Titheradge v R [1917] HCA 76

24 C.L.R.] OF AUSTRALIA. 107

(HIGH COURT OF AUSTRALIA.)

DUERMO sce eA te APPELLANT,

AND

ADE eG 5 " : c F 5 : ReEsPoNDENT.

ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.

Criminal Law—Trial—Miscarriage of justice—Witnesses called by Judge—No ¥. ©, ov A. consent of accused—Eramination and cross-examination by Judge—Prior 1917. inconsistent statements by witness—Rebutting evidence—New trial—Crimes = —— Act 1900 (N.S.W.) (No. 40 of 1900), sec. 404—Criminal Appeal Act 1912 SyDNEY, (W.S.W.) (No! 16 of 1912), secs. 6, 8—Hvidence Act 1898 (N.S.W.) (No. 11 of Dee. 11, 20. 1898), secs. 54, 55.

Barton, Isaacs, At a criminal trial the presiding Judge has no power of his own motion to Gavan Duffy

and Rich JJ. call and examine a witness without the consent of the accused where by law he can consent.

By see. 6 (1) of the Criminal Appeal Act of 1912 it is provided that the Court of Criminal Appeal on an appeal against a conviction " shall allow the appeal if it is of opinion . . . that . . . there was a miscarriage of justice . . «+ Provided that the Court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage

. of justice has actually occurred. Sec. 8 (1) provides that "On an appeal against a conviction on indictment, the Court may, either of its own motion, or on the application of the appellant, order a new trial in such manner as it thinks fit, if the Court considers that a miscarriage of justice has occurred, and that, having regard to all the circumstances, such miscarriage of justice can be more adequately remedied by an order for a new trial than by any other order which the Court is empowered to make."

On the trial on indictment of an accused person on one count for an assault with intent upon a git] and on a second count for an indecent assault upon her,