Eather v R [1914] HCA 77

19 C.L.R.] OF AUSTRALIA. 409 [HIGH COURT OF AUSTRALIA.] EATHER . i é F p APPELLANT ; AND THE KING RESPONDENT.

ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.

Practice—High Oourt—Appeal from Supreme Court of State—Criminal matter— H C. or A.

Special leave—Evidence of child not on oath—Corroboration—Crimes Act 1900 1914, (V.S. W.) (Wo. 40 of 1900), sec. 418*—Judiciary Act 1903-1912 (No. 6 of 1903 —_~ —No. 31 of 1912), sec. 35 (1) (b). SypNEy, Nov. 20, 23; In granting special leave to appeal in criminal cases the High Court will Dec. 15. follow the practice of the Judicial Committee of the Privy Council, as ex- mincl Griffith C..

pounded in Ibrahim v. The King, (1914) A.C., 599, and Arnold v. The King- Barton,

Emperor, (1914) A.C., 644.

Tsaacs, Gavan Duffy, Powers and

So held by Grifith C.J., and Barton, Gavan Duffy, Powers and Rich JJ, Rich Ju.

(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 any charge under secs. 67 to 81 in- clusive, of this Act, where any child of tender years who is tendered asa witness does not in the opinion of the Court or Justices understand the nature of an oath, the evidence of such child may be received, though not given upon oath, if in' the opinion of the Court, or Justices, such child is pos-

VOL. XIX.

justify the reception of the evidence, and understands the duty of speaking the truth. (2) No person shall be con- victed of the offence charged, unless the testimony admitted by virtue of this section, and given on behalf of the prosecution, is corroborated by some other material evidence in sup- port thereof implicating the accused."