Eather v The King - [1914] HCA 77

ON APPEAL FROM THE SUPREME COURT OF Practice-High Court-Appeal from Supreme Court of State-Criminal matter- H

Special leave-Evidence of child not on bath-Corroboration-Crimes Act 1900 (N.S.W.) (No. 40 of 1900), sec. 418*-Judiciary Act 1903-1912 (No. 6 of 1903 - No. 31 of 1912), sec. 35 (1) (b).

In granting special leave to appeal in criminal cases the High Court will follow the practice of the Judicial Committee of the Privy Council, as ex- pounded in Ibrahim v. The King, (1914) A.C., 599, and Arnold v. The King- Emperor, (1914) A.C., 644.

So held by Griffith C.J., and Barton, Gavan Duffy, Powers and Rich JJ. (Isaacs J. dissenting).

E. was charged with having indecently assaulted a girl five years of age. At the trial the child gave evidence against him but not on oath, and said that when she was on a bed in E. 's bedroom he touched her private parts with his hand and wiped them with a wet cloth. Medical evidence was to the effect that E. was at the time of the alleged assault suffering from gonorrhcea, Sec. 418 of the Crimes Act 1900

sessed of sufficient intelligence to provides that " (1) On the hearing of

justify the reception of the evidence, any charge under secs. 67 to 81 in-

and understands the duty of speaking clusive, of this Act, where any child

the truth. (2) No person shall be con- of tender years who is tendered as a

victed of the offence charged, unless witness does not in the opinion of the

the testimony admitted by virtue of Court or Justices understand the nature

this section, and given on behalf of of an oath, the evidence of such child

the prosecution, is corroborated by may be received, though not given

some other material evidence in sup- upon oath, if in the opinion of the

port thereof implicating the accused." Court, or Justices, such child is pos-

19 CLR 410

that the child when examined shortly afterwards was suffering from that disease, and that the disease might have been communicated by the child's private parts being wiped with a cloth on which was some of the discharge from the disease. E., having been convicted, appealed to the Court of Criminal Appeal of New South Wales on the ground that the child's evidence was not

corroborated by some other material evidence in support thereof implicating the accused," as is required by sec. 418 (2) of the Crimes Act 1900. The Court of Criminal Appeal dismissed the appeal.

Held, by Griffith C.J., and Barton, Gavan Duffy, Rich and Powers JJ. (Isaacs J. dissenting), that the case was not one for granting special leave to appeal to the High Court.

Special leave to appeal from the decision of the Supreme Court of New South Wales: R. v. Eather, 14 S.R. (N.S.W.), 280, rescinded.

APPEAL from the Supreme Court of New South Wales.

At the Court of Quarter Sessions at Sydney on 19th May 1914…

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 Eather v The King

Details

AGLC: Eather v The King [1914] HCA 77
Case: [1914] HCA 77
Decision Date: 15 December 1914

CaseChat Overview and Summary

The appellant, Eather, was charged with indecently assaulting a five-year-old girl. The child gave unsworn evidence, stating that the appellant touched her private parts and wiped them with a wet cloth. Medical evidence indicated that both the child and the appellant were suffering from gonorrhoea, and that the disease could have been transmitted to the child by wiping her with a contaminated cloth. The appellant was convicted, but appealed to the Court of Criminal Appeal of New South Wales, arguing that the child's evidence was not corroborated as required by section 418(2) of the Crimes Act 1900 (NSW). The Court of Criminal Appeal dismissed the appeal. The appellant then sought special leave to appeal to the High Court of Australia.

The primary legal issue before the High Court was whether special leave to appeal should be granted in this criminal matter. A majority of the Court, comprising Griffith C.J., Barton, Gavan Duffy, Powers, and Rich JJ., held that the High Court should follow the practice of the Judicial Committee of the Privy Council in granting special leave in criminal cases, as articulated in *Ibrahim v. The King* and *Arnold v. The King-Emperor*. Isaacs J., dissenting, argued that the High Court had an unfettered discretion to grant special leave based on the merits of the case and the interests of justice, and that the case presented a substantial question of law regarding the interpretation of the corroboration requirement under section 418(2) of the Crimes Act 1900 (NSW).

The majority reasoned that adherence to the established practice of the Privy Council in granting special leave in criminal matters was appropriate. They examined the facts of the present case and concluded that, according to this practice, special leave to appeal should not have been granted. The majority's decision was based on the principle that the High Court should follow the established approach to special leave applications in criminal matters, which generally limits intervention to cases involving substantial and grave injustice.

Consequently, the High Court rescinded the order granting special leave to appeal.

Orders