Edwards v Walker

• Jurisdiction: Jamaica
• Judge: Hercules, J.A.
• Judgment Date: 04 April 1974
• Neutral Citation: JM 1974 CA 19
• Court: Court of Appeal (Jamaica)
• Docket Number: Resident Magistrate's Criminal Appeal No. 82 of 1973
• Date: 04 April 1974

Court of Appeal

Hercules, J.A.; Swaby, J.A.

Resident Magistrate's Criminal Appeal No. 82 of 1973

Edwards

and

Walker

Appearances:

Joyce Bennett (amicus curiae) for complainant/respondent

Horace Edwards Q.C., for defendant/Appellant.

Family Law - Paternity — Whether appellant had a sexual relationship with person other that the respondent — Need for corroboration.

Hercules, J.A.

1 This is an appeal against an order by His Honour Mr. A.S. Allen, Resident Magistrate for the parish of St. Ann, adjudging the defendant/appellant to be the putative father of a child named Rohan Kanhai, born of the complainant/respondent, Lorraine Edwards, on 1st January, 1973.

2 The complainant/respondent have evidence that she and defendant/appellant became friends in 1971 and in the course of the friendship they had sexual intercourse about six times - the last time before becoming pregnant being March, 1972. The defendant/appellant formed the habit of calling her out of her home at about 8 0 ‘clock in. the evenings and taking her up to the Water Drum namely, the Parish Water Tank, where sexual intercourse took place even in April, 1972, after she had missed her menstrual period. On one occasion complainant/respondent was at the shop with her aunt, Lelieth Brederick, when defendant/appellant asked her in her aunt's hearing to go with him for a drive. She obliged and sexual intercourse took place. Under cross-examination by the defendant's attorney-at-law she agreed that she had visited the defendant at his home and that on one of those occasion she spent the day there with him. This emphasizes the extent of their association and the opportunity for sexual intercourse.

3 Lelieth Broderick lived at complainant/respondent's home in January, 1972 until July, 1972, Broderick used to see defendant/appellant come to the home, call her niece, complainant/respondent, and carry her away in a car. After a certain period of time defendant/appellant would bring back complainant/respondent. One Sunday night in April the witness saw defendant/appellant come to Lorraine about 4 times. According to her he used to come about 8 p.m. The car was driven away in the direction of Water Drum. This witness saw the couple at Church and at the shop - they talked at the shop, went away together driving, and witness had to walk home alone.

4 Defence Attorney submitted that there was no corroboration, but the learned Resident Magistrate ruled that there, was, without noting what fact or facts he considered capable of amounting to corroboration as required of Resident Magistrates by the case of Allen v. Dwyer (164) 6 W.I.R. 261.

5 In any event, the defendant/appellant gave evidence denying completely all that had been said by compliant/respondent and her witness. All he could say was that he usually saw compliant/respondent on the street or in the yard of his girl friend, Bev. Brown, He did not even possess a motor car It was never suggested that the complainant had been associating with any other man during the relevant period. On this evidence the learned. Resident Magistrate made the order.

6 The appeal is taken purely can the ground of corroboration as was submitted at the close of the compliant/respondent's case.

7 Mr. Horace Edwards submitted that the evidence did not go beyond a mere association providing opportunity. There are numerous cases on this question and every case has to be decided on its own facts. No one of the cases cited bore facts on all fours with the facts of the instant case.

8 In Allen v. Dwyer (1964) 6 W.I.R. 261 where the Court of Appeal found there was not sufficient to amount to corroboration, the following statement appears at page 262:–

“Again, if the Court had found...