High Court of Australia
37 CLR] OF AUSTRALIA. 147
Solicitor for the appellant, Gordon H. Castle, Crown Solicitor for H- C- oF A- the Commonwealth, by Fisher, Powers & Jeffries. eb
Solicitors for the respondent, Scammell & Skipper. Derury B.L. - Feperar Cosons-
es By a el Taxation ai 2, (S.A.)
v KounNEL & Co. Lrp.
{HIGH COURT OF AUSTRALIA.]
THE KING . é 4 2 ' P . APPELLANT ;
AND
ELLIS. . fi s Fi A A . Respondent.
ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.
Criminal Law—rial—Accused persons tried together—Comment made by one on 14 ©, op A. fact that another has refrained from giving evidence—Substantial miscarriage "1 g95, Of justice—New trial—Crimes Act 1900 (N.S.W.) (No. 40 of 1900), secs. 402, 405, 407—Criminal Appeal Act 1912 (N.S.W.) (No. 16 of 1912), sec. 6. Sromy, Dec. 11, 18.
A comment made by one of two accused persons being tried together upon the fact that the other has refrained from giving evidence on oath on his own , Knox J. | behalf is within the prohibition of sec. 407 (2) of the Crimes Act 1900 (N.S.W.), Rich and" which provides that "it shall not te lawful to comment at the trial of any *t™"*°4J- person upon the fact that he has refrained from giving evidence on oath on
his own behalf."
That comment having been made and the accused in respect of whom it was made having been convicted, there is a miscarriage of justice, but that mis- carriage of justice is not necessarily substantial within the meaning of sec. 6 of the Criminal Appeal Act of 1912 (N.S.W.).
Special leave to appeal from the order of the Supreme Court of New South Wales (Full Court); R. v. Ellis, (1925) 25 S.R. (N.S.W.) 575, rescinded.
Appeat from the Supreme Court of New South Wales. John Matthew Ellis and James Beresford Harvey were on 30th September 1925 tried together before the Supreme Court in its
H.C. or A.
1925.
Tae King vw Evus.
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