new-found power to call the
spouse of an accused will not
lead to knowledge of the refusal of a spouse to
give evidence becoming known to the jury. (at p34)
10. As I would understand s. 400, it operates to permit the prosecution, for
the first time, to call a willing spouse as witness
despite the objection of
the accused but at the same time ensures that, where a spouse is unwilling to
testify, that fact shall
not be introduced into the trial but shall remain, as
it always was before the 1967 amendment, a matter outside the jury's
knowledge.
(at p34)
11. Since I share the views of Gibbs J. that there was here involved a
substantial miscarriage of justice, I too would grant special
leave to appeal,
allow the appeal, set aside the convictions and order a new trial. (at p34)
MURPHY J. Mr. Demirok has applied for special leave to appeal upon the
ground that his wife was compelled, contrary to s. 400
of the Crimes Act
(Vict.) 1958, to give evidence at the trial on which he was convicted of
charges of murder and wounding with
intent to murder.
His application to the
Full Court of the Supreme Court of Victoria in its criminal jurisdiction for
leave to
appeal against his
convictions was refused. (at p34)
2. Section 400 states:
"(1) Where a person is charged with an offence, whetherAs the case did not come within the exceptions in s. 400 (3), Mrs. Demirok was a competent, but not compellable witness. (at p35)
indictable or punishable on summary conviction, the
husband or wife of the person charged shall be a competent
witness for the prosecution without the consent of the person
charged but save as otherwise expressly provided in
sub-section (3) or in any other Act may not be compelled to give
evidence.
(2) Where the husband or wife of the person charged is a
competent witness for the prosecution but may not lawfully
be compelled to give evidence for the prosecution, the
presiding judge magistrate or justice shall before the witness
gives evidence and, where the proceedings are being
conducted before a jury, in the absence of the jury, inform the
witness that he or she is not compelled to give evidence if
unwilling to do so.
..."
3. The trial record shows that the Crown Prosecutor, Mr. Dixon, called Mrs.
Demirok to the witness box in the absence of the jury.
An interpreter was
present to swear her on the voir dire. Before she was sworn, she said she did
not want to make any statement.
The trial judge told her to state her name;
she was then sworn and examined through the interpreter by the Crown
Prosecutor who
elicited from her her name, address, that she married the
accused in 1957 in Nigve, Turkey and was still married to him. The trial
judge
then told her she was not compelled to give evidence for the prosecution if
she was unwilling to do so. She said: "I don't
want to make a statement", and
in answer to a question said that she did not want to give evidence for the
prosecution. Then, in
the presence of the jury, the Crown Prosecutor again
called her to the witness box. The trial record shows:
"HANIM DEMIROK, sworn and examined (throughBy tendering and examining Mrs. Demirok as a witness in the presence of the jury when she was not willing to testify, the prosecution caused a clear breach of s. 400 (1). (at p36)
Interpreter).
Mr Dixon: Is your name Hanim Demirok?
Yes.
Do you live at Flat 7, Block 6, Derby Street, Kensington?
Yes.
Mr Dixon: And are you a married woman?
Yes.
And are you married to the accused man, Duran Demirok?
Yes.
Were you married to the accused man in 1957 in Turkey?
Yes.
And are you still married to him?
Yes.
His Honour: I will interrupt you at this stage, Mr Dixon. Mr
Interpreter, will you inform the witness that she is not
compellable to give evidence for the prosecution in this case if
she is unwilling to do so?
I don't want to.
She does not want to give evidence; is that the position? I
don't want to give evidence, and that is an objection which
she is entitled by law to take and she cannot be examined
further. Mr Interpreter, tell the witness she may leave the
witness box and the court."
4. In my opinion, it was also contrary to s. 400 (1) to compel Mrs. Demirok
to give evidence on the voir dire. Before she was
sworn, she said she did not
want to make any statement. The applicant does not complain of this; it
occurred in the absence of
the jury, and his counsel seems to have agreed to
it. Section 400 (1) confers an important right on the spouse of an accused. It
is not confined to preserving the spouse from being compelled to give evidence
for the prosecution in the presence of the jury.
A spouse must not be
compelled to give evidence for the prosecution on a voir dire examination
directed, for example, to determine
the voluntariness of a confession. (at
p36)
5. Special leave to appeal should be granted. (at p36)
6. The breach of s. 400 has resulted in a miscarriage of justice. This is not
a case for the application of the proviso against
allowing an appeal where no
substantial miscarriage has actually occurred (s. 568 of the Crimes Act).
Fullagar J. said in Mraz
v. The Queen [1955] HCA 59; (1955) 93 CLR 493, at p 514 :
"(The proviso) ought to be read, and it has in fact alwaysThe calling and examination of Mrs. Demirok was not an inadvertent error on the part of the prosecution. Section 400 protects the marital relationship by preventing one spouse from being compelled to give evidence for the prosecution at a trial of the other and the courts should not allow it to be undermined. Mrs. Demirok's evidence might well have caused the jury to draw a very strong inference unfavourable to the accused, as the rest of the evidence showed that she was with the accused at the time of the murder (on the prosecution's case, she was present at the murder, and on the accused's she was with him at home). (at p36)
been read, in the light of the long tradition of the English
criminal law that every accused person is entitled to a trial in
which the relevant law is correctly explained to the jury and
the rules of procedure and evidence are strictly followed. If
there is any failure in any of these respects, and the appellant
may thereby have lost a chance which was fairly open to him
of being acquitted, there is, in the eye of the law, a
miscarriage of justice. Justice has miscarried in such cases,
because the appellant has not had what the law says that he
shall have, and justice is justice according to law."
7. The trial judge gave a warning concerning the incident, described Mrs.
Demirok as a material witness, and said that it was
the Crown's duty to call
her, and that no inference was to be drawn that she was with the accused when
he attacked the deceased.
This does not excuse the breach of s. 400. An
accused should not be put in the position where a judicial direction is relied
on
to overcome the prejudicial effect of evidence admitted contrary to a
statutory prohibition. (at p37)
8. The appeal should be allowed and the conviction quashed. Section 568 of
the Crimes Act provides that where an appeal is allowed,
judgment and verdict
of acquittal should be entered or else a new trial should be directed.
(at
p37)
9. Blackstone referred to the "universal maxim of the common law of England,
that no man is to be brought into jeopardy of his
life, more than once, for
the same offence" (Commentaries, vol. 4, p. 335; see also Coke (3rd
Institutes, pp. 213-214)). The objections
to double jeopardy have long been
extended beyond capital offences to offences in general (see "Double Jeopardy:
The Reprosecution
Problem", Harvard Law Review, vol. 77 (1963-1964), p. 1272;
Friedland, Double Jeopardy, (1969). The United States Supreme Court
expressed
the same view in Ex parte Lange (1873) 18 Wall 163, at p 169 (21 Law Ed 872,
at pp 876-877). :
"The common law not only prohibited a secondThis was cited in Green v. United States where the Court went on to state [1804] USSC 11; (1957) 355 US 184, at pp 187-188 (2 Law Ed 2d 199, at p 204). :
punishment for the same offense, but it went further and forbid a
second trial for the same offense, whether the accused had
suffered punishment or not, and whether in the former trial
he had been acquitted or convicted".
"The underlying idea, one that is deeply ingrained in atIn the United States, the constitutional protection against double jeopardy bars retrial even after mistrial (unless the trial was unavoidably aborted, that is, by "manifest necessity") (see "Mistrial and Double Jeopardy", New York University Law Review, vol. 49 (1949), p. 937). In most jurisdictions, however, retrial after a successful appeal against conviction is not treated as a breach of the common law rule against double jeopardy. There are two rationales for ordering a retrial after conviction is set aside, but neither of these has been universally accepted. One is the concept of "continuing jeopardy", that is, that the original jeopardy survives "to the end of the cause" (Holmes J., Kepner v. United States [1904] USSC 153; (1904) 195 US 100, at p 134 (49 Law Ed 114, at p 126) ). The other, that an accused who appeals from a conviction waives his right to be free from reprosecution (Trono v. United States (1905) [1905] USSC 185; 199 US 521, at p 533 (50 Law Ed 292, at pp 296-297) ) was rejected decisively in Green v. United States [1804] USSC 11; (1957) 355 US 184 (2 Law Ed 2d 199) (see "Double Jeopardy: The Reprosecution Problem" loc. cit.). In the United Kingdom, the deep-seated prejudice against double jeopardy has been so strong that the Court of Criminal Appeal was originally not given the power to order a retrial (see Criminal Appeal Act 1907) and was given the power in the Criminal Appeal Act 1968 only when a conviction is set aside on the ground of fresh evidence. (This is apart from the power to order a venire de novo where the trial was a nullity). In Victoria (and other Australian states), there is a general statutory power to order a retrial where a conviction is set aside. (at p38)
least the Anglo-American system of jurisprudence, is that the
State with all its resources and power should not be allowed
to make repeated attempts to convict an individual for an
alleged offense, thereby subjecting him to embarrassment,
expense and ordeal and compelling him to live in a
continuing state of anxiety and insecurity as well as
enhancing the possibility that even though innocent he may
be found guilty".
10. A balance must be achieved between the interests of society in
prosecuting charges and the interests of society and the individual
in
avoiding multiple criminal trials. The prosecution has had two opportunities
to have the applicant convicted according to law
but in each case the trial
was irregular and unfair to him. He was convicted at the first trial, which
was a long one (May 1975),
appealed successfully to the Full Court of the
Supreme Court of Victoria (26th September 1975) who ordered a new trial on the
ground
that he had not had a fair trial [1976] VicRp 19; (1976) VR 244 . The Crown's
application for special leave to appeal to this Court was dismissed
(5th March
1976) (Reg. v. Demirok
(1976) 50 ALJR 550 ). He was convicted at the second
trial (7th May 1976), his application for
leave to appeal to the Full Court
of
the Supreme Court of Victoria was refused (31st August 1976) and he now
appeals to this Court.
He has spent a considerable time
in gaol. Without fault
on his part, he has not yet had a fair trial although he has twice "run
the
gauntlet". In my opinion, this
is enough. He should not be subjected to triple
jeopardy. (at p38)
11. Whatever steps may be taken to exclude prejudice, an accused who goes to
a third trial is under an enormous handicap compared
to one facing a first
trial. The danger that the jury will know of his earlier convictions is high.
Repeated trials increase the
possibility that even an innocent accused may be
found guilty (see Green v. United States [1804] USSC 11; (1957) 355 US 184 (2 Law Ed 2d 199)
and
also United States v. Wilson [1975] USSC 40; (1975) 420 US 332 (43 Law Ed 2d 232) (at
p39)
12. I would not order a new trial. Special leave should be granted, the
appeal allowed, and the conviction quashed. Judgment and
verdict of acquittal
should be entered. (at p39)
AICKIN J. I have had the advantage of reading the judgment of Gibbs J. in
this matter. I agree with his reasons and conclusions
and have nothing to add.
(at p39)
ORDER
Application for special leave to appeal granted.Appeal allowed.
Verdicts of guilty of and convictions for murder and wounding with intent to murder and sentences thereon by the Supreme Court of Victoria set aside and in lieu thereof order that the matter be remitted to that Court for retrial.