089-NLR-NLR-V-60-U.-SOMASENA-Appellant-and-U.-KUSUMAWATHIE-Respondent.pdf
355
H. N. G. FERNANDO, J'.—Somasena v. Kusumawathie
1958 Present: H. N, G. Fernando, J., and Sinnetamby, J.U.SOMASENA, Appellant, and U. KUSUMAWATHIE, Respondent
• 8. G. 158—D. G. Aviss'awella, 7,676
Seduction—False denials made by defendant—Weight as corroborative evidence—
E’ndence Ordinance, s. 157-
In an action for seduction the defendant’s false denial of irrelevant mattersdoes not constitute corroboration of the plaintiff’s story.
The defendant falsely denied in oross-examination that his handwritingappeared in an exercise book. But there was no proof whatever that the bookbelonged to the plaintiff or had ever been in her possession.'
Held, that the false denial did not amount to corroboration.
Held further, that a false denial by the defendant of his reoeipt of a letterfrom the plaintiff would not be corroboration if it was written after the time ofconception and after intimacy had admittedly ceased. Such a letter cannot be .considered as a former statement oCthe writer for purposes of section 157 of theEvidence Ordinance.
PPEAL from a judgment of the District Court, Avissawella.
W. Jayewardene, Q.G., with T. Paralhalingam, for the defendant-appellant.
Neville de Jacolyn, for the plaintiff-respondent.
Cur. adv. vtth.
November 18, 1958. H. N. G. Fernando, J.—
The learned District Judge has, in this action for seduction, been muchimpressed by the evidence of the plaintiff, but I am reluctantly compelledto interfere with the finding in her favour.
The corroboration that is required in a case of this nature is eitherindependent testimony, or some circumstance, showing or tending toshow that the allegation of the plaintiff is true. “ The corroborationrequired must, in my opinion, be corroboration in some material parti-cular, that is to say, (a) by evidence as to some fact or state of things per-taining to the view that the relationship or conduct of the parties supports
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H. if. 0. FERNANDO, J.—Somasena v. Kusumawathie
the allegation of the plaintiff that it resulted in sexual intercourse, or (&>by evidence as to conduct or action on the part of the defendant which,constitutes an acknowledgment by him that the situation and rela-tionship between him and the plaintiff was such as the plaintiff deposesto.1” I should like to observe in passing, that in cases where thelaw requires corroboration, Judges of first instance should endeavour tospecify the matters in evidence which are relied upon as being corro-borative and to state whether or not these matters have been establishedat the trial. In the present case, two matters appear to have been regardedby the learned Judge as constituting corroboration.
The plaintiff had alleged that she used to visit the defendant’s housefor the purpose of receiving tuition in Arithmetic from him ; this wasof course denied by the defendant. In the course of cross-examinationhe was shown an exercise book in which sums had been worked out, andhe denied the suggestion that the book had been used for the purposesof teaching the plaintiff and that it contained his writing. The bookwas admitted and marked despite objection by counsel for the defence.This exercise book (P2) had not been produced or referred to by the plain-tiff nor any of her witnesses, nor had it been included in the list ofdocuments relied on by the plaintiff. Hence the finding of the learnedJudge that the book contained items in the defendant’s hand writ ing cannothelp the plaintiff ’s case, for the reason that there is no proof whatever thatthe book belonged to the plaintiff or had ever been in her possession..So long as such proof was wanting, the question whether the defendanthad or had not written in it was irrelevant, and his denial, howeverfalse, of an irrelevant allegation, could not worsen his position. I musthold therefore that the book (P2) is not -a document which corroboratesthe plaintiff’s story.
The other matter regarded by the learned Judge as being corroborativeis of a somewhat strange nature. At an early stage of her cross-examination, the plaintiff stated positively that she had not written anyletter to the defendant; a while later, when she was shown a letter D1she said that neither the handwriting on it nor the signature was hers.On the next date of trial, however, the plaintiff said that she had writtenone letter to the defendant and claimed that D1 was that letter. Thefirst line of DI indicates that it is a letter written to one Sirisoma, andnot to the defendant, but the plaintiff gave an explanation to the effectinter alia, that DI was only the third page of the letter she had written.The Judge accepted this explanation and came to the conclusion that thedefendant had interpolated Sirisoma’s name in a letter written to himself.It is not necessary for me to examine the correctness of this finding offact, because, even if that finding was sound, DI does not constituteproper corroboration. On the plaintiff’s own version, DI was written,after the alleged intimacy had ceased and after the defendant had deniedpaternity of the child which the plaintiff was carrying.
Even if a letter alleging intimacy between the writer and the recipientcan be considered as being a former statement of the writer for the purposeof Section 157 of the Evidence Ordinance, such a former statement.
1 Per Fisher, C.’J., in Orange v. Perera (1929) 31 N. L. R. 85 at page 86.
H. N. G. FERNANDO, J.—Somasena v. Kmumawathie357
would not be corroboration if made after the time of conception and afterintimacy had admittedly ceased; Ponnammah v. Seenitamby h Itis clear from the plaintiff’s evidence that if she did write D1 to the defen-dant she did so only after her mother had discovered the pregnancy andthe defendant had rejected the suggestion of a marriage.
I have now to consider an argument based upon the findings of thelearned Magistrate, firstly that the defendant had falsely denied hishandwriting on the exercise book P2, and secondly that he had interpolatedthe name of some third party in the paper D1 in order to suggest thatthe third party was the father of the plaintiff’s child. The argument isthat this conduct of the defendant, brings the case within that classreferred to by Rose C.J. in D.D. Somapala v. Murid 8irrs, where “anyfalse denial by the defendant may properly be considered to lend somecorroboration to the woman’s story ’ V
Reference was made in that judgment to an earlier observation ofBasnayake, J. (as he then was) in the case of Vedin Singho v. MencyNona 3 “ that even a false statement by the defendant may in certaincircumstances afford the necessary corroboration”. It would seemthat the observations which I have just cited are often relied upon inseduction and maintenance cases, for which reason it is interesting torefer back to earlier decisions upon which these observations appear tohave been based. Both Rose C.J. and Basnayake J. referred to the •South African case of Poggenpoel v. Morris, N.O.*. In that action therewas independent testimony that the man had been seen alone with .thewoman in an unoccupied house on more than one occasion. This tes-timony, coupled with the defendant’s false denial of its truth, was heldto be sufficient corroboration of the woman’s version of the seduction.The decision was reached without difficulty upon the authority of Fan.der Merwe v. Nel6 in which the whole question of corroboration was fullyexamined. De Waal, J.P. first referred to the well-known observationsas to the meaning of corroboration expressed in the English cases ofKing v. Baskerville6 and Thomas v. Jones7. He said thereafter “ it isquite clear from the authorities that opportunity for seduction takenby itself is no corroboration”, and referred to the Scottish case of Dawsonv. McKenzie8 from which he cites the following observations of LordKinnear:—
“ I think we reach the question whether the bare statement of thepursuer herself, coupled with evidence of opportunity in the -sensethat both were together in circumstances in which connection was notimpossible, is sufficient to prove the pursuer’s case. It is not provedthat they were alone together in such circumstances as to give rise tosuspicion or reproach, and there is no evidence of opportunity in anyother sense than that it was not physically or morally impossible thatconnection might have taken place, and the result therefore is that thereis no evidence on which the Court can proceed other than the pursuer’sown. statement, which, of course, is not enough.” 1
1 (1921) 22 N. L. R. page 395.61929 T. P. D. 551.
8 (1953) 55 N. L. R. 247.81916 2 K. B. 58.
8 (1948) 51 N. L. R. 209.719211 K. B. 22.
* (1938) O. P. />. 90.8 45 S. L. R. 473.
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H. N. G. FERNANDO, J.—Somasena v. Kusumawathie
The effect of a false denial of an opportunity for intimacy was thusstated by Lord Dunedin in the same case:—
“Mere opportunity alone does not amount to corroboration, buttwo things may be said.about it. One is, that the opportunity may beof such a character as to bring in the element of suspicion. That is,that the circumstances and the locality of the opportunity may be suchas in themselves 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. Tt is not that a falsestatement made by the defender proves that the pursuer’s statementsare true, but it may give to a proved opportunity a different complexionfrom what it would have borne had no such false statement been made. ”It would appear that Lord Dunedin was here stating a principle enunciatedin the earlier Scottish case of Macpherson1. lie Waal, J.P., held thatthere had been an opportunity for intimacy on a certain day, that thefalse denial by the defendant of that opportunity amounted to corrobo-ration and that all the incidents taken together and viewed in the lightof the incident on that particular day forced one to the conclusion thatthe plaintiff’s story is to be believed.
The case of Florence v. Smith2, another Scottish case, was also referredto by de Waal J.P. In that case, there was no direct corroboration ofthe pursuer’s version of intimacy at or about the time of conception, but. there was independent corroboration of an act of gross familiarity betweenthe parties at a date six weeks after the date of conception. The falsedenial of this subsequent intimacy taken together with the evidence ofthat intimacy itself was held to be sufficient corroboration. Lord Dundashad said in that case : “Now there is a series of recent decisions to the effectthat where a defender falsely denies some fact bearing materially uponthe crucial issue in dispute, that denial may turn the scale against him,in an otherwise doubtful case, by giving a complexion to the case differentfrom that which the Court might but for such denial have put upon it.”Although that observation is made in general terms one should Ithink take note of the fact that it was made in a case where the falsedenial in question was as to a highly relevant matter, namely a subsequentact of familiarity established by independent testimony. More precisely,the false denial of the act of gross familiarity justified the inference thatthe familiarity led to intercourse on the subsequent occasion, whichintercourse would be corroboration of the pursuer's evidence of the priorintercourse.
It is unfortunate that reports of the Scottish cases to which I havereferred are not available to us, but the opinions expressed in thosejudgments have been approved in the English Courts as well and theopinion of Lord Dunedin which I have cited, was cited also by Lawrence
J.in the Court of Appeal in Jones v. Thomas 3. In that case the onlyitem of evidence the Court of Appeal thought worthy of serious consi-deration as corroboration, was the proved fact that the appellant hadspoken to the respondent (the woman) on two occasions shortly after
SO S. L. R. 776.
i S3 S. L. R. 785.
(1934) 1 K. B. 323.
H. N. G. FERNANDO, J.—Somaaena v. Kusumawathie350
the alleged act of intimacy, coupled with the false denial by the appellantto the respondent’s father of the alleged meeting? on those occasions. Itwas held however that the appellant’s untruthful statement to the res-pondent ’s father as to meetings after the alleged time of conception cannotbe regarded as corroboration within the dictum of Lord Dunedin. Law-rence J. in disposing of the matter said: “ There is no doubt that anyuntrue statement by a person when accused of an offence gives rise tosome suspicion, but there is no authority which suggests that everyuntrue statement by an alleged father is corroborative of the mother’sevidence, and the Court of Session expressly disclaimed any such view ” l.
Lord Hewart L. C. J. after referring to the Scottish case of Dawson v.McKenzie 2 said: “ It is only when the untrue statements are of such anature, and made in such circumstances, as to lead to an inference insupport of the evidence of the mother that they can be regarded as cor-roborative evidence ”. No attempt was made to define the nature of suchan untrue statement or the circumstances in which it should be made.But I have little doubt that there cannot have been an intension to includeany untrue statement, for in one of the Scottish cases, that of Macpherson 3,the Lord Justice Clerk had said: “ No corroboration can be derivedfrom the evidence of the defendant which shows he is not speaking thetruth. If his evidence is not to be believed it must be taken out of thecase altogether and the case be treated as if he had no tbeen examinedIndeed, this very aspect of the matter is referred to at the end of thejudgment of Lawrence J. in Jones v. Thomas 4.
In Warawiia v. Jane Nona 5 the defendant had falsely denied certainfacts, established by independent testimony which showed the existenceof an opportunity for intimacy. With respect I agree with Sansoni J.that the untruthful denial of facts which would otherwise have beenmerely equivocal gave those facts a different complexion. It is usefulto consider why such a conclusion is valid. Evidence of a mere oppor-tunity for intimacy, as distinct from evidence which creates a strongsuspicion of intimacy, is not corroboration. It does not justify the in-ference that intimacy took place, because it is equally consistent withthe ‘ ‘ innocence ’ ’ of the occasion. In such circumstances, if the defendantsays in evidence: “I admit there was opportunity, but I deny anyintimacy”, then the adverse inference will not be drawn against him.But if instead he says “ There was never an opportunity”, and this denialis held to be false in the face of independent testimony, he can then notrely on the possibility consistent with his innocence, and there remainsonly the possibility consistent with guilt.
My examination of the decisions which have come to my notice showsthat in fact the principle as stated by Lord Dunedin in Dawson v. McKen-zie2 has not been applied except in the particular type of case referred to inhis dictum and with which he was concerned, namely the case where thereis a false denial of an opportunity for intimacy. While it may well ,be that the principle can be properly extended to other false denials, Idoubt whether such an extension has yet been made. In the recent case •
111934) 1 K. B. 323 at page 331.
45 S. L. B. 473.4 (1934) 1 K. B. 323.
23 S. L. B. 785.* (1954) 58 N. L. B. 111.
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H. S'. G* FERNANDO, J.—Somasma v. Kusumaioathio
of K. Dharmadas v. P. G. Gunawathy1 my brother Fernando declined toapply the principle in a situation whe& the defendant had adducedfalse evidence in an attempt to impute paternity to some other person.In the present case too, one of the matters relied upon is not substantiallydifferent; here the defendant gave evidence which was held by the learnedDistrict Judge to be false, in an attempt to show that the letter which heproduced was written, not to him but to one Sirisoma. That letterwas not corroboration because it was written far too late, and therewas no independent testimony in support of the suggestion that the de-fendant had tampered with the letter. His denial of the receipt of it wastherefore merely a contradiction of the plaintiff’s evidence that she wrotethe letter to him. Similarly, the exercise book was not corroborative,since it was not established that the book contained the plaintiff’s writingor had ever been in her possession. If it had been proved to contain thewriting of both parties it may have established at least an opportunityfor intimacy, in which event the false denial by the defendant of his writingthereon may have been sufficient to bring the case within the principleI have considered. But as there was no proof that it contained the plain-tiff’s writing the book cannot in any sense be regarded as evidence evenof an “innocent” visit by the plaintiff to the defendant’s house.Hence the falsity of the defendant’s evidence with regard to this book isof no consequence.
For these reasons I would set aside the judgment and decree and dismiss. the plaintiff’s action with costs in both CourtB.
Shtnetambv, J.—I agree.
Appeal allowed.
1 (1957) 59 N. L. R. 501.