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SUPREME COURT OF FIJI
MOIDIN
s/o KADAR
v
VINIASI MELI
[SUPREME COURT, 1975 (Williams J.), 30th October]
Appellate Jurisdiction
Bastardy – opportunity of sexual intercourse – whether sufficient corroboration of complainant’s evidence.
Bastardy – observations on lengths of periods of gestation.
Evidence and proof – corroboration – bastardy proceedings – opportunity of sexual intercourse – whether sufficient corroboration of complainant’s evidence.
Provided that the Court accepts the independent evidence of witnesses that the parties were associating together and contriving to be alone, this could be regarded as corroboration of the complainant’s evidence that sexual intercourse had taken place between her and the putative father.
The Court also considered certain authorities which contained observations on the lengths of periods of gestation.
Cases referred to:
Burbury v Jackson [1917] 1 KB 16.
Moore v Hewitt [1947] 2 All 0;
Clark v Clark;[193All ER 59; [1939] P. 228.
Preston Jones v Ps v Preston Jones [1951] 1 All ER 124; [1951] AC 391.
Appeal against the decision of the Magte’s Court adjudging the appellant the putative fathefather of the respondent’s child.
A H Sahu Khan fe appellant.
S PrasaPrasad for the respondent.
WILLIAMS J.: [30th
This is an appeal against the decision of a Magistrate who decided that the appe appellant was the putative father of the ndent7;s
child. The grhe grounds of appeal are:- 1. The MThe Magistrate misdirected himself on the question of corroboration by holding that the mere opportunity for sexual intercourse
was sufficient corroboration. 2. The Magistrate failed to take judicial notice that the normal period of gestation is over 270 days and accepted that a normal child
could be born in 240 days. 3. The Magistrate misdirected himself on the burden of proof in requiring the appellant to show it was impossible for a normal child
to be born within 240 days when the onus was on the respondent to show that a normal mature child can be born within 240 days. 4. The verdict is unreasonable and cannot be supported having regard to the evidence. With regard to the first ground the allegation of intercourse rests on the evidence of the respondent (female) and that of her two
witnesses. The appellant has denied that he ever had intercourse with the respondent. She alleges that when she was attending the Jasper Williams High School in 1970 she began an intimate relationship with the appellant
and at night when her parents were asleep she would come out and join him. On two of those visits they had intercourse. At that time
they both resided at Lomolomo village. It would be very difficult to produce corroboration of nocturnal associations of that kind. In 1970 the respondent left Lomolomo and stayed for a while with her uncle at Rata village. She says the appellant came to see her
at Rata and spent half a day with her. PW3 LUISA SUMO, says she saw the parties and talked to them at Rata and they were together
for about half a day. The appellant admits this meeting; but denies spending half a day at Rata. He refutes the suggestion that he
made a special trip to Rata in order to see the respondent and says he went with someone who was purchasing a bullock; his friend
was so engaged for 20 minutes and in that time he happened to see the respondent and chatted with her. The Magistrate did not specifically
refer to this incident which is unfortunate because if the respondent’s version is true it is evidence of association between
the parties. However the Magistrate did say, “After a careful consideration of all the evidence before the Court I am satisfied that the complainant told the truth to this
Court. I accept her evidence.” In the face of that statement it is scarcely possible for me to assume that he must have ignored or overlooked the meeting of the
parties at Rata village. Therefore, I must accept that he believe the respondent’s evidence in that respect. The respondent
and PW3 denied in cross-examination that the appellant was at Rata to buy bullocks. PW3 LUISA said that this occurred in 1970. The
meeting in Rata appears on the Magistrate’s finding to have been contrived by the parties rather than the coincidence which
the appellant describes and it supports the respondent’s contention that her association with the appellant was not limited
to casual meetings in the village. The respondent alleged that she had intercourse with the appellant on several occasions during 1970 & 1971, stating that the last
occasion was on 25th J972 when she came to the Athe Adi Salusalu Festival in Lautoka with her friend Repeka (PW2). She stated that on that occasion she
saw the appellant driving a “Civic Taxi”, that he d to her, that she accompanompanied him in the taxi leaving Repeka
behind, and that they had intercourse after which he took her home. Repeka confirms that the appellant called to the respondent,
and took her away in the taxi. The appellant does not deny meeting the respondent on this occasion but says she and Repeka (PW2)
hired his taxi and travelled in it. He denied the allegation of intercourse. The Magistrate believed the respondent and Repeka. On that finding it is apparent that although the meeting between the appellant
and respondent was accidental they took advantage of it by arranging to be alone in the taxi. It was not a situation thrust upon
them by way of employment or by circumstances over which they had no control. It was a chance meeting which they used in order to
spend time together without the intrusion of third parties. There was no evidence that the respondent had been associating with any other male. It was put to her in cross-examination that some
other male was the father but she denied it. It was not suggested who the male was or that she was a promiscuous woman. No attempt
was made in cross-examination to draw any evidence on those lines from her witnesses. Mr Sahu Khan for the appellant argues that the evidence merely reveals the opportunity for intercourse and not that it occurred. He
pointed out that there has to be corroboration in some material particular of the female complainant’s evidence and that opportunity
alone is not corroboration thereof. No doubt Mr Sahu Khan had in mind the headnote in Burbery v Jackson<160;(p60;(post). The reference therein to the existence of opportunity was commented upon by Lord Goddard CJ in Moore v Hewit [1947[1947] 2 All ER 270, at 272, where he referred t decision in Burberurbery v Jackson [191>[1917] 1 KB 16. The learned Chief Jusf Justice did not disagree with the decision of the Court but he criticized thened editor’s headnotednote,
saying that in his opinion the headnote went too far. The headnote reads, “on the hearing of a bastardy summons evidence of mere opportunity is not sufficient corroboration ....” Nevertheless there can be no intercourse without opportunity and evidence of opportunity is essential. However, it is, as Lord Goddard
pointed out, the way in which the opportunity arises which may provide corroboration to show that the opportunity was seized. InBurbery v Jackson the parties were ands whosewhose duties took them into barns and such like places where privacy created the opportunity; but the
opportunity was not created by the parties. It was thrust upon them; likewise a male house-holder has the opportunity of having intercourse
with his housekeeper but it is circumstances and not mutual connivance which presents the opportunity. The learned Chief Justice
said at P.273, B, “It seems to me that it being proved by independent evidence, that these young people were associating at different house of
the day and night, being in each other’s company for varying periods of time, and so forth, that is evidence which the justices
could regard as corroboration.” There is, in the instant case, the evidence of PW 2 & 3, that on two occasions the parties were alone together. On the first occasion
they connived to meet, whilst the respondent was living in another village the appellant having journeyed to that other village in
order to meet her. Such a visit points towards an existing association. On the second occasion why did the appellant call the respondent
away from her companion and take her off in a taxi? Clearly it was so they could be alone, and the opportunity having presented itself
the appellant with the respondent's co-operation turned it to their advantage. There is, from PW's 2 & 3, independent evidence of association and independent evidence of the parties contriving to be alone.
In my view the Magistrate was entitled to regard it as corroborative of the respondent’s evidence that sexual intercourse took
place between them. The next two grounds of appeal present some difficulty and Mr Sahu Khan for the appellant has been at pains to refer to some pertinent
authorities. He referred to the evidence of the respondent that the child was mature when born, and submitted that a mature child
cannot be born in less than 270 days of gestation. He argued that this was so well known that the Magistrate should have taken judicial
notice of it. He tendered no specific medical evidence but relied upon statements made by medical witnesses in the cases which he
quoted. One of those cases is Cla Clarke [193;[1939] 2 All ER& 1mp; 1939 L.R. Ch D. & p 228 (P). At P.234 the judgment refers to the evidence of Dr Roques that it
is impossible to fix the actual date of conce and fore one took a nk a notional date which is the date of thef the menstrual period
following sexual intercourse. However, conception could occur up to 6 days before the next period is due to start. There is thus
a period of about 22 days following the last menstrual period during which conception can take place. On that basis Mr Sahu Khan
submitted that the Magistrate should have added 22 days to the date of the respondent’s last menstrual period which occurred
on 29.7.72. He submitted on the basis of that calculation that the date of conception was not 29.7.72 but about 20.8.72 to 25.3.73
which is 217 days i.e. 7¾ months. I feel that Mr Sahu Khan misinterpreted the evidence embodied in that judgment. It did not say that 22 days must be added to the last
menstrual date to find the actual date of conception, but that it could be at any time from the date of the last menstrual period
to the sixth day prior to the date on which the next menstrual period would have occurred. Therefore it is just as probable that
the child in question had been conceived on or about 29.7.72, the date of the respondent’s last menstrual period, as on 20.8.72
which would be the last probable date on which conception could occur. Hence the period of gestation in this case would also be from
29.7.72 to 25.3.73, which is 299 days i.e. 8 months and five days. In Preston Jones v PresonesJones [1951] 1 All ER 124, the House of Lords was unable tept t child would be b be born 360 days after intercourse. In thIn that case a husband based hi allegation
of his wife’s adultery on the fact that he last had intercourse with her 360 days before the birth of a child. The House of
Lords accepted it as unlikely that he was the father. Lord MacDermot in his judgment said at p.139H, “... was his case proved beyond reasonable doubt by the normal delivery of a normal child 360 days after the relevant coition?
There is no doubt that judicial notice will be taken of the fact that, in the ordinary course of nature, delivery occurs in or about
nine months after fruitful intercourse. And it is, I think, no less clear that judicial notice will also be taken of the fact that
the normal period is not always followed in nature and that the actual period may on occasion be considerably, less, or considerably
more, but the law of this country has not fixed limits of deviation from the normal period in the sense that more than a certain
period or less than a certain period is to be deemed impossible, or impossible until the contrary is proved.” Thus his lordship did not endeavour to lay down what was the shortest or what was the longest period of gestation of which the courts
will take judicial notice. He continued at p.140, A, “The question which then arises – I refer from now on only to periods longer than normal – is whether the Court
without instruction on the matter may ever regard an abnormally long period as impossible and, if so, at what point of time this
may be done.” Then he gave some guidance as to the way in which the Court may approach a period which was outstandingly long or short. He said there
must be a period so far in excess of normal that the Court cannot accept it as having resulted from the intercourse alleged by the
wife. It is clear from that judgment that I must take judicial notice that a child may be born in a period following intercourse which is
not simply less than 270 days, but considerably less than 270 days. As pointed out in Clarke v C (sup;(supra) a viable child can be born after 196 days. In the instant case the child was not born until 240 days after intercourse
which places it very much within the limits of a v birt> Accordingly,ngly, I am of the view that there was ampl ample evidence on which the Magistrate could be sure that the child was born
as a result of the intercourse which had occurred between the parties. The second ground of appeal is not made out. The appeal is dismissed with costs to the respondent and the order of the Magistrate is confirmed. Appeal dismissed. --------------------------------------------------
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