Cheers v Porter [1931] HCA 51

ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.

ceny - Witness - Child - Intelligent, but no religious beliefs - Com- H.C. ov A to take oath - Declaration in liew - " Any person" - Corroboration - 1931. 0 upheld - Oaths Act 1900 (N.S.W.) (No. 20 of 1900), sec. 13* - Crimes Act 1900-1929 (NV.8.W.) (No. 40 of 1900 - No. 2 of 1929), sec, 418 - Child Sxpney, Veljare Act 1923 (N.S.W.) (No. 21 of 1923), sec, 110.

Oaths Act 1900 (N.S.W.), by as follows : - "(I) or criminal proceeding, or (b) having to never any person - (a) called as a make a statement in any information, 'in any Court or before any complaint, or proceeding in any Court or or other person authorized to before any justice, or (c) required or

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 O.J., Starke and Bvatt JJ. (Dizon and McTiernan JS dissenting), that in the circumstances the boy's evidence, received as above, was admissible,

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

Appiication 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 deposi- hereto. (2) Whosoever, having made

tion, objects to take an oath, or is reasonably objected to as incompetent to take an oath, or appears to such Court or justice, or person so author: ized, incompetent to take an oath, he may in lieu of such oath - (i) when so called as a witness make a declaration in the form in the Sixth Schedule hereto, or (ii.) in any other case make a solemn affirmation in the form in the Seventh Schedule

such declaration or affirmation, wil- fully gives any false evidence before such Court, justice, or person s0 authorized, or makes any false state- ment in such information, complaint, proceeding, affidavit, or deposition, knowing the same to be false, shall be deemed guilty of perjury if the evi- dence or statement, had it been on oath, would by law have been per- jury."

py was to the effect of the Schedule referred to in sec. 13 (1) (i) of he Oaths Act 1900, and was as follows: "I, Robert Pead, solemnly e and affirm that the evidence now about to be given by me be the truth, the whole truth, and nothing but the truth." question as to whether the course adopted by the Magistrate erroneous in point of law was answered by K. W. Street J. in the negative. _ From this decision Cheers now applied for special leave to appeal the High Court.

oyce K.C. (with him Webb), for the applicant. The words " any erson" in sec. 13 of the Oaths Act 1900 do not include children ; the provisions of that section cannot be applied to them Lewis (1); see also R. v. Peters (2)). Although the Magis- e found that the child was "incompetent to take an oath," it not appear that he tested the child's ability to understand a ation. The reception of unsworn evidence from children is vided for in sec. 418 of the Crimes Act 1900 (N.S.W.), but it is 'express requirement of the section that such evidence must be rated. In all cases not covered by sec. 418 the child must

treated as an adult and in accordance with the common law which requires evidence to be given on oath, so that if a child does ot understand the nature of an oath that child is incompetent to ve evidence. The competency of a child to take an oath is chal- eable (R. v. Keightley (3)). In construing statutes general ds must be construed, if possible, so as not to alter the common v (Nolan v. Clifford (4) ; Hawkins v. Gathercole (5) ; Hardcastle on terpretation of Statutes, 3rd ed., p. 197).

Berne, for the respondent. The history of the legislation on this fer makes it clear that the infant witness in this case was quite le of making a declaration under sec. 13 of the Oaths Act 1900. ial provision in sec. 418 of the Crimes Act deals only with a class of offences, namely, sexual offences, where children ea Knox & * (8) (1893) 14 N.S.W.LR. 45.

3 NSW.LR. 455, (4) (1904) 1 CLR. 429, ~~ (6) (1855) 24 LJ. Ch. 332.

ence unsworn." The declaration, or affirmation, made by the H. ©. or A.

H.C. or A. of tender years are involved and who otherwise would not be able

ee, to give evidence. The necessity for such express statutory provision Cugers is obvious. pany (Srarke J. referred to the Child Welfare Act 1923 (N.S.W.), sec.

Sb) Before a child can give evidence on oath such child must under- stand the nature and obligation of an oath; the essence of an oath must be some belief in a Deity, some idea of future punishment in the event of an oath being violated (R. v. Taylor (1)). A child, incompetent to take an oath, may give evidence on affirmation or declaration if such child understands the meaning of an affirmation or a declaration. It is not essential that evidence so given be corrobor- ated. The intelligence of the child is the important factor : the basic test is whether the child realizes that punishment follows untruth- fulness (R. v. Brasier (2), and Powell's Principles and Practice of the Law of Evidence, 9th ed., pp. 214, 215; see also R. v. Paul (3)). An intelligent child who understands the duty of speaking the truth is competent to give evidence on affirmation (Roscoe's Criminal Evidence, 15th ed., p. 133). The distinction between the evidence of children who know the obligation of an affirmation and of children who merely understand the duty of speaking the truth is shown in Best on Evidence, 12th ed., pp. 138, 139.

Boyce K.C., in reply. The word "affirmation " is a term of art. There is no evidence to show that in the present case the child knew the nature and effect of an affirmation, yet, according to the Magistrate, the child "solemnly declared and affirmed." In the circumstances the child's unsworn testimony should not have been received; nor, having been received, should it have been acted upon without corroboration.

Dec. 17, The following written judgments were delivered : - Drxon J. The appellant was convicted summarily of larceny under sec. 501 of the Crimes Act 1900-1929 (N.S.W.), which provides that whosoever commits simple larceny, if the value of the property

(1) (1790) Peake 14; 170 E.R. 62. (2) (1779) 1 Leach 199; 168 E.R. 202. (3) (1890) 25 Q.B.D. 202.

ect of which the offence is charged does not exceed ten pounds, shall be liable on conviction in a summary manner to imprisonment twelve months or to pay a fine of fifty pounds. The charge was d by the evidence of a child nine years of age, who was not orn but made an affirmation. He was examined upon the voir lire, and was found to be an exceptionally intelligent child and

ughly to understand the obligation of speaking the truth but to understand the nature of an oath. The express authority ned in sec. 418 of the Crimes Act to receive the unsworn of a child of tender years is confined to charges under sections which relate to offences of a sexual character. 418 provides that, upon the hearing of a charge under one of e sections, the evidence of a child of tender years who does not

erstands the duty of speaking the truth, but unless the evidence by virtue of this enactment is corroborated there cannot be a tion. The state of intelligence and understanding of the

be exactly that described by this provision. The Crimes Act ains no other authority which allows the evidence of such a

ot be interpreted as an exhaustive statement as to the admissibility on charges under the Crimes Act of the testimony of a child who es not understand the nature of an oath, and that if his case can brought within the terms of a general statute dispensing with the 'common law requirement of an oath, its operation is not excluded. 1 e statutory provision to which the Magistrate resorted is contained in sec. 13 of the Oaths Act 1900, and the question for decision upon appeal is whether it operates to enable the child's evidence to be received upon his affirmation.

The material parts of sec. 13 of the Oaths Act 1900 provide that er a person called as a witness, whether in a civil or criminal ng, objects to take an oath or is reasonably objected to as

incompetent to take an oath or appears to the Court or justice VOL. XLVI. 35

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

(1) (1877) Knox 8. (3) (1877) Knox, at p. 11. (2) (1877) Knox, at p. 10. (4) (1882) 3 N.S.W.L.R. 455, (5) (1882) 3 N.S.W.LR., at p. 459.

@ was competent or not, and he decided that she was competent as to intelligence, but incompetent as to religious belief. Under circumstances he allowed her to make a promise under 40 . No. 8, sec. 3. The question is, Was he right in so doing? I of opinion that he was. Having been held to be competent as

_ No practice seems to have arisen in New South Wales as a result of this decision of allowing children ignorant of the nature of an ath, but alive to the duty of veracity, to testify upon an " affirma- mn." The "affirmation"? was of the simplest character. It sed a promise, not a declaration as it did later, that his evidence would be the truth, the whole truth and nothing but the truth, and is hard to suppose that a child of the standard of intelligence understanding required now by sec. 418 of the Crimes Act d find any difficulty in comprehending the making of such a However this may be, in the Criminal Law and Evidence Act 1891, the New South Wales Legislature enacted the rovisions which are now contained in sec. 418 of the Crimes Act 00, adopting them from the British Criminal Law Amendment ct 1885 (48 & 49 Vict. c. 69), sec. 4. When the British Parliament sed this enactment, the provisions from which the New South Wales Legislature took sec. 3 of the Evidence Further Amendment et 1876 had been in force for sixteen years, and in that period d not been used, it seems, for enabling children to give evidence on Bvidence, 12th ed. (by Phipson), pp. 144-145). This legis- was enacted in Great Britain as sec. 4 of the Evidence Amend- Act 1869 (32 & 33 Vict. c. 68). It provided that "If any called to give evidence in any Court of justice, whether in a vil or criminal proceeding, shall object to take an oath, or shall be bjected to as incompetent to take an oath, such person shall, if the g Judge is satisfied that the taking of an oath would have no effect on his conscience, make the following promise and ration: 'I solemnly promise and declare that the evidence by me to the Court shall be the truth, the whole truth, and

nt of religious belief. It was for the Judge to decide whether !- ©. or A.

H.C.or A. nothing but the truth.'" In Clarke v. Bradlaugh (1) Lush LJ., pees in the course of considering some consequences which this section Cusers was said to have produced, made the following observations, which Powrer, explain its general scope : - " That leads me to the material question pion g, Which was brought here for our decision, namely, whether the defen- dant is a person within the 4th section who is permitted by law to

make a solemn affirmation. Now, in order to construe rightly any

statute, one must have before one's mind the state of the law at the

time the statute was passed. By several statutes beginning with

the early part of the reign of William IV. and ending in the early

part of the present reign, members of certain religious bodies whose

tenets were known to prohibit the taking of an oath as being contrary

to their view of God's word, Quakers for example, were exempted

from taking oaths. The first statute passed (3 & 4 Wm. IV. c. 49)

enabled Quakers and Moravians to make a solemn affirmation in

place of taking an oath in all places and for all purposes whatsoever.

That was an immunity given to a particular class of religious persons

who were to be exempted throughout the United Kingdom upon all occasions from taking an oath. Under no circumstances after that

Act was passed could a Quaker or Moravian be called upon to take

an oath. A subsequent statute (3 & 4 Wm. IV. c. 82) extended the

same privilege to a class of persons called Separatists ; and a still later

statute (1 & 2 Vict. c. 77) extended the privilege to persons who had belonged to the society of Quakers or Moravians, but who had

seceded from these bodies, still retaining conscientious objection

to take an oath. So that at the time this Act was passed four

classes of persons were permitted on all occasions and at all times to

dispense with an oath and make an affirmation in lieu of it ; Quakers, Moravians, Separatists, and those who had been Quakers or Mora-

vians, and who had seceded from them, but still retained their conscientious objection to an oath. Now it must not be forgotten

that at that time the Common Law Procedure Act 1854 was in force,

which enacted by sec. 20 that 'if any person called as a witness or

required or desired to make an affidavit or deposition, shall refuse

or be unwilling from alleged conscientious motives to be sworn, it

shall be lawful for the Court or Judge, or other presiding officer or

the sincerity of such objection, to permit such person instead of being sworn to make his or her solemn affirmation, which solemn affirmation or declaration shall be of the same force and effect as 'if such person had taken an oath in the usual form.' Therefore, besides the classes of persons to whom I have referred who were privileged to adopt an affirmation in all cases instead of an oath, a person called as a witness in an English Court - for the statute was confined to England - no matter what his religious creed might be, if he satisfied the Judge that he had a conscientious objection to take an oath, was permitted to give his evidence upon the sanction of an affirmation only." The provisions of sec. 20 of the Common Law Procedure Act 1854 had been extended to criminal proceedings by 24 & 25 Vict. c. 66 - ' An Act to give relief to persons who may ~ refuse or be unwilling, from alleged conscientious motives, to be sworn in criminal proceedings." The Legislature of New South Wales has adopted the provisions of these statutes by 8 Wm. IV., No. 2; _ by sec. 10 of 20 Vict. No. 31 and by sec. 1 of 22 Vict. No. 7 which,

in effect, anticipated 24 & 25 Vict. c. 66. Relief was thus given to } persons " who refused or were unwilling, from alleged conscientious motives, to be sworn"? from the necessity which the common law imposed upon them of taking some oath notwithstanding their _ seruples or of suffering imprisonment for contempt. (See Re Law- rence (1).) But witnesses were not made competent who, although willing to take an oath, might be objected to on the ground of infidelity or disbelief. In 1861 a notable example oceurred. Upon the trial of an action in the County Court at Rochdale one of the Pplaintifis was called as a witness and was about to be sworn when the defendant's solicitor interposed and was allowed to examine her 'upon the voir dire, for which purpose she was sworn, As a result of this inquiry into her opinions, it appeared that she did not believe ina God, or in a future state of rewards and punishments, but she believed she was responsible to her fellow-men and her own con- science if she failed to speak the truth, and that as a solemn declara- tion the oath which she had taken bound her morally to speak the truth. Thereupon she was rejected as a witness, and she and her

m qualified to take affidavits or depositions upon being satisfied 4. ©. or A.

co-plaintiff were nonsuited. An appeal to the Court of Exchequer was dismissed. Pollock C.B. said : - " We are all of opinion that the course of proceeding adopted by the Judge of the County Court was in accordance with the law and practice. . . inthiscountry. Itis unnecessary to say more than that the authorities cited abundantly show that such is the law and practice. Whether or no it ought to be is another question. We are not here to make the law, as we have been invited to do, but to administer it ; and by the law every witness must be sworn according to some religious ceremony ; or, if that is to be dispensed with, it can only be done by the authority of an Act of Parliament, and in this case there is no such authority " (Maden v. Catanach (1) ).

In view of the history of the legislation and of the existing state of the law, little doubt can remain that sec. 4 of the Evidence Further Amendment Act 1869 was directed to the admissibility of witnesses who, like the plaintiff in Maden v. Catanach (2), would be rejected because of their beliefs and opinions; but it does not therefore follow that, by the use of the expression "incompetent to take an oath," it has not also included young children who have not arrived at an understanding of oaths. Indeed, the very expression " incom- petent to take an oath" is found in the opinion of the Judges in R. v. Brasier (3), which fixed the test of the admissibility of children as witnesses. The Judges were unanimously of opinion "that no testimony whatever can be legally received except upon oath ; and that an infant, though under the age of seven years, may be sworn in a criminal prosecution, provided such infant appears, on strict examination by the Court, to possess a sufficient knowledge of the nature and consequences of an oath, for there is no precise or fixed tule as to the time within which infants are excluded from giving evidence; but their admissibility depends upon the sense and reason they entertain of the danger and impiety of falsehood, which is to be collected from their answers to questions propounded to them by the Court ; but if they are found incompetent to take an oath, their testimony cannot be received." But the difficulty is that the real ground of the exclusion of the evidence of children is

(1) (1861) 7 H. & N. 360, at pp. 366, (2) (1861) 7H, & N. 360; 158 E.R. 367; 158 E.R. 512, at p. 515. ¥ (3) (1779) 1 Leach 199, at p. 200; 168 E.R. 202, at pp. 202, 203.

their capacity to appreciate the nature and effect of an oath. Tn Buller's Nisi Prius persons who may not be witnesses are classified "such who are excluded for want of integrity, or discernment "" Among those disqualified for want of integrity are included . ie. such who profess no religion that can bind their consciences to speak truth'' (292 a). But infants belong to the ond class. "As to those who are excluded from testimony for

1 regard to children, there seems to be no precise time fixed wherein they are excluded from giving evidence; but it will depend in | great measure on the sense and understanding of the child, as it shall appear on examination to the Court . . . the child be received as a witness if she appear to have any notion 'the obligation of an oath" (292 b, 293 a). This classification maintained in Roscoe's Nisi Prius Evidence. Under the heading 2 Tnoompetency from Want of Understanding" are included ( en not able to comprehend the moral obligation of an oath" ; e the heading " Incompetency from Want of Religious Principle"

"athiests and such infidels who profess no religion that can their consciences to speak the truth" (10th ed. (1861), p. 135). _ It was inevitable when an oath was essential and no alternative permitted that a capacity to understand its solemnity and significance should be made the test of a child's competence to i "Tt is not always possible to determine whether the guage of the Courts is used in view of the oath-test or of an inde- pendent testimonial requirement " (Wigmore, Evidence, 2nd ed., sec. 505, vol. 1., p. 922). But this difficulty is not confined to the case of childhood. The test adopted for ascertaining whether a lunatic s sufficient understanding to give evidence is whether he stands the nature and sanction of an oath (R. v. Hill (1) ). d, it seems to have been included as a criterion in Hartford v. Palmer (2), when the question was whether the witness's capacity to testify had been destroyed by intoxication. Sec. 4 of the British vidence Further Amendment Act 1869 did not, in my opinion, te to affect incompetence from lack of understanding however

(1) (1851) 20 LJ. MLC, 222; 90 RR. 822, (2) (1819) 16 Johns. (N-Y.) 143.

immaturity of their understanding, although this is or was tested "1- ©. ov A.

arising, or the tests which the law recognized and adopted for ascertaining it. It was concerned only with the state of opinion, belief or faith in persons whose understanding was not, according to their race or class, abnormal or unripe. The requirement, which it contained that the Judge should be satisfied that the taking of an oath would have no binding effect on the witness's conscience, tends to prevent a wider application of the words " incompetent to take an oath." But, in any case, it is evident that the section did not mean, in spite of the form in which it was expressed, to impose the duty of giving evidence, by affirming, upon every person called who was objected to as incompetent to take an oath. A child so young that it is completely unable to comprehend what it is asked to do, and an imbecile, and a person unable through intoxication to appreciate what he is doing, are all "' incompetent to take an oath." The statute does not turn their incompetence into a qualification to testify. Yet it supplies no new tests for ascertaining whether the person of immature or abnormal intelligence is of sufficient understanding to give evidence. Whether the capacity of such a person to understand the nature of an oath is a satisfactory test of his competence is not the question. Nor is it the question whether, if the oath were abolished, the reason of the law would give a new test. The question is whether the statute should be interpreted as dealing with such matters, and, in my opinion, it should not.

In a note to his Digest on the Law of Evidence, 4th ed., Sir James Fitzjames Stephen refers to the statute and says, at p. 181 : - "' The practice of insisting on a child's belief in punishment in a future state for lying as a condition of the admissibility of its evidence leads to anecdotes and scenes little calculated to increase respect either for religion or for the administration of justice. The statute referred to would seem to render this unnecessary. If a person who deliberately and advisedly rejects all belief in God and a future state is a competent witness, a fortiori, a child who has received no instructions on the subject must be competent also." The statute remained in force until 1888, when it was repealed by the Oaths Act, 51 & 52 Vict. c. 46, but, with the exception of this statement, no reliance appears ever to have been placed upon it for the purpose of enabling children to give evidence. And in Best on Evidence,

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.

hed., p. 144, Sir James Fitzjames Stephen's note is referred 4. ©. ov A.

H.C. or A. No, 11) in which afterwards infants under seven years were inter-

polated by sec. 7 of the Law of Evidence Act 1857, apparently was not adopted. See now sec. 23 of the Victorian Hvidence Act 1928. It is not likely that as late as 1876 the Legislature would turn its attention to the subject, but it may well be that members of backward races may now affirm.

I think that upon the proper construction of sec. 13 of the Oaths Act 1900, it authorizes an affirmation when the incompetence of the witness to take an oath does not arise from immaturity, or from unripeness or disorder of the intelligence. The child which gave evidence against the appellant was unable to understand the nature of an oath, not because of opinions or beliefs with which an oath is incongruous, but because of a failure to comprehend what the oath signified. Whether that failure might or might not have been prevented or corrected by instruction or explanation, it was in fact due to immaturity and the unfamiliarity of the very young with such ideas. In my opinion such a condition is not within sec. 13 of the Oaths Act 1900. I think the conviction should not stand.

The matter was fully discussed upon an application on notice for special leave to appeal. I think leave should be given and the conviction quashed.

Evarr J. The question which arises upon this application for special leave to appeal from the judgment of the Supreme Court (K. W. Street J.) is whether the Magistrate was entitled, under sec. 13 of the New South Wales Oaths Act 1900, to allow a child of nine years of age, when called as a witness, to make a declaration to the following effect : "I solemnly declare that the evidence now about to be given by me shall be the truth, the whole truth, and nothing but the truth." The Magistrate was satisfied that the child had no religious belief, and he considered that he was "incompetent to take an oath." But it sufficiently appears, and it should be assumed, on this application for special leave, that the Magistrate considered that the child understood the nature of the solemn declaration which he made.

Attention should at once be directed to the words of sec. 13. The section deals expressly with three possible events which may

proceedings in New South Wales : - (1) The witness may himself " object to take an oath." _ (2) The witness may be "reasonably objected to as incom- petent to take an oath."

(3) The witness may " appear" to the Court " incompetent to take an oath."

s or by the Court itself. The witness's objection con- the matter ; and he thereupon becomes entitled (1) to refuse take the oath and (2) to make a declaration in place of it. But section does not give such person who objects to take an oath tight to refrain from giving testimony, nor does it establish his neral competency to testify. It merely enables him, by taking jection, to alter the form of the ceremony. e second case postulates the raising of an objection to the ency of the proposed witness to take an oath. The objection be reasonably taken, and of its reasonableness the Court will ge. The ground of objection must necessarily be directed to witness's attitude or belief in relation to the Deity, because the y result of the success of the objection is to enable the witness e part in the substituted ceremony of declaration. This part f the section does not render a person competent to testify who incompetent because of mental imbecility ; nor does it enable a n reasonably objected to as incompetent to take an oath, to

ed by the religious sanction involved in the imprecation. e case of the witness himself taking objection, it may be assumed that he has no belief, or else disbelieves, in God. In the case '4 party objecting to a witness, the objection raised may be estab- | by showing, on the voir dire, either the absence of any belief God or the presence of positive disbelief.

eases are left unprovided for? There may be instances a proposed witness may not have enough self-confidence t to take an oath, or, by his very lack of training in religious fs, may not be unwilling to take an oath although the religious

"whenever any person " is " called as a witness" in civil or H- ©. or A.

sanction will not bind him. In each case there may be a failure to take objection. The classes of witness which immediately suggest themselves are children and aboriginal natives of Australia. With respect to both, it may well be that the absence of religious training, belief or knowledge should disqualify them from taking an oath and yet neither they, nor the party not calling them as witnesses, may raise objection. In such cases, the actual appearance of the witness in the box will often justify an inquiry in the interests of justice, and the right of inquiry is committed to the Court itself. The inquiry will be whether the proposed witness is incompetent to take an oath. It is intended that the scope of the inquiry should be limited to religious belief, because the only necessary result of the decision that there is incompetence is the authorization of the alternative ceremony. Sec. 13 is, therefore, not concerned with such incompetence to testify as results from mental incapacity or defective intellect. Itis designed to prevent possible loss of testimony by the fact of religious unbelief or religious disbelief. It applies to "any person " called as a witness, and therefore infants under the age of twenty-one years are included in its scope. It would seem that the authority given to the Court to act of its own motion is intended to cover the very cases where there is a possibility or probability that the witness does not believe in God, but will, unless prevented, not hesitate to take the oath in obedience to the direction of the Court or its officer.

From an analysis of the section itself, therefore, it would appear that sec. 13 applies as much to children as it does to all other wit- nesses. No distinction is made by the section between entire absence of belief in God and the positive presence of disbelief in the existence of God. The oath is not to be administered to those upon whom, as an oath calling upon God, it will not be binding ; but when such fact is ascertained by the Court, or the witness himself impliedly admits it by objecting, a solemn declaration may be administered, lest the testimony be lost. Until the doctrines of Bentham and his followers prevailed, witnesses were excluded as incompetent, either for "the absence of religion, or this or that erroneous opinion in regard to it." (Rationale of Judicial Evidence, Bentham, vol. V., p-

_ By sec. 13 of the Oaths Act 1900, witnesses were not excluded, er for the absence of religion, or for any opinion in regard to it. e Magistrate, therefore, acted within the authority of sec. 13 he inquired into the boy's lack of religious training, and con- d that he was incompetent to take the religious oath. The oy thereupon became entitled to affirm in lieu thereof, unless the trate was satisfied that, from defective intelligence or mental pacity, his evidence should not be received at all. But it appears, on the contrary, that he was satisfied with the intelligence of the lad. le therefore properly allowed him to affirm. 'The Oaths Act is a consolidating statute. In such circumstances y into the various stages by which the Legislature gradually led the previous law upon the subject, is seldom justified or q In the case of Administrator-General of Bengal vy. Prem Mullick (1) Lord Watson for the Judicial Committee said : -

"The respondent maintained this singular proposition, that, in dealing with 4 consolidating statute, each enactment must be traced to its original source, and, when that is discovered, must be construed according to the state of eir- 'cumstances which existed when it first became law. The proposition has _ neither reason nor authority to recommend it. The very object of eonsolida- _ tion is to collect the statutory law bearing on @ particular subject, and to bring _ it down to date, in order that it may form a useful code applicable to the circumstances existing at the time when the consolidating Act is passed.'?

It was strongly contended, however, that the history of see. 13 "ompels the Court to adopt a construction contrary to that suggested y the wording finally adopted by the Legislature in 1900. In these mstances, a short reference to origins may be made. A convenient commencing point is the decision in Maden v. fanach (2). In that case Mrs. Maden was called as a witness in a shire County Court, and was about to be sworn when counsel r the defendant objected to her competency to be sworn. The e refused to swear her in the cause, but. for the purpose of the ir dire, himself administered the oath. The defendant's advocate questioned her about her views upon matters of religion. Mrs. stated that she had no belief in a God or in any future state ds or punishments, but that she was under a moral responsi- ility to her fellow-men and to her own conscience to speak the truth.

l) (1895) L.R. 22 Ind. App. 107, at p. ay) (1861) 7 H. & N. 360; 158 ER.

The Judge refused to admit her to be examined in the cause and the plaintifis were compelled to ask for a nonsuit. On appeal, the Court of Exchequer affirmed the Judge's ruling. Pollock O.B. said (1): " We are not here to make the law, as we have been invited to do, but to administer it; and by the law every witness must be sworn according to some religious ceremony ; or, if that is to be dispensed with, it can only be done by the authority of an Act of Parliament, and in this case there is no such authority." His Honor Judge Parry, commenting on this decision, has said : - "One cannot blame the Judges for yielding in these matters to popular bigotry, for they had to administer the bigotry of the law. As late as 1863, when Mrs. Maden in a Lancashire County Court was not allowed to give evidence because she honestly stated her views on matters of religion, the ruling was upheld in the High Court. But Baron Bramwell, whilst accurately adminis- tering the law, pointed out that the judgment he was giving involved the absurdity of ascertaining Mrs, Maden's disbelief by accepting her own testimony on the subject and then ruling that she was a person incompetent to speak the truth" (What the Judge Thought, pp. 93, 94). Partly as a result of such cases, no doubt, in the year 1869 the English Parliament passed the Act 32 & 33 Vict. c. 68. Sec. 4 was

"If any person called to give evidence in any Court of justice, whether in a civil or criminal proceeding, shall object to take an oath, or shall be objected to as incompetent to take an oath, such person shall, if the presiding Judge is satisfied that the taking of an oath would have no binding effect on his conscience, make the following promise and declaration: 'I solemnly promise and declare that the evidence given by me to the Court shall be the truth, the whole truth, and nothing but the truth.' And any person who, having made such promise and declaration, shall wilfully and corruptly give false evidence, shall be liable to be indicted, tried, and convicted for perjury as if he had taken an oath."

The application of sec. 4 to the case of children not otherwise disqualified from giving evidence, was thus referred to by Sir James Fitzjames Stephen in his well-known digest (5th ed. (1887) pp. 190- 191) : -

"The practice of insisting on a child's belief in punishment in a future state for lying as a condition of the admissibility of its evidence leads to anecdotes and to scenes little calculated to increase respect either for religion or for the administration of justice. The statute referred to would seem to render this unnecessary. If a person who deliberately and advisedly rejects all belief in God and a future state is a competent witness, a fortiori, a child who has received no instructions on the subject must be competent also."

(1) (1861) 7 H. & N., at pp. 366, 367; 158 ELR., at p. 515.

is convenient to refer now to the New South Wales statute of (40 Vict. No. 8). Sec. 3 of such Act provided as follows : -

_ "Whenever any person called to give evidence in any Court or before any ice or other person authorized to administer an oath whether in a civil "or criminal proceeding shall object to take an oath or be reasonably objected 0 as incompetent to take an oath such person shall make the following promise

to tell the truth the whole truth and nothing but the truth And any person who having made such promise shall wilfully and corruptly give any false 'evidence shall be deemed guilty of perjury." In 1877 the Supreme Court of New South Wales interpreted this t in the case of R. v. Lewis (1). A native of one of the Pacific had prosecuted the prisoner for larceny. After the a '' was sworn in the usual way and had given his evidence, suggested by a juryman that he was not sensible of the obliga- ion of the oath. The Chairman of Quarter Sessions came to the o n that the prosecutor had no idea of a future state and that s therefore not competent as a witness at common law. But en directed the witness to make in lieu of an oath the promise 'ibed by 40 Vict. No. 8, sec. 3; and then the witness gave his again. The Supreme Court affirmed the conviction. Sir

" [think the Legislature has been made to do a thing which it never intended. There scems no escape from the conclusion that by the third section of that "Act any person who objects (no matter for what reason) must be relieved the necessity for taking an oath, And in the same way, if a person is

• reasonably objected to as incompetent, on whatever ground, either for want of religious belief, or want of intelligence or any other ground of objection, ~ he may make a promise and give evidence without an oath."

the majority of the Court (Faucett and Sir William Manning JJ.)

_ "A witness may be reasonably objected to on very different grounds, amongst others, the want of religious belief and the want of intelligence. I 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 'only intended to meet the case of the persons commonly called Atheists 'persons without religious belief."

"Tt may be that it is a concession to infidelity, and it may be that infidelity | growing side by side with the increased growth of vital religion amongst us.

(1) (1877) Knox 8 (3) (1877) Knox, at p. 10. (1877) Knox, at p. % (&) (1877) Knox, at p11.

Under these circumstances the Legislature has thought fit to meet the altered state of public opinion, No doubt it is desirable that all evidence should be given upon oath, but it is better to have evidence not upon oath than not to have it at all." He added (1) : - " 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 substitute 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."

Next came the important case of R. v. Peters (2). A prisoner was tried before Sir William Manning J. and convicted on a charge of having committed an indecent assault upon a female child under the age of twelve years. The principal witness for the prosecution was a child, six years and eleven months of age. Manning J. came to the conclusion that, although she was intelligent and had no defect of understanding, yet she did not understand the nature of an oath. He directed that her evidence should be taken in the alternative method provided by sec. 3 of 40 Vict. No. 8. The Full Court (Fawcett and Windeyer JJ., Sir J. Martin C.J. dissenting) affirmed the conviction. It appeared that neither the prisoner nor the Crown Prosecutor nor the child herself objected to the administration of the usual form of oath. It was solely at the direction of the presiding Judge that the oath was not taken. The Chief Justice dissented, only because he considered that 40 Vict. No. 8 did not empower the Judge to act of his own motion and without any objection being made. Faucett

J. said (3) that the Legislature intended by the statute "that although the witness is not fit to give evidence on oath, yet, if he is otherwise competent, he shall make an affirmation, but there is no need for anyone in particular to take the objection ; the presiding Judge may take it. If an aboriginal, for instance, is called as a witness, and the Judge sees reason to doubt whether he understands the nature of an oath, he may come to the conclusion that an oath would not bind him, but that he may understand the nature of a promise to speak the truth: and he is called upon to decide upon the reasonableness of the objection upon a view and examination of the witness."

Faucett J. referred (4) to the observations of Sir William Manning J.

in Lewis's Case (5), that children incompetent for want of intelli- gence were not rendered competent by sec. 3, and said that the child in the present case " had sufficient intelligence."

(1) (1877) Knox, at p. 11. (3) (1882) 3 N.S.W.L.R. (2) (1882) 3 NS.W.L.R. 455. (4) (1882) 3 N.S.W.LR.. (5) (1877) Knox 8.

yer J. said (1) : - " As I understand the question, no doubt would arise as to the admissibility

• of her evidence, if counsel, or the witness, or the prisoner had objected to her being sworn ; but, it is said that, as no such objection was made, the evidence was inadmissible. I cannot put such a construction on the Act." He also said (2) : - " It cannot, in my opinion, be a condition precedent to her promise being taken, that someone must object to her competency. If it were so, this might follow - An undefended prisoner calls an intelligent aboriginal as a witness, The Judge discovers that by reason of defective religious belief _ heis incompetent to take an oath, but he thinks that he is sufficiently intelligent to understand the promise required by the Act. 'The witness is willing to give 'evidence. Nobody objects to his competency to take an oath. In the interests of justice, in order that this aboriginal may become a competent witness, the absurd form must be gone through of the Judge telling the prisoner that he must object to his own witness giving evidence on oath, or he must tell the aboriginal, who does not understand the nature of an oath, to object to take an oath. As I do not believe that the Legislature ever intended such an absurdity as this, I think the construction which I have put on the Act __ is the correct one."

'The principle common to all three judgments in Peters's Case (3) never been questioned by the Supreme Court of New South 'ales. All the Judges accepted the position that, if a step merely procedural in character had been taken and objection duly made, child's evidence would have been admissible after her promise made, although, because of lack of belief, she did not understand e nature of the religious oath. Shortly after Peters's Case (3) was decided, the New South Wales Legislature passed the Criminal Law Amendment Act 1883, and occasion to insert sec. 343 for the very purpose of removing the ubt which had been raised by Sir James Martin C.J. Sec. 343

"Whenever any person called as a witness or having to make a statement in an information complaint or proceeding in any Court or before any justice objects to take an oath or is reasonably objected to as incompetent to take an oath or appears to the Court or justice to be incompetent to take an oath he may make the following declaration instead of being sworn - I solemnly declare _ that the evidence now about to be given (or the statement now about to be made) by me shall be the truth the whole truth and nothing but the truth And whosoever having made such declaration wilfully makes any false statement before such Court or justice knowing the same to be false shall be deemed guilty of perjury if the statement had it been on oath would by law have been

(1) (1882) 3 NSW.LR,, at p. 459, (2) (1882) 3 N.S.W.LR., at p. 460. 4 (8) (1882) 3 NS W.LLR. 455.

perjury or may be found guilty if the evidence warrants such finding under the two hundred and ninety-second section of this Act and shall be liable to punish- ment accordingly."

Sec. 343 came up for consideration before the Full Court of the Supreme Court of New South Wales in 1888 in the case of R. v. Singh (November 2nd). The prisoner had been found guilty at a trial before Stephen J. upon the charge of indecent assault upon a boy aged six years. At the trial the learned Judge submitted the boy to an examination in order to ascertain whether he understood the nature of an oath. He was not satisfied that he did, and it appeared to him that he was incompetent to take the oath. The Judge, however, allowed the boy to make a declaration under sec. 343, and he then gave evidence. The trial Judge reserved for the Full Court the question whether he was right in allowing such declaration to be made. The Full Court unanimously held that the conviction should be affirmed. Darley C.J. said that the Court must assume that the child was of sufficient age and sufficiently intelligent to know that he was called upon to speak the truth in giving his evidence, and as, in the opinion of the trial Judge. the boy was sufficiently intelligent to give evidence, a declaration under sec. 343 was admissible. Windeyer and Innes JJ. concurred. I have obtained the reference to this case from the columns (at p. 16) of the Sydney Morning Herald, dated November 3rd, 1888, a journal very accurate in its reporting of law cases ; inspection of the original note-books of the learned Judges has proved its accuracy in the present instance.

The position, therefore, is that, prior to the passing of the Oaths Act 1900, a series of decisions of the Supreme Court of New South Wales had established that an enactment, in terms not distinguish- able from sec. 13, enabled a person, whether a child, adult, or aboriginal, to make a declaration in lieu of taking an oath, for the purpose of giving evidence. It was held to be within the power of the Court itself to ascertain whether the proposed witness was "incompetent to take an oath." For that purpose an inquiry was necessary as to his belief in the God to be invoked in the oath. Sir James Fitzjames Stephens's observations upon the English Act of 1869 have been criticized upon the ground that the child who is devoid of any knowledge of God cannot himself " object" to take an oath, and

was entirely absent. But such criticism lost its force as soon as power was given to the Court itself to act, and " objection" was no longer necessary. Whether the precise decision of the majority in -Peters's Case (1) can be justified by the terms of 40 Vict. No. 8, is a juestion rendered entirely academic by the subsequent action of the New South Wales Legislature. The decision in R. v. Singh followed upon such action, and it is clear that, in the case both of aboriginal natives and of children, declarations were allowed to be made as and when occasion arose. Whatever the position was ewhere, the conclusion is that, before 1890, New South Wales law and practice had become settled so that a declaration could be made by a witness in lieu of an oath, whether there was a conscious rejection i ief in God, or an entire lack of knowledge of or belief in God.

• 4 was made in argument to sec. 110 of the Child Welfare

etions, the evidence of a child of tender years may be received 'h not given upon oath, if the child is possessed of sufficient ence to justify the reception of the evidence and understands the duty of speaking the truth. These sections have an application strictly limited to sexual offences, including unnatural sexual offences and offences against children under the Child Welfare Act. Cor- roboration of the child's testimony is required by each enactment. _ Emphasis was laid upon the use of the word "oath" in these 'tions in order to suggest that the only cases in which the evidence 'of children can be elicited are (1) where the child understands the e of an oath and takes it, and (2) the instances covered by sec. of the Crimes Act and sec. 110 of the Child Welfare Act. But the source from which sec. 110 of the Child Welfare Act is taken, is 55 Vict. No. 30, sec. 24, passed in the year 1892. The ource of sec. 418 of the Crimes Act is sec. 7 of 55 Vict. No. 5, a tute passed in 1891. And it has already been shown that the law and practice relevant to the point now being considered, was well lished before either of those special enactments became law. my opinion, sec. 110 and sec. 418 make special provision in two ases for the examination of children who may or may not be within

so the statute could not apply to cases where religious belief H- © oF A.

H.C. or A. the provisions of sec. 13 of the Oaths Act 1900, but they do not

exclude children from the operation of that section if they would otherwise be within it.

The result is that historical inquiry into the previous New South Wales decisions and enactments, supports the interpretation sug- gested by the words of sec. 13 itself. All that need be added is that a case like the present will not be of frequent occurrence because most children are trained in some religious belief or other at a very early age. It was said that the administration of justice must be endangered if the law allows persons to be convicted of serious crimes, other than those specified in sec. 418 of the Crimes Act and sec. 110 of the Child Welfare Act, upon the uncorroborated evidence of children. But this danger is not one which arises from sub- stituting a declaration for an oath. The safeguard in such cases is not to be found in the rejection of testimony because religious belief is absent, but in a proper attention to its weight and cogeney.

Special leave to appeal should therefore be refused. There should be no order as to costs.

McTiernan J. The rule of common law governing the admissi-»__ bility of the testimony of a child is enunciated in Brasier's Cased (1) in these terms : - " That no testimony whatever can be legally received except upon oath; and that an infant, though under the age of seven years, may be sworn in a criminal prosecution, provided such infant appears, on strict examination by the Court, to possess a sufficient knowledge of the nature and consequences of an oath, for there is no precise or fixed rule as to the time within which infants are excluded from giving evidence; but their admissibility depends upon the sense and reason they entertain of the danger and impiety of falsehood, which is to be collected from their answers to questions propounded to them by the Court ; but if they are found incompetent to take an oath, their testimony cannot be received." In Best on Evidence, 12th ed., at p. 142, the learned author writes : " Brasier's Case (2) settled the modern law and practice relative to the admissibility of the testimony of children." The child Robert

(1) (1779) 1 Leach, at p. 200; 168 E.R., at pp. 202, 203. (2) (1779) | Leach 199; 168 E.R. 202.

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

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

¢. 418 of the Crimes Act must be explained. In my opinion there s no legal authority for the Magistrate to import into the pro- the standards of fitness prescribed by sec. 418 in order determine whether the testimony of the child Robert Pead was nissible. The principle upon which the Magistrate decided that

to satisfy the test in Brasier's Case (1), is, in my opinion, not vn to the law of New South Wales. If the law had fashioned a to be passed by a child, e.g., this child, who did not know the of an oath, for the purpose of determining whether his faculties were sufficiently developed to make an affirmation, it is sonable to assume that such a test would have been designed to licit whether the child knew the nature of a solemn affirmation and e consequences of making it. The resemblance of an examination, ucted on that principle, to that which existed at common law, d be apparent. However, the wide difference between religious secular sanctions for securing truthful evidence may render it

which the Court formed an opinion as to the fitness of a child to give 'idence on oath. As was stated in Brasier's Case, the admis- sibility of children as witnesses depends upon the sense and reason they entertain of the danger and impiety of falsehood. If the s Act has affected that rule, it should be possible to point to some other legal rule, derived from statutory enactment or the common law, which makes the admissibility of children as witnesses

• depend upon the proof of some other quality or disposition. If the Legislature contemplated that failure to pass that test should

\ot finally exclude a child as a witness, it has not said what is the additional or other test to which the child should be submitted. The fact that it has not provided another criterion is, I think, a clear indication that it did not intend that the established criterion hould be abandoned. As the rule which was laid down in Brasier's

ase was in force when the provisions of the Oaths Act were first enacted, an intention should not, in my opinion, be attributed to the Legislature to defeat the consequences of that rule, by admitting

the testimony of a child who satisfied some indeterminate standard of fitness, residing in gremio judicis, such as was applied to the child witness in the proceedings in which the appellant was con- victed. If the Legislature had intended to set up a new standard, it may be assumed that it would have enacted at least that elements in the qualifications of a child to testify would be a realization that he was about to give evidence in a Court of law rather than to narrate a story to a gathering of people, and that he had some appreciation of his responsibility to tell the truth. "It is here proper to observe that the law places no reliance on testimony not given on oath or affirmation. Consequently, in general, no person, whatever functions he may have to discharge in relation to the cause in question, or whatever be his rank, age, country, or belief can give testimony upon any trial, civil, or criminal, until he have, in the form prescribed by law, given an outward pledge that he considers himself responsible for the truth of what he is about to narrate, and rendered himself liable to the temporal penalties of perjury, in the event of his wilfully giving false testimony " (Taylor on Evidence, 11th ed., vol. 11., p. 937). As no new or supplemental test or criterion of the competence of a child of apparent immaturity has been introduced as a concomitant to the Oaths Act, the only test known to the law for deciding the admissibility of Robert Pead as a witness, is that which he failed to satisfy.

The form of affirmation, described by the Oaths Act as a solemn affirmation, which was tendered to the child and made by him, was in these words: "I Robert Pead, do solemnly sincerely and truly affirm and declare -" The making of an affirmation in this form by a child would be an empty formality unless he were sufficiently mature to have some understanding of the nature of it. The policy of the law in ordaining the making of a " solemn affirma- tion " in certain cases would not be achieved if the affirmant did not understand its nature. It is not abnormal in a Christian com- munity to find a child of eight or nine years who believes in God and that He will punish the wicked and reward the good. It would, I think, be quite abnormal - perhaps a mark of rare precocity - if a child of that age exhibited any knowledge of the secular sanction for truth arising from the making of an affirmation. The Legis- lature would not have contemplated that a child who did not under- stand the nature of an oath would understand the nature of a declaration, or that a child who was not mature enough to take an

would be called upon in Court to make a solemn affirmation. \¢ form in which the Legislature has cast a " solemn affirmation " fords no reason for suggesting that the Legislature had in its mind idea that the words, by which a person who was to make an firmation should pledge himself to tell the truth, would be spoken aloud in Court by a child of nine years of age, who had been examined as to his understanding of the nature of an oath and failed on account of hisimmaturity to satisfy that test. Though the examination which vasmade of Robert Pead revealed that he was of the degree of intelli- nee which has been described, his incompetence to take an oath was to childhood and to no other cause. It would probably be an ition of precocity if a child of his age were to deny the sanctity an oath or to profess atheism and, probably also, to declare that his religion forbade him to take an oath in a Court of law. How- ver, Robert Pead did not entertain any such views. In my opinion, sec. 13 of the Oaths Act does not authorize a child, yho on account of immaturity of intellect does not understand the ; e and consequences of an oath, to make an affirmation in lieu of an oath, and thereupon give evidence. It follows from this view the testimony of Robert Pead, who for that reason was incom- tent to take an oath, should not have been received. I have my opinion in the light of the decisions and the history of legislation. These matters have been reviewed by my brothers and Evatt, and it is not necessary to set them forth again in

I think special leave should be granted, and the appeal allowed.

_ Evarr J. I am authorized by the Chief Justice and my brother ve to say that they concur with the reasons contained in my gment, and that they are of opinion that the application for leave to appeal should be refused.

in & Lamport. 'itor for the respondent, J. E. Clari, Crown Solicitor for New