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. 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. 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. 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. 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. 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. 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. 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. 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. 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. I would dismiss the appeal. 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. 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 Ozdemir 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. 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. 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 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 or 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 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. Sub-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. 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 [1] 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 [2] 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. 1. (1912) 7 Cr. App. R. 187, at pp. 189-190. 2. [1951] N.Z.L.R. 251, at p. 253. 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 [3] , 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). 1. (1958) 76 A.L.R. 2d 911, at pp. 921 et seq., esp. at p. 922. 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. 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. 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 a 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. 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. 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 [4] 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 [5] . With the greatest 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 [6] . If R. v. Reynolds [4] 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. 1. [1950] 1 K.B. 606. 2. [1950] 1 K.B., esp. at pp. 610-611. 3. (1954) 91 C.L.R. 628, at pp. 639-640. 4. [1950] 1 K.B. 606. 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. 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. 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. Stephen J. I have had the advantage of reading the reasons for judgment of Gibbs J., with which I am in agreement. 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 [7] , 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. 1. [1947] V.L.R. 82, at p. 85. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. Section 400 states: (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 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. As the case did not come within the exceptions in s. 400 (3), Mrs. Demirok was a competent, but not compellable witness. 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 (through 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. By 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). 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. Special leave to appeal should be granted. 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 [8] : [The proviso] ought to be read, and it has in fact always 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. The 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). 1. (1955) 93 C.L.R. 493, at p. 514. 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. 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. 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 [9] : The common law not only prohibited a second 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. This was cited in Green v. United States where the Court went on to state [10] : The underlying idea, one that is deeply ingrained in at 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. In 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 [11] ). The other, that an accused who appeals from a conviction waives his right to be free from reprosecution (Trono v. United States [12] ) was rejected decisively in Green v. United States [13] (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. 1. (1873) 18 Wall. 163, at p. 169 [21 Law Ed. 872, at pp. 876-877]. 2. (1957) 355 U.S. 184, at pp. 187-188 [2 Law. Ed. 2d 199, at p. 204]. 3. (1904) 195 U.S. 100, at p. 134 [49 Law. Ed. 114, at p. 126]. 4. (1905) 199 U.S. 521, at p. 533 [50 Law. Ed. 292, at pp. 296-297]. 5. (1957) 355 U.S. 184 [2 Law. Ed. 2d 199]. 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 [14] . The Crown's application for special leave to appeal to this Court was dismissed (5th March 1976) (Reg. v. Demirok [15] ). 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. 1. [1976] V.R. 244. 2. (1976) 50 A.L.J.R. 550. 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 [16] and also United States v. Wilson [17] ). 1. (1957) 355 U.S. 184 [2 Law. Ed. 2d 199]. 2. (1975) 420 U.S. 332 [43 Law. Ed. 2d 232]. 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. 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.