Cheers v Porter - [1931] HCA 51

RESPONDENT. COMPLAINANT,

ON APPEAL FROM THE SUPREME COURT OF

NEW SOUTH WALES. Gerdence-Larceny Witness-Child-- - Intelligent, but no religious beliefs-Com

petency to take oath-Declaration in lieu-" Any person "--Corroboration- Conviction upheld-Oaths Act 1900 (N.S.W.) (No. 20 of 1900), sec. 13*-Crimes Act 1900-1929 (N.S.W.) (No. 40 of 1900-No. 2 of 1929), sec. 418-Child Welfare Act 1923 (N.S.W.) (No. 21 of 1923), sec. 110.

A charge of larceny against the defendant was proved by the unsworn and uncorroborated evidence of a boy aged nine years. Prior to the giving of The Oaths Act 1900 (N.S.W.), by

administer an oath, whether in a civil sec. 13, provides as follows: (1)

or criminal proceeding, or (b) having to Whenever any person-(a) called as a

make a statement in any information, witness in any Court or before any

complaint, or proceeding in any Court or justice or other person authorized to

before any justice, or (c) required or

46 CLR 522

such evidence the boy was examined on the voir dire by the Magistrate, who found him to be an exceptionally intelligent child and thoroughly to under- stand the obligation of speaking the truth. He did not, however, understand the meaning of an oath." The Magistrate allowed the boy to make a declara- tion under the provisions of sec. 13 (1) (i.) of the Oaths Act 1900 (N.S.W.) to which no objection was taken, at the time, by the defendant.

Held, by Gavan Duffy C.J., Starke and Evatt JJ. (Dixon and McTiernan JJ dissenting), that in the circumstances the boy's evidence, received as above,

Decision of the Supreme Court of New South Wales (K. W. Street J.) affirmed.

APPLICATION for special leave to appeal from the Supreme Court of New South Wales.

William James Cheers was convicted by a Police Magistrate on a charge of larceny laid against him by Joseph Arthur Porter, a sergeant of police, stationed at Wauchope. The only evidence which tended to prove the commission of the theft by Cheers was that given by a boy, Robert Pead, aged nine years, who, not under- standing the nature of an oath, was allowed by the Magistrate to give his evidence on declaration, no objection thereto being raised on the part of the defendant.

Cheers appealed to the Supreme Court by way of case stated, in which the Magistrate stated (inter alia) When the boy Robert Pead was tendered as a witness I examined him on the voir dire. I found him to be an exceptionally intelligent child and thoroughly to understand the obligation of speaking the truth. He did not, however, understand the meaning of an oath. I accordingly allowed him to make a declaration under the provisions of sec. 13 (1) (i.) of the Oaths Act 1900. No objection was taken to this procedure at the time, but the defendant now complains that I was in error in admitting the evidence, the boy being of tender years and his desired to make an affidavit or…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cheers v Porter

Details

AGLC: Cheers v Porter [1931] HCA 51
Case: [1931] HCA 51
Decision Date: 17 December 1931

CaseChat Overview and Summary

William James Cheers was convicted of larceny based on the unsworn and uncorroborated evidence of a nine-year-old boy. The Magistrate, after examining the boy on the voir dire, found him to be exceptionally intelligent and to understand the obligation to speak the truth, but not the meaning of an oath. Consequently, the Magistrate permitted the boy to give evidence by making a declaration under section 13(1)(i) of the Oaths Act 1900 (NSW), a procedure to which the defendant did not object at the time. Cheers appealed this conviction to the Supreme Court of New South Wales, which affirmed the Magistrate's decision. He then sought special leave to appeal to the High Court of Australia.

The central legal issue before the High Court was whether the nine-year-old boy, who understood the obligation to tell the truth but not the nature of an oath, was competent to give evidence by making a declaration under section 13 of the Oaths Act 1900 (NSW). This involved determining whether the phrase "any person" in section 13 encompassed children who, while intelligent, lacked an understanding of oaths, and whether such evidence required corroboration in this context, particularly in light of section 418 of the Crimes Act 1900 (NSW) which specifically addresses unsworn evidence from children in certain offences but mandates corroboration.

A majority of the High Court, comprising Gavan Duffy C.J., Starke and Evatt JJ., held that the boy's evidence, received by way of declaration, was admissible. Their reasoning focused on the interpretation of section 13 of the Oaths Act 1900, which allows for a declaration in lieu of an oath if a person objects to taking an oath or is reasonably objected to as incompetent to take an oath, or appears to the court to be incompetent. The majority found that the section was intended to prevent the loss of testimony due to a lack of religious belief or understanding of oaths, and that an intelligent child who understood the duty of speaking the truth could make a valid declaration. They distinguished this from situations of mental imbecility and noted that section 418 of the Crimes Act, which requires corroboration, applied only to specific offences and did not preclude the application of the broader provisions of the Oaths Act in other circumstances. Dixon and McTiernan JJ. dissented, viewing the child's inability to understand an oath as a fundamental lack of competence that section 13 did not cure, especially given the specific corroboration requirement in section 418 for similar situations.

The High Court granted special leave to appeal, but ultimately affirmed the decision of the Supreme Court of New South Wales. The conviction of William James Cheers was upheld.

Orders