Raukisa v Leahy [1967] PGSC 38; [1967-68] PNGLR 153 (3 November 1967)

Papua New Guinea Law Reports - 1967-68

[1967-68] PNGLR 153 - Raukisa v Leahy

[1967-68] PNGLR 153

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

RAUKISA

V.

LEAHY

Port Moresby

Minogue J

4 October 1967

3 November 1967

MAINTENANCE - Affiliation proceedings - Corroboration - Common prostitute - Decision refusing order reached before conclusion of cross examination - Miscarriage of justice - Procedure applicable in Children’s Court - Child Welfare Ordinance 1961-1966, ss. 35, 59(3)^*[ccxxxiv]¹ - District Courts Ordinance 1963-1965, s. 236(2)^*[ccxxxv]^2* .

The corroboration required by s. 59(3) of the Child Welfare Ordinance 1961-1966 must go in support of intercourse at a time consistent with conception.

Harding v. Porta[1933] VicLawRp 68; , [1934] V.L.R. 79, referred to.

The appellant made a complaint alleging that the respondent was the father of her female child whom he had left without means of support. The appellant gave evidence that she had first met the respondent in June 1964 and that intercourse had taken place on that occasion and several times within the next two months. On each occasion the respondent gave her money though, according to the appellant, she did not ask for it. She became pregnant and the child was born on 16th March, 1965. The appellant’s evidence was supported by one T., who deposed to being in the respondent’s house with both parties and to seeing the appellant go into a bedroom there with the respondent. She further deposed that this had occurred after they had returned from a musical performance called the Col Joye Show. No evidence of the date of the show was adduced. The respondent gave evidence that in late August 1964 he and two companions picked up the appellant and two other girls in the street and that later that evening he had intercourse with her at his house. He admitted having intercourse with her on other occasions afterwards and claimed that he paid her money each time. He had no recollection of taking her to the Col Joye Show. While the respondent was still being cross-examined by the appellant’s solicitor the presiding magistrate stated that the court had already reached its decision and refused to make an order on the grounds that the evidence as to the paternity of the child was inconclusive and that the mother was shown to be a common prostitute at the time the child had been begotten. Upon the hearing of the appeal to the Supreme Court from this decision the appellant was granted leave to file an affidavit which established the date of the Col Joye Show as 28th June, 1964.

Held:

N1>(1)      That the evidence of T. did not corroborate in a material particular of the appellant’s evidence as to the paternity of the child.

N1>(2)      Despite the absence of corroboration of the appellant’s evidence (which would have been present had the affidavit evidence before the Supreme Court been adduced in the Children’s Court) there had been a substantial miscarriage of justice because the court had erred in law in holding that the appellant was a common prostitute and because the court had failed to give the appellant’s solicitor an opportunity to complete his cross examination.

Skinner v. The King (1913), 16 C.L.R. 336, referred to.

Appeal from Children’s Court.

The Children’s Court held at Lae dismissed a complaint by Freida Raukisa (the appellant) that Timothy Leahy (the respondent) was the father of the appellant’s female child Jocelin Karem born on 16th March, 1965, and had left the said child without means of support.

Against this dismissal the appellant appealed. All relevant facts relating to the conduct of the hearing of the complaint in the Children’s Court and to the issues appear in the reasons for judgment.

Counsel:

P. Luke, for the appellant.

E. Pratt, for the respondent.

Cur. adv. vult.

3 November 1967

MINOGUE J:  This is an appeal brought by the appellant against the refusal of the Children’s Court at Lae of an order for payment of maintenance upon a complaint made by her that the respondent was the father of a female child, to wit, Jocelin Karem, born on 16th March, 1965, at Kaisenik and had left the said child without means of support. The grounds taken in the notice of appeal were that the decision of the court was wrong in law and that it was against the weight of the evidence. At the hearing before me, Mr. Luke for the appellant, sought to add a further ground, viz. that the Children’s Court failed to comply with s. 67(1) of the District Courts Ordinance 1963-1965. That section enables a complainant or his counsel to cross-examine the witness giving evidence against him. It was said by Mr. Luke that the solicitor who appeared for the complainant at the Children’s Court hearing was stopped in the course of his cross examination of the defendant by the announcement that the court had reached its decision to refuse to make an order, i.e. to dismiss the complaint. I allowed him to file an affidavit to this effect made by one Brian Charles Hoath. I am inclined to think that the effect of s. 35 of the Child Welfare Ordinance is to make applicable the procedural provisions of the District Courts Ordinance to a hearing before the Children’s Court and so to give legislative warrant for, inter alia, the examination and cross examination of witnesses. But the matter which Mr. Luke really sought to assert was that the court had denied the appellant the right through cross examination to establish or support her case. This, I think, would amount to an error in law.

The complaint of the appellant was made under s. 55 of the Child Welfare Ordinance 1961-1966. By the combined operation of ss. 5, 36 and 37 of that Ordinance a complaint of this nature must be heard in a Children’s Court, except in the cases where no Children’s Court has been established. Such a court has been established at Lae. The appeal is brought under the provisions of s. 52(2) of the Ordinance and s. 52(3) makes the law relating to appeals from Courts of Summary Jurisdiction applicable to an appeal from a Children’s Court. Under the section “Court of Summary Jurisdiction” is defined to mean a District Court or a Court of Petty Sessions. By s. 287 of the District Courts Ordinance 1963-1965 a reference in any other law in force in the Territory to a Court of Petty Sessions or a District Court shall be read as a reference to a District Court established under the Ordinance. Appeals from decisions of district courts are governed by Pt. XI of this Ordinance. In accordance with s. 230 a copy of the order or adjudication of the Children’s Court, the reasons given by the court for the making of the order or adjudication, the complaint and the depositions taken were forwarded to this Court and I had them before me. So far as is relevant s. 236 (1) provides that upon the hearing of an appeal the Supreme Court shall inquire into the matter and may:

N2>(d)      remit the case for hearing or for further hearing before the court which made the conviction, order or adjudication or any other competent court;

N2>(e)      exercise a power which the court which made the conviction, order or adjudication might have exercised.

Section 236 (2) provides that an appeal shall be allowed only if it appears to the Supreme Court that there has been a substantial miscarriage of justice. No other guidance is given as to the considerations upon which the court should proceed in deciding an appeal.

From the record of proceedings it appears that the appellant gave evidence that she had first met the respondent in June 1964, and that on the occasion of their first meeting she went to his house, where intercourse took place on two occasions. This she deposed was the first time that she had had intercourse with any man. A week later intercourse took place again in the respondent’s house. On each of these occasions the respondent gave her money although she did not ask for it. The appellant again met the respondent on a date which she places as 20th June and on that date she deposed that they went to the picture theatre to see Col Joye. I understand that this refers to a musical performance given by or under the direction of a man named Col Joye. Intercourse again took place at the house after the conclusion of this performance. On each occasion the appellant stated that the respondent gave her what he said was a contraceptive tablet before intercourse. She deposed to further intercourse on two successive subsequent Saturdays, on the latter of which she informed the respondent that she was pregnant and he told her to say that he was not the father of the baby. The child was born on 16th March, 1965. The appellant had no further conversation with him after the last occasion to which I have referred above.

The appellant was supported in her story by one Tikereng who deposed to being in the respondent’s house with the respondent and the appellant, to her seeing the latter go into the respondent’s room and to herself going to bed with one Richard, who seems to have been the brother of the respondent. She further deposed to going to the Col Joye Show with the appellant and the respondent and his brother and to going to the respondent’s house after this performance where the appellant went into a room with the respondent and she herself had intercourse with the brother in another room. She further stated that after this occasion she had seen the appellant in the respondent’s company. I should add that in cross examination by the solicitor for the respondent, the appellant denied having had intercourse with any other man prior to her having intercourse with the respondent. She stated that she went with the respondent in June and did not menstruate in July and she admitted that every time she had intercourse that the respondent had paid her money and she further admitted that in September, she had had intercourse with another man, a Papuan.

At the conclusion of the evidence for the appellant the respondent gave evidence. In the course of that evidence he stated that he became acquainted with her and that in late August 1964 he and two companions picked up the appellant and two other girls in the street. They arranged to meet them after the pictures and having done so, asked them if they would like to go to the respondent’s house. One of the girls asked “how much we were going to pay”, to which the respondent replied “about one pound”. He went on to state that “they agreed to this and went into the house in Kent Street”. According to him he went into his bedroom, that the appellant undressed herself and he undressed himself and intercourse took place. He admitted going out with her on other occasions, having intercourse and always using a vaginal contraceptive. He deposed to the second meeting being after the Goroka show, being 26th, 27th or 28th August. He denied that she had at any time told him she was pregnant. He said the first he knew of it was when a welfare officer, called Knoll, told him that the appellant had had a baby. He had no recollection, so he said, of the Col Joye Show. He claimed that on each occasion he met the appellant he picked her up in the dark and subsequently took her back to the nurses’ quarters (she being a nurse at the Angau Memorial Hospital in Lae) and paid her a fee. In cross examination he stated that he remembered on one occasion she wanted more than one pound and he said he would think about it. Whilst the cross examination was in progress, the magistrate stated that the court had reached its decision and was not prepared to make an order against the respondent as they considered that the evidence as to the paternity of the child was inconclusive and that the mother was shown to be a common prostitute at the time the child was begotten. The reasons for decision set out on the Court Record read: “The court refuses to make an order for payment of maintenance on the grounds that the evidence as to the paternity of the child is inconclusive and that the mother is shown to be a common prostitute at the time the child was begotten.”

The Children’s Court is not permitted to make an order under s. 59:

N2>(a)      upon the evidence of the mother unless her evidence is corroborated in some material particular;

N2>(b)      if the court is satisfied that at the time the child was begotten the mother was a common prostitute; or

N2>(c)      if the evidence adduced indicates that it is impossible or unlikely that the defendant is the father of the child.

Mr. Luke submitted to me that the court was wrong in law in expressing itself as satisfied that the appellant was a common prostitute and it was wrong also in that in expressing the view that the paternity of the child was inconclusive, it adopted a wrong standard of proof. “Conclusive” he said, indicated a degree of absolute satisfaction and the word “inconclusive” was the contrary of conclusive. From this he argued that the court was applying a standard of proof even in excess of proof beyond reasonable doubt and in this type of proceeding all that was required was proof on the balance of the probabilities. I agree with Mr. Luke that there was no evidence to support the finding that the appellant was a common prostitute; see Skinner v. The King[ccxxxvi]³ per Barton A.C.J.[ccxxxvii]⁴ and Isaacs J.[ccxxxviii]⁵, still less that she was such at the time the child was begotten. As to the standard of proof, it may be that what the members of the court were saying amounted to no more than that the appellant had not satisfied them on the evidence adduced by her. The onus was on the appellant to prove her case. Subject to the question of corroboration which I will consider presently it seems that there was a sufficient prima facie case and the court appears to have thought so. No submission was made at the close of her case that there was no case to answer and the respondent went into evidence. The unfortunate feature of this case is that the court announced its decision in the course and before the conclusion of cross examination by the appellant’s counsel and it does not appear that he was given an opportunity to argue the matter. The course taken seems to me unsatisfactory and I think it desirable that the matter should be reheard. However, Mr. Pratt for the respondent submitted that I cannot send this case back for hearing because it could not appear to this Court that there has been a substantial miscarriage of justice. This is so he said, because on the appellant’s case the court should not and could not have held in her favour as there was no corroboration in some material particular and if this was so there could be no miscarriage of justice when it appeared from the appellant’s own case that she could not succeed because she had not satisfied a condition of the court’s jurisdiction to make an order. The evidence of Tikereng merely served to corroborate that intercourse had taken place between the appellant and the respondent but the corroboration must be in some material particular of the appellant’s evidence as to the paternity of the child, i.e. the corroboration must go in support of intercourse at a time consistent with conception and Tikereng’s evidence did not fulfil this requirement. I am of opinion that corroboration must be of this nature: see Harding v. Porta[ccxxxix]⁶. The only evidence as to time contained in Tikereng’s testimony was that on the second occasion that intercourse took place, it was after the Col Joye Show and the first act of intercourse took place a week prior to this. No evidence was given as to the date of the Col Joye Show. Lae is a small community and live foreign entertainment is in the nature of a rarity. It could well be that in Lae the advent of Col Joye and his performers was of such notoriety that nobody could fail to have in mind that this performance took place in June 1964. I allowed an affidavit to be filed by the manager of the Stewart Theatre at Lae in which she deposed that the Col Joye Show was held in that theatre on 28th June, 1964. No point seems to have been taken at the close of the appellant’s case that there was no corroboration, and nothing was said by the court to indicate that it based its finding on there being none. Had the theatre manager given evidence, the existence of evidence of corroboration would, it seems to me, have been beyond doubt.

Because the court erred in law in holding that the appellant was a common prostitute and because it did not give her solicitor the opportunity to complete his cross examination in which conceivably he may have extracted damaging admissions from the respondent, in my opinion the appellant was deprived of the opportunity which may have been open to her to have a finding in her favour. This in my view constitutes a substantial miscarriage of justice. I adhere to the view I expressed earlier that the matter should be reheard. There is not sufficient material before me to enable me to come to a conclusion upon the evidence and this is particularly a case where the court’s impression of the manner and demeanour and truthfulness of the witnesses is of paramount importance. I wish to make clear that in what I have said I express no view as to what the result of the rehearing should be. I perhaps ought to say that I am of the opinion that the criminal standard of proof does not apply in proceedings of this kind and that the court should apply the standard of proof in civil cases, bearing in mind the observations of the members of the High Court in Briginshaw v. Briginshaw[ccxl]⁷. Accordingly I allow the appeal and remit the case for hearing before the Children’s Court at Lae.

Appeal allowed. Case remitted for new trial.

Solicitor for the appellant: W. A. Lalor, Public Solicitor.

Solicitor for the respondent: S. H. Johnson, Crown Solicitor.

R> R>

[ccxxxiv]>* Section 59(3) of the Child Welfare Ordinance 1961-1966 provides, inter alia, that a Children’s Court shall not make an affiliation order - “(a) upon 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 the child was begotten the mother was a common prostitute”.

[ccxxxv]** Section 236(2) of the District Courts Ordinance 1963-1965 provides: “An appeal shall be allowed only if it appears to the Supreme Court that there has been a substantial miscarriage of justice”.

[ccxxxvi](1913) 16 C.L.R. 336.

[ccxxxvii](1913) 16 C.L.R., at p. 341.

[ccxxxviii](1913) 16 C.L.R., at p. 343.

[ccxxxix][1934] V.L.R. 79.

[ccxl][1938] HCA 34; (1938) 60 C.L.R. 336.