Cheers v Porter [1931] HCA 51

Cheers v Porter [1931] HCA 51 - HCA 1931 case summary — Zoe

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incompetent to take an oath, he may, in lieu of such oath, make a declaration. By the form of declaration which is prescribed, he solemnly declares that the evidence about to be given by him shall be the truth, the whole truth and nothing but the truth. The enactment is taken from sec. 343 of the Criminal Law Amendment Act 1883 (N.S.W.), which was itself a revision of sec. 3 of the Lvidence Further Amendment Act 1876 (40 Vict. No. 8 (N.S.W. )), from which it differs in no respect that is really material to the question to be decided on this appeal. In the year after this statute was passed, the Supreme Court decided that under its provisions the affirmation might be taken of a Pacific Islander who, although he professed to belong to a Christian Church, was found to have no idea of a future state, and not to be a competent witness at common law (R. v. Lewis (1)). In the course of his judgment Faucett J. said (2) : - "T cannot agree that infants and persons incompetent from want of intelligence are included in the section. If a witness is objected to for the want of rational intelligence, his evidence will still be inadmissible. In my opinion the section was only intended to meet the case of the persons commonly called Atheists or persons without religious belief." Manning J. said (3) : - '' Of course promises could not be made under this section by children or persons incompetent from want of understanding ; the only thing done here is to sub- stitute a promise for an oath. Where an oath could not have been taken from want of understanding before this Act the same objection would still apply." But five years later Faucett J. and Windeyer J. held that an affirmation had rightly been taken from a child aged about seven, who was found to be intelligent and to have no defect of understanding, but not to understand the nature of an oath (R. v. Peters (4)). Faucett J. referred to the observations which he and Manning J. had made in R. v. Lewis, and expressed his adherence to them. He distinguished them upon the ground that in the case of Peters, then under discussion, the child had been found to have sufficient intelligence. Windeyer J. said (5): - "Two objections might have been made to the evidence, first, on the ground of defective intelligence, and secondly, on the ground of

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and its correctness is impugned thus: " With all deference to learned author, this view of the statute, which does not appear ve been taken in practice, or to have occurred to or been adopted any other writer on the subject, is not (though very desirable to be argued) a correct one, on the ground that the child cannot "object to' what it does not, ex hypothesi, know the nature of, and t the words ' objected to,' although grammatically they may e the case of a child, must from their collocation be cut down the case of an adult." _ When it enacted sec. 4 of the Criminal Law Amendment Act 1885, e British Legislature must, I think, have taken the view that en who did not understand the nature of an oath could not I witnesses by affirming, although possessed of enough intelli- gence to justify the reception of their evidence and to understand the ity of speaking the truth. The requirement of sec. 4 of the British ence Further Amendment Act of 1869, that the Judge should be d that the oath would not bind the conscience of the witness, I itated some discussion of his faith or beliefs, and it was mitted when the provision was adopted in New South Wales in 1876 by the statute of the same title (40 Vict. No. 8). Further, in hi Pathe Be 1900 the compulsive " shall" has been changed to the "may." These alterations do not, I think, lead to any ent Ti cescciasion or application of the critical words " inecom- ent to take an oath." The external considerations affecting the \ct exist in New South Wales as in Great Britain ; the common law the prior legislation, and the subsequent enactment of the ions admitting the unsworn testimony of children in offences sexual character, are the same. It was suggested that perhaps he peculiar condition of aboriginals might have been contemplated in New South Wales. But so far as I can discover, after the dis- owance of 3 Vict. No. 16 (Callaghan's Acts, p. 1) no statute was d in New South Wales dealing with their evidence, notwith- the subsequent Imperial Act 6 & 7 Vict. c. 22, and no appears to have been needed. The strange provision con- ed in see. 7 of the Victorian Law of Evidence Act 1854 (17 Vict.

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Pead appeared to be a proper subject for the abovementioned test, and, a8 he was shown not to understand the nature of an oath, his testimony would, under that rule, have been inadmissible. It is not "stated that his incompetence to take an oath was due to any cause _ other than his immaturity. The Oaths Act 1900 does not expressly purport to abrogate or affect the rule of common law which has been mentioned. Nor is there any expression in that Act from which it _ can be inferred that the Legislature intended to enact that a child 'of tender years may make a " declaration" or a " solemn affirma- tion" in the forms prescribed by the 6th and 7th Schedules respect- ively, in lieu of an oath, merely upon his incompetence to take an oath becoming apparent, after examination by the Court, and without more ado. In the present case, it is true that the Magistrate did not act upon the view that it was lawful for a child to make a declaration, merely because it became apparent that the child was incompetent to take an oath. Although the child failed to pass the test which was prescribed by common law to rebut the presumption against his competence as a witness arising from his apparent 'immaturity, the Magistrate nevertheless admitted him as a witness mise he found him to be "' an exceptionally intelligent child and hly to understand the obligation of telling the truth." His testimony was inadmissible at common law because of his immaturity, but it was admitted by the Magistrate upon the making by the child ofa "solemn affirmation " under the Oaths Act. It is admitted that, in the absence of the child's evidence which was admitted in that fashion, the appellant could not have been convicted. Moreover, there was no corroboration of that evidence. The Magistrate must have engaged the child in some examination by which he was able to arrive at the findings as to the child's intelligence and understanding of "the _ obligation of telling the truth." It does not appear what questions he asked the boy or what his answers were. Whatever the test may _ have been by which the Magistrate elicited the information which we have about the state of the child's intelligence and his understanding of "the obligation of telling the truth," it is clear, upon the further finding that the child did not " understand the meaning of an oath," that the admission of the child's testimony in the case was not

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authorized by the law and practice as laid down in Brasier's Case (1). We have not been referred to any other rule sanctioned by law which prescribes any other test for dispelling the presumption which existed against the competence of this child to give evidence in the case out of which this appeal arises. The Magistrate apparently engaged the child in some examination by which it was revealed that. he had a fitness to be a witness, akin to that required by sec. 418 of the Crimes Act 1900 to be possessed by a child of tender years who does not understand the nature of an oath. The section says that the unsworn testimony of a child, who does not, in the opinion of the Court or justices, understand the nature of an oath, may be received in proceedings under sections of the Crimes Act therein enumerated, "if in the opinion of the Court, or justices, such child is possessed of sufficient intelligence to justify the reception of the evidence, and understands the duty of speaking the truth." But, as has been pointed out, that section applies only to proceedings under some sections of the Crimes Act, and the section under which the appellant was prosecuted is not included. Moreover, sec. 418 provides that no person shall be convicted unless the testimony admitted by virtue of sec. 418 and given on behalf of the prosecution is corroborated by some other material evidence in support of the charge implicating the accused. The evidence of the child Robert Pead was not corroborated. It will also be noticed that the unsworn testimony of a child which may be received subject to the conditions mentioned in sec. 418 is not required to be made on " solemn affirma- tion" or "declaration." The section imposes no such form in lieu of an oath upon the child whose unsworn testimony is rendered admissible. Though the complete harmony of one statute with another is not a distinctive mark of legislation, yet it is a very relevant and cogent consideration that the provisions which are sec. 418 of the Crimes Act became law after the provisions which are now sec. 13 of the Oaths Act 1900 were first enacted. If a child who is incompetent to be sworn because he does not understand the nature of an oath, is enabled by sec. 13 of the Oaths Act to make "a solerin affirmation" or "declaration" in lieu of an oath and thereupon give evidence, the necessity for enacting the provisions of

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Judgment (149 paragraphs)

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