006-SLLR-SLLR-2007-V-2-GUNAWATHIE-v.-PRIYALAL.pdf
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GUNAWATHIEV
PRIYALALSUPREME COURTSARATH N. SILVA. C.J.SHIRANEE TILAKAWARDANE, J.SOMAWANSA, J.
SC 81/2005HC KANDY 1246/2003MC 3150APRIL 24, 2006JULY 3, 2006
Maintenance Act No. 37 of 1999 – section 2(2) * Illegitimate child – Motherdumb – Reliability of the evidence – Corroboration required? – EvidenceOrdinance, section 118, section 119.
The applicant-respondent-appellant filed action seeking maintenance from therespondent claiming that he is the father of the child bom to her 'dumb*daughter. The mother of the child who was dumb gave evidence through aninterpreter; the paternity of the child was put in issue by the respondent. TheMagistrate's Court delivered its order in favour of the applicant-appellant. TheHigh Court, in appeal reversed the said order. The respondent before theSupreme Court challenged the testimonial reliability and trustworthiness of thedumb witness on the purported infirmities in the interpretation and translationof her communications before Court.
Held:
In a claim for maintenance of an illegitimate child, the burden of proofwith respect to paternity vests in the party asserting such claim.Paternity must be proved through cogent evidence.
Under the Maintenance Act, clear convincing and coherent evidencegiven by the claimant to establish the fact of paternity to thesatisfaction of the Magistrate would suffice in establishing paternity asclaimed by the claimant.
Per Shiranee Tilakawardane, J.
"Unlike under the old Ordinance the present Maintenance Act does not requireadditional corroboration of the mother's evidence, if the Magistrate is satisfiedon the issue of paternity, based on evidence led to that effect by the claimant.u
sc
Gunawathie v Priyalal
(Shiranee Tilakawardane. J.)
59
The reliability of evidence adduced by a dumb witness must beconsidered in the light of the facts and circumstances of each case.There exists no general standard or straight jacket formula appKcableto such cases.
Under the Common Law, it is accepted that a person who is deaf anddumb is not incompetent, if he or she can be made to understand thenature of an oath and if intelligence can be conveyed to and receivedfrom him or her by means of signs. He or she may be examinedthrough a sworn interpreter who understands her signs.
The evidence that has been recorded discloses that the unfolding ofthe narrative of events that had occurred by the said witness wasclear, convincing, concise and in a manner which could lead to clearconclusions.
Per Shiranee Tilakawardane, J.
“It is not the job of the Court to privilege certain terms of communications overothers. Court will not raise a negative presumption against the understandingand intelligence of a witness based on the method of communication chosenby that witness or come to any unfounded assumptions on such evidence andto do so would be inequitable0.
In the instant case it is evident on an analysis of the evidence onrecord that the dumb witness-mother more than satisfies the criterialaid down in section 118 and her testimony is in accordance with theprovisions of section 119.
7) The impartiality and independence of the interpretation has not beenchallenged at any stage of the proceedings. There is no evidence toprove improper conduct or any act of partiality or interest which couldundermine the reliability of the interpretation in this case.
APPEAL from a judgment of the High Court of Kandy.
Cases referred to:
Venkattan v Emperor 1972 13CrCJ27.
Somasunderam v The Queen (1971) 76 NLR 10.
David Weeraratne for appellant respondent appellant.
T.G. Herath for respondent-appellant-respondent.
Cur. adv. vuit.
March 16, 2007
SHIRANEE TILAKAWARDANE, J.
This appeal has been preferred against the Judgment of the HighCourt Kandy dated 01.08.2005. The applicant-respondent-appellantfiled an application for maintenance, against respondent-appellant-respondent before the Magistrate's Court of Kandy, praying inter alia –
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(d) that the respondent is the father of the child PradeepSasanka Kumara bom to her disabled (dumb) daughter on21.04.2000.
(c) that a monthly payment or Rs. 1500 be paid asmaintenance against the respondent for the illegitimatechild born to her daughter.
(f) for costs etc.
In his submissions the respondent has denied the paternityclaimed by the appellant. The evidence tendered to Court includedthe testimony of Sriyani Pushpalatha a dumb witness who was themother of the child whose paternity was in question. Her evidencewas recorded with the assistance of the interpreter Mrs. Victoria deCruz. The learned Magistrate delivered order dated 08.09.2003 infavour of the appellant.
The respondent preferred an Appeal against this Order to theHigh Court Kandy. The High Court allowed the respondent’s appealsetting aside the order of the Magistrate, by its judgment dated01.08.2005.
This appeal has been preferred against this judgment of thelearned High Court Judge of Kandy by applicant respondent-appellant. Leave to appeal was granted on 27.02.2006 on thequestion of –
"Whether the High Court erred in law in setting aside the orderof the Magistrate made in favour of the applicant, which is basedon an evaluation of the evidence that was recorded
The appellant has claimed maintenance under section 2 (2) ofthe Maintenance Act, No. 37 of 1999. This section provides that:
"Where a parent having sufficient means neglects or refuses tomaintain his or her child who is unable to maintain himself orherself, the Magistrate may upon an application being made formaintenance and upon proof of such neglect or refusal, ordersuch parent to make a monthly allowance for the maintenanceof such child at such monthly rate as the Magistrate thinks fit,having regard to the income of the parents and the means andcircumstances of the child".
Gunawathle v Priyalal
SC(Shiranee Tilakawardane. J.)61
Importantly, the proviso to this subsection stipulates clearly that:
"… no such order shall be made in the case of a non-marital
child unless parentage is established by cogent evidence to the
satisfaction of the Magistrate."
In a claim for maintenance of an illegitimate or non-marital child,the burden of proof with respect to paternity vests in the partyasserting such claim.The statute prescribes that paternity must beproved through cogent evidence, to the satisfaction of theMagistrate in order for such a claim to succeed. .
The term 'cogent evidence1 as defined by the Blacks LawDictionary contemplates evidence, which is "compelling orconvincing". An instruction that evidence must be cogent denotesthat it must be clear, constraining, impelling, or convincing. Theevidence must be sensible and logical . It is the power to compelassent or belief.
To establish with 'cogent evidence' is to establish thereforeconvincingly, persuasively, clearly and with lucidity the fact soclaimed. Therefore under the Maintenance Act, clear, convincing,and coherent evidence given by the claimant, to establish the factof paternity to the satisfaction of the Magistrate would suffice inestablishing paternity as claimed by the claimant.
It is important to note that unlike under the old Ordinance, thepresent law of maintenance does not require additionalcorroboration of the mother’s evidence, if the Magistrate is satisfiedon the issue of paternity, based on cogent evidence led to thateffect by the claimant.
In the instant case, the dumb mother in her testimony hasclearly identified the respondent as the father of the child born toher on 21.04.2000. The learned Magistrate, who had theopportunity to observe the demeanor of the witness and herresponse to questions, was satisfied that the evidence brought outin her testimony, clearly established the paternity of the respondentand has succinctly referred to the same in the findings of the Order.
The respondent has challenged the testimonial reliability andtrustworthiness of the dumb witness merely on purported infirmitiesin the interpretation and translation of her communications before
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Court. It is common ground that the dumb witness has received noformal education or training in sign language. Based solely on thisfact, the respondent seeks to cast doubt upon the reliability andcredibility of her testimony before Court. The respondent claimsthat the Court should assume that her lack of formal training in signlanguage would have seriously impaired and hindered thecapability of the witness to properly understand the questionsposed to her through the trained interpreter and effectivelycommunicate her responses in Court.
Therefore on this assumption alone, it is the respondent'scontention that the dumb mother's testimony, which identifies himas the father of her child, is unreliable and therefore the applicanthas failed to produce cogent evidence before Court in support oftheir claim. The learned High Court Judge, evidently convinced bythese arguments of the respondent, held in favour of therespondent in the judgment dated, 01.08.2005.
The reliability of evidence adduced by a dumb witness must beconsidered In the light of the facts and circumstances of each case.There exists no general standard or straightjacket formulaapplicable to such cases. Section 119 of the Evidence Ordinance,which deals with the evidence of dumb witnesses, provides that;
llA witness who is unable to speak may give his (or her)evidence in any other manner in which he can make itintelligible, as by writing or by signs; but such writing must bewritten and the signs in open Court. Evidence so given shall bedeemed to be oral evidence0.
Under the common Law it is accepted that a person who is deafand dumb is not incompetent, if he or she can be made tounderstand the nature of an oath and if intelligence can beconveyed to and received from him or her by means of signs. Heor she may be examined through a sworn interpreter whounderstands his or her signs. [Vide, E.R.S.R. Coomaraswamy,"The Law of Evidence", 498].
Whereas a dumb witness could testify in open Court in themanner prescribed above, he or she must be a competent witnessas contemplated under section 118 of the Ordinance. The sectionstipulates that;
sc
Gunawathie v Priyalal
(Shiranee Ti/akawardane, J.)
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"Alt persons shaft be competent to testify unless the Courtconsiders – that they are prevented from understanding thequestions put to them or from giving rational answers to thosequestions, by tender years, extreme old age, disease, whetherof body or mind, or any other cause of the same kind".
Therefore, in order to be reliable, the dumb witness mustpossess the requisite degree of intelligence to understand andanswer the question in a rational manner. If she cannot understandthe question or make her meaning intelligible, she cannot beexamined as a witness. (Vide, Venkattan v Emperor,^)) It followsthat if a witness is so deaf and dumb that it is impossible to makehim or her understand the questions put in cross-examination, thatwitness cannot be considered to be a competent witness.
In evaluating such evidence an essential prerequisite would beto ascertain and determine whether testimony given by the saidwitness, was understood with clarity and whether such questionwas answered logically. Importantly the Court must be satisfied asto whether the interpreter sufficiently understood the witness andwas able to communicate in a like manner the evidence that wasconveyed through him without distortion, so that Such is recordedby the Court.
The evidence that has been recorded discloses that theunfolding of the narrative of events that had occurred by the saidwitness was clear, convincing, concise and in a manner whichcould lead to clear conclusions. The record does not reflect thatthere had been any breakdown in the communications between thewitness and the interpreter. Indeed the details of the questions thathave been answered and communicated to the Court through theinterpreter reflect that there has been a clear line of communicationthrough the interpreter. It is to be noted that the veracity of theinterpreter has not been challenged on the ground of partial, biasedor prejudicial interpretation.
In the instant case it is evident on an analysis of the evidence onrecord that the dumb witness, the mother of the non-marital child,more than satisfies the criterion set out in section 118 of theEvidence Ordinance and her testimony is in accordance with theprovisions in section 119 of the Evidence Ordinance. The witness
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has intelligently and intelligibly provided evidence before Court withregard to the paternity of the respondent. The witness has alsoclearly identified the respondent to the satisfaction of the learnedMagistrate.
The primary and only requirement of any witness is to furnishevidence. Such evidence can be produced through the movementof lips, the production of a document, or in the case of a dumbwitness through the medium of signs. What is important is that theevidence so furnished provides coherent, lucid, logical andpersuasive evidence, a record of an unfolding of the narrative ofevents as known to the witness. It is not the job of the Court toprivilege certain forms of communication over others. The Court willnot raise a negative presumption against the understanding andintelligence of a witness based on the method of communicationchosen by that witness or come to any unfounded assumptions onsuch evidence and to do so would be inequitable.
It is worthy to reiterate that when considering – the evidence ofa dumb witness, it is important that the witness be capable ofunderstanding and communicating responses to questions put, inexamination and cross-examination. This can be comprehendedfrom the record of the evidence. It is also worth noting that anyinability or incapacity to comprehend communications before Courton the part of the witness or the interpreter can be easily andcontemporaneously brought to the notice of the Court. Thepresiding Judge would also have the independent opportunity toapprehend such a state through his or her own observation of thewitness.
In my view, it follows that in the absence of any suchcommunication, and in the absence of any apprehension in themind of the Magistrate hearing the case, the Court cannot raise apresumption against the comprehension and capability of the dumbwitness, based solely on an assumption which is not borne out bythe facts in the instant case. Any inference originating from such anassumption would not be a finding on facts. Therefore an inferenceon such an assumption or a finding that there was an improperunderstanding between the witness and the trained interpreterwould not be tenable in the circumstances of this case.
sc
Gunawathle v Priyatal
(Shlranee THakawardane, J.)
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As admitted even by the respondent in his submissions, there isno doubt that the witness is certainly a competent witness and fullycapable of communicating successfully with those around her.Section 119, Evidence Ordinance refers to communication throughany other manner including signs. The Ordinance does not specifythat such a testimony in order to be accepted by Court, mustsubscribe to any standard form of sign language. The Interpretermust be skilled in the form of communicating through signs,understanding and expressing and translating the views of a dumbwitness. Given that a significant number of dumb people in SriLanka do not have access to formal training in sign language, anyrigid interpretation of section 119 would deny access to Court, to alarge number of such litigants merely due to an artificial standard,that is not inclusive of their right to Justice, rights that equallybelong to all those who are differently abled (disabled) or physicallychallenged in their speech.
I am of the opinion that despite the obvious and reasonableconstraints on communication, the witness, Sriyani Pushpalathawas fully capable of comprehending the questions put to her and ofcommunicating her responses through signs, despite her lack offormal training in sign language. This can be observed with muchclarity in the manner, content and tenor of her evidence which is onrecord. Therefore in the absence of any evidence to the contrary Ifind that the learned High Court Judge erred in his assessment ofthe reliability of the evidence produced by the dumb witness, theclaimant's mother against the respondent, based almost entirely ona lack of qualifications or expertise.
Apart from the capability of the witness, a further point ofsignificance when assessing a dumb witness's, testimony is theimpartiality and reliability of the interpreter. The interpreter must beskilled and sworn. The Court must establish that such person doesnot have any interest in the outcome of the case. InSomasundaram v The QueenW relied on by the respondent, thedecision of the Court in rejecting the evidence of the dumb witnesswas influenced largely by the apparent partiality of the interpreterbased on his close involvement in the case.
In the instant case, the impartiality and independence of theinterpreter have not been challenged at any stage of the
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proceedings. There is no evidence to prove improper conduct orany act of partiality or interest which could undermine the reliabilityof the interpreter in this case.
It is significant and a matter of importance in this case that thetrial Judge had the opportunity to observe the demeanor of thewitness and had the opportunity to also comprehend the evidenceplaced at the trial. The learned Magistrate was able to fully observeand analyze, directly, the competency of the witness and thecogency of her evidence. Even on an analysis of the evidence onrecord it is apparent that the witness comprehended the questionsand that her responses were, clearly understood.The evidencegiven by her during cross-examination both reveals that not onlydid she comprehend the questions but that her answers wereunderstood and that no prejudice whatsoever was caused therebyto the respondent.
In light of the evidence on record, it can with certainty beconcluded that the Magistrate rightly determined that sufficientevidence had been adduced to establish the paternity of therespondent. In light of the above findings I set aside the judgmentdated 01.08.2005 of the learned High Court Judge of Kandy, andaffirm the order of the learned Magistrate, Kandy dated 08.09.2003.The Appeal is allowed. I order the payment of costs in a sum ofRs.5000/- by the respondent to the appellant.
S,N. SILVA, C.J.-I agree.
SOMAWANSA, J.-I agree.
Appeal allowed.