SHARVANANDA, C.J.. COUN-THOME, J. AND ATUKORALE. J.
S.C. APPEAL No. 7/84.
C.A. APPEAL No. 391/80.
M.C. BANDARAWELA 21875.
FEBRUARY 7, 1986.
Maintenance-Illegitimate chiid-Corroboration-Corroborative value of falsehoodsuttered by respondent.
For a lie to be capable of amounting to corroboration firstly it must be deliberate,secondly it must relate to a material issue, thirdly the motive for the lie must be arealisation of guilt and a fear of the truth and not merely an attempt to bolster up a justcause or out of shame or a wish to conceal disgraceful behaviour from the family andfourthly the statement must be clearly shown to be a lie by evidence other than that ofthe person who is to be corroborated.
Neither the disbelief of the putative father's evidence where it contradicts that of themother nor the fact of the former having knowingly made false statements would bythemselves be capable in law of being corroborative of the mother's evidence. It is onlywhen the false statements made by the alleged father are of such a nature and aremade in such circumstances as to lead to an inference in support of the evidence thatthey can be regarded as corroborative evidence.
Cases referred to:
Tennekoon v. Tennekoon-78 NLR 13.
Vedin Singho v. Mency Nona-(1948! 51 NLR 209.
Somapala v. Muriel Sirr-( 1953) 55 NLR 247.
Somasena v. Kusumawathie-(1958) 60 NLR 355.
Dawson v. McKemie-(l908) S.C. 648; 45 SLR 473
Warawita v. Jane Nona-(l 954) 58 NLR 111.
Kredland v. Knowler-35 Cr. App. R. 48.
Jones v. Thomas-) 1934) 1 KB 323.
R. v. Chapman and R. v. Baldwin-) 1973] 2 WLR'876.
ft v. Lucas-1198112 All E.R. 1008.
APPEAL from judgment of the Court of Appeal.
R. K. W. Goonesekera with Manix Kanagaratnam for the appellant.
Ranjith Abeysuriya with Miss Mangalam Kanapathipillai and Alula Pathinayake for therespondent.
Cur. adv. vuh.
March 1 3. 1 986.
This is an appeal from a judgment of the Court of Appeal setting asidean order made by the Magistrate directing the respondent to paymaintenance for the appellant's illegitimate child bom on 7.8.1 978. Itwas the appellant's case that she commenced employment as adomestic servant in the respondent's household in early April, 1977.In October 1 977 the mother of the respondent's wife fell sick and waswarded in a hospital in Colombo. The respondent, his wife, their smallchildren and she left for Colombo and stayed in the house of his wife'smother. The respondent's wife stayed over at the hospital for a fewdays to attend on her sick mother. On the very first day that she wasthus away, the respondent returned home drunk in the night and hadsexual intimacy with the appellant. In all the respondent had sexualintimacy with her on 3 consecutive nights. After their return homefrom Colombo, when the appellant informed the respondent that hermenstrual period had stopped he told her not to be afraid and not totell his wife as there would be quarrels or anyone else and that theywould look after her if any trouble arose. She further stated in evidencethat after the Sinhala New Year in April 1978 her sister came to seeher as she had not gone home for the New Year. The sister havingobserved signs of pregnancy asked her whether there was any troubleThe appellant then divulged to her what had happened. The sisterasked her whether she informed the respondent's wife. She repliedthat she had not. as the respondent had asked her.not to do so. Shefurther stated in evidence that her sister came to see her on twosubsequent occasions. In July 1978 she informed the respondent'swife that she was with child by the respondent and that she wasunable to work any more and requested that she be taken home. The.respondent and his wife quarrelled that day, damaged the furniture,put out the appellant with her clothes, locked up the house and wentaway. The appellant’s sister who arrived a little later removed her tohospital where later on the child was born.
The appellant’s sister, Somalatha, in her evidence stated that theappellant was employed as a domestic servant in the respondent’shouse. In April 1978 she went to see the appellant as she had notcome home for the Sinhala New Year. On noticing the appellant's,condition and questioning her, she told her what had happened andthat she was pregnant by the respondent. She also told her that at therespondent's request she had not told anyone. The sister also statedin evidence that on her first visit the respondent was not at home andthat the appellant asked' her not to' tell the wife as there would bequarrels at home. She went to see the appellant again in May 1978.On that occasion the respondent was at home and she told him thatthe appellant was expecting a child. The respondent asked her not totell his wife or anyone else about it and that he will look aftereverything. On the third occasion she went to see the appellant in July.The appellant had been locked out of the house and was cryingoutside. The appellant told her that the respondent and his wife hadquarrelled, and locked up the house and gone away leaving heroutside. She then took the appellant to hospital where later on thechild was born. The evidence of the appellant and her sister wasaccepted by the Magistrate and was not sought to be challengedeither in the Court of Appeal or before us.
The respondent gave evidence and stated that the appellant workedas a domestic servant in his house for only about 3 months from earlyApril to about the end of July 1977. He denied that the appellantcontinued in employment thereafter or that he and his wife had evergone to Colombo to see his wife's mother or that the latter waswarded in hospital in Colombo or that the appellant or her sister(Somalatha) had ever spoken to him. He denied sexual intimacy withthe appellant or that he was the father of the child born to theappellant. He, however, admitted that the appellant had filed a case inthe Labour Tribunal, Badulla, for the recovery of arrears of salary for aperiod of 1 year. The Magistrate rejected the evidence of therespondent as being totally false, a finding which was not challengedin appeal.
The case thus stood in the following position. Upon the evidence ofthe appellant it has been established that the respondent is the fatherof the child. But having regard to the provisions of s.6 of theMaintenance Ordinance (Chap. 91, Vol. IV, L.E.) no order formaintenance of the child could be made against the respondent on theevidence of the appellant (the mother) unless the same iscorroborated in some material particular by other evidence to thesatisfaction of the Magistrate. The Magistrate concluded that thesister's evidence did not provide the requisite corroboration-a findingwhich was challenged before us by learned counsel for the appellantas amounting to a serious misdirection on the facts. He thenproceeded to state as follows:
"I accept the applicant's evidence. Because of that reason, theevidence of the respondent that when he went to Colombo his wiferemained at home without staying in hospital is false. He gave thatfalse evidence to show that there was no opportunity for him tohave intercourse with the applicant. Due to that reason his falseevidence is sufficient to corroborate the applicant's evidence inconcluding that the applicant's child was begotten by therespondent. In this connection my attention was focussed on thecase of Tennekoon v. Tennekoon (1) reported in 78 NLR 13. Asreported in that maintenance case, it is clear that the false evidenceof .the respondent does not support the evidence of the applicant.However, the false evidence of the respondent abovenamed in thiscase is sufficient to establish the vital facts in the evidence given bythe applicant in this application, that is, that the child pertaining tothis maintenance application was begotten by the respondent."
On this basis the Magistrate ordered the respondent to pay theappellant a sum of Rs. 100 per month as maintenance for the child.
The respondent appealed from this order to the Court of Appealwhich, whilst proceeding on the assumption that the appellant'sevidence was not corroborated by that of her sister (as found by theMagistrate), considered the question whether false statements madeby a defendant on oath in court could by themselves be capable ofconstituting corroborative evidence as required by s.6 of theMaintenance Ordinance. Relying mainly upon a passage- from thejudgment of Malcolm Perera, J. in Tennekoon v. Tennekoon (supra)the Court of Appeal concluded that as the appellant's evidence stooduncorroborated by the evidence of her sister-which was an
assumption based on the finding of the Magistrate-the falsity of therespondent's evidence by itself did not afford the requisitecorroboration of the appellant's evidence. The Court of Appealtherefore set aside the order of the Magistrate.
The question whether lies uttered by a defendant in maintenanceand seduction cases could be considered as. corroborative of theevidence of the applicant or plaintiff has been the subject of severallocal decisions. In Vedin Singho v. Mency Nona (2) and in Somapala v.Muriel Sirr (3) there are dicta suggesting that any false denial by thedefendant may be considered to afford some corroboration of theapplicant's story. These two decisions and certain Scottish andEnglish cases were considered by H- N. G. Fernando J. (as he thenwas) in Somasena v. Kusumawathie (4) a.nd he took the view thatexcept in the particular case of the defendant's false denial of theopportunity for sexual intimacy in the circumstances enumerated inthe dictum of Lord Dunedin in Dawson v. Mckenzie (5) when the falsityof the denial may be regarded as corroborative of the evidence of themother, there was no decision extending the principle stated by LordDunedin "fo other false denials. The dictum of Lord Dunedin iscontained in the following passage of his judgment in Dawson v.McKenzie (supra)
"Now, the mistake which the learned sheriff has made here is intaking the mere proof of opportunity as amounting to corroboration.
. Mere opportunity alone does not amount to corroboration, but twothings may be said about it. One is, that the opportunity may be ofsuch a character as,to bring in the element of suspicion. That is, thatthe circumstances and locality of the opportunity may be such as inthemselves to amount to corroboration. The other is, that theopportunity may have a complexion put upon it by statements madeby the defender which are proved to be false. It is not that a falsestatement made by the defender proves that the pursuer'sstatements are true, but it may give to a proved opportunity adifferent complexion from what it would have borne had no suchfalse statement been made."
In Warawita v. Jane Nona (6) Sansoni, J. applied the above dictum ofLord Dunedin to the facts of the case before him. He held that theuntruthful denial by the defendant of the existence of the opportunityfor intimacy which was established by independent evidence did in thecircumstances of that case remove any doubt that existed on thequestion of corroboration.
In Tennekoon v. Tennekoon (supra) referred to by the Magistrate inhis order and in the judgment of the Court of Appeal, the defendant inhis evidence denied paternity of the child. He denied that he evervisited the house of the child's mother or that he had ever spoken toher though they lived close to each other and were close relatives. Healso denied that the parents of the mother of the child had ever methis parents to discuss the question of his marriage with the mother ofthe child. It was contended that these false statements of thedefendant should be taken as corroborative of the evidence of themother. Refuting the contention that false statements uttered by thedefendant could always be taken as being corroborative of theapplicant's evidence, Malcolm Perera, J. stated that the practicaleffect of doing so would be to dispense with corroboration altogetherfor the very fact that the defendant in his evidence denies that he is thefather of the child would itself provide corroboration and any case putforward by him vyhich is disbelieved may also be taken as beingcorroborative of the evidence of the mother. Relying on certainpassages from the judgment of Lord Goddrard; C.J. in Kredland v.Knowler (7) and of Lord Hewart, C. J. in Jones v. Thomas (8) he heldthat the question whether the false statements of the defendant wouldamount to corroboration depends on the facts and circumstances ofeach case. After examining the nature of the false statements made bythe defendant in that case, Malcolm Perera, J. held that—
"they are of such a nature and made under such circumstances asto erase any doubt that may have existed in my mind on thequestion of corroborative evidence."
Neither the disbelief of the putative father's evidence where itcontradicts that of the mother nor the fact of the former havingknowingly made false statements would by themselves be capable inlaw of being corroborative of the mother's evidence. As.pointed out byLord Hewart, C. J. in the case of Jones v. Thomas (supra) it is onlywhen the false statements made by the alleged father are of such anature and are made in such circumstances as to lead to an inferencein support of the evidence of the mother that they can be regarded asbeing corroborative evidence. In R. v. Chapman and R. v. Baldwin (9),it was sought to draw in principle a distinction between a lie told by adefendant or an accused out of court and one uttered by him in courtin the witness box. Whilst the former was stated to be affirmativeproof of the untruth of his denial of guilt which may in turn tend toconfirm the evidence against him, an untruthful statement in court, itwas said, is hot positive proof of anything but would only lead to arejection of the evidence given by him. This suggested distinction has,however, been rejected in R. v. Lucas (10) which contains the mostrecent judicial pronouncement in England on the question ofcorroboration. One of the questions that arose for determination inthat criminal case was whether the trial judge gave the correctdirection to the jury on the question as to when statements made bythe defendant, which are not shown to be lies by evidence other thanthat of the accomplice who was sought to be corroborated, could beregarded as capable of affording corroboration of the accomplice'sevidence. The direction given by the trial judge to the jury in that casewas to the effect-that -if the jury accepted the evidence of theaccomplice and rejected that of the defendant and accordingly cameto the conclusion that the defendant must have been lying to them,then that fact of itself could be treated by the jury as corroboration ofthe accomplice's evidence. This direction was held by court to beerroneous for the reason that thelies told by the defendant were notshown to be lies by evidence other than that of the accomplice whowas to be corroborated. In the course of his judgment Lord Lane, C. J.stated:
"There is, without doubt, some confusion in the authorities as tothe 'extent to which lies may in some circumstances providecorroboration and it was this confusion which probably andunderstandably led the judge astray in the present case. In ourjudgment the position is as follows. Statements made out of court,for example statements to the police, which are proved or admittedto be false may in certain circumstances amount to
corroborationIt accords with good sense that a lie told by the
defendant about a material issue may show that the liar knew that if
he told the truth he would be sealing his fateTo be capable of
amounting to corroboration the lie told out of court must first of allbe deliberate. Secondly it must relate to a material issue. Thirdly themotive for the lie must be a realisation of guilt and a fear of the truth.The jury should in appropriate cases be reminded that peoplesometimes lie, for example, in an attempt to bolster up a just.cause,or out of shame or out of-a wish to conceal disgraceful behaviourfrom their family. Fourthly the statement must be clearly shown to■be .a lie by evidence other than that of the accomplice who is to becorroborated, that is to say by admission or by evidence from anindependent witness.
As a matter of good sense it is difficult to see why. subject to thesame safeguard, lies proved to have been told in court by adefendant should not equally be capable of providing corroboration.In other common law jurisdictions they are so treated: see the casescollated by Professor J. J. Heydon (1973) 89 LQR at 561 and citedwith apparent approval in Cross on Evidence (5th Ed., 1979.
Cross on Evidence (6th Ed., 1985, p.230) states that these principlesare not limited to criminal cases but will also apply to other situationsin which corroboration is required such as affiliation proceedings.
Under s. 4 of the English Affiliation Proceedings Act of 1957. asamended by the Affiliation Proceedings (Amendment) Act of 1972,the court shall not adjudge the defendant to be the putative father ofthe child upon the evidence of the mother unless her evidence iscorroborated in some material particular by other evidence to thesatisfaction of court. Under s.6 of our Maintenance Ordinance noorder for maintenance shall be made on the evidence of the mother ofan illegitimate child unless corroborated in some material particular byother evidence to the satisfaction of the Magistrate. In the twoenactments the provision relating .to corroboration is the same. Incases (including maintenance and seduction cases) in which the rathervexed question of corroboration has arisen for consideration, ourcourts have had recourse to and derived assistance from Englishdecisions. With respect, it seems to me that the tests which should beapplied in determining whether a lie told by a defendant or an accused,whether in or outside court, is capable of constituting corroboration ornot have been correctly set out by Lord Lane. C.J. in the passage fromhis judgment quoted by me above. Under the circumstances I think weshould adopt and apply the criteria formulated by him to local cases,both civil and criminal, in which the question arises for consideration.
In the instant case the Magistrate has held that the evidence of thesister. Somalatha. whom he has believed, does not corroborate theappellant's evidence but that the falsity of the respondent's evidencerelating to the opportunity he had of sexual intimacy with the appellantin Colombo, which was established by the evidence of the appellantalone, is itself sufficient to afford the requisite corroboration. On anexamination of the authorities referred to above and the principles laiddown therein the Magistrate was clearly wrong in holding that thefalsity of the respondent's evidence by itself was capable of providingthe requisite corroboration. The Court of Appeal, proceeding as it didon the assumption that the sister's evidence in fact was notcorroborative of the appellant's evidence, was therefore correct inholding that the appellant's case must fail for the reason that therewas no independent testimony to' establish the falsity of therespondent's evidence regarding the opportunity he had for sexualintimacy with the appellant. However it-was the contention of learnedcounsel for the appellant before us that the Magistrate misdirectedhimself in holding that the sister's evidence did not corroborate'theappellant's version. He submitted that there was evidence given by thesister from which it could reasonably be inferred that the evidence ofthe respondent that the appellant ceased to be in his employment inJuly 1977 and that therefore he had no opportunity for sexualintimacy at or about the time that conception was likely to haveoccurred was false. He submitted that the sister's evidence had notbeen closely examined by the Magistrate as a result of which theMagistrate had seriously misdirected himself on this point.
On a careful perusal of the evidence of the appellant's sister I am ofthe opinion that this contention of learned counsel for the appellant isentitled to succeed. The sister in her evidence stated that she wasaware that the appellant was employed in the respondent's house andthat twice (in August and September 1977). she saw the appellantbeing brought to her home by the respondent in his jeep and takenback. She also stated that she first went to see the appellant at therespondent's house in April 1 978 as the appellant did not come homefor the Sinhala New Year. According to her she also went to see theappellant on two more occasions, namely in May and July 1978, onthe last of which she found the appellant locked out of the house withher clothes. She thereupon removed the appellant to hospital wherethe child was born. This evidence of the sister corroborates thatof the appellant both in regard to the period as well as the date oftermination of the services of the appellant under the respondent. Thefalsity of the respondent's statement in the witness box that theappellant did not work as a domestic servant in his house after July1977 is thus established by the independent testimony of the sister.The respondent's lie is one that has been uttered by him deliberatelyon a very material issue with a view no doubt of concealing his guilt. Inthe circumstances of this case I am of the view that the lie told by therespondent satisfies the four criteria laid down by Lord Lane, C.J. in R.
v. Lucas (supra) and does amount to corroboration of the appellant'sevidence as required by s. 6 of the Maintenance Ordinance. There isalso, in my view, another item of evidence in the case which appearsto be decisively in favour of the appellant. The sister, whose evidencehas been accepted by the Magistrate, stated that on the secondoccasion she went to see the appellant at the respondent's housein May 1978, she met the respondent and told him that theappellant was expecting a child. The respondent then told her not totell it to his wife or anyone else and that he will look after everything.This item of evidence provides very strong corroborative evidence ofthe appellant's story and in fact amounts to a virtual admission by therespondent that he was responsible for the appellant's pregnantcondition.
Accordingly I allow the appeal and set aside the judgment of theCourt of Appeal. The Magistrate's finding that the respondent is thefather of the child and his order awarding the appellant a sum ofRs. 100 per month as maintenance for the child will stand. Theappellant will also be entitled to a sum of Rs. 1,050 as costs of thisappeal.
SHARVANANDA, C. J. – I agree.
COLIN-THOME – I agree.
2-KARUNANAYAKE v. KARUNASIRI PERERA