PK v DD [1990] PGNC 32; N843 (4 May 1990)

Unreported National Court Decisions

N843

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

AP NO 198 OF 1990
BETWEEN: P. K.
APPELLANT
AND: D. D.
RESPONDENT

Lae

Doherty AJ
27 February 1990
4 May 1990

AFFILIATION PROCEEDINGS - corroboration of mother’s evidence Child Welfare Act Ch. 276 s 55 - what can amount to corroboration

An appeal from a decision of a Children’s Court, which found that the respondent was the father of a child born to the appellant but that there was insufficient evidence to make an order for maintenace.

Held:

(1) ـ The stayutory requirequirement is corroboration of a material particular of the evidence of the mother.

(2) &#Corroboratiod notte todattodate sexual intercourse took place.

.

(

(3)&#13) &#16e man’s failure ture to give evidence t corationeal u s 58(4) Child Welfare Act rect referreferred to.d to.

(4) &&#160t caa amou amount to t to “corrobon ofteriaticular̶” di1; discussscussed?

Cases Cited:

Cole v Manning [1877] UKLawRpKQB 17; [1877] 2 Q.B.D. 611.

Simpson v Collinson ] 1 A 262 3

Crap>Cracknelcknell v Smith [1960] 3 All ER 569 at 571

Raukisa v Leahy [1967-68] PNGLR at 153

Counsel:

K Gamoga, for the Appellant

L Henao, for the Respondent

DOHERTY AJ: This is an appeal from a decision of the Lae children’s Court on a hearing of a complaint by the appellant that the respondent was the father of her child born on the 24th of November 1988 and, being a male over the age of 16 years, left the child without means of support. The complaint was laid under s 51 of the Child Welfare Act (Ch 276). This is headed: “Affiliation proceedings After Birth of Child.” The proceedings under s 51 are not laid in the normal procedure for a complaint in the District Court but are subject to special provision under s 52 (no issue has been raised on this matter) and rules of evidence under s 55 of the Child Welfare Act.

The appeal turns on the interpretation of s 55 and its application in this case. The grounds are:-

1. The Learned Magistrrte eined in Law in

(a) ;ټ weighinighing evid evidence on the standard of proof of “Beyond Reasonable Doubt”;

(b) ; not consideriig evidence ence that the Respondent wa fath the child;

(c)p>(c) & dismissing the complaint aint when he states in his Judgement that he was cced tspondas the fathefather of r of the cthe child.

2. ټ T60; The Learned Magistrare erred in fact in:

(a) finding the Respondent to be the father of the child but deciding against the Appellant.

I state from the outset the fof the are not straight fd ande is a difference in medical opinions all of which hich serveserve to c to compliomplicate cate the issues in this case.

The respondent elected not to give evidence although he was present during the hearing, was represented by counsel and strenuously cross examined the appellant on fundamental issues of the case. It was put to her, inter alia, that intercourse never took place between them, that the respondent did not admit paternity, that she did not contact him by letter or through another person, that she was still trying to trace him in July 1988, that she was seen with other men including other expatriates at the same time she was with the respondent. The appellant did not concede to any of these points and remained adamant that the respondent was the father of her child.

The respondent is under no legal obligation to give evidence but the effect of his failure to do so is to leave the appellant’s evidence under oath unrebutted. I will deal with the provative value of failure to give evidence in affiliation cases in due course.

The appellant met the respondent at a dance in Goroka on the 15th of April 1988, he was living at Lae but apparently in Goroka on business. The appellant was working as a nursing sister in Goroka but transferred to Vanimo Hospital on the 17th of April 1988 and is still working there. The appellant agreed to accompany the respondent after the dance and they went with “another white guy”, (as she said) the appellant first informing her two friends (neither of whom were called to give evidence). The respondent and the appellant spent the night together and the appellant says that intercourse took place twice on the morning of the 16th of April 1988 after which the two went their separate ways and did not meet again until the appellant phoned the respondent from Angau Memorial Hospital on the 21st of December 1988 (approximately one month after the birth) and asked him to come and see the child.

I am sure this came as a considerable surprise to the respondent after so long a silence and from counsel’s arguments, it would appear to be a contributing factor to his contesting the case and this appeal. The appellant says she tried to contact him in June and her sister-in-law contacted the respondent at her request in October 1988 and informed him of the pregnancy. The sister-in-law was not called. The appellant says she wrote a letter to the respondent on the 12th of October 1988 but “he never replied that letter. He may dumped the letter in the rubbish bin.” (Sic) She mentions two other attempts to contact the respondent by phone but the respondent was not at his office.

It was put to the appellant that she threatened to make a scene at the respondent’s office if he did not come to the hospital; the implication being that this was the only reason he came and visited the appellant and the child. I do not consider that his visit and suggestion of adoption could be interpreted as an admission that the child was his as the appellant states in her supporting affidavit dated 13/3/89 lodged in the District Court. I do not consider that it amounts to corroboration of a material particular in this particular case (though it may well be in some other case). The appellant gave no oral evidence of an admission of paternity by the respondent at the hearing.

The child was born 7 weeks premature on the 24th of November 1988, the premature birth is not contested by the respondent but the likely date of delivery if the child had been full term is contested because of conflicting medical reports.

EVIDENCE IN AFFILIATION PROCEEDINGS

Section 55(1) of the Child Welfare Act gives a power to a Court to order a defendant to pay the Director of Child Welfare a weekly sum for the maintenance of a child where the Court is satisfied that the child is illegitimate and the defendant is father of the child, he is over the age of 16 and has left the child without means of support. The power appears to be a discretionary one as a word “may” is used but there is a statutory restriction on the Court in s 55(3) which states that:

A Court shall not make an order under subsection (1) -

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

(b) ـ&#1f the the court ourt is satisfied at tme whe chis cond the mother was a as a commocommon pron prostitustitute; ote; or

(c) if the evidence addiced thes th is impossible orle or unli unlikely that the defendant is the father of the child. (My emphasis)

It is interesting to note, aremarn Cro Evidsecontralian Edition parn par 9.10 9.10 that that the the requirequirement for corroboration applies only to the evidence of the mother. If proceedings were taken out by the Director of Child Welfare under s 51(1)(b) of the Child Welfare Act and he was able to show that the defendant was the father, the child was illegitimate and the father was over the age of 16 and had left his child without means of support he would not, apparently, be required to corroborate his evidence.

The requirement of corroboration traces its history to the English Legislation and in particular to the Bastardy Laws Amendment Act 1872. A man had no legal obligation in Common Law to his illegitimate child (see V and the history outlined by MacDermott J). The Child Welfare Act contrasts with other law relating to the maintenance of children in this respect e.g. The Deserted Wives and Childrens Act Ch. 277, which does not require any corroboration. Whether this reflects a Victorian attitude to immorality of the mother of an illegitimate child or the Common Law attitude that only a child born in wedlock must be the child of its father or whether the requirement reflects the attitude that “sexual allegations are easy to make and hard to disprove” I cannot say. However the onerous requirement is there and it puts an extra burden on the mother if the father disputes paternity.

Mr Henao, for the respondent argues that these three grounds cannot be read separately. He argues that there must be corroboration of some material particular regardless of whether the other grounds “that the mother was a common prostitute”, or the evidence shows that it is “impossible or unlikely that the man is the father” exist. He argues that there must be corroborated evidence and if it is corroborated it is only then that the provisions of s 55(3)(c) will arise. He argues that before the mother makes any claim, it must be established that sexual intercourse at a relevant time took place and this must be corroborated by evidence other than the mother’s own evidence, by independent testimony.

The law does not state that it is evidence that sexual intercourse took place between the mother and the man she alleges is the father at a relevant date that must be corroborated. The law is that the mother’s evidence must be corroborated in “some material particular”. It is not restricted to evidence of date of intercourse and this is borne out in cases in Papua New Guinea from other jurisdictions.

Other jurisdictions, which have similar legislation and which have considered this provision have held that corroboration of “some material particular” does not necessarily mean that it is corroboration that sexual intercourse took place between the parties at a particular time. In Cole v Manning [1877] UKLawRpKQB 17; [1877] 2 Q.B.D. 611 it was held that evidence of intimacy and friendship between a putative father and the mother some months prior to the likely date of conception could amount to corroborative evidence. It was stated:

“No rule of law excludes testimony as to acts of familiarity before the time when the bastard child could have been begotten; and evidence of that kind shows at least a probability that the statement of the mother is true.”

It was stated in Simpson v Collinson [1964] 1 All ER 262 at p 263:

“It seems to me that the first important thing to do is to refer to the terms of the statute, the Affiliations Proceedings Act [1957]...”

The wording of that act is of the same effect as the wording of s 55(3)(a) of the Child Welfare Act. It provides:

“If the evidence of the mother is corroborated in some material particular by other evidence to the court’s satisfaction...”

As the Court of Appeal stated in Simpson v Collinson:

“What the statute requires is not corroboration... of the whole of the mother’s evidence but merely corroboration of the evidence of the mother in regard to “some material particular.”

In the case of Simpson v Collinson admissions by the putative father that he had intercourse twice with the mother at a date before the child could possibly have been conceived was capable of being corroboration of the appellant’s evidence. Hence, it would appear from other jurisdictions on which our legislation is based that “the material particular” does not have to be corroboration relating to the precise date of conception but can be some fact that forms corroboration of a material particular of the mother’s story. In Principles of Family Law (dealing with the family law of Papua New Guinea) the writers Jessup and Luluaki give examples of corroboration:

“The requirement that the mother’s evidence must be corroborated simply means in addition to her own account there must be some other evidence which supports her claim in a relevant way. This could be provided by another witness who knew the couple, or by letters pointing to the existence of their relationship or by admissions or inconsistencies in the evidence of the defendant himself.”

Failure on the part of the defendant to give evidence, (as happened in the case before me), will not amount to corroboration. This was reviewed comprehensively in Cracknell v Smith [1960] 3 All ER 569. At p 571 it was said:

“I am clear that the failure of the appellant to go into the witness box cannot of itself afford corroboration.”

and

“I am perfectly clear that a respondent to a complaint of this sort is fully entitled not to go into the witness box. If there is evidence against him and some corroboration evidence, it may be that the justices are entitled to take into consideration the fact the he gave no evidence in considering the weight to be attached to the corroboration. But here, if I am right, there was no corroboration at all, and, in those circumstances, I am quite clear that the failure of the appellant to go into the witness box cannot of itself afford corroboration.”

I consider that such a rule would be appropriate in Papua New Guinea which has adopted the standard that a complainant must prove a case and silence does not amount to an admission of an allegation. However, it does leave the complainant’s evidence unrebutted.

Cracknell v Smith (supra) did not accept as corroboration evidence by the mother of the complainant that her daughter and the putative father were seen at the corner of a street some months before and had been out together from time to time. In the case before me the learned magistrate was critical of the complainant and her failure to call the friends she referred to as being present on the night of the dance or of the sister in-law who relayed the message in October 1988.

He ruled that the complainant’s evidence must be corroborated from an independent source and independent testimony. I am not certain if the learned magistrate is stating that the corroboration must be independent of both the complainant and the defendant. If it is meant that corroboration must be independent of the complainant and the defendant then I must disagree with this. Actions by the defendant himself could amount to corroboration e.g. in claiming the child on his income tax or signing the child’s certificate of birth. The Act does not say independent corroboration it says “corroboration of a material particular.”

In defining “corroboration” the learned magistrate refers to his finding that the child was of mixed parentage and found that the child was of Papua New Guinean and European origin. He said “I have no doubts on that”. Mr Henao in his arguments says that the learned magistrate cannot make such a finding; he suggests that he requires expert evidence and that it is dangerous to accept such a finding on the part of the learned magistrate because (I quote what Mr Henao says) “some Papua New Guineans can be very light, their hair is light, this is common knowledge.” It was not put to the appellant mother that she had any liaison with a light skinned person other than the respondent.

The corroborative and probative value of the looks of the child have always been approached with great caution but the looks of the child cannot be completely disbarred from evidence. The writers of “Maintenance, Custody and Adoption” Bourke and Fogarty state:

“Whilst it cannot be said evidence of an alleged resemblance between a physical appearance of the child and of the defendant is not admissible and cannot amount to corroboration, nevertheless it is only an exceptional circumstances that it could be so. For example, if the child was a half-caste and the mother and the alleged father were different and appropriate nationalities such evidence would be clearly admissible and may be strong evidence supporting the mother, and there may be other similar striking basis of a resemblance.”

This relates on cases outside Papua New Guinea but I consider that they are appropriate here. Not to admit evidence that the child is the child of a mother and a father from different nationalities would be to fly in the face of common sense. If the mother and the father had been from the same home area and background then extreme caution should be taken in admitting evidence of the looks of the child as sole probative corroboration. Whilst I accept that expert evidence in such matters would be far more acceptable than an observation by the Court the learned magistrate has made a finding of fact based on evidence before him and an appeal court without the benefit of seeing and hearing witnesses is always reluctant to over turn such evidence.

I consider this finding of corroborative value of a material particular of the mother’s evidence.

There was also medical evidence adduced and that medical evidence, as I have said already, has conflicts. Two medical reports both dated 28th June 1989 by the doctor attending the appellant (in which she is referred to as P. D.) were presented in evidence. These show that she first informed her doctor that her last period was on the 10th of April 1988 and later amended this to the 5th of April 1988. She explained in evidence that she did not have her diary with her and was mistaken. However she only changed that date a week prior to the hearing. The medical evidence regardless of the date of the last menstrual period showed that when examined on the 23rd of November 1988 she was then 33 weeks pregnant by “date and fundal height”. The doctor explained that fundal height is a measurement of the height of the uterus and from this it is possible to calculate how long the woman has been pregnant. In both reports he estimated the length of pregnancy at 33 weeks regardless of whether the period was on the 5th or the 10th of April 1988 and confirmed it again in Court. It was put to the doctor in cross examination that conception would have been later than the 16th of April 1988 if the appellant’s last menstrual period was on the 10th of April 1988 and this was agreed. Mr Henao persued this in argument on appeal. It appears that he bases is argument on a view that conception and intercourse must be at the same time. This is not a fact, as Dr Lemung said in his evidence “it wouldn’t be necessary. It has a span of eight days”. Certainly this change in dates does go to the credibility of the witness but I find that the measurement of fundal height by the doctor that showed the appellant was 33 weeks pregnant is consistent in both and is corroboration of the mother’s evidence in a material particular viz said that she became pregnant in mid April, (since the calculation of the age of the unborn child dates from the last menstrual period).

Mr Henao argues that other medical reports using a Dubowitz system (which is not explained) shows that the child was older than 33 weeks at time of delivery. The report in which this is assessed is dated the 29th of June 1989 that is seven months after the birth and its author was not called and I cannot ascertain how it was admitted. It was put to Dr Lemung, who said he had never used that graph (it was not his speciality) that it was more reliable. He replied that it would “depend very much on the growth of the baby inside the uterus” but when asked if it would be more independent, said “yes”. The respondent relies heavily on this. Since the evidence relies on a person who frankly says he did not use it I do not consider it can rebut called oral evidence by an expert witness.

The grounds of appeal relate to the standard of proof and corroboration. The learning magistrate does make references to the corroboration as “not being substantial”. There is no doubt that the standard of proof in affiliation cases is on the balance of probabilities as was ruled in the case of Raukisa v Leahy [1967-68] PNGLR 153. This must apply also in this case. I am not sure which standard the learned magistrate did adopt. He quite clearly states in p 65 of the transcript that: “The standard used is a lesser standard, below the “beyond reasonable doubt” which is the higher standard” and I agree with him. He does define “corroboration” by reference to a criminal case but the definition is a general one. The learned magistrate also says the Court “must decide beyond doubt” the corroboration must be “independent testimony, direct or circumstantial. If the learned magistrate means evidence of a 3rd person when he says “independent” then he is not supported in this view by the authorities.

The learned magistrate says the evidence is “insufficient”. I agree that the behaviour of the appellant in the predicament she found herself unusual and he may be correct in his opinion that it is a “not care attitude (as he referred to it) but this cannot override the evidence and corroboration before the court.

I find he did finally seek a standard of proof that was higher than balance of probabilities and was erroneous.

There was apparently no consideration of the provisions of s 58(4) of the Child Welfare Act (which enables a court to make an order where it is satisfied the defendant had sexual intercourse with the mother may possibly be the father, is over 16 years and left the child without support). The learned magistrate appears to have satisfied himself on all three points and the section was open to him. It has the effect of being an order under a 55(1) of Child Welfare Act. However the section includes, at 58(6), a requirement of corroboration and the wording and provision is the same as s 55(3) and I consider is the same standard of corroboration as is called for in s 55(3).

I consider the learned Magistrate did find the respondent to be the father but erred in not accepting the corroboration before the Court.

1. &##160; I60; I upholdathe l pea rend remit to the Children’s Court for assessment of the weekly sum of maintenance.

2. Idawar a to. y

Lawyer for Respondent: Warner Shand