Cheers v Porter

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.