`The fact that the procedure to be followed is that prescribed by the Criminal Procedure Code not mean that all the substsubstantive law relating to the effect of failure to follow that procedure must necessarily apply ; these
are civil, not criminal proceedings and it is only the procedure appropriate to criminal cases which has been adopted.’
Then Stuart J. dealing witappeal under the Bastardy Once, said in Fulaqaloaqalo v. Har. Hari Bhagwan (1973) 19 F.L.R. 64 at 67 :
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“I see from the record that counsel for the defendant urged upon the Magistrate that the case did not rest upon a balance of probabilities,
and I infer that it was suggested that proof beyond reasonable doubt is required in bastardy proceedings. Orse this is not so, as
waas was held many years ago by Ragnar Hyne C.J. in Pickering v. Kiss (Cr. App. No. 30 of 1953) wthe Chief Justicustice saidspan>
p claoNormal style="yle="text-align: justify; margin: 1 72.1 72.0pt"> `These surroundings being civil proceedithe standard of proof is not as great as that required in criminal actions ...’ “
More recently, after the passing of the Maintenance & Affiliatio 1971, the Fiji Court of Appeal said in C Chiman Lal v. Pan Bai Civil Appeal No. 73 of 1978 (unreported), at p.5 :
`Although by Section 26 of the Act all applications under the Act are directed to be made in accordance with the Criminal Procedure Code, matters of affiliation and maintenance are generally considered as civil matters, ...’
Finally and perhaps more relevantly the Fiji Court of Appeal in dismisa second appeal by the putative father in Mahesh Chah Chand v. Savitri Devi (1982) 28 F.L.R. 128, where the trial magistrate had earlier dismissed the complaint saying : `Corroboration not sufficient to satisfy the Court that complainant is telling the truth beyond reasonable doubt (sic), that (appellant) is the father,’ the Court of Appeal said at p.130 :
`It is clear that the learned Magistrate was wrong when he required sufficient corroboration to satisfy himself that thpondent was
telling the true truth beyond reasonable doubt. Thipletely misconceived thed the law.’
p class=MsoNormal stal stylxt-align: justify; margin-tgin-top: 1; margin-bottom: 1"> The Maintenance & Affiliation Act (Cap.52)Section 18(2) provides :
`If the evidence of the complainant is corroborated in some material particular by other evidence to the satisfaction of the magistrate,
he may adjudge the defendant to be the putative father of the child, ...’
It is clear that the standard of proof required by the above section is `the satisfaction of the (trial) magistrate’ which is not dissimilar to that required in Sections 56 & 93 of the Matrimonial Causes Act (Cap.51) which uses the terms `satisfied’ and `reasonably satisfied’ respectively.
In the result I would respectfully adopt the observations of By J.A. in Bhagwati and Another v. Ishri Prasad (1974) 20 F.L.R. 75 as an accurate formulation of the standard of proof required in affiliation proceedings where his lordship said at p.80 :
(See alsoSir Trevor Henry J.A. in Jamisha Ali v. Hasiman Nisha anha and Another [1974] VicRp 52; (1977) 23 F.L.R. 77 at 81 and the authorities cited therein.)
So much then for the misunderstanding, I turn next to deal with counsel’s specific complaints. In regarunsel complained ined ined
that the trial magistrate failed to consider the appellant’s evidence and, in particular, a blood tesort and semen analysis which
counsel submits conclusively proves that the appellant is phys physically incapable of fathering a child.
In this latter regard counsel dhe court’s attention to the evidence of Uraia Rabuatoka (p.17 of the record) ord) who testified at the trial and produced his report which was marked Exhibit 1. That shout have occurred.
This procedure was deprecated by Grant Actg C.J. (as he then was) in . (1974) 20 F.L.R..L.R. 11R. 11 when his lordship said at p.12 :
p class=MsoNormal stal style="text-align: justify; margin: 1 36.0pt"> `This doctor was called as a witness ... and was permitted by the tmagistrate to put in evidence his written medical report inrt in
which he gave his opinion ... report if contemporaneous eous could certainly have been used by the doctor to refresh his memory
but it should not have been produced in evidence unless, as a tory exception to the best evidence rule, Section 184A (now Section 191) of the Criminal Procedure Code applied, under the provisions of which certain documents may be produced in evidence in lieu of, but not in addition to, the oral
evidence of a witness and subject to the requirements of that Section being complied with, which was not the case here.’
Be that as it may both the oral testimony as well as the blood test report was before the trial magistrate to consider and both were
mentioned in the trial magistrate’s judgment (p.22 of the record) however, after citing from various authorities and recording the undisputed common fact : `that intercourse had been committed by the parties at various points at certain time of night, before conception’, the trial magistrate determined the case `... on the basis of fact, rather than relying on the basis of legal presumption’.
I understand this latter expression to mean that the trial magistrate was determining the case on this of the oral testimony ofny
of the lay witnesses which he plainly accepted and preferred to the unexplained, untested opinion of a medical technologist.
In doing so this court is satisfied that the learned trial magistrate neither erred in law nor in his assessment of the evidence in
the case. Indeed, this was entirely consistent with the exercise of his judicial function as a court.
As was said by Grant Actg C.J. in Langfords case id at p.13 :
p class=MsoN=MsoNormal style="text-align: justify; margin: 1 36.0pt"> “... the doctor like any other expert witness was called to assist the court on technical matters, but the court is not entitled to
accept an expert’s opinion blindly nor does an expert’s opinion relieve the court from coming to its own conclusions based on all
of the evidence, including the evidence of the expert witness. An expert gives evidence - he does not decide the issue. No s infallible
and no expo expert, however specialised his knowledge, would claim to be. The opinf an expert is on s on relias his reasons for
reaching that opinion and the the methods employed to establish his reas reasons. If the methods employed ct of tests, the court
must look at the nature of the tests ests and the qualifications and experience of the person administering thesp; If the tests are
themselves inadequate or the qualifications and experience of the pers person interpreting the results are limited, this must affect
the weight to be attached to the reasons based on those tests and to the opinion reached.
The duty of expert witnesses, as succy expressed by Lord President Cooper in Davie v. Edinburgh Magistrates [1953] S.C. 34 at 40at 40 `is to furnish the judge or jury with the necessary scientific criteria for testing the accuracy of their conclusions,
so as to enable the judge or jury to form their own independent judgment by the application of these criteria to the facts proved
in evidence.’ In that case the Court ssiSession rejected the proposition that a judge or jury is bound to adopt the views of an
expert, even if they should be uncontted, as `The parties have invoked the decision of a judicial tribunal and not an oracular plar
pronouncement by an expert.’ (Ibid)
Indeed, there have beeasions when the courts have approached the testimony of expert witnesses with some degree oree of suspicion
...
I do not suggest that the evidence of an t witness should necessarily be viewed with distrust, but it should be treated with cautionution
and subjected at least to the same careful scrutiny as, and compared with, the evidence of all the other witnesses in the case.
Verdicts may be set aside as against the weight of evidence if insufficient medical evidence is accepted in preference to direct
and convincing testimony of wses to facts (e.g. Aitken v. McMeckan [1895] UKLawRpAC 8; [1895] A.C. 310).”
