McGonagle v McGonagle

• Jurisdiction: Ireland
• Judgment Date: 01 January 1952
• Date: 01 January 1952
• Court: Supreme Court

McGonagle v. McGonagle.

CATHERINE McGONAGLE

Complainant

and

RICHARD McGONAGLE

Defendant.

Supreme Court.

Evidence - Criminal law - Competency of witness - Husband and wife - Husband charged with wilful neglect of child - Whether wife a competent witness - Criminal Justice (Evidence) Act, 1924 (No. 37 of 1924) - Prevention of Cruelty to Children Act, 1904 (4 Edw. 7, c. 15) - Children Act,1908 (8 Edw. 7, c. 67) - Interpretation of statutes - Special statutes - General statutes - Implied repeal.

The appellant was convicted for that, having the custody of a child aged six years, he did "wilfully neglect said child in a manner likely to cause said child unnecessary suffering and injury to his health," contrary to s. 12 of the Children Act, 1908. Objection was taken on behalf of the appellant that his wife was not a competent witness against him, in that proceedings in respect of such an offence were not among those in which, by the Criminal Justice (Evidence) Act, 1924, a wife was made a competent witness against her husband.

Held by the Supreme Court (affirming Davitt J.) that the competence of a wife to testify against her husband, in accordance with s. 133, sub-s. 28, of the Children Act, 1908, remained, notwithstanding the provisions of the Criminal Justice (Evidence) Act, 1924.

Per O'Byrne J.: The competency for which the Children Act, 1908, provided, being of a special nature, was not repealed by the Criminal Justice (Evidence) Act, 1924, which was a general statute.

Case Stated pursuant to the Statute, 20 & 21 Vict., c. 43, and the Rules of the District Court, 1948, by Cathal O'Flynn, one of the Justices of the District Court assigned to the Dublin Metropolitan District.

The Case Stated set out inter alia that the complainant, Catherine McGonagle, had made a complaint against Richard McGonagle, her husband, for that "he being a person over the age of sixteen years and having the custody of the child, Anthony McGonagle, aged six years and ten months, did . . . wilfully neglect said child in a manner likely to cause said child unnecessary suffering and injury to his health";that on the hearing of the said complaint by the District Justice objection had been taken on behalf of the accused to the competency of the complainant as a witness; that the said objection was based on the provisions of the Criminal Justice (Evidence) Act, 1924; that, the facts having been proved to support the complaint, the District Justice had proceeded to conviction on the basis that, by reason of the provisions of the Interpretation Act, 1889 (52 & 53 Vict., c. 63) s. 38, sub-s. 1, the reference to the Prevention of Cruelty to Children Act, 1904, in the Criminal Justice (Evidence) Act, 1924, s. 4 and Schedule, should be read as a reference to the Children Act, 1908.

From the above judgment the respondent appealed to the Supreme Court (3).

Davitt J. :—

This is a very net issue, and in my opinion Mrs. McGonagle is a competent witness. I cannot envisage the position where there could be a competent witness for the prosecution who became incompetent unless she got her husband's consent. The law is not an exact science, but is a code of rules designed to deal with ordinary human conduct. When that code appears to depart from common sense the "red light" appears. It appears when a suggested interpretation tends to lead to the point of absurdity.

In my opinion the District Justice was correct in deciding that the wife was a competent witness.

Cur. adv. vult.

Maguire C.J. :—

I have read the judgment which is about to be delivered by Mr. Justice O'Byrne and I agree with it.

O'Byrne J. :—

The Case Stated by the District Justice arose out of a prosecution under s. 12 of the Children Act, 1908. Catherine McGonagle, the respondent in this appeal and the mother of the child in question, was complainant and her husband, Richard McGonagle, the appellant in this appeal and the father of the child, was defendant. The respondent was a willing witness and her evidence was accepted by the District Justice, notwithstanding the objection of the appellant, who contended that she was not a competent witness. The Case Stated raises the question whether the District Justice was right in law in accepting the evidence of the respondent. That question has been answered in the affirmative by Mr. Justice Davitt and this appeal is taken from his decision.

With the exception of a very limited number of cases, to which it is unnecessary to refer in detail, the wife or husband of an accused person could not, at common law, give evidence either for the prosecution or the defence on the trial of such person. This position was radically altered in Great Britain by the Criminal Evidence Act, 1898 (61 & 62 Vict., c. 36); but that Act did not apply to Ireland. Further inroads on the common law doctrine were made from...