Eather v The King

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Consequently, the High Court rescinded the order granting special leave to appeal.