J v S [1986] SBHC 14; [1985-1986] SILR 209 (2 September 1986)

1985-1986 SILR 209

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No 159 of 1986

J

v

S

High Court of Solomon Islands
(Ward C.J.)
Civil Case No. 159 of 1986

15 August 1986 at Gizo
Judgment 2 September 1986

Affiliation, Separation and Maintenance Act 1971 - putative father - burden of proof.

Facts:

The appellant appealed against the dismissal by the Principal Magistrate (Western) of her complaint under the Affiliation, Separation and Maintenance Act 1971 to adjudge the respondent the putative father of her child. The grounds of appeal were that the judgment was against the weight of the evidence, that the learned Magistrate failed to direct himself on the burden of proof, that burden being the balance of probabilities, and that on the balance of probabilities the Magistrate should have found in favour of the appellant. The appellant also sought leave to add the further ground that new evidence was available that would prove the appellant’s case.

Held:

1. The fresh evidence should be allowed but, as the assessment thereof would require an evaluation of it and the credibility of witnesses, a full hearing would be necessary.

Accordingly, the finding of the Magistrate was quashed and the case remitted for trial de novo by a different magistrate.

2. Obiter - Because the stigma and financial burden that may stem from a finding of putative fatherhood are similar to that stemming from a grant of divorce on the grounds of adultery, the same standard of proof should apply to each.

3. Obiter - A divorce case, like any civil case, may be proved by a preponderance of probability, but the degree of probability within that standard depends on the subject matter. The graver the offence, the clearer the proof must be. (Blyth v. Blyth (1966) 1 AER 524 at p. 535 per Lord Denning followed).

4. Obiter - Accordingly, in a divorce or affiliation proceeding the evidence must satisfy the court on the preponderance of probabilities. It does not need to attain the degree of certainty required for a criminal conviction, but the court must always bear in mind the seriousness of the allegation.

Cases considered:

Blyth v. Blyth (1966) 1 AER 524
Bater v. Bater (1950) 2 AER 458
Briginshaw v. Briginshaw [1938] HCA 34; (1938) 60 CLR 336

R. Hughes for the Applicant
J. Piasi for the Respondent

Ward CJ: This is an appeal against the dismissal by the Principle Magistrate (Western) on 4^th March 1986 of a complaint under the Affiliation, Separation and Maintenance Act, 1971, to adjudge the respondent the putative father of a child born to her on 12.8.85.

The grounds of appeal are-

1. That the judgment was against the weight of the evidence generally.

2. That the learned Magistrate erred in not directing himself as to the burden of proof, namely on the balance of probabilities.

3. That the learned Magistrate found that the defendant’s story was very unlikely and accordingly should have found, on a balance of probabilities, in favour of the Appellant.

Leave is sought to add a further ground.

4. That further and new evidence now available, leave for which is sought to adduce at the appeal hereof, sufficiently proves the appellant’s case.

Exhibited to this additional ground is an affidavit of the substance of the fresh evidence the effect of which would be to contradict the whole basis of the defendant’s case. I feel such evidence should be allowed but, as an assessment of that evidence would involve an evaluation of the evidence and credibility of the witnesses, it will clearly necessitate a full hearing.

I accordingly quash the learned Magistrate’s finding and remit the case for trial de novo by a different magistrate.

The first three grounds, all bear on the burden and standard, of proof to be applied and, whilst it is unnecessary to consider them in view of my decision on ground 4, counsel for the appellant has asked for clarification of the onus of proof.

Clearly the general rule applies regarding the burden namely that it falls on the party asserting. Both counsel agree the standard is the civil standard of proof on a balance of probabilities.

Mr Hughes has cited Uma v. Registrar of Titles (1983) SILR 265 for that proposition. In that case at p. 269, Daly CJ, states “There can be no argument that, first, as this is a civil matter the burden of proving an assertion is on the party making it....Second, again as a civil matter the standard of proof is to satisfy.....on the balance of probabilities”.

That statement is, of course, correct but the problem arises as to what is sufficient to satisfy the court in a case such as this.

In general terms, the courts in England have, on the one hand, tended to suggest special rules apply as to the standard required in matrimonial cases and, on the other, have avoided defining it.

The words that have been considered are in section 4(2) of the Matrimonial Causes Act 1950 and similar words in earlier enactments. That section directs that if the court is “satisfied on the evidence” of the various allegations in the petition it shall pronounce a decree and, if it is “not satisfied ... it shall dismiss the petition”.

The same words are used in the Islanders Divorce Act, s.8(2).

The Affiliation, Separation and Maintenance Act, section 5 reads-

“5(1) On the hearing of the complaint, the court shall hear the evidence of the complainant and such other evidence as may be produced in support, and shall also hear any evidence tendered by or on behalf of the defendant.

(2) If the evidence of the complainant is corroborated in some material particular by other evidence to the satisfaction of the court, it may adjudge the defendant to be the putative father of the child....”

The possible stigma and financial burdens that may flow from such a finding are similar to the grant of a divorce on grounds of adultery and it is for this reason I feel that the same standard of proof should apply.

Recently, the English courts have held that the standard of proving the grounds of a divorce was beyond reasonable doubt. This would seem to have stemmed from the concept of the matrimonial offence (since removed from the English divorce law) and a concern to preserve the sanctity of marriage.

However, this has not always been the case. One of the most commonly quoted dicta on this subject is in 1810 when Sir William Scott suggested the circumstances must be such as would lead the guarded discretion of a reasonable man to the conclusion.

In 1874 in Mordaunt v. Moncrieffe the House of Lords ruled that divorce proceedings even alleging adultery were civil proceedings and that analogies and precedents of criminal law had no place in the divorce courts.

Unfortunately a series of confusing cases resulted in the application of the criminal standard of proof beyond reasonable doubt until Lord Denning brought the law back to the earlier position in Blyth v. Blyth (1966) 1 AER 524. At p. 535 he states in dealing with section 4(2) of the English Act.

“It becomes plain that the word “satisfied” deals only with the incidence of proof not with the standard of proof. It shows on whom the burden lies to satisfy the court, and not degree of proof which he must attain.”

He later states that the act leaves it “to the court itself to decide what standard of proof was required in order to be “satisfied”. .....In short, it comes to this; so far as the grounds of divorce are concerned, the case, like any civil case, may be proved by a preponderance of probability, but the degree of probability depends on the subject matter. In proportion as the offence is grave, so ought the proof to be clear.”

That has been followed in a number of case but this passage, with the reference to a variable standard, is better understood by considering Lord Denning’s earlier statement in Bater v. Bater (1950) 2 AER 458 on which the above quoted passage was based.

“The difference of opinion which has been evoked about the standard of proof in recent cases may well turn out to be more a matter of words than anything else. It is, of course, true that by our law a higher standard of proof is required in criminal cases than in civil cases. But this is subject to the qualification that there is no absolute standard in either case. In criminal cases the charge must be proved beyond reasonable doubt but there may be degrees of proof within that standard. As Best CJ and many other great judges have said–

“in proportion as the crime is enormous, so ought the proof to be clear.”

So also in civil cases, the case may be proved by a preponderance of probability, but there may be degrees of probability within that standard. The degree depends on the subject matter. A civil court, when considering a charge of fraud, will naturally require for itself a higher degree of probability than that which it would require when asking if negligence is established. It does not adopt so high a degree as a criminal court, even when it is considering a charge of a criminal nature; but it still does require a degree of probability which is commensurate with the occasion. Likewise, a divorce court should require a degree of probability which is proportionate to the subject matter.”

Throughout the period that the English courts were applying the more onerous standard, the Australian courts had always applied the civil standard in divorce cases. However, they also suggested such cases required the degree of proof appropriate to a serious allegation. Thus for example in Briginshaw v. Briginshaw [1938] HCA 34; (1938) 60 CLR 336, Latham CJ said–

“The ordinary standard of proof on civil matters must be applied to the proof of adultery in divorce proceedings, subject only to the rule of prudence that any tribunal should act with much care and caution before finding that a serious allegation such as that of adultery is established.”

These authorities show the position equally in divorce and affiliation proceedings. The evidence must satisfy the court on the preponderance of probabilities that the allegation has been made out. It does not need to attain the degree of certainty necessary to support a conviction on a criminal charge but the court must always bear in mind that the allegation is a serious one.