Moidin v Meli [1975] FijiLawRp 20; [1975] 21 FLR 128 (30 October 1975)

[1975] 21 FLR 128

SUPREME COURT OF FIJI

MOIDIN
s/o KADAR

v

VINIASI MELI

[SUPREME COURT, 1975 (Williams J.), 30^th 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 ER 270;  [1947] KB 831.
Clark v Clark  [1939] 2 All ER 59; [1939] P. 228.
Preston Jones v Preston Jones  [1951] 1 All ER 124;  [1951] AC 391.

Appeal against the decision of the Magistrate’s Court adjudging the appellant the putative father of the respondent’s child.

A H Sahu Khan for the appellant.
S Prasad for the respondent.

WILLIAMS J.: [30^th October 1975]–

This is an appeal against the decision of a Magistrate who decided that the appellant was the putative father of the respondent’s child. The grounds of appeal are:-

1. The 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 25^th July 1972 when she came to the 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 called to her, that she accompanied 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 (post). The reference therein to the existence of opportunity was commented upon by Lord Goddard CJ in Moore v Hewitt  [1947] 2 All ER 270, at 272, where he referred to the decision in Burbery v Jackson  [1917] 1 KB 16. The learned Chief Justice did not disagree with the decision of the Court but he criticized the learned editor’s headnote, 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 farmhands whose 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 Clarke v Clarke  [1939] 2 All ER 59; & 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 conception and therefore one took a notional date which is the date of 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 Preston Jones  [1951] 1 All ER 124 at 127 H, Bucknil LJ observed that the court has judicial notice of the normal period of gestation and he indicated it as 270 days to 280 days.

Can a normal child be borne 40 days before the normal period gestation would have expired? The female respondent says it was a fully matured child and Mr Sahu Khan seized on that statement to support his submissions. There is no doubt on the evidence that if it was conceived as a result of intercourse on 28.7.72 then the birth on 25.3.73 was premature. A great deal depends on what the respondent meant by fully matured. It was not information which she volunteered during her evidence-in-chief, but resulted from cross-examination. To say “yes” in reply to the question – “was the child fully matured?”, could mean it had the usual human attributes – two arms, two legs, 10 fingers and toes etc. The respondent may have had this meaning in mind when she spoke of maturity because she followed up those answers by saying the child had no deformity.

I do not think the Magistrate was bound to accept the respondent’s statement in cross-examination that the child was fully matured as evidence that it had been born at the end of a normal period of gestation i.e. about 270 days after intercourse. Mr Sahu Khan for the appellant, has not explained what he means by a matured child, or a fully matured child. When one speaks of a premature child one speaks of a child which has been born before the end of the normal period of gestation; but premature is a word which one applies to time-tables by reference to which arrivals and departures may be aptly described as premature, overdue, or on time. The estimated date of birth is calculated on generally accepted principles to which I have already referred. A child which is born before that date is regarded as “premature”. It would be contradictory to give evidence, as in this case, showing that a child was born about 40 days early according to those calculations, and then state categorically that it was not premature. However, this may not be the same as saying that the premature child had not developed to a stage where it could be described as mature.

According to the expert evidence given in Clarke v Clarke (supra) the word “viable” is used to indicate the chances of survival of a prematurely born child. In that case The President, in his judgment at p.232 said:

“Dr Rogers went on to say that in his view the earliest age at which a child was viable, or putting it the other way, the shortest period of foetal life which speaking generally would produce a viable child which would survive, was 28 weeks or 7 lunar months .....”

The learned President accepted that evidence and then went on to find that a child born after 174 days of gestation on the aforesaid notions of conception and gestation may well be a viable child.

In Preston Jones v Preston Jones  [1951] 1 All ER 124, the House of Lords was unable to accept that a child would be born 360 days after intercourse. In 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 Clarke (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 viable birth.

Accordingly, I am of the view that there was 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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