commonwealth corroboration rule

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ritish Institute of International and Comparative Law

Corroboration in Affiliation Proceedings in the CommonwealthAuthor(s): Lystra KodilinyeSource: The International and Comparative Law Quarterly, Vol. 36, No. 2 (Apr., 1987), pp. 368-375Published by: Cambridge University Presson behalf of the British Institute of International and

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APRIL1987] Corroboration in Affiliation Proceedings 369kind of evidence which will amount to corroboration because the nature of thecorroboration will necessarily vary according to the particularcircumstances ofthe case. It is proposed in this article to consider the question of what is capablein law of amounting to corroboration. Reference will be made to English stat-utes and case law and those of other Commonwealth jurisdictions.The classic definition was given by Lord Reading CJ in R. v. Baskerville4:

We hold thatthe evidence n corroborationmustbe independentestimonywhichaffects he accusedby connecting rtending o connecthimwiththecrime.Inotherwords,it must be evidencewhich mplicateshim, thatis, whichconfirms n somematerialparticular ot only the evidence thatthe crimehasbeen committed,butalso thattheprisoner ommittedt. The testapplicableo determinehenatureandextentof thecorroborations thusthe samewhether hecase fallswithin heruleofpracticeat common awor within hat class of offences forwhichcorroborationsrequiredbystatute.

It follows that what is required is independent evidence which shows thatintercourse with the putative father was probable, not merely possible. Further-more, the Act does not require corroboration of the whole of the mother's evi-dence but only in some material particular. In any event, to requirecorroboration of the whole of the mother's evidence would render that evidencesuperfluous.

A. Independent TestimonyCorroborative evidence cannot be evidence which is reiterated by the same wit-ness. If this were not so, a liar could corroborate his lies merely by repeatingthem. Acute problems arise when an unmarried mother seeks to corroborateher evidence by a diary she has kept or by a letter written to her by the putativefather. The former situation arose in the Canadian case of Barron v. Kennedy5where the mother failed in her attempt to tender a diary kept by her in order tocorroborate her own testimony. Fitzgerald DCJ stated:. . it is self-serving ndnotthe bestevidence,andfurther . . inanyevent,evenif admissible,t couldnot be corroborationf the maker's videnceas to the factsrecorded herein.It lacksthatindependencewhich s essential o a corroborativefunction.6

In X v. Y7the central issue was whether a letter written by the putative fatherhad any corroborative value. This was a decision of the New Zealand Court ofAppeal and the relevant statute was section 49(2) of the Domestic ProceedingsAct 1908, which stated that: No paternity order shall be made upon the evi-dence of the mother of the child unless her evidence is corroborated in somematerial particular to the satisfaction of the court. The question of law onappeal was whether the magistrate was entitled as a matter of law to accept theletter produced by the mother as corroborating in some material particular herevidence that the respondent was the father of her child. The letter was hand-

4. [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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370 Internationaland ComparativeLaw Quarterly [VOL.36written in the Samoan language and the accuracy of the English translation wascorroborated by another witness. There was no direct New Zealand authority onthe point and the case fell to be decided on authorities from other Common-wealth jurisdictions, particularly England and Australia. A majority of theCourt rejected the line of reasoning in the English case of Johnson v. Pritchard,8where the Divisional Court disapproved of the statement that a complainant inpaternity cases can corroborate herself by saying that the letter was written bythe putative father. Instead, the New Zealand Court of Appeal adopted thereasoning in Jeffery v. Johnson,9 a decision of the English Court of Appealwhich expressly overrules Johnson v. Pritchard.'0Denning LJ there stated:

The evidenceof the mothercan be divided nto twoparts.First,thepart n whichsheprovesorally hatthemanwas thefather; econdly hepart nwhichsheprovesthe handwritingf the letter. It is the firstpart,her evidenceasto paternity,whichneeds corroboration.That corroborations affordedby the contentsof the letter.She only provesthe handwritingo be that of the man. Once the handwritingsproved,the contentsprovethemselves ather n thenatureof realevidence ike anexhibit which, once it is properly dentified,proves itself. Her evidence as topaternitys, therefore,corroborated yotherevidence,namely he contentsof theletter.The Australian courts have, however, rejected the line of reasoning in Jefferyv. Johnson.12 Crutchfieldv. Lee'3 is authority for the proposition that a com-plainant does not corroborate her own evidence by producing a letter which sheswears is in the defendant's handwriting. The same view was taken by the FullCourt of Queensland in King v. Deel'4 where the relevant provision was thatno man shall be taken to be the father of any illegitimate child upon the oath ofthe 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 Englandand New Zealand, which do accept such documentary evidence, the genuine-ness of the evidence must be carefully scrutinised. The court must judge theauthenticity of the document even though it is not necessary to have expert evi-dence. This, however, is a preliminary step and is an issue distinct from the prin-cipal issue of paternity on which corroboration of the mother's evidence isrequired. In New Zealand jurisdiction is vested in professionally trained magis-trates, whereas in England lay justices have to consider all relevant circum-stances surrounding the genuineness of the handwriting.Statements made by the mother relating to the time when intercourse musthave 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.8.11. [1952] 2 Q.B. 8, 12.12. Supra,n.9.13. [1934]V.L.R. 146.14. [1932]Q.W.N. 4.15. [1972]A.L.R. 413.16. Supra,n.9.



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APRIL 987] Corroboration in Affiliation Proceedings 371this resulted n the rejectionof the mother's estimony nJonesv. Thomas.17InCanada the same principleapplies. In Lutherv. Ryan'8the NewfoundlandSupremeCourtemphasised hatonly independent estimonywouldsuffice,andthathearsaywasinadmissibleo support hemother's omplaint. n thiscase thewitnessstatedthatthe complainant ad told her that she hadspent manynightsin the defendant'sroom, and on a later occasionthatshe believed thatshe waspregnantandthe defendantwas the fatherof the child.WalshCJheld thatthestatement was hearsayand therefore inadmissible.Furthermore,he stated:Thestatementby the complainanto the othergirlwas not a complaintas toanythingof that kind and is of no value even as a test of consistencyof con-duct. '19

B. Denialof InnocentFactsLiesrelating o some materialparticularmay n certaincircumstancesmount ocorroboration.There is no general rule as to whichspecifictype of lie canamountto corroboration, utit seems that liescannotgenerallybe so regardedunlesstheyareof sucha natureandmadein such circumstancess to discloseaguiltymind.Thisprinciplewas laid downbythe DivisionalCourt n Corfield .Hodgson.20 Here the putative atherdenied inexamination-in-chiefhathe hadtaken the motherhome froma dance.However,whencross-examined e admit-ted that he had done so on two occasionsand that on each occasiontheywereaccompaniedby his sister. Thejusticesweresatisfied hathe hadlied whenhedeniedtakingthe complainanthome. The fact of opportunity oupledwiththelie in such circumstanceswas indicativeof guilt. LordParkerCJ stated, how-ever, that each factor f taken alone was notsufficient orroboration.He said:

if theadmission, s thejustices ound twas,incross-examinationhathehadtakenthegirlhome on two occasionsalone stoodbyitself,thatwouldbe mereadmissionof opportunity ndnotenough;equally f the lie stoodaloneit wouldbe incapableof amounting o corroboration, ecause on thatbasisthere wouldhave been noadmissionby the appellant hathe hadtaken thisgirlhome alone . . . which onhis later admissionwas a lie.21In Scotland,the corroborative alue of lies, or the scope of the doctrineofcorroboration y contradiction s it has beencalled,hasbeen succinctly tatedbyLordM'Larenn Dawson v. McKenzie22:

There must be corroboration f the pursuer's vidence;yet whentheeffectof thedefender's false defence, i.e. his denial of circumstanceswhich are otherwiseproved, s to showthatthere s something f whichheconceivedwould hrow uspi-

17. [1934] 1 K.B. 323 C.A.18. (1956) 3 D.L.R.(2d) 693.19. Idem,p.696.20. [1966] 2 All E.R. 205.21. Idem,p.207.22. [1908]S.C. 648. Cf. M'Whirter . Lynch[1908]Ct. Sess. 112where the pointonwhich the defender was contradicted was immaterial, and therefore the contradictionafforded no corroboration of the pursuer's case.



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372 Internationaland ComparativeLaw Quarterly [VOL.36cionuponhimself,this wouldputa different omplexionon what the courtmightotherwisebe disposed o regardas innocentbetween he parties.

The dictum of Lord M'Laren has been followed in the Canadian cases ofSemenuik v. Hodge23 and Hill v. McLeod.24 In the latter case Hill denied anassociation with the mother which the magistrates found proved. This amountedto the denial of a material fact which showed that, had he admitted that fact, itwould have brought suspicion on himself and consequently put a complexion onthe association which the judge might otherwise have regarded as innocent.In Australia the corroborative value of a false denial has arisen in a number ofcases. In Collie v. Collie25 the defendant was discovered late at night with thecomplainant on a sofa at her house. The complainant gave birth to a child ninemonths later. The defendant denied on oath that he had been at the complain-ant's house at all. The court held that this false denial was capable of affordingcorroboration, but suggested that it would have been otherwise if such a denialhad been made on the spur of the moment under cross-examination.26 In Hard-ing v. Porta27a false denial given by a married man did not amount to corrobor-ation because it stemmed from a desire to conceal a discreditable, though notnecessarily adulterous, relationship with the complainant. In Popovic v. Derks28the Supreme Court of Victoria considered the question of the corroborativevalue of false denials in a case where the putative father gave evidence on oaththat he was not a frequent visitor to the complainant's home and that he hadonly taken her out twice in his car. The court rejected his evidence. Scholl Jpointed out that it makes no difference that in this case the appellant's denialswere not absolute denials of all outings by the parties together 29 over theperiod in question. This shows that a partial denial can be corroboration.

C. OpportunityAlone Is Not SufficientWhereas false denials by the defendant may be capable of corroborating thecomplainant's story, evidence showing mere opportunity for sexual intercoursewill never be sufficient. In Burbury v. Jackson,30for example, Lord Reid con-sidered that where both the mother and the defendant were employed by thesame employer, and were required to be in a barn at the same time, evidence ofopportunity during employment was not sufficient corroborative evidence. Theevidence must show not only that intercourse was possible but that the allegedconduct 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 corrobor-ative evidence because it failed to give any particular colour to facts which pointed to amere 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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APRIL 987] Corroboration in Affiliation Proceedings 373In Thomasv. Jones32he motherwas the housekeeperandemployeeof thedefendant.The Courtof Appealreversed he decisionof the DivisionalCourt

thattherewascorroboration ased on the cumulative ffect of the facts that:theappellanthadsent a farmservant or the doctor on the morningof the birthofthe child;he allowedthe motherand the childto remain n hishouse for aboutfiveweeks;during hattime he did not askthe defendantwho was the fatherofher child;and, finally,he did not replyto a letter from the motheraskinghimwhat he intended.The Courtof Appeal,ScruttonLJdissenting,33ejectedthecumulativeeffect in favour of the reasoning hat therewas no evidence,apartfromthatof the motherherself,whichwas notconsistentwiththe innocenceofthe appellant.ScruttonLJdisagreedwiththe reasoningof the majority ave onone ground, namely that there was amplecorroboration f the fact that thedefendant,a bachelor,allowedthe mother,who was in hisservice,to remain nhis house for over fiveweeks afterthe birthof the child. He agreedwiththe jus-tices' decision adjudging he defendant to be the father of the child on thegroundthat they, knowing the locality and localhabitsof the residents ,were in the best positionto considerwhetherthat evidence corroborated hemother's tory.34nhisLordship's pinion,the restof theevidenceamounted oactsdone on the groundsof commonhumanity.Much the same conclusionwas reachedin the Scottish case of Dawson v.McKenzie,35 where the partieswere in the habit of meetingfrequentlyandspendingsome time in each other'scompany.Thecourtheldthatalthough hemeetingsaffordedopportunityor sexualintercourse, heywere not accompa-niedby anyelementof suspicionneitherwasthere proofof familiarities .36tseemsthat if the partieswere seen together n a wood or otherdarkplacethatmight possiblybe corroborative vidence. In Harveyv. Anning37the fact thatthepartieswere of a different ocialstanding,andwere seentogetherrepeatedlyin country anesin the evenings,amounted o corroboration.Thisreasoning santiquated.38udges oughtnot to attachany importance o the relativesocialstatusof the partiesnowadays.Mereopportunitys not enough.But wherethe partiesweresweetheartsor,at any rate, wherethey associated ogetheron termsof intimacyandaffectionand the motherwas not havingan associationwithany other man, this mightamount to corroboration.Lord GoddardCJ in the EnglishCourt of Appealdecisionof Moorev. Hewitt39explained:

The usticeswerenotusingheword intimacynwhat may all henewspaper32. [1921] 1 K.B. 23.33. Idem,p.37.34. See Walker v. Edward (1972) 12 J.L.R. 139 (Jamaica) for evidence evaluated by aJamaican 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 distinc-tion between the case of innocent intimacy as one judge called it, and a suspiciousassociation.37. (1902) 87 L.T. 687.38. See the Scottish case of Florence v. Smith (1913) Ct. Sess. 978 where the fact thatthe parties were of the same social rank was accepted by Lord Salvesen as evidence of cor-roborative value.39. [1947] K.B. 831.



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374 Internationaland ComparativeLaw Quarterly [VOL.36sense, meaning sexual intercourse, but obviously they were satisfied on the evi-dence before them that these young people were, and had for a long period of timebeen, associating together on the closest terms of intimacy and affection, visitingplaces of amusement and refreshment and going to dances together, and being inthe company of each other in the evenings and that the appellant visited the girl'shome, which means, I suppose, that her parents were allowing the appellant to gothere because, as the justices were satisfied, the parties were obviously on courtingterms.40

D. SilenceSilence when a charge is made may amount to evidence of an admission that thedefendant is the putative father-if and only if the circumstances render it moreprobable that a man would answer the charge made against him than not. In Hillv. Denmark41 Russell CJ stated:

Whatwere thecircumstancesere?This outof a boyof nineteen s broughtbytheear, as it were, by his mother to be confronted with the all-important question inthe presence of witnesses on both sides and he does not deny the paternity. It mighthave been either that he was stupidly silent or that he could not deny it, but themagistrates had the witnesses before them and they could judge from their demean-our and the way the evidence was given what was the proper inference to bededuced as to the meaning of his silence.The position is similar where the defendant fails to testify on oath.42That initself cannot constitute corroboration of the applicant's testimony. The positionis somewhat different in Canada,43where the courts have held that mere failureto testify cannot amount to corroboration but may be sufficient to convert whatwas previously a weak case against the respondent into a strong one.44

E. Blood TestsBlood test evidence is admissible in affiliation proceedings but these tests mayonly be carried out with the consent of the putative father. Such evidence, more-over, cannot prove conclusively that a man is the father of a child.45The court isnot 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 mancould not have been the father of the child.46In addition, the tests may indicate

40. Idem, pp.838-839.41. [1895]J.P. 345.42. Wiedemannv. 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.; ReJ and D (1974) 14R.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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APRIL 987] Corroboration in Affiliation Proceedings 375how wide the field is from which to choose the putative father, i.e. the tests willshow what blood group genes the child must have inherited from its father, andthe proportion of men having the necessary combination of blood group genesmay then be calculated.47

F. Usefulness f theRequirementf CorroborationIt is obvious that the bulk of the substantive evidence in affiliation proceedingswill come from the complainant; therefore there is a statutory requirement thatsuch evidence must be corroborated in a material particular. The difficulty, ofcourse, arises in determining what amounts to corroboration in some materialparticular , since the act of intercourse is normally a private affair without wit-nesses and, therefore, the corroboration is mainly circumstantial. The LawCommission for England and Wales has recommended48the abolition of the for-mal statutory requirement of corroboration. One of its grounds for this is thatthe retention of corroboration as a statutory requirement in affiliation proceed-ings remains the only civil exception in the entire legal process. This is not tosay, however, that in practice the courts would necessarily or in all cases act onuncorroborated evidence. The Law Commission advocated that where there isobviously a serious risk of acting on uncorroborated evidence the court shouldnevertheless be free to do so if it is in no doubt where the truth lies .49 Anotherreason for the proposed abolition of the requirement of corroboration is that thefirst hearing is in the nature of a non-suit and the res judicata rule does notapply.50 Under the present law, therefore, if the mother fails for lack of corrob-oration, she is entitled to try again with better evidence. Since she is entitled tomake repeated applications, the formal requirement of corroboration leads to awaste of time and money. There is without doubt considerable merit in thesearguments especially when one considers the dangers of attempting to formulatea definition of what constitutes corroboration in law. Notwithstanding thesearguments, Commonwealth courts ought to retain the requirement of corrobor-ation since this is an area of law where false allegations are not uncommon andcharges of paternity remain easy to make and difficult to rebut .51

LYSTRA KODILINYE

47. See the recentcaseof Twiner . Blunden 1986)150J.P. 180.48. LawCom.No.118,p.55.49. Idem,p.56.50. See ReMamann1976)29R.F.L. 203.51. Crosson Evidence 6thed.), pp.210-211.

INSURANCE LAW: STATUTORY CHANGES TO THEBASIS OF THE CONTRACT CLAUSE ANDMATERIALITY WITH PARTICULAR REFERENCE TO THEWEST INDIESA. Introduction

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