Riddle v R [1911] HCA 33

Held, that assuming that at common law, where a husband was

in a criminal proceeding. But, sembde, in such a case the wife was n compellable witness at common law. :

R. v. Stocks, 5 8.R, (N.S.W.), 628, overruled on this point. Principles of construction of consolidating Act considered.

Where a wife objected to give evidence against her husband in a et proceeding in which he was charged with wounding her, and the p Judge erroneously ruled that she was a compellable witness on behalf

*Sec. 407 of the Crimes Act 1900 proceeding, inquiry, or arbitrati

provides : - '« Every party to a civil proceeding, inquiry in which evidence is or may be given, or arbitration, and the husband or wife of such party, shall be competent to give evidence in such

"Every accused person in a erim proceeding, and the husband ot of such person, shall be com|

not conipellable, to give evi such proceeding in every Coutt.

'on the trial which could be reserved on behalf of the accused for the ideration of the Supreme Court under sec. 428 of that Act.

ecision of the Supreme Court, 31st March 1911, reversed.

from the decision of the Supreme Court, affirming a , upon the following case stated by Cullen C.J.: - The ner, John Thomas Riddle, was tried before me and convicted e 15th March 1911, at the Darlinghurst sittings, on a charge nding with intent to murder Ruby Riddle, who was at the the offence charged and still is his wife.

Riddle, on being called as a witness for the prosecution, hat she did not wish to give evidence.

ie Crown Prosecutor then asked me for a ruling that she was lable to give evidence, the charge being one of personal to herself, and cited R. v. Stocks (1) for that proposition.

er hearing Mr. O'Reilly, counsel for the prisoner, I ruled the case was governed by that decision, and that the wife in se was a compellable witness against her husband. In e to my ruling she thereupon gave certain evidence, h was of a nature tending to criminate the prisoner. At Mr. ly's request I reserved the question whether this ruling was

he material sections of the Acts cited are referred to in the ment of Griffith C.J.

lly, for the appellant. The Supreme Court held, in nce with the decision of that Court in R. v. Stocks (1), wife is a compellable witness against her husband when charged with assaulting her. The question, therefore, is x that decision is right. The terms of sec. 407 of the Crimes lear and unambiguous, and effect should be given to the used: Bennett y. Minister for Public Works (N.S.W.) (2). sumed in R. y. Stocks (1) that, as at common law a wife t to give evidence against her husband where he is ith assaulting her, she is also compellable to do so in

, and that the legislature, by omitting in sec. 407 the

under sec. 407 of the Orimes Act, held, that a question of law had H.C. oF A.

common law, in cases where she is competent to do so, could be compelled to testify against her husband: Hale,

It may well be that the legislature when it enacted sec. 407 ha in view the conflict of opinion expressed on this p intended to resolve the doubt by an express statutory pro If the Judge was in error in ruling that the wife was a e lable witness, a question of law arose on the trial which could | reserved under sec. 428 of the Crimes Act 1900. [He also r to the Criminal Evidence Act 1898, 61 & 62 Vict. ¢ 31 Evidence Act 1898 (No. 11), sec. 7, and 55 Vict. (No. 5), se

Pickburn, for the respondent. The general rule that a wit who is competent to give evidence is also compellable app! the case of a wife. The reason for the exception in this el case to the common law rule, that husbands and wives are in¢ petent to testify for or against each other in criminal pr ings, was that it was considered more consistent with the interest that wives should be protected from assaults husbands, than that domestic peace should be preserved. fiction of the unity of person between husband and wife, been disregarded to secure the safety of the wife, ceases to for all purposes, and the wife is placed in the position ordinary witness in all cases where she is competent to evidence against her husband. The consent of the wife to is immaterial where the interests of justice require that th should be a competent witness: Reeve v. Wood (3). reasoning and necessity which apply to the wife's comp apply also to her compellability. In R. v. Ellis, cited in face to Archbold, Criminal Pleading, 23rd ed., p. VuL, i held by Wills J. that a wife who is competent to give evi against ber husband is compellable to do so. [He also to Best on Evidence, 7th ed., pars. 176, 178.]

(1) 6M. &S., 194; 1 Hale P.C., 301. (2) 2 Leach, 952 ; 8 Ves (3) 10 Cox ©.C., 58.

7 is ambiguous. This section is a consolidation of sec. . Hvidence Act 1898, and should not be held to have taken ht which existed at common law, and was expressly by the latter section. The effect of sec. 6 of the Hvi- is that persons competent to give evidence shall, except inafter provided, be compellable to do so, and that section been repealed. The repeal of an Act modifying the com- raises a presumption that a revival of the common law nded: Marshall v. Smith (1). The Court will assume that solidating section the legislature did not intend to alter ious law: R. v. White (2). If the wife is competent her is admissible. If she has a right to refuse to testify, 3 a right persqnal to herself, of which the prisoner cannot rantage. FitH OJ. referred to R. v. Kinglake (3).] tong, if any, is done to the witness and not to the This is not a question of law arising on the trial the meaning of sec. 428 of the Crimes Act.

riTH C.J. This is an appeal from a decision of the Court affirming a conviction of the appellant for his wife with intent to murder. At the trial the wife led as a witness for the prosecution, and stated that she ish to give evidence. The learned Chief Justice, who d, ruled that she was bound to give evidence, and she did prisoner was convicted, and the question was reserved he ruling was correct. he learned Chief Justice, in so lowed the opinion of the Supreme Court in the case . Stocks (4), as he was bound to do, and the Full Court 1d I think correctly, that this case was within the ratio in that case, and they affirmed the conviction. The therefore, for our consideration is really whether R. v.

R., 1617. (3) 11 Cox C.C., 499. LR., 12, at p. 22. (4) 5S.R. (N.S'W.), 628.

ry of the prior legislation can be looked at to show H. ©. or A.

Stocks (1) was rightly decided. That depends entirely up construction of sec. 407 of the Crimes Act 1900, which, as it is material, is in these words: - " Every accused pe criminal proceeding, and the husband or wife of such - shall be competent, but not compellabie, to give evidence in : proceeding in every Court." The words of the section are primd, facie unambiguousy difficulty was said to be raised on comparison of them law as it stood before the passing of the Crimes Act, whiel to some extent, though not altogether, a consolidation Act. - immediately previous law on the subject was contained in of the Bvidence Act 1898. Sec. 6 of that Act provided : - "Tn any legal proceeding in which witnesses are compell: give evidence, every person offered as a witness and compete: give evidence shall, except as hereinafter provided, be comp to give evidence." See. 7 reads : - "No accused person in a criminal proceeding, or husband wife of any such accused, shall be compellable to give evider such proceeding.

" Provided that this section shall not apply to any person but for this Act, would be at common law or by any Act Imperial Act compellable to give evidence in such proceedii It will be observed that the language of the Crimes - different from that of the former Act. It may or may not a substantial change in the law. All the learned Ju deciding R. v. Stocks (1), proceeded upon the assumption # common Jaw a wife was in certain cases compellable t evidence against her husband, and they thought it extr unlikely that so radical a change as to provide that a wife not be compellable to give evidence against her husband in cases could have been intended to be made by, to use the of Chief Justice Cockburn, "a mere side wind." That w: foundation of the judgment of the learned Judges in R. v. (1). Pring J. thought that this was sufficient reason for cons ing the words of this section contrary to what he thoug] their ordinary meaning, and I myself was very much impresse (1) 5S.R. (N.S.W.), 628.

in cases to give evidence against her husband, it seems that it should have been changed without any direct to that effect. But the question arises - is the foundation

nst her husband? I propose, briefly, to inquire how the law d on this subject so far as it can be ascertained. The earliest hority cited to us was Hale's Pleas of the Crown, vol. 1, p. where he investigates the question of what are lawful wit- He says: - * As in relation to the persons of witnesses, are said lawful witnesses, which by the laws of England are ed to be witnesses. A feme covert is not a lawful witness inst her husband in case of treason, yet in Lord Castlehaven's upon an indictment for rape upon his lady by another by usband's present force, she was received as a witness by the vice of the Judges, that assisted at that trial, and upon her nee he was convicted and executed. But a woman is not to be sworn or to give evidence against another in case of it, &c., if her husband be concerned, though it be material st another and not directly against her husband."

| fortiori, a wife was not bound to be sworn or to give lence against her husband himself. The question whether a covert is a competent witness against her husband on a ge of treason is said to be in doubt notwithstanding that dictum. the case of Cartwright v. Green (1) in Chancery, which is reported in 8 Ves., 405, and also in 2 Leach, 952 (where it is perly inserted as having an important bearing upon the ninal law), it was decided that a wife, defendant to a bill in neery, was not compellable to answer upon oath as to a matter ch, if admitted by her, would tend to show that her husband L been guilty of a criminal offence. Lord Eldon LC. said at conclusion of his judgment (2) : - * Here the wife, if the act a felony in the husband, would be protected: at all events ould not be called upon to make a discovery against her id." That was, of course, decided upon the common law. the later case of Lt. v. Inhabitants of All Saints, Worcester

| Ves., 405 ; 2 Leach, 952. (2) 8 Ves., 405, at p. 410.

the argument. If at common law a wife was compellable in H. ©. oF A-

(1), the question raised was whether a wife was a compet witness on a proceeding under the Poor Laws as to the se ment of a pauper. Bayley J.,a Judge of very great experienc and learning, said: - "On the best consideration which I give to this case, it appears to me that Ann Willis was a petent witness, and I found this opinion not upon the order time in which she was called, for in my judgment she wi have been equally competent after the second wife had given testimony. It does not appear that she objected to be exami: or demurred to any question. If she had thrown herself protection of the Court on the ground that her answer question put to her might criminate her husband, in that am not prepared to say that the Court would have compell: to answer; on the contrary, I think she would have been ent to the protection of the Court. But as she did not obje think there was no objection arising out of the policy of law, because by possibility her evidence might be the mean furnishing information, and might lead to inquiry, and pe to the obtaining of evidence against her husband. It objection to the information that it has been furnished by wife."

In Laylor on Evidence, 10th ed., par. 1368, the learned at after quoting R. v. Inhabitants of All Saint's, Worcest says : - " But although, by the common law rule of incompet the wife may be permitted to give evidence which may indire criminate her husband, it by no means follows that she compelled to do so; and the better opinion is that under it may throw herself on the protection of the Court, and deeli answer any question which would tend to expose her husbi a criminal charge."

At par. 1,453 he says: - "It has already been observed, there are some questions which a witness is not compellabi answer. First, this is the case where the answers would hay tendency to expose the witness, or, as it seems, the husband or' of the witness, to any kind of criminal charge, whether common law or ecclesiastical Courts, or to a penalty or forfe of any nature whatsoever."

fight on the state of the common law. The better opinion by Yaylor to be that a wife was not compellable. Now, ing the state of the law, whatever it was (because, as I nee reminded in England by a distinguished lawyer, the always certain although no one may know what it is), the sture in New South Wales passed the Hvidence Act 1898, ich I have already referred. In the same year the English we passed the Criminal Evidence Act (61 & 62 Vict. ¢. hich, in sec. 1, made general provisions as to the competency sbands and wives in criminal cases, as follows : - " The wife nd, as the case may be, of a person so charged, shall be a ent witness for the defence." Then followed a number of ications. Sec. 4 provided that the wife or husband of a 1 charged with offences against certain Acts mentioned in hedule to the Act might be called as a witness without consent of the person charged. The section went on : - hing in this Act shall affect a case where the wife or md of a person charged with an offence may at common e called as a witness without the consent of the person

will be observed that that provision, which is very much to e effect as that in sec. 7 of the Evidence Act of New 1 Wales passed in the same year, assumed that there may be at common law in which the wife is compellable to give against her husband. With respect to the Acts men- in the Schedule, they are all Acts relating to injuries or to the person or to the wife, and it was provided that in cases the wife or the husband might be called as a witness le prosecution or the defence without the consent of the per- 'ged. It appears from a paragraph cited to us from the last .of Archbold that that provision has been interpreted in md as meaning that, when a wife is called as a witness in a inder sec. 4, the wife is not only competent but compellable, sh it is said that the law is still regarded as doubtful. ig the state of the law in England, and there being a milar provision here, the legislature passed the Crimes

Yo other authorities were brought before us, although counsel H- ©. or A.

Act 1900, and in see. 407 they laid down a new rule - at a arule in new terms. What then did they mean? Primd, they declared the law, and made a uniform rule for all eri charges. If there was a doubt as to the law before, that way to resolve the doubt in favour of what was said in the books to be the better opinion. At any rate, they did not the rule laid down in England, which resolved the doubt in opposite direction. Under these circumstances I do not that there is any sufficient ground for departing from the li meaning of the words which they used, and the plain, 1 meaning is that in all cases the wife is competent but not pellable. Under these circumstances I think that the Judges in R. v. Stocks (1), although on the premises on they based their judgment they may have been right, pro on false premises, and the decision in that case ought not followed. The result therefore is that the ruling of the Chief Justice was wrong in law.

The next question is whether this is a point of law whi be raised by special case. Any point of law occurring trial may be raised. In the case of R. v. Kinglake (2) y the defendant was charged with bribery, a witness being objected to answer a question on the ground that it might him to a criminal prosecution. The presiding Judge errone: compelled him to answer, and the objection was taken by defendant that that error vitiated the proceedings, but the Cot of Queen's Bench said that it was merely a privilege of witness. The witness was a competent witness, altho y gave his evidence under compulsion. And they refused to effect to the objection. But I think that that case is distingui able from the present. The old doctrine of the unity of hus! and wife, and the importance of preserving confidence betwe them, and the other reasons which have been variously have still a great deal of weight. The legislature has thot fit to say what shall be the rule, and if the legislature effect said that a wife shall not be compellable to give evic against her husband in a criminal charge, and the Court theless compels her to give evidence against her husband

occurring at the trial, and I think that it is a point that

a case I am disposed to adopt the words of Chief Jus- Hale, and to say that the witness is not "a lawful witness " ing to the law of the land. Another argument was used, wn argument ab inconvenienti, which, as I have often said, is a dangerous argument, that it would be extremely us and undesirable, in cases where the husband is guilty lence to his wife, and she might be the only witness, that should not be compellable to give evidence. On the other id, it might be extremely inconvenient, and tend to disturb the of a great many families, if for every breach of the criminal however trivial, committed by a husband against his wife a r should be allowed to intervene and compel her to come ) Court and give evidence against her husband. Arguments onvenienti may have some weight, but they are for the slature to solve.

should like to add that I think the case of R. v. Stocks (1) ightly decided in its result, although the reasons given by learned Judges were erroneous, because in that case the wife Uready voluntarily given evidence, and the putting in of her sitions in her absence gave rise to the question.

The result is that the appeal will be allowed, and the conviction ed.

RTON J. read the following judgment : - The provision of Crimes Act upon which this case turns is that part of see. 407 which reads thus: - " Every accused person in a criminal ling, and the husband or wife of such person, shall be ent, but not compellable, to give evidence in such pro- e in every Court."

There follow two exceptions which do not touch the present _ As it stands, the meaning of the provision is unmistake- The suggestion is that a proviso taken from the Hvidence 898 must be read into this section, because otherwise the 1900, while professing merely to consolidate the criminal

|, that is a departure from the law to the prejudice of the H- ©. oF A.

law, would make a substantial amendment. Assuming tl effect would be as stated - which it will be seen presently doubt - I refer to the case of Zaylor v. Corporation of Oi (1) because Jessel M.R. there stated the law with absolute ness : - * Whatever I may think of the extraordinary which are so caused, it is my duty to interpret Acts of Parli as I find them. I must read them according to the ordi rules of construction, that is, literally, unless there is sometl in the context or in the subject to prevent that reading." No Statute, even though it be a consolidating Act, can co tute an exception to this undoubted rule. I think the most can be said is that where two constructions are open, under

of which the Act is read to make an amendment of the law, w the other appears to confine the Act to its professed purpo mere consolidation, then, other things being equal, the Court adopt the construction which confines the Act to its purpos consolidation. But if the Act itself speaks so plainly that ment will appear from its terms to have exercised its undoul power of amending the law, even though the title of the Act fesses that its purpose is consolidation, it is the duty of the Ji to read the Act in that plain sense. If there were any such guity in the terms of this portion of sec. 407 as would justify th reading into it of some exception, then the exception sug; could reasonably be read into it. But when there is no doubt the meaning of the words used, a course of that kind cannot be adopted. This I have said on the assumption that under the common law as it stood previously to the passing of the 1898, in cases of bodily injury to the wife, her evidence was ni only admissible, but she was compellable to testify. But I that proposition is open to very serious doubt. The rule common law, to which the cases of bodily injury are an except was that in cases of criminal charges the husband or wife of accused was excluded; the testimony was not made subject objection, if taken, but must under no circumstances be even if the accused and his or her spouse were both desirous it should be heard. There has not been found either in any book or in any decided case any expression which carries

le to give testimony. I cannot find it laid down any- hat the spouse is not only allowable to testify, but com- ie. At the lowest, then, it was very doubtful whether at m law the wife in circumstances of this kind was compell- o testify, and, to that extent, I find it difficult to accept the ion upon which the Supreme Court of this State in R. v. (1) founded its decision that the wife was a compellable

re being this doubt, I, if it were necessary to express an n at the present moment, should be disposed to say that xception in cases of personal injury went no further than Imittance of the wife to testify, and that it did not include wer of compulsion. The matter being in that condition, his doubt of the existence of the compelling power, we find the Criminal Law and Evidence Act 1891 provided that person charged with an indictable offence and the husband e of such person should be competent, but not compellable, e evidence in every Court on the hearing of such charge. Evidence Act 1898 purported to be a consolidating Statute, it added to the section in which this general rule was d the proviso that it should not apply to any person who, x that Act, would be at common law or by any Act of New Wales or any Imperial Act compellable to give evidence in proceeding. After the passing of the Evidence Act 1898 was passed in England the Act 61 & 62 Vict. c. 36. The amed of these Acts was assented to on 29th July 1898 and other on 12th August of the same year. So that it cannot be posed that anything which is contained in the Act of New ith Wales is founded upon the provision of the English Act. the latter, sec. 4 says: - "The wife or husband of a person d" with certain offences "may be called as a witness without the consent of the person charged."

'he section goes on : - " Nothing in this Act shall affect a case

nm beyond this - that in cases of bodily injury the wife is H.C. or A.

This Act then, though it cannot be said to have influenc New South Wales Act of 1898, may be looked at in conjuncti with the later Act of 1900, and, as we find that an excep something like that of the New South Wales Act of 189: subsequently placed in an English Act, and that two years later, when the legislature here came to consolidate the criminal la it did not adopt what in all probability the framers of the must have known as the exception in the English Act of 189 seems to me that to some extent the presumption was strength that the step taken here in the Act of 1900, which reverted t provision of the Act of 1891, was intended to make it clear the wife was in no case to be compellable to testify. But it is necessary to go as far as that, because it is not established the wife at the date of that Act was a compellable witness, that being so, the Act of 1900 cannot on that showing be to be an amendment of the law, but remains a mere consolid: tion. In whatever way that matter may be put, I revert to original position, that the words of this Act are so clear that the cannot be misread, and to read into it the proviso of the Act o 1898 would be, if I may so express myself, with all res for the decision of the Supreme Court, an amendment of the by the Bench. That is a step which I think this Court cai adopt, and I therefore think that the case stands upon the ¢l ness of the Act of 1900, and, upon the clear reading of it, wife is expressly made a witness who is not compellable.

I think, therefore, that the conviction should be quashed.

O'Connor J. read the following judgment : - The questi raised in this case depends entirely upon the construction of 407 of the Crimes Act of 1900. The learned Chief Justice at trial, following, as he was bound to do, the decision of the Supr ni Court in R. v. Stocks (1), held that the prisoner's wife was pellable to give evidence against him, and the learned Judges: the Supreme Court, in afterwards considering the point, affirm the conviction solely on the ground that the decision in Stocks (1) was applicable. 'That case interprets sec. 40) rendering the wife, in such a case as the present, not only

therefore called upon to determine whether that is the terpretation of the section, and incidentally whether ks (1) was rightly decided.

ction on the face of it purports to deal with the giving ence by parties, and the husbands and wives of parties, in edings, civil and criminal, in which evidence may be . Although the measure is entitled " An Act to consolidate tutes relating to Criminal Law" the first paragraph of expressly applies to civil proceedings, and to civil pro- ings only. It is a consolidation of the statutory provi- s which swept away disability to give evidence on the id of interest in the case of parties, and the husbands and of parties, in civil proceedings. It merely renders such ons competent as witnesses. But the paragraph must be | in light of what may be described as a fundamental , of procedure, namely, that all witnesses competent to give ce are in general compellable to give evidence: Phipson on e, 3rd ed., p. 416. In sweeping away the disabilities of Glasses of witnesses, the legislature sometimes expressly ves the application of the rule, as, for instance, in the second aph of the section under consideration. Sometimes it ives the rule in part only, as in the Married Women's ty Act (N.S.W.), 56 Vict. No. 11. By sec. 20 relating to inal proceedings, husband and wife are made competent and \dmissible witnesses in all cases within the section, but it is ex- sly enacted that the husband or wife when a party defendant, compellable to give evidence. Sometimes the rule is ssly made applicable to its full extent as in the Deserted and Children Act (N.S.W.), 22 Vict., No. 6, which by sec. pressly renders husbands and wives compellable as well as tent witnesses in proceedings within the section. As far as first paragraph of the section is concerned it may, I think, be y conceded that where, as by that section, a class of persons, then incompetent as witnesses, are expressly rendered

are not compellable to give evidence, the rule to which I (1) 58.B. (N S.W.), 628.

ut compellable to give evidence against her husband. H. C. or A.

have referred will become applicable, and will operate to ré such witnesses compellable as well as competent.

The first paragraph of the section, therefore, must; in n opinion, be so construed so as to render parties to civil p ings, and the husbands and wives of parties, compellable as competent to give evidence.

But when we turn to the paragraph relating to criminal ceedings the change of language is very striking : - " accused person in a criminal proceeding, and the husband or of such person, shall be competent, but not compellable, 0 evidence in such proceeding in every Court." There the aj ability of the general rule that all competent witnesses are pellable to give evidence is expressly negatived. Th provision that renders the witness competent to give e' expressly declares that he shall not be compellable to gi evidence. Unless there is something to indicate that the ture did not intend to include, within the general words I quoted, those criminal proceedings in which either husb: wife is charged with inflicting personal injury on the other contention put forward on behalf of the Crown must fail. 1 is certainly nothing in the language of the section, or any pt the Act, which suggests an intention to exclude such cases the operation of the section. Indeed, sec. 3 seems exp! directed to giving to the section under consideration the w possible application. It declares that the sections mention the Second Schedule (which include in Part XI, sec. 407) " as their provisions ean be applied, shall be in force with re to all offences, whether at Common Law or by Statute, wh ever committed and in whatsoever Court tried."

That language is clear and emphatic, and in sec. 407 tl no word which is not, on the face of it, precise and unam! Under these cireumstances it is the duty of the Court, if nothir more appears, to interpret the enactment in accordance wit principle laid down by the Judges in delivering their opini the House of Lords in the Sussex Peerage Ouse (1), and ever s universally applied. It is as follows : - "The only rule fo construction of Acts of Parliament is that they should be ¢

Tf the words of the Statute are in themselves precise unambiguous, then no more can be necessary than to expound ords in their natural and ordinary sense. The words

» generality of the application of the section disclosed by 3, and expounding the language of the legislature in its nary natural meaning, it is to my mind impossible to find any id on which the section under consideration can be construed t applying to criminal proceedings in which a husband ig tried for an offence of personal violence to his wife. The d Judges of the Supreme Court, in construing the section in

' Case (1), must of course be taken to have held that there some ambiguity in the words of the section, and they find it, ather from the judgments, in doubt whether the words ry accused person in a criminal proceeding, and the husband vife of such person," had been used by the legislature in their ty meaning, which would include all criminal proceedings ich the accused is husband or wife, or whether they had sed in the restricted sense, which will exclude those cases ich the competency and compellability of the wife to give ce against her husband was, at the time of the passing of ct, already provided for by the common law. No doubt are many instances in which the Courts will construe words with a restriction in their application, in order to out what the Court deems to be the intention of the legis- But, in determining that the intention of the legislature nething other than appears from its words, construed accord- o their ordinary natural meaning, the counsel of Baron in Becke vy. Smith (2), adopted by the Privy Council in ex Argos; Gaudet vy. Brown (3), must be borne in mind : - very useful rule," he says, "in the construction of a

R. (N.S.W.), 628. (2) 2M. & W., 191, at p. 195. i (3) LR. 5 G.P., 134. :

| according to the intent of the Parliament which passed H. ©: or A:

Statute itself, or leads to any manifest absurdity or repugna in which case the language may be varied or modified, so avoid such inconvenience, but no further."

There is not, as I have already pointed out, anything Crimes Act, or in sec. 407 itself, to indicate an intention on th part of the legislature not to include the class of criminal ¢ now under consideration within the operation of the section. remains to be considered whether the construction which we include such eases "leads," to use Baron Parke's phrase, "to manifest absurdity or repugnance." The reasoning of the J in Stocks' Case (1) was founded on the state of the Statute and of the common law at the time when the Orimes Act 1900 passed. As to the Statute law, I do not think it necessary into any details. The Crimes Act repeals and replaces all the existing statutory provisions, and there alone the Statute |: the subject is now to be found. But the repealed Acts may, o course, be looked at in determining the meaning of the measur which purports to consolidate them. Taking the repealed lation generally, it may be conceded that its tendency has k more and more to sweep away disabilities of witnesses in proceedings civil and criminal. Also, it is common ground the Crimes Act 1900 purports to do no more than consolidat then existing Statutes relating to criminal law, and that th Evidence Act 1898, sec. 7 of which must be taken to have consolidated in sec. 407 of the Crimes Act, expressly exe from the operation of the provision which prevented hus! and wife from giving evidence against each other in crim proceedings, those cases in which husbands and wives wert common law compellable witnesses against each other. find myself bound to differ from the learned Judges in their of what was the common law. That is really the vital part their decision. The judgment of each of the learned J proceeds expressly on the ground that at common law, in ¢ such as that now under consideration, husbands and wiv compellable as well as competent witnesses against each If that is not the common law, sec. 7 of the Evidence Act can throw no light on what the legislature intended to ena

e of the latter section it is unnecessary to determine ely is the common law on the point. Because, in my

in the Crimes Act used language showing a clear to embrace all the law on the subject within the four of sec. 407. But, in considering Stocks' Cuse (1), it ecessary to advert to the state of the common law learned Judges assume to exist.

neral rule of the common law was that in no case could husband give evidence against the other on a criminal To that rule there was undoubtedly an exception in e the husband was on his trial for criminal personal o his wife. But how far did the exception extend? There ement of the common Jaw in any judgment or in any ok which states it as extending farther than to render competent witness, or, as it is put in some authorities, ible witness. No authority can be found which extends tion so far as to make the wife a compellable as well ipetent: witness. It has been argued that, being com- e is, on the general principle I referred in the beginning udgment, also compellable to give evidence. That cer- loes not follow. In the case of husband and wife it is not that the necessity which is the foundation of the in such cases goes beyond securing to the wife the pro- of the law against her husband's criminal violence where r wish to avail herself of the protection. A somewhat question arose in R. v. Ellis (2) on a trial for abduction he 48 & 49 Vict. c. 69, which renders the wife a competent . Mr. Justice Wills, following the practice adopted at the riminal Court, held that sec. 4 of the Criminal Evi- Let 1898 rendered husbands and wives compellable to give on the trial of such charges. But the case is not satis- y reported, and certainly cannot be regarded as of suffi- thority to extend the common law exception to the le a long way further than any judgment or recognized had ever carried it before. Putting the position at

| paragraph of sec. 407 of the Crimes Act. In the view H. ©. or A.

common law in the most favourable way to the view learned Judges that the authorities will allow, the prop cannot be expressed more widely than this: - Husband wives in such cases are competent witnesses against each but it is doubtful whether they are compellable. It of course, be impossible to uphold the reasoning of the | Judges in Stocks' Case (1) in that condition of the common But, assuming that their Honors were right in taking granted that in such cases husbands and wives were pellable at common law to give evidence against each ot I am unable to see on what valid ground it can be that the legislature had not the intention, which it ha clearly expressed, to alter the common law in this respect. it be said that that interpretation would lead to any "man absurdity or repugnance ?" If husbands and wives were in : cases compellable witnesses against each other at common ] alteration made by the Statute would no doubt be import it might well be described as retrograde, inasmuch as it ren less efficient the power of the Courts for the protection of wo from violence and for the punishment of crime generally, Itn also be conceded that so material an alteration of the law to be looked for in a consolidating Statute. Yet it is i opinion impossible to say that the alteration leads to any ma absurdity, or is repugnant to any other provision of the Si or to the provisions of any other Statute with which it is 1 read. It may no doubt be surmised that the mind of the le lature was not directed to the important alteration which particular form of consolidation would effect in the common On the other hand, can it be assumed that the legislature did intend to abolish the uncertainty of the common law and husbands and wives as witnesses in all criminal cases on same footing? No Court would be justified in refusing to effect to the intention clearly expressed by the words of legislature, taken in their ordinary meaning, on mere conjectur that its real intention was something quite different. It follo that the words of sec. 407, taken in their ordinary me

apply to all criminal proceedings, and there was no gro ni legally tenable for reading into it an exception in the

| violence to his or her wife or husband. In my opinion Stocks' Case (1) was wrongly decided, and the learned justice, in directing the wife of the prisoner in this case her will to give evidence against her husband, fell into

ickbwrn, in the course of his argument, contended that ion taken in the special case could be taken only by the compelled to give evidence, and that the evidence having ven, though under compulsion illegally applied, was law- lence against the prisoner. He relied on R. v. Kinglake I think the principle laid down in that case has no applica- he question raised, as this has been, under the provisions rimes Act 1900. An accused person is entitled to have conducted in accordance with the laws of evidence din sec. 407. That section enacts that his wife shall not elled to give evidence against him, Sec. 428 entitles him reserved for the consideration of the Supreme Court any ion of law arising on the trial. Sec. 470 directs the Supreme to determine the question so raised, and enables it to make n orders as to the conviction which will give effect to its nination. The question of the wife's compellability was a question of law arising at the trial - one which the r himself raised, and which it was necessary for him to in the assertion of his right to have the trial conducted ling to law. He was, in my opinion, entitled to take we of this, as he would have been entitled to take of any other error in the admission of evidence at the 'or these reasons I am of opinion that the decision of ipreme Court was erroneous, that this appeal must be and the conviction set aside.

itor, for appellant, P. J. Clines. or, for respondent, J. V. Tillett, Crown Solicitor for New

sroceedings in which the accused was charged with H. ©. or A.