British Institute of International and Comparative Law

Corroboration in Affiliation Proceedings in the Commonwealth Author(s): Lystra Kodilinye Source: The International and Comparative Law Quarterly, Vol. 36, No. 2 (Apr., 1987), pp. 368375 Published by: Cambridge University Press on behalf of the British Institute of International and
Comparative Law

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Some of judicialvoting patternsin high courts,based on publisheddecisions.46 it has in generalbeen done by social scientists this work has been interesting47; than that undertaken and is more sophisticated by Frenchlawyers.The French lead, however, in study of quantitativedispositionof cases. One can foresee improved methods, increasinginvolvementof social scientists and increased interestin suchstudiesin the commonlawworld.48 will therebybe broughtto the work of the majorityof Greatertransparency Thereare manyproblemsin accumulatjudges.Thisshouldnot be exaggerated. seriesof thousmodels.Computer analytical appropriate ing dataand providing ands of cases will not bring credit or discreditto individualjudges. Yet it is whichchooses possiblethat majorformsof bias can be detected. The judiciary to intervenein an active fashionin many areas of social activityis one, moreover, which invites surveillance.The feasibility of such surveillanceshows the need for diversity clearly,and this is not a frequentthemein legal literature, exerciseof judicialauthority.If there is to in the continuing of decision-making must remaindiverse, be such diversity,moreover,criteriaof decision-making cases. The and the judiciarymust remainsensitiveto the equitiesof individual of the function. of characteristics is a useful reminder judicial computer
H.
PATRICK GLENN

CORROBORATION IN AFFILIATION PROCEEDINGS IN THE COMMONWEALTH is that a child has THE vital fact whichmustbe provedin affiliation proceedings with the defendant. been born to the applicantas a resultof sexualintercourse Act 19571 Section4(1) of the AffiliationProceedings providesthatthe courtmay adjudgethe defendantto be the putativefather, but only in a case where eviin some materialparticular dence given by the motheris corroborated2 by other It would be misleadingto formulatethe evidence to the court's satisfaction.3
1965-1977" (1978) 18 Jurim. J. 369, with further references; S. Peck, "The Supreme Court of Canada, 1958-1966: A Search for Policy through Scalogram Analysis" (1967) 43 Can. B.R. 666. 47. See in particular D. Robertson, "Judicial Ideology in the House of Lords: A Jurimetric Analysis" (1982) 12 Br. Pol. Sc. 1, 25 (arguing for a "specifically judicial ideology" in part characterised by a "systematically maintained choice between extending and restricting the general scope of law"). 48. See, for recent computer tracing of sentences in magistrates' courts in the UK, The Times, 27 Nov. 1985, p.12. 1. As amended by the Affiliation Proceedings (Amendment) Act 1972. 2. The word "corroboration" has no special technical meaning. It means no more than evidence tending to confirm other evidence. See DPP v. Kilbourne (1973) 1 All E.R. 440 and DPP v. Hester (1972) 3 All E.R. 1056; see also R. v. Uriah Lemard (1975) 13 J.L.R. 132 (Jamaica). 3. Affiliation proceedings are civil in nature and the balance of probability test applies with regard to the proof of paternity of the child. See the Canadian cases of Afilalo v. Kay (1979) 9 R.F.L.(2d) 127 and Re J. and D. (1974) 14 R.F.L. 317. They are also domestic proceedings within s.65 Magistrates' Court Act 1980.

Court on theUnited States Behaviour 46. See,e.g., R. Handberg, Supreme "Opinion

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kind of evidence which will amount to corroboration because the nature of the corroboration will necessarily vary according to the particular circumstances of the case. It is proposed in this article to consider the question of what is capable in law of amounting to corroboration. Reference will be made to English statutes and case law and those of other Commonwealth jurisdictions. The classic definition was given by Lord Reading CJ in R. v. Baskerville4: We hold that the evidencein corroboration mustbe independent testimonywhich affectsthe accusedby connecting or tendingto connecthimwiththe crime.In other in some words, it must be evidencewhichimplicateshim, that is, whichconfirms materialparticular not only the evidencethat the crimehas been committed,but also thatthe prisoner it. The test applicable committed to determine the natureand extentof the corroboration is thusthe samewhetherthe case fallswithinthe ruleof is practiceat commonlaw or withinthat classof offencesfor whichcorroboration requiredby statute. It follows that what is required is independent evidence which shows that intercourse with the putative father was probable, not merely possible. Furthermore, the Act does not require corroboration of the whole of the mother's evidence but only in some material particular. In any event, to require corroboration of the whole of the mother's evidence would render that evidence superfluous. A. Independent Testimony

Corroborative evidence cannot be evidence which is reiterated by the same witness. If this were not so, a liar could corroborate his lies merely by repeating them. Acute problems arise when an unmarried mother seeks to corroborate her evidence by a diary she has kept or by a letter written to her by the putative father. The former situation arose in the Canadian case of Barron v. Kennedy5 where the mother failed in her attempt to tender a diary kept by her in order to corroborate her own testimony. Fitzgerald DCJ stated: andnot the best evidence,andfurther. . . in anyevent, even . . it is self-serving if admissible,it could not be corroboration of the maker'sevidenceas to the facts recordedtherein. It lacks that independence whichis essentialto a corroborative function.6 In X v. Y7 the central issue was whether a letter written by the putative father had any corroborative value. This was a decision of the New Zealand Court of Appeal and the relevant statute was section 49(2) of the Domestic Proceedings Act 1908, which stated that: "No paternity order shall be made upon the evidence of the mother of the child unless her evidence is corroborated in some material particular to the satisfaction of the court." The question of law on appeal was whether the magistrate was entitled as a matter of law to accept the letter produced by the mother as corroborating in some material particular her evidence that the respondent was the father of her child. The letter was hand4. [1916] 2 K.B. 658, 667. 5. (1978) 5 R.F.L.(2d) 148.

6. Idem,p.152.

7. [1975] 2 N.Z.L.R. 524.

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written in the Samoan language and the accuracy of the English translation was corroborated by another witness. There was no direct New Zealand authority on the point and the case fell to be decided on authorities from other Commonwealth jurisdictions, particularly England and Australia. A majority of the Court rejected the line of reasoning in the English case of Johnson v. Pritchard,8 where the Divisional Court disapproved of the statement that a complainant in paternity cases can corroborate herself by saying that the letter was written by the putative father. Instead, the New Zealand Court of Appeal adopted the reasoning in Jeffery v. Johnson,9 a decision of the English Court of Appeal which expressly overrules Johnson v. Pritchard.'0 Denning LJ there stated: The evidenceof the mothercan be dividedinto two parts.First,the partin which she provesorallythatthe manwas the father;secondlythe partin whichshe proves of the letter. It is the firstpart,her evidenceas to paternity,which the handwriting is affordedby the contentsof the letter. needs corroboration. That corroboration to be that of the man. Once the handwriting She only proves the handwriting is proved,the contentsprovethemselvesratherin the natureof realevidencelike an exhibit which, once it is properlyidentified,proves itself. Her evidence as to paternityis, therefore,corroborated by otherevidence,namelythe contentsof the letter." The Australian courts have, however, rejected the line of reasoning in Jeffery v. Johnson.12 Crutchfield v. Lee'3 is authority for the proposition that a complainant does not corroborate her own evidence by producing a letter which she swears is in the defendant's handwriting. The same view was taken by the Full Court of Queensland in King v. Deel'4 where the relevant provision was that "no man shall be taken to be the father of any illegitimate child upon the oath of the mother". In Scott-McLean v. Hilton15 Joshe J, referring to the conflict, stated that Jeffery v. Johnson'6 "should not be accepted here". It must be noted, however, that even in those jurisdictions, such as England and New Zealand, which do accept such documentary evidence, the genuineness of the evidence must be carefully scrutinised. The court must judge the authenticity of the document even though it is not necessary to have expert evidence. This, however, is a preliminary step and is an issue distinct from the principal issue of paternity on which corroboration of the mother's evidence is required. In New Zealand jurisdiction is vested in professionally trained magistrates, whereas in England lay justices have to consider all relevant circumstances surrounding the genuineness of the handwriting. Statements made by the mother relating to the time when intercourse must have taken place must be corroborated by independent testimony. Failure to do
8. (1933) 97 J.P.Jo. 754. 9. [1952] 2 Q.B. 8.

10. Supra,n.8. 12. 13. 14. 15. 16.

11. [1952] 2 Q.B. 8, 12.

Supra,n.9. [1934]V.L.R. 146. [1932]Q.W.N. 4. [1972]A.L.R. 413. Supra,n.9.

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this resultedin the rejectionof the mother'stestimonyin Jonesv. Thomas.17In Canada the same principle applies. In Lutherv. Ryan'8 the Newfoundland SupremeCourtemphasisedthat only independenttestimonywould suffice,and to supportthe mother'scomplaint.In thiscase the that hearsaywas inadmissible had told her that she had spent manynights witnessstated that the complainant in the defendant'sroom, and on a later occasionthat she believed that she was pregnantand the defendantwas the fatherof the child. WalshCJ held that the statement was hearsay and therefore inadmissible.Furthermore,he stated: to the other girl was not a complaintas to "The statementby the complainant anythingof that kind and is of no value even as a test of consistencyof conduct."'19 B. Denialof InnocentFacts Lies relatingto some materialparticular amountto mayin certaincircumstances corroboration.There is no general rule as to which specific type of lie can but it seems that lies cannotgenerallybe so regarded amountto corroboration, unless they are of such a natureand madein suchcircumstances as to disclosea v. guilty mind. This principlewas laid down by the DivisionalCourtin Corfield that he had Hodgson.20 Here the putativefatherdeniedin examination-in-chief takenthe motherhome froma dance.However,whencross-examined he admitted that he had done so on two occasionsand that on each occasionthey were accompaniedby his sister. The justiceswere satisfiedthat he had lied when he home. The fact of opportunity denied takingthe complainant coupledwith the was indicativeof guilt. Lord ParkerCJ stated, howlie in such circumstances corroboration. He said: ever, that each factorif takenalone was not sufficient
if the admission, as the justicesfoundit was, in cross-examination thathe hadtaken the girlhome on two occasionsalone stood by itself, thatwouldbe mereadmission and not enough;equallyif the lie stood alone it wouldbe incapable of opportunity of amountingto corroboration, becauseon that basis there would have been no admissionby the appellantthat he had takenthis girl home alone . . . which on his lateradmission was a lie.21

In Scotland, the corroborative value of lies, or the scope of the doctrineof corroboration contradiction as it has been called, has been succinctlystated by by LordM'Larenin Dawson v. McKenzie22:
There mustbe corroboration of the pursuer's evidence;yet when the effect of the defender's false defence, i.e. his denial of circumstances which are otherwise of whichhe conceivedwouldthrowsuspiproved,is to showthatthereis something

17. [1934] 1 K.B. 323 C.A. 18. (1956) 3 D.L.R.(2d) 693. 20. [1966] 2 All E.R. 205.

19. Idem,p.696.

which the defender was contradicted was immaterial, and therefore the contradiction afforded no corroboration of the pursuer's case.

21. Idem,p.207. 22. [1908]S.C. 648. Cf. M'Whirter v. Lynch [1908]Ct. Sess. 112 where the point on

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cion upon himself,this wouldput a differentcomplexionon whatthe courtmight otherwisebe disposedto regardas innocentbetweenthe parties. The dictum of Lord M'Laren has been followed in the Canadian cases of Semenuik v. Hodge23 and Hill v. McLeod.24 In the latter case Hill denied an association with the mother which the magistrates found proved. This amounted to the denial of a material fact which showed that, had he admitted that fact, it would have brought suspicion on himself and consequently put a complexion on the association which the judge might otherwise have regarded as innocent. In Australia the corroborative value of a false denial has arisen in a number of cases. In Collie v. Collie25the defendant was discovered late at night with the complainant on a sofa at her house. The complainant gave birth to a child nine months later. The defendant denied on oath that he had been at the complainant's house at all. The court held that this false denial was capable of affording corroboration, but suggested that it would have been otherwise if such a denial had been made on the spur of the moment under cross-examination.26 In Harding v. Porta27a false denial given by a married man did not amount to corroboration because it stemmed from a desire to conceal a discreditable, though not necessarily adulterous, relationship with the complainant. In Popovic v. Derks28 the Supreme Court of Victoria considered the question of the corroborative value of false denials in a case where the putative father gave evidence on oath that he was not a frequent visitor to the complainant's home and that he had only taken her out twice in his car. The court rejected his evidence. Scholl J pointed out that "it makes no difference that in this case the appellant's denials were not absolute denials of all outings by the parties together"29 over the period in question. This shows that a partial denial can be corroboration. C. Opportunity Alone Is Not Sufficient

Whereas false denials by the defendant may be capable of corroborating the complainant's story, evidence showing mere opportunity for sexual intercourse will never be sufficient. In Burbury v. Jackson,30 for example, Lord Reid considered that where both the mother and the defendant were employed by the same employer, and were required to be in a barn at the same time, evidence of opportunity during employment was not sufficient corroborative evidence. The evidence must show not only that intercourse was possible but that the alleged conduct was probable.31

23. (1974) 18 R.F.L. 70. This was a decision of the Saskatchewan Queen's Bench. 24. (1977) 3 R.F.L.(2d) 121. 25. [1922] V.L.R. 269. 26. In Morrison v. Taylor [1927] V.L.R. 62 a false denial was not accepted as corroborative evidence because it failed to give any particular colour to facts which pointed to a mere opportunity. 27. [1934] V.L.R. 79. 28. [1961] V.R. 413.

29. Idem,p.431.

30. [1917]1 K.B. 16. 31. See also Roye v. Panton [1964] GI.L.R. 214 (Jamaica).

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the motherwas the housekeeperand employee of the In Thomasv. Jones32 defendant.The Courtof Appeal reversedthe decisionof the DivisionalCourt basedon the cumulative effect of the factsthat:the that therewas corroboration for the doctor on the a servant had farm sent morningof the birthof appellant the child; he allowedthe motherand the child to remainin his house for about five weeks; duringthat time he did not ask the defendantwho was the fatherof her child; and, finally, he did not reply to a letter from the motheraskinghim what he intended. The Courtof Appeal, ScruttonLJ dissenting,33 rejectedthe cumulativeeffect in favourof the reasoningthat there was no evidence, apart from that of the motherherself,whichwas not consistentwith the innocenceof the appellant.ScruttonLJ disagreedwith the reasoningof the majoritysave on of the fact that the one ground, namely that there was ample corroboration defendant,a bachelor,allowedthe mother,who was in his service,to remainin his house for over five weeks afterthe birthof the child. He agreedwith the justices' decision adjudgingthe defendant to be the father of the child on the ground that they, knowing"the locality"and "local habits of the residents", were in the best position to considerwhether that evidence corroboratedthe mother'sstory.34 In his Lordship's opinion,the restof the evidenceamountedto acts done on the groundsof commonhumanity. Much the same conclusionwas reached in the Scottishcase of Dawson v. McKenzie,35 where the parties were in the habit of meeting frequentlyand spendingsome time in each other'scompany.The courtheld that althoughthe for sexual intercourse,they were not accompameetings affordedopportunity nied by any element of suspicionneitherwas there "proofof familiarities".36 It seems that if the partieswere seen togetherin a wood or other darkplace that evidence. In Harveyv. Anning37 the fact that might possiblybe corroborative the partieswere of a differentsocialstanding,andwere seen togetherrepeatedly in countrylanes in the evenings, amountedto corroboration. This reasoningis not to attach to the relativesocial Judges ought any importance antiquated.38 statusof the partiesnowadays. Mere opportunity is not enough. But where the partieswere sweetheartsor, at any rate, where they associatedtogetheron termsof intimacyand affection and the mother was not havingan associationwith any other man, this might amount to corroboration.Lord GoddardCJ in the English Court of Appeal decisionof Moorev. Hewitt39explained: Thejustices werenotusing theword in whatI maycallthenewspaper "intimacy"
32. [1921] 1 K.B. 23. 34. See Walker v. Edward (1972) 12 J.L.R. 139 (Jamaica) for evidence evaluated by a Jamaican judge in the light of local conditions. 35. [1908] S.C. 648. 36. Idem, pp.650-651 where two judges of the Court of Session referred to the distinction between the case of "innocent intimacy" as one judge called it, and a suspicious association. 37. (1902) 87 L.T. 687. 38. See the Scottish case of Florence v. Smith (1913) Ct. Sess. 978 where the fact that the parties were of the same social rank was accepted by Lord Salvesen as evidence of corroborative value. 39. [1947] K.B. 831.

33. Idem,p.37.

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sense, meaning sexual intercourse, but obviously they were satisfied on the evidence before them that these young people were, and had for a long period of time been, associating together on the closest terms of intimacy and affection, visiting places of amusement and refreshment and going to dances together, and being in the company of each other in the evenings and that the appellant visited the girl's home, which means, I suppose, that her parents were allowing the appellant to go there because, as the justices were satisfied, the parties were obviously on courting terms.40

D. Silence
Silence when a charge is made may amount to evidence of an admission that the defendant is the putative father-if and only if the circumstances render it more probable that a man would answer the charge made against him than not. In Hill v. Denmark41Russell CJ stated: here?Thislout of a boy of nineteenis broughtby the Whatwere the circumstances
ear, as it were, by his mother to be confronted with the all-important question in the presence of witnesses on both sides and he does not deny the paternity. It might have been either that he was stupidly silent or that he could not deny it, but the magistrates had the witnesses before them and they could judge from their demeanour and the way the evidence was given what was the proper inference to be deduced as to the meaning of his silence.

The position is similar where the defendant fails to testify on oath.42 That in itself cannot constitute corroboration of the applicant's testimony. The position is somewhat different in Canada,43where the courts have held that mere failure to testify cannot amount to corroboration but may be sufficient to convert what was previously a weak case against the respondent into a strong one.44
E. Blood Tests

Blood test evidence is admissible in affiliation proceedings but these tests may only be carried out with the consent of the putative father. Such evidence, moreover, cannot prove conclusively that a man is the father of a child.45The court is not looking for absolute certainty but only for a sufficient degree of probability. In fact, blood test evidence can have the opposite effect and prove that a man could not have been the father of the child.46 In addition, the tests may indicate

40. Idem, pp.838-839. 42. Wiedemann v. Walpole [1891] 2 Q.B. 534 and Cracknell v. Smith [1960] 3 All E.R. 569. 43. See Lewis v. Ragusa (1973) 18 R.F.L. 366. 44. See Provincial Officer v. Patterson [1956] O.W.N. 1; Re Carleton and Machean [1953] O.W.N. 721; Middleton v. Bryce (1931) 40 O.W.N. 583 C.A.; Re J and D (1974) 14

41. [1895]J.P. 345.

R.F.L. 317.

45. See Fv. F [1968] 1 All E.R. 242. 46. See the Canadian cases of R. v. Willar (1955) 113 C.C.C. 39, and Nicholson v. Nicholson [1952] O.W.N. 507.

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how wide the field is from which to choose the putative father, i.e. the tests will show what blood group genes the child must have inherited from its father, and the proportion of men having the necessary combination of blood group genes may then be calculated.47

F. Usefulness of Corroboration of the Requirement

It is obvious that the bulk of the substantive evidence in affiliation proceedings will come from the complainant; therefore there is a statutory requirement that such evidence must be corroborated in a material particular. The difficulty, of course, arises in determining what amounts to "corroboration in some material particular", since the act of intercourse is normally a private affair without witnesses and, therefore, the corroboration is mainly circumstantial. The Law Commission for England and Wales has recommended48the abolition of the formal statutory requirement of corroboration. One of its grounds for this is that the retention of corroboration as a statutory requirement in affiliation proceedings remains the only civil exception in the entire legal process. This is not to say, however, that in practice the courts would necessarily or in all cases act on uncorroborated evidence. The Law Commission advocated that "where there is obviously a serious risk of acting on uncorroborated evidence the court should nevertheless be free to do so if it is in no doubt where the truth lies".49 Another reason for the proposed abolition of the requirement of corroboration is that the first hearing is in the nature of a non-suit and the res judicata rule does not apply.50 Under the present law, therefore, if the mother fails for lack of corroboration, she is entitled to try again with better evidence. Since she is entitled to make repeated applications, the formal requirement of corroboration leads to a waste of time and money. There is without doubt considerable merit in these arguments especially when one considers the dangers of attempting to formulate a definition of what constitutes corroboration in law. Notwithstanding these arguments, Commonwealth courts ought to retain the requirement of corroboration since this is an area of law where false allegations are not uncommon and charges of paternity remain "easy to make and difficult to rebut".51
LYSTRA KODILINYE

INSURANCE LAW: STATUTORY CHANGES TO THE "BASIS OF THE CONTRACT" CLAUSE AND MATERIALITY WITH PARTICULAR REFERENCE TO THE WEST INDIES A. Introduction modifications madeto the It is the intentionof this articleto look at the statutory common law by section 122 of the InsuranceAct (Trinidadand Tobago) 1980
47. 48. 49. 50. 51. v. Blunden(1986)150J.P. 180. See the recentcase of Twiner Law Com. No.118, p.55. Idem, p.56. See Re Mamann(1976)29 R.F.L. 203. Crosson Evidence(6th ed.), pp.210-211.

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