Kipit v Chongahan [1994] PNGLR 274 (19 January 1994)

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PRACTICE AND PROCEDURE - Unsworn complaint - Oath mandatory in s 51(2)(a) Child Welfare Act - Unrepresented prosecutrix - Did what told by court officials - Natural justice.

EVIDENCE - Corroboration - Paternity - Court may infer that sexual intercourse took place when a man and a woman are alone in a particular place.

The appellant had been found by a Children's Court to be the father of a child born to the respondent on 8 March 1991. The appeal was on three grounds: that the original complaint was not sworn in accordance with s 51(2)(a) of the Child Welfare Act Ch 276; that the evidence adduced was not conclusive on paternity; and that there was no corroboration.

1. The Child Welfare Act requirement that a complaint be on oath is mandatory, but technical defects not raised at the original hearing should not be used to defeat the claim when the substance of the law has been complied with.

2. Subsection 55(3) of the Child Welfare Act, which requires corroboration of the mother's evidence in "some material particular", may be satisfied if evidence is given as to meetings between the couple concerned at the presumed time of conception.

3. Subsection 55(3) does not require corroboration by eye-witnesses; it is not necessary that the intercourse be seen. Courts can infer that, given the combination of a man and a woman alone in a particular place, intercourse took place.

DOHERTY J: This is an appeal against a finding of the Children' s Court at Lorengau on 17 July 1991, which adjudged that the appellant was the father of a child born to Elizabeth Chongahan on 8 March 1991 and ordered him to pay maintenance for the child in accordance with the Child Welfare Act Ch 276.

There were three grounds of appeal, the first relates to the procedure and the others to the evidence.

I note that the Court was a Children's Court, and a lay member was present in accordance with the Act.

The appellant says that the original complaint was not sworn in accordance with s 51(2)(a) of the Child Welfare Act. That provision, which is in Part IX - Affiliation Proceedings, is as follows:

The section appears to be mandatory. "Complaint" is not defined in the Act, but it provides for the adoption of some of the District Court procedure provisions and applies them to Part IX.

"Complaint" is defined in the District Court Act to include an information and includes an application and notice of set off. It, therefore, has a wide meaning as a form of originating process in the lower court. In the short time available for hearing of this appeal, I have been unable to find case law as to whether the lack of compliance with this procedural provision is fatal to the application in the lower court. I note that the record shows that the respondent put her facts in the complaint and in a supporting affidavit form, which was headed "Oaths and Affirmation Act". She says that she brought it to the Court and it dealt with it. It is notated at the end as follows: "Sworn at Lorengau the 8th of May 1991". She has signed it, but the part "Commissioner for Oaths" is left blank and has no signature.

It appears to me from the record and from what the respondent says that she did make an effort to comply with s 51(2)(a).

Neither of the parties was represented in court, and I accept that they did what they were told to do by court officials, as they have no legal training or education. I notice too that this discrepancy was not taken in issue by the appellant when the case was raised three years ago. I note that this provision is mandatory, and I consider that the respondent did what she could to comply with the legislation.

It appears to me to be contrary of natural justice if I allow, three years later, a point of procedure that was not raised in the lower court, which the respondent herself tried to comply with, and permit it to defeat the entire claim.

I consider that she gave sworn evidence, she was cross-examined, and this fulfils the spirit of the legislation. I consider that this Court has an inherent power vested in it by the Constitution to ensure that the spirit as well as the letter of the law is upheld. This is a technical defect. It was not raised. I feel that it would be unfair to defeat this claim by raising it at this point.

The second ground of appeal is that the magistrate could not have been satisfied that the defendant/appellant is the father of the child when the evidence adduced showed that it is impossible, or unlikely, that he was the father.

The child was born in March 1991. I note on the record that the lay member of the Children's Court asked if it was a full-term child and was told that it was.

The respondent gave the dates in which intercourse occurred between her and the appellant. These included dates in May, June, July, and August 1990. The appellant did not deny intercourse. He alleged that the intercourse took place in August, thereby saying that he could not be the father because he did not have intercourse at the relevant time when the child was likely to have been conceived.

He and his counsel both concede that the friendship started between him and the respondent in April 1990 and continued thereafter. Hence, there was a friendship for a period of four months from April to August 1990, but he denies intercourse at the relevant times.

"Where, at the hearing of a complaint in respect of the maintenance of an illegitimate child, a male person over the age, or apparently over the age of 16 years admits or says that he had sexual intercourse with the mother of the child in such circumstances that, in the opinion of the court, he may possibly be the father of the child, the court may, on the hearing and without complaint made for the purpose:

a) order him to pay to the Director weekly, a sum for or towards maintenance of the child ...

but an order shall not be made under this subsection unless the male person is given an opportunity to be heard by the court in respect of the making of the order."

In the case before me, the appellant admitted having sexual intercourse with the respondent. He denies some of the dates. He concedes there was a friendship earlier than the possible date of conception.

The Child Welfare Act s 55(3) requires corroboration of the mother's evidence "in some material particular", and the third ground of appeal is that there was no corroboration. I will look at the evidence relating to grounds 2 and 3 (whether intercourse occurred in June and corroboration) together.

The respondent says that the friendship started and intercourse took place on specified dates in May, June, July, and August. She called as witnesses two other people. One of them, Rita Pangi, was a relative of the appellant who said that she had arranged meetings. She said, "He told me to tell the complainant that he wanted her .... I used to tell her about the defendant, and the defendant would go to her." Ms Pangi said that he sent her four times. However, she did not know the dates and, therefore, it was not corroborative of the exact dates, but does confirm meetings.

Another witness, Augustine Polumbut, said, "I was a messenger for the both. I would send a word for the defendant to Elizabeth and vice versa. On 3 May 1990, the defendant told me on 15 May 1990. I also passed word. On 20 June 1990, I passed word. On 27 July 1990, I passed word. Their meeting place was in our house, in our kitchen, and backyard".

Hence, he gave evidence that the message was sent between the two to meet in the kitchen or backyard on those dates. I note that it includes one relevant date, ie 20 June.

It appears to me, therefore, that this is corroborative evidence of a meeting at a relevant time between the respondent and the appellant. Mr Kua says that there was no evidence that intercourse actually occurred on the particular dates referred to by the witness. As other judges have said, and I recall Justice Konilio, in particular, saying in strong terms, human beings do not have intercourse in public, "they are not like dogs". Whilst I accept that nobody actually saw the appellant and respondent having intercourse, it does not automatically mean that it did not occur. Other jurisdictions and other courts have said that in certain circumstances, a court can infer that, given the combination of a man and a woman alone in a particular place, intercourse took place.

I find that the evidence of Augustine Polumbut is corroborative of the allegation made by the respondent that she had intercourse with the appellant in June 1990.

The standard of proof that the Children's Court is obliged to adopt is set out in the Child Welfare Act. I have read the relevant provisions. It is well established law that once a Court has seen and heard and assessed the witnesses and makes a finding of fact based on their testimony, their demeanour, etc, an appellate court is reluctant to overturn findings of fact which are supported on the evidence before it. An appellate court should only overturn findings of fact by a Court that has seen and assessed witnesses when it is satisfied that, on the facts, the conclusions could not have reasonably been reached.

In this case, in accordance with the Child Welfare Act, the respondent was given an opportunity to be heard, he conceded intercourse, he conceded a relationship, and the Court was entitled, on the evidence before it, corroborated by Augustine Polumbut and Rita Pangi, to make the conclusion that intercourse took place during a relevant period in June.

The other ground relating to evidence was that the respondent had intercourse with another person. This gives an implication, although it is not stated in the evidence, that this other person could possibly be the father of the child.

I note that the respondent conceded that she had a friendship with another man, although the word intercourse was not mentioned, at an earlier time in the year. The evidence was not rebutted, and the man was not called. Nor did someone else come to give evidence on behalf of the appellant in the court to the effect that the respondent was cohabiting or have a sexual relationship with someone else. In that case, I conclude that the Children's Court was entitled to make the finding of fact it did, according to the provision in the Child Welfare Act.

Section 58(2) implies that an order can be made against more than one person. It says, "An order may be made under Subsection (1) against each of any number of male persons". Hence, there appears to be a provision that a Court can make a decision against two people. The Children's Court obviously did not issue any summons to anyone else. I can only presume it was satisfied on the facts before it.

I consider, on the facts before me, that the Children's Court did not err in its findings. I find that the complainant's evidence was corroborated, as I have stated, by the witnesses, and I can find no error in the Court's conclusions.

I, therefore, dismiss the appeal. However, it would appear from the facts that the respondent is not able to pay the amount of money ordered. I intend, therefore, to make a further order, as I am entitled to do under the provisions of the District Court Act, and remit this matter for re-hearing on quantum.

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Papua New Guinea Law Reports

Kipit v Chongahan [1994] PNGLR 274 (19 January 1994)

PNG Law Reports 1994