Demirok v The Queen [1977] HCA 21

Demirok v The Queen [1977] HCA 21

Where, in compliance with s. 400(2) of the Crimes Act 1958 (Vic), a spouse has indicated in the absence of the jury an unwillingness to give evidence, it is a procedural error and contrary to the legislative purpose to nonetheless require that spouse to be called again to the witness box in the presence of the jury, as this risks prejudicing the accused and undermines the protection s. 400(2) is designed to provide; the error may give rise to a substantial miscarriage of justice requiring a new trial.

Jurisdiction
Australia
Procedural Posture
Criminal Appeal / Application for Special Leave to Appeal and Appeal From Conviction
Outcome
Appeal allowed (by majority)
Legal Topics
['competence and Compellability of Spouses as Witnesses' 'procedure for Informing Witness of Rights' 'admissibility of Evidence' 'effect of Procedural Irregularity' 'double Jeopardy']
['criminal Law' 'evidence'] ['competence and Compellability of Spouses as Witnesses' 'procedure for Informing Witness of Rights' 'admissibility of Evidence' 'effect of Procedural Irregularity' 'double Jeopardy']

Case Brief

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Procedural Posture

Criminal Appeal / Application for Special Leave to Appeal and Appeal From Conviction

Legal Issues

  1. 1 ["Whether s. 400(2) of the Crimes Act 1958 (Vic) prohibits calling a spouse who has declared unwillingness to testify to the witness box in the jury's presence" "Whether the Crown's conduct and the trial judge's procedure caused a miscarriage of justice" 'Appropriate remedy where improper evidence is introduced in the presence of the jury']

Ratio Decidendi

Where, in compliance with s. 400(2) of the Crimes Act 1958 (Vic), a spouse has indicated in the absence of the jury an unwillingness to give evidence, it is a procedural error and contrary to the legislative purpose to nonetheless require that spouse to be called again to the witness box in the presence of the jury, as this risks prejudicing the accused and undermines the protection s. 400(2) is designed to provide; the error may give rise to a substantial miscarriage of justice requiring a new trial.

Court Disposition

Appeal allowed (by majority)

Orders

  • ['Verdicts of guilty and convictions for murder and wounding with intent to murder and sentences set aside' 'Order that the matter be remitted to the Supreme Court of Victoria for retrial' '(Murphy J dissenting: would have entered judgment and verdict of acquittal instead of ordering new trial)']