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L v M [1987] PGNC 44; [1987] PNGLR 365; N640 (27 November 1987)

N640

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

L

V

M

Wewak
Los J

10 September 1987
27 November 1987

MAINTENANCE - Affiliation proceedings - Statutory requirement for "corroboration in some material particular" - Whether independent evidence of fact in dispute necessary - Scope of requirement - General and specific corroboration - Child Welfare Act (Ch No 276), s 55(1), (2), (3).

The Child Welfare Act (Ch No 276), s 55(1) and (2), empowers the District Court to order maintenance payments in affiliation proceedings if satisfied as to paternity and that the child is left without means of support. Section 55(3) provides that no order should be made "on the evidence of the mother, unless her evidence is corroborated in some material particular".

Held

The requirement for "corroboration in some material particular" in s 55(3) of the Child Welfare Act, does not mean that independent evidence of the fact in dispute is necessary; the requirement will be satisfied by: (a) general corroboration — ie, evidence of facts (such as association and affection) from which as a matter of evidence and probability, it is more probable than not that the intercourse did take place; and/or (b) specific corroboration — in the usual sense.

Popovic v Derks [1961] VicRp 67; [1961] VR 413, considered and applied.

Cases Cited

Jaminan John v The State (No 2) [1983] PNGLR 318.
Popovic v Derks [1961] VicRp 67; [1961] VR 413.
Raukisa v Leahy [1967-68] PNGLR 153.
Skinner v The King [1913] NSWStRp 38; (1913) 16 CLR 336; 19 ALR 257; 13 SR (NSW) 582.
Thomas v Jones [1921] 1 KB 22.

Appeal

This was an appeal from an order of a District Court magistrate in affiliation proceedings brought under the Child Welfare Act (Ch No 276).

Counsel

A Jerewai, for the appellant.
M Gene, for the respondent.
Cur adv vult

27 November 1987

LOS J: This is an appeal by the appellant against the orders of the Wewak District Court that the appellant was the father of a male child, born on 4 February 1986, and that the appellant left the child without means of support. The District Court ordered the appellant to pay K15 per fortnight for the support of the child until the child reaches 16 years of age.

The notice of appeal states four grounds of appeal. The crux of the matter is that the appellant challenges the finding of the court in relation to the paternity of the child.

Section 55(1)(2) of the Child Welfare Act (Ch No 276) gives power to the court to order maintenance payments if it is satisfied as to the paternity of the child and the child has been left without means of support. But the court can only make an order if three conditions provided by subs (3) are satisfied:

"(3) A court shall not make an order under Subsection (1):

(a) on the evidence of the mother, unless her evidence is corroborated in some material particular; or

(b) if the court is satisfied that at the time when the child was conceived the mother was a common prostitute; or

(c) if the evidence adduced indicates that it is impossible or unlikely that the defendant is the father of the child."

The appellant’s counsel argued at length about the need for corroboration. I shall come to that later together with par (c). But first I want to deal with par (b).

Whether the respondent was a common prostitute. The appellant had attempted to establish that the respondent at the time was associating with other men. The Child Welfare Act does not define "common prostitute", but case law gives the meaning. The ordinary meaning is "a woman who carries on the trade or business of prostitution and submits herself to men for the purpose of gain": Skinner v The King (1913) 16 CLR 336 at 340-341. The learned magistrate in this case inferentially rejected any implication that the respondent was a common prostitute. With respect I agree with him. The appellant’s giving of somewhat generous amounts to the respondent was not merely in return for sexual intercourse and this would be clearly under a different heading. On this question again I agree with the learned magistrate. There was no evidence to support the claim that the respondent was a common prostitute. Indeed I would go as far as to say the witness CW was too fond of spreading gossip.

Whether it was impossible or not likely that the appellant was the father of the child is a matter of evidence and is closely connected with the first point. I shall therefore deal with it together with that heading.

Corroboration is essential in affiliation proceedings; it is required by the Child Welfare Act. Counsel for the appellant, Mr Jerewai, was therefore right in speaking at some length on this point. To some extent he relied heavily on the corroboration required in sexual offences. In many of these sexual offence cases it is a rule of practice rather than a rule of law. In others it is a statutory requirement. For instance corroboration is required in relation to defilement of girls under 12: s 213 of the Criminal Code (Ch No 262). I have not found many reported cases in our jurisdiction in relation to affiliation proceedings. There is a pre-independence case, namely, Raukisa v Leahy [1967-68] P&NGLR 153. But I found a very useful and helpful decision of the Victorian Supreme Court, ie, Popovic v Derks [1961] VicRp 67; [1961] VR 413. The matter came before the Supreme Court as a case stated for its opinion on the meaning of "corroboration in some material particular" which was a statutory requirement in Victoria as it is under the Child Welfare Act in application proceedings. The Court made a full examination and expressed its opinion on all aspects of the requirement for corroboration in affiliation cases.

Mr Jerewai argued that the learned magistrate made an error in holding that the appellant was the father of the child when there was no evidence to corroborate the respondent’s evidence. I consider the submission on two levels: first, general corroboration; secondly, specific corroboration.

Generally speaking there was ample evidence, or should I say, evidence in excess that the appellant and the respondent had close and intimate relations from the time they first met to two or three weeks after the child was born. The appellant admitted having sexual intercourse with the respondent at his home numerous times. Witness RK an employee of the appellant and cousin of the respondent, gave evidence of the first time she introduced the respondent to the appellant and their subsequent associations. The respondent’s mother gave evidence of sighting large sums of money in the possession of the respondent who admitted receiving it from the appellant. There was evidence of the appellant bringing food and drinks to the parents of the respondent and spending the night with the respondent. This was admitted by the appellant. Then there was evidence of the appellant picking the respondent up while pregnant and together spending the night at Brandi High School. Then there was evidence of medical expenses met by the appellant. Also, he made arrangements for money to be available in a passbook to meet any need of the respondent and the child. All these were admitted by the appellant. Most came into evidence voluntarily. What more is needed to convince the learned magistrate as to the paternity of the child. In this respect a part of the dissenting judgment of Scrutton LJ in Thomas v Jones [1921] 1 KB 22 at 39 is more apt and I adopt his Honour’s analysis here:

"... the fact that the man has had connection with the woman and a child has resulted is sometimes inferred from evidence of previous affection, that they had been seen together showing affection to each other. Sometimes it is inferred from the fact of subsequent affection — that the man and woman are seen together showing signs of affection. Sometimes it is inferred from the fact that the man has done acts which may be treated as recognising responsibility for the child as his child, statements that he will provide for the child, payments for the child, all facts from which as a matter of inference and probability it is more probable that the intercourse did take place than not."

The appellant explained why he was appearing to be showing affection by spending time with the respondent and providing food and money. I deal with this together with the question of specific corroboration.

It was claimed that the appellant could not be the father of the child. This claim was based upon three grounds. First, it was said during the period when the child was more likely to be conceived the respondent was physically out of Wewak. She was in Ambunti. Secondly, when she was in Ambunti she had sexual intercourse with a man called H. Thirdly, the claim by the respondent that indeed during the period the child was conceived she continued to have sexual relations with the appellant could not be corroborated by any material evidence. The first two questions are matters of evidence and the third question is a matter of law. The latter relates specifically to the period when the appellant says he stopped having sexual intercourse with the respondent and his witnesses say the respondent was away in Ambunti.

The child was born on 4 February 1986. There was no complication with the birth. Counting nine months back from that date the child could have been conceived in the first week of May 1985. The respondent did not experience her menstrual period in June 1985. The appellant himself did not say in any definite terms that the respondent was away in Ambunti. He said he believed she was away. But his real claim is that after the last sexual intercourse in early April he did not see the respondent until 9 June 1985 when relations resumed. The learned magistrate did not believe the appellant’s evidence and also the evidence of his witnesses. His Worship held RK’s evidence to be "fabricatory". In the context I take it to mean she made up the evidence to support her employer. As to the evidence of CW, his Workship held it to be hearsay and of little value. His Worship was right in so far as it relates to the evidence of the respondent going by a dinghy to go on board a boat with other women and getting drunk. But as to the date when the respondent returned to Wewak from Ambunti, W’s evidence does not assist at all. I do not see any apparent error in the analysis and finding of the evidence of the appellant and his witnesses. His Worship was placed in a better situation than myself. He observed the witnesses and listened to them (he even reduced into writing the evidence from pidgin to English).

The claim that the respondent had sexual intercourse with H gets support first, by inference of the evidence of CW. He said H came to him (witness) early one morning and was looking for the respondent. The respondent, though denying any general and continuous relationship, admitted going on board a boat one evening from 6 pm to 7 am for a barbeque. H and other employees of an oil company lived on board. Logically this would have happened when she was in Ambunti for two weeks. A conception during this period was possible. But the learned magistrate’s decision could not fail on this ground alone. He found that the relationship between the appellant and the respondent continued during this period. He therefore made no error in law by finding that the appellant was the father of the child.

Section 58 and s 59 of the Child Welfare Act, in particular subs (3) make such orders as were made by the learned magistrate possible:

"58. Order on admission or proof of possible parentage in certain cases.

...

(3) Without limiting the powers of a court to make any other order under this Act, where, on the hearing of a complaint in respect of the maintenance of an illegitimate child, it is proved to the satisfaction of the court that the defendant had sexual intercourse with the mother of the child so that, in the opinion of the court the defendant may possibly be the father of the child, and the defendant is over the age of 16 years, the court may:

(a) order him to pay to the director, weekly, a sum for or towards maintenance of the child; and

59. Complaint by Director or authorized person on ground of possible parentage.

...

(3) If, at the hearing of the complaint, the court is satisfied that the person complained against:

(a) had sexual intercourse with the mother of the illegitimate child in such circumstances that he may possibly be the father of the child; and ..."

The evidence that the respondent was in Wewak during the crucial period came from the respondent and her parents. She and the mother said they went to Ambunti and stayed for two weeks and returned to Wewak. The father said they went to Ambunti on 8 May 1986. They stayed for two weeks and returned to Wewak. It was this evidence, the evidence of being in Wewak and the continuation of sexual relations, which was attacked and having no corroboration at all as required by the Child Welfare Act.

The corroboration in some material particular required by the statute does not mean independent evidence of the fact in dispute. For instance independent evidence of sexual intercourse by the complainant and the man who denies this fact. If it were so the complainant’s evidence would be superfluous, because as observed by Scrutton LJ in Thomas v Jones intercourse is rarely witnessed.

The learned magistrate accepted the respondent’s evidence that she went to Ambunti in the first week of May and returned in the second week. Upon return she continued sexual relationships with the appellant. His Workship has found corroborative evidence of the respondent returning to Wewak and living in Wewak at the crucial time. He, however, had not mentioned what might be corroborative evidence of sexual relations during this crucial time. In my view this is not fatal to his Worship’s decision. His Worship had found the appellant to have falsely denied paternity of the child when all the evidence and the circumstances were pointing to him as the father of the child.

A false denial is material evidence in favour of a complainant in an affiliation case. This is a sweeping statement. But I am not accepting the statement in that form because every rule or principle has exceptions and every rule must be applied in the light of the evidence. The paraphrasing of the rules by Pratt J in John Jaminan v The State (No 2) [1983] PNGLR 318 at 326 is helpful in considering when a lie may constitute corroboration. I prefer to look at the case of Popovic v Derks which examines many other issues in the context of affiliation proceedings. The Court there formulated some propositions and guidelines with particular reference to the effect of false denials in affiliation cases. I do not wish to cite all the propositions here because they are lengthy and each proposition is broad and one has to read the analysis under each proposition to understand and apply it to the case one is dealing with. I will only refer to the ones relevant to the appeal before me.

What is capable of amounting to corroboration is a question of law. Whether in a particular case it is to be accepted as such is a question of fact for the tribunal of fact. It is immaterial whether I could have come to the same conclusion as the learned magistrate had: Popovic v Derks at 420. His Worship had found that there was a deep love and care for the respondent by the appellant most of which I referred to earlier. His Worship relied also on the suggestion by the appellant to the respondent that she have an abortion, a suggestion which was refused by the doctor who was consulted. I can see no error in this respect.

In affiliation cases mere proof of opportunity of intercourse is no capable per se of amounting to corroboration. But opportunity may be attended by circumstances of such a suspicious character as to support circumstantially an inference of intercourse and a such a case it is capable of amounting to corroboration: Popovic v Derks at 420. The learned magistrate made a finding that the respondent was at the material time in Wewak. Therefore the opportunity for sexual intercourse between herself and the appellant existed. Given the on-going relationship, I cannot see any error in the magistrate’s finding that sexual intercourse continued during the period when conception was likely.

Finally, false denials of material matters may support an inference that advantage was taken of a proved opportunity. The appellant says he first met the respondent towards the end of February 1985 and that was when he first had sexual intercourse with the respondent. Then he met her again two to three weeks later. That would be the middle of March. Again over the two to three weeks the respondent came to the appellant’s house several times. That would bring the period to first week of April. He did not see her again until 9 June.

RK through whom the appellant and respondent first met did not give any date of the first meeting. The only date she insisted upon was the one on which the respondent went to Ambunti in early April. There are two notable aspects of RK’s evidence. She emphasized early April as being when the respondent had gone to Ambunti and returned about mid-June. This coincides with the appellant’s evidence. Secondly, she is very defensive: she did not have anything to do with the respondent meeting the appellant (or vice versa).

The respondent’s mother was honest that she could not tell dates. She remembered, however, when she and the respondent went to Ambunti, they stayed for two weeks. But the father said his wife and the respondent, their daughter, came to Wewak on 3 March 1985. In the second week of March he learnt through his wife about the "trouble" between the respondent and the appellant. Then on 8 May his wife and the respondent went to Ambunti. After two weeks they all came to Wewak because he was no longer employed. They spent the rest of May in Wewak and during the second week of June he learnt of the respondent ceasing to have her menstrual period.

The respondent’s evidence was that she first met the appellant in the first week of April 1985. The respondent may not be exactly right here in view of her parents’ evidence and the appellant’s evidence. But if she was correct, the relationship would have continued until 8 May when she and the mother had left for Ambunti. But then the appellant could not be correct either when he said he first met the respondent at the end of February. The respondent and her mother came to Wewak on 3 March 1985. That had not been shaken. Other important dates have not been shaken; the respondent had left Wewak on 8 May. They returned to Wewak with the father after two weeks. Hence the respondent was again within reach of the appellant as from the fourth week of May.

The dates are very important in an affiliation case. While the parents had an interest in the outcome of the case because their daughter was involved, the respondent and the appellant had more immediate interests. The respondent did not have a sophistication that the appellant apparently had. It seems strongly to me the dates he had given were as a matter of rationalisation — to assist in the denial of paternity rather than the exact dates. In this respect I again quote part of the analysis by Sholl J in Popovic v Derks at 422:

"(A) When an inference can be drawn that the defendant is falsely denying the circumstances because he fears that to admit them would appear inconsistent with his innocence, or throw suspicion upon himself, corroboration may be found. This is a kind of admission by conduct. That is to say, matters which otherwise might be ambiguous or colourless are rendered suspicious and corroborative by reason of the defendant’s false denial — the inference open to the tribunal of fact being that, to him, the matter denied suggests guilt, so that, therefore, he is prepared falsely to deny it."

That any further doubt that the appellant might have been falsely denying the continued sexual intercourse during the crucial period must now be removed by his own other piece of evidence hitherto not alluded to by the magistrate. The appellant gave a further reason why he could not be the father of the child. He said that several times when he had sexual intercourse with the respondent it was not complete sexual intercourse. Further he had been careful with his methods. I am not sure what he meant by not complete sexual intercourse. For the latter I guess he was talking about the use of a method of contraception. It was honest of him to say so. But it was not honest in relation to his total denial. That is, after the first week of April he had not seen the respondent and hence there was no more sexual intercourse until after 9 June 1985. In my view he can have it either one or the other way, he cannot have it both ways. In my respectful view this piece of evidence taints his denial. He could not have meant to conceal from others a discreditable association with the respondent because the fact of a close association had been well known. Also his denial could not be a result of pure panic because there was no surprise involved.

The learned magistrate might not have discussed fully all the issues involved. But whether he reached his conclusion because of direct or indirect evidence, I do not see any error in his conclusion that the appellant is the father. His orders are consequential upon his finding. I therefore dismiss the appeal.

Appeal dismissed

______________________

Lawyer for the appellant: Alois W Jerewai.
Lawyer for the respondent: Public Solicitor.