Nukuse v Buatigau [2001] FJHC 13; Hba0012j.2000s (28 March 2001)

Fiji Islands - Nukuse v Buatigau - Pacific Law Materials

IN THE HIGH COURT OF FIJI

At Suva

Appellate Jurisdiction

CIVIL APPEAL NO. 0012 OF 2000

Between:

ATUNAISA NUKUSE

Appellant

- and -

LUISA BUATIGAU

Respondent

Ms. S. Tabaiwalu for the Appellant

Respondent in Person

JUDGMENT

This is a second appeal against the decision of the Nausori Magistrates Court adjudging the appellant the putative father of a male child born of the respondent on 15^th April 1998. The appellant was also ordered to pay weekly maintenance for the child in the sum of $7.50 until the child attained the age of 16 years.

The principal ground of appeal raised by the appellant is that the trial magistrate `erred in law and fact in accepting the respondent’s evidence and finding the appellant to be the putative father of the child born to the respondent’. If I may say so, this is an entirely vague and unhelpfully-drafted ground which can cover a multitude of errors.

Be that as it may, before dealing with the appeal proper it is necessary to correct a misunderstanding about the true nature of affiliation proceedings. Counsel for the appellant began her submissions by drawing the Court’s attention to Section 26 of the Maintenance and Affiliation Act (Cap.52) which provides that : `All applications under this Act, shall be made in accordance with the provisions of the Criminal Procedure Code ...’ From this counsel submits that the standard of proof required in affiliation proceedings is the criminal standard beyond all reasonable doubt.

In support of this submission counsel cited a dictum of Jayaratne J. (as he then was) in Gyannandra Das v. Milika Adiqa Civil Appeal No.15 of 1990 (unreported) where his lordship said in a four (4) page judgment at p.3 :

`The burden of proof is on the respondent to prove that she was conceived by this man and the degree of proof is beyond reasonable doubt. There was one time a conflict of judicial opinion regarding the burden of proof but now it stands resolved that it is beyond reasonable doubt.’

No authority has been cited for that apparent resolution nor was any reference made to a statutory provision similar in terms to Section 93 of the Matrimonial Causes Act (Cap.51). Indeed no attempt was made at all in the judgment to trace either the `conflict of judicial opinion’ or the manner and nature of its resolution, presumably, by an appellate court judgment or legislation.

Suffice it to say that the judgment of Jayaratne J. is in my considered view, neither persuasive nor authoritative and I respectfully decline to follow it.

I accept however that an affiliation order can have a stigmatising effect on the putative father or child in question and might even be used as a means of intimidation or extortion (see : Section 17). It is accordingly an order not to be granted lightly or in the absence of material corroboration [see : Section 18(2)]. But what is the `standard of proof’ required in an affiliation case ?

This question, whether affiliation or bastardy proceedings are civil or criminal in nature and the `standard of proof’ required in such proceedings, has been posed and answered by our courts in relation to the Bastardy Ordinance (cap.33) which was the immediate predecessor to the Maintenance and Affiliation Act and, in particular, in regard to Sections 16 & 19 of the Bastardy Ordinance which assimilated the procedure in bastardy proceedings to that under the Criminal Procedure Code [cf : Section 26 of the Maintenance and Affiliation Act (Cap.52) op.cit].

In Dettke v. Miller (1967) 13 F.L.R. 74 Hammet J. in rejecting a submission that bastardy proceedings were criminal or quasi-criminal in nature said of Sections 16 & 19 of the Bastardy Ordinance (Cap.33), at p.76 :

`It is quite clear from the express words of these sections that all they do is to provide for the procedure to be followed in Bastardy cases. The mere fact that the procedure is to follow the provisions of the Criminal Procedure Code does not of itself make them criminal proceedings if they are not in fact criminal proceedings.’

and later, after considering dicta in various English cases dealing with bastardy proceedings, his lordship said at p.77 :

`I cannot therefore accept the appellant’s contention that such proceedings are criminal or quasi-criminal in nature. The learned trial Senior Magistrate was, in my view, correct in his view that proceedings under the Bastardy Ordinance are civil proceedings and not criminal proceedings.’

In similar vein in Kunjbehari v. Lorna Hicks (1969) 15 F.L.R. 90 Thompson Actg P.J. said at p.92 :

`The fact that the procedure to be followed is that prescribed by the Criminal Procedure Code does not mean that all the substantive 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 with an appeal under the Bastardy Ordinance, said in Fulori Raqalo v. Hari Bhagwan (1973) 19 F.L.R. 64 at 67 :

“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. Of course this is not so, as was held many years ago by Ragnar Hyne C.J. in Pickering v. Kiss (Cr. App. No. 30 of 1953) where the Chief Justice said -

`These surroundings being civil proceedings, the standard of proof is not as great as that required in criminal actions ...’ “

More recently, after the passing of the Maintenance & Affiliation Act 1971, the Fiji Court of Appeal said in 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 dismissing a second appeal by the putative father in Mahesh 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 the respondent was telling the truth beyond reasonable doubt. This completely misconceived the law.’

The Maintenance & Affiliation Act (Cap.52) however, is not completely devoid of guidance on the standard of proof required to be met by an applicant in so far as 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 Bodilly 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 :

`The court must have sufficient evidence before it to be reasonably satisfied. I think it is clear that a court would not be reasonably satisfied upon a mere balance of probability, on the other hand, I do not think that the standard of proof required by that section is as high as that in criminal cases, namely beyond any reasonable doubt. It lies somewhere between the two. ...... It was urged by Mr. Ramrakha that where the effect of the proceedings were to bastardise a child, strict proof must nevertheless be required. I can find nothing in the Ordinance to support that view. The standard of proof there set out makes no exception, though perhaps one might expect a court in such cases to take a stricter view of the evidence than might otherwise be the case.’

(See also : The judgment of Sir Trevor Henry J.A. in Jamisha Ali v. Hasiman Nisha 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 this regard, counsel complained that the trial magistrate failed to consider the appellant’s evidence and, in particular, a blood test report and semen analysis which counsel submits conclusively proves that the appellant is physically incapable of fathering a child.

In this latter regard counsel drew the court’s attention to the evidence of Uraia Rabuatoka (p.17 of the record) who testified at the trial and produced his report which was marked Exhibit 1. That should not have occurred.

This procedure was deprecated by Grant Actg C.J. (as he then was) in Colin Raymond Langford v. R. (1974) 20 F.L.R. 11 when his lordship said at p.12 :

`This doctor was called as a witness ... and was permitted by the trial magistrate to put in evidence his written medical report in which he gave his opinion ... This report if contemporaneous could certainly have been used by the doctor to refresh his memory but it should not have been produced in evidence unless, as a statutory 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 the basis of the oral testimony 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 ibid at p.13 :

“... 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 one is infallible and no expert, however specialised his knowledge, would claim to be. The opinion of an expert is only as reliable as his reasons for reaching that opinion and the methods employed to establish his reasons. If the methods employed consist of tests, the court must look at the nature of the tests and the qualifications and experience of the person administering them. If the tests are themselves inadequate or the qualifications and experience of the 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 succinctly expressed by Lord President Cooper in Davie v. Edinburgh Magistrates [1953] S.C. 34 at 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 of Session rejected the proposition that a judge or jury is bound to adopt the views of an expert, even if they should be uncontradicted, as `The parties have invoked the decision of a judicial tribunal and not an oracular pronouncement by an expert.’ (Ibid)

Indeed, there have been occasions when the courts have approached the testimony of expert witnesses with some degree of suspicion ...

I do not suggest that the evidence of an expert witness should necessarily be viewed with distrust, but it should be treated with caution 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 witnesses to facts (e.g. Aitken v. McMeckan [1895] UKLawRpAC 8; [1895] A.C. 310).”

As for the sufficiency of the blood analysis report in this case, given the absence of any evidence as to the nature of the actual tests conducted which are described as `the first line of determination’, or any explanation of the reasons for the conclusion reached, and mindful of the printed disclaimer on the face of the report that the particular testing procedure used is `...only to exclude Blood groups NOT TO PROVE PATERNITY’, it is perhaps not surprising that the trial magistrate formed the view that he did.

Plainly the learned trial magistrate was entitled to prefer the undisputed evidence of the respondent that after the first occasion in March 1997 and a lull in May 1997, intercourse had regularly occurred with the appellant `... Four times in the month of June, inside the van ... (and) four times in July, practically every week. In the month of August my menstruation stopped ...’ In cross-examination, the respondent also rejected a suggestion that she was going out with another man presumably during the relevant time, and this was confirmed by her witness also in cross-examination.

The appellant for his part, whilst acknowledging intercourse with the respondent on at least four occasions, nevertheless denied paternity since in his own words : `From my own experience (in 16 years of marriage) I cannot father a child.’ He was also quite improperly permitted to produce, as an exhibit, a letter purportedly written by a Consultant at the C.W.M. Hospital who opined from three (3) semen samples of the appellant taken and analysed in May, June and July 1997 that : `it is most unlikely that (the appellant) fathered this child’.

I say improperly permitted since the appellant, not being the author of the letter, was quite incapable of speaking to its contents in any meaningful way that might have assisted the trial magistrate in the difficult task of considering what weight to attach to the opinion tendered on the basis of the isolated tests undertaken on the appellant (whatever they might have been).

Even if one accepted that the letter was properly admitted by the trial magistrate, in the absence of the author’s evidence and given the rather vague equivocal opinion expressed therein viz `most unlikely’, little weight (if any) could be placed on it and, in my view, was properly ignored in the trial magistrate’s judgment. Needless to say, this was not a case of a man who was utterly incapable of having sexual intercourse or of producing semen at all.

Whatsmore as the learned trial magistrate correctly observed (at p.29 of the record) : `If we are to calculate the month, when the complainant’s menstruation had stopped, which is August, 1997 and the month in which the baby was born which is April 1998, it is exactly nine months.’ This is plainly a reference to the normal gestation period of a full-term baby which the trial magistrate was entitled to take judicial notice of.

As was said by Lord MacDermott in Preston-Jones v. Preston-Jones (1951) 1 ALL E.R. 124 at p.139:

`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.’

Accordingly, I am of the view that there was more than ample corroborated evidence on which the learned trial magistrate could be satisfied that the respondent’s child was born as a result of intercourse which had occurred with the appellant. The principal ground of appeal accordingly fails.

The appellant has also appealed against the maintenance order made against him, on what basis is not disclosed in the Notice of Appeal nor was the matter pressed at the hearing of the appeal, but, in any event, that was an order the learned trial magistrate was clearly empowered to make in favour of the child in terms of Section 18(2) of the Maintenance & Affiliation Act (Cap.52) upon adjudging the appellant the putative father.

Whatsmore the record sufficiently reveals that the question of maintenance was raised properly with the appellant after judgment was delivered and he is recorded to have said : `I am prepared by (sic) $5 p.w.’ As for the actual amount ordered viz `$7.50 p.w.’, that is an amount well within the limit contemplated by the legislature `for the maintenance and education of the child’ [See : Section 18(2)(a)].

The appellant having failed on both grounds of appeal, the appeal is hereby dismissed.

(D.V. Fatiaki)

JUDGE

At Suva,

28^th March, 2001.

HBA0012J.00S