Demirok v The Queen [1977] HCA 21

High Court of Australia Barwick C.J. Gibbs, Stephen, Murphy and Aickin JJ. Demirok v The Queen [1977] HCA 21

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.

Cur. adv. vult.

The following written judgments were delivered:—

April 22 Barwick C.J.

The facts relevant to the decision of this application for special leave to appeal are to be found in the reasons for judgment prepared by my brother Gibbs, which I have had the advantage of reading. The applicant for special leave to appeal, in questioning the course taken by the Crown and allowed by the learned trial judge, raises a question of general importance in the administration of the criminal law in the State of Victoria. I would grant special leave, notwithstanding the circumstance that the statutory provision round which the question centres has no counterpart in the criminal law of any other State. However, for reasons I propose to give, I would dismiss the appeal which should be treated as having been lodged pursuant to such special leave, the matter having been fully argued.

It is clear, in my opinion, that apart from the provisions 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.

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.