Simpson v Collinson
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DANCKWERTS,LORD JUSTICE DAVIES,LORD JUSTICE SELLERS |
| Judgment Date | 10 December 1963 |
| Judgment citation (vLex) | [1963] EWCA Civ J1210-1 |
| Court | Court of Appeal |
| Date | 10 December 1963 |
[1963] EWCA Civ J1210-1
In The Supreme Court of Judicature
Court of Appeal
(From: The Divisional Court
Lord Justice Sellers
Lord Justice Danckwerts and
Lord Justice Davies
Mr. GEORGE WALLER. Q.C. and Mr. L.A. PRATT (instructed by Messrs. Van Sandau & Co., Agents for Messrs. Redfearn, Wharton & Swales, Heckmondwike) appeared on behalf of the Appellant Simpson.
Mr. M.V. ARGYLE. Q.C. and Mr. R.R. RAWDEK-SMITH (instructed by Messrs. Vizard, Oldham, Crowder & Cash, Agents for Messrs. Whitfield, Son & Hallam, Dewsbury) appeared on behalf of the Respondent Collinson.
LORD JUSTICE SEIslERS: I will ask Lord Justice Danckwerts to give the first judgment.
This is an appeal from the Divisional Court, who heard a Case Stated by the west Riding of Yorkshire Quarter Sessions upon their dismissal of the present appellant's appeal from a decision of the Dewsbury magistrates.
The facts as found in the Case Stated are as follows:
"Upon the hearing of the said appeal the following facts were either proved or admitted:
"(a) The appellant is a single woman who, at the material time, was aged 16 and who gave birth to a bastard child named David Anthony Stephen on the 9th January 1962. The said child was a full term child.
"(b) During the early part of 1961 the appellant and the respondent were associating together and sexual intercourse took place between them. According to the appellant the said association began in April 1961 and terminated in June 1961 and sexual intercourse took place on several occasions. According to the respondent the said association began in December 1960 and terminated on the 17th February, 1961, and sexual intercourse occurred twice, namely once in December 1960 and again on the 3rd February 1961.
"(c) On the occasion when the association between the appellant and the respondent first began, two other persons named Mavis June Teale and Malcolm Davis were present. Both Teale and Davis gave evidence before us.
"(d) The appellant lived about 150 yards away from the respondent and the appellant did not accuse the respondent of being the father of the said bastard child until after the birth of the said child, namely on a date in February 1962. The respondent at once denied paternity.
"(e) The appellant had her last menstrual period preceding the birth of the said child in April 1961".
The justices then add a paragraph which they express as"Opinion". "We were of the opinion that the evidence of the appellant as to the period of her association with the respondent (this being the fundamental issue before us) was not corroborated in a material particular as required by law. The only evidence in support of the appellant's contention that her association with the respondent covered the date when the bastard child must have been conceived was the evidence of the said Mavis June Teale and we were of the opinion that Teale's evidence must be rejected as being unreliable and self-contradictory. At one stage in her evidence Teale stated that the appellant and the respondent began to associate in January 1961 and were still associating on April 20th 1961, that being the appellant's birth-day". I add that it was her 16th birthday.
"Under cross-examination Teale stated that the association between the appellant and the respondent may have begun in December 1960 and that in any event the association only lasted two months. She further stated that she was first called upon to recollect the dates of the said association in March 1962 and not earlier. Having rejected Teale's evidence for the reasons given above, we dismissed the said appeal".
A question of law was stated by them. "The question of law for the opinion of the High Court is whether we, the said Justices, upon the above statement of facts, came to a correct determination and decision in point of law and, if not, what should be done in the premises".
The Divisional Court dismissed the appeal by the present appellant. The Lord Chief Justice, in giving the only full judgment, came to the conclusion that he was "quite unable to see how the respondent's evidence that he never did have intercourse at the material period can be corroboration of her evidence that he did". That I think in effect summarises the view which was taken by the Divisional Court.
It seems to me that the first important thing to do is to refer to the terms of the statute upon which the whole matter depends. This statute, the Affiliation Proceedings Act, 1957,repeats in the same words the provisions of the statute which was operative at the earlier dates in regard to which certain cases to which we have been referred were decided. Section 4 sub-section 2 provides: "If the evidence of the mother is corroborated in some material particular by other evidence to the court's satisfaction, the court may adjudge the defendant to be the putative father of the child"; and so on.
Now it is to be observed that what the statute requires is not corroboration (as it appears to me) of the whole of the mother's evidence, but merely corroboration of the evidence of the mother in regard to "some material particular". It seems to me that in this case the admissions made by the respondent that he had had intercourse twice with the appellant, albeit at a date before the child could possibly have been conceived, is capable of being corroboration of the appellant's evidence. It is a corroboration of the mother's story in a material particular, as it seems to me, namely, that she had been on intimate terms with the respondent, so much so that he admits that they had intercourse within a few weeks of the alleged intercourse resulting in conception - the strongest evidence of inclination of the respondent to have intercourse with the appellant that one could have.
It is not necessary, as I have said, that the whole of the appellant's story should be corroborated, only that her evidence is corroborated "in some material particular", as the statute says; and it seems to me that the fact of being on intimate terms is a corroboration of the appellant's evidence in a material particular.
Now we have been referred amongst other cases to the case of Cole v. Manning, decided in 1877 and reported in Volume 2 of the Law Reports Queen's Bench Division at page 611. That was a case in which, paternity having been denied by the alleged father, evidence was given and "it was proved to the magistrate's entire satisfaction that during the summer of 1874, several months before the child could have been begotten, the parents of the appellant,with whom previously to that date the respondent had been on terme of great friendship and intimacy, refused him the house, and quarrelled with him, owing to their suspicions with regard to his conduct towards the appellant? they deposed that they surprised the appellant and respondent together on more than one occasion; that the door of the parlour where they were was closed for a minute or two against them; that the appellant sat on the knee of the respondent; and they deposed to other circumstances which would have had great effect on the magistrate's judgment had they occurred at or about the time when the child might nave been begotten". The woman in that case wau "rather of weak intellect, but there was no evidence of any similar misis conduct on her part with other men than the respondent" - which is also apparently the fact in the present case as regards the appellant.
In that case, after taking time to consider, the magistrate was "of opinion that he was not at liberty so to interpret the words of the statute" (the relevant statute at that time being 35 & 36 Victoria chapter 65 section 4) "'if the evidence of the mother be corroborated in some material particular'" (which are in fact the same words as are used in the present statute) "as to include evidence of facts long antecedent, and having no direct relation to the actual begetting of the child, however strong might be the moral conviction that such facts might convey to his mind, but that the word 'material' must be taken to imply a closer connection of the 'particular' in question than was in this case apparent with occurrences at or about the time when the child must have been begotten, or with subsequent words or actions of the respondent tending to fix the paternity".
The Divisional Court, consisting of Mr. Justice Mellor and Mr. Justice Field, decided that the magistrate was wrong in the view which he had taken. Mr. Justice Mellor said; "I think that the magistrate was mistaken in his decision: he ought to have received the evidence as a sufficient corroboration in point of law and to have considered what weight was due to it in pointof factj and he in effect states that he would have found for the complainant if he had believed himself at liberty to admit it. No rule of law excludes testimony as to acts of familiarity before the time when the bastard child could have been begotten; and evidence of that kind shows at least a probability that the statement of the mother is true". That is a test whether the facts given in evidence show a probability that the evidence of the mother is true. Mr. Justice Field took the same view.
It seems to me also that the view to which I have come is supported by the observations of Lord Chief Justice Goddard in the case of Moore v. Hewitt, reported in 1947 1 King's Bench at page 831, the observations to which I wish to refer being at page 838. The Lord Chief Justice said: "For many years since I have known anything about the law on this matter, it has been the practice, and very often the only way of giving corroborative evidence in these cases, to prove that the two young people concerned were, perhaps, a courting couple or sweethearts or, at any rate, were associating together on terms,...
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...to corroboration. Although the defendant purported to say that he could not be the father it has been clear since the case of Simpson v. Collinson [1964] 2 Q.B. 80; [1964] 1 All E.R. 262 that an admission by a man against whom an affiliation order is sought that he had sexual intercourse w......
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...men and therefore she does not require corroboration as to the date of conception. And the judgments read in the Court of Appeal in Simpson v. Collinson [1964] 1 All E.R. 262 provided high persuasive authority that the alleged father's admission of sexual intercourse with the mother, albeit......
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Harracksingh v Lalla
...in (1877) 2 Q.B.D. p. 611. It appears that the facts in this case are much stronger than the facts in Cole v. Manning. See also Simpson v. Collinson [1964] 1 All E.R. 262. In these circumstances the appeal is accordingly dismissed. There will be no order as to costs. he went on to say that ......