In the Irish Courts
| Published date | 01 July 1953 |
| Date | 01 July 1953 |
| DOI | http://doi.org/10.1177/002201835301700306 |
| Subject Matter | Article |
In the Irish Courts
SUPREME
COURT
IN
IRELAND
COMPETENCY OF
WIFE
AS A
WITNESS
AGAINST
HER
HUSBAND
McGonagle v. McGonagle
IN
A.G.
v. McGonagle (reported on p. 295 of Vol. 15 of
this
JOURNAL),
Davitt
J.
held
that
a wife is acompetent
witness against
her
husband charged under
the
Children
Act, 1908, with neglecting his child.
That
decision-which
was based upon
the
ground
that
she was obviously com-
petent, as a
matter
of common
sense-
has been upheld in
the
Supreme Court in McGonagle v. McGonagle (1951,
l.R.
123), though on a different ground.
The
Criminal Justice
(Evidence) Act, 1924 follows
the
English Act of 1898 in
introducing into
the
law occasions upon which a wife's
evidence
may
be available against
her
husband,
but
offences
against
the
Children Act, 1908, do
not
appearin
the
Schedule
which lists
the
occasions on which such evidence is available.
The
appellant argued
that
the
Act of 1924 is acomplete
code
and
that
the
Court cannot supply missing words in
criminal cases (Leach v.
R.,
1912,
A.C.
305), with
the
result
that
there is to be found no
statutory
authority
for
such evidence.
For
the
respondent,
it
does
not
appear
to
have
been urged
that
"common sense" dictated
the
accept-
ance of such evidence (as was done before
Davitt
J.),
but
reliance was placed on
the
maxim generalia specialibus non
derogant.
It
is clear
that
s. 133
(28)
of
the
Children Act,
1908 made
the
wife a competent witness in such cases;
the
question, therefore, was whether
the
later Act of 1924
(which failed
to
list
the
Act of 1908 in
the
relevant schedule)
had
by
necessary implication repealed
that
earlier Act.
The
net
question, therefore, became
that
of whether
the
1. ..
You
must
consider,
when
you
are
dealing
with
Acts
of
Parliament,
..•
whether
or
not
you
are
dealing
with
something
that
it
is possible
the
Legislature
might
either
have
passed
by
definite
and
specific
enactment
or
have
allowed
to
pass
by
some
ambiguous
inference"
(per
Lord
Halsbury
in Leach's Case (supra,
at
p. 310) ).
275
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