v

                                                  ElLIE MASSAD                      Defendant-Appellant.

 

Seduction Girl's story of rape- No corroboration-Demeanour of witness-Court of Appeal is guided by trial Judge-But if other cirC1lmstances exist which in opinion of Court of Appeal go to credibility of witness Court of Appeal may differ from trial Judge.

There is no need to set out the fact.

Appeal allowed.

Cases cited:-

Colonial Securities TJ"1ut Go. 1'. Massey (1896 1 Q.B. 38). Coghlan v. Cumberland (L R. 1898 1 Ch. 704).

Rex v. Graham (4 Cr. App. Rep. 218).

E. O. Asafu-Adjaye for Plaintiff-Respondent.

Frans Dove for Defendant-Appellant.

The following judgments were delivered:-

GRAHAM PAUL, C . .f., SIERRA LEONE.

The plaintiff-respondent and the defendant-appellant are both Lebanese people residing at Kumasi. The respondent has a daughter Mary who at the times material to this case was nearly seventeen years of age. 'l'he respondent sued the appellant in the Kumasi Divisional Court of the Supreme Court, his claim being for £2,000 as damages for the seduction and carnal knowledge by the appellant of the respondent's said daughter and servant Mary Mattouk. The learned Judge in the Court below after a lengthy trial gave judgment for the respondent assessing the damages at £1,200 and the costs at £105. From that judgment the appellant has appealed to this Court.

In my opinion, the first ground of appeal is the only one which requires the serious attention of this Court. It is that the judgment was against the weight of evidence. The appel1ant in this ground challenges the finding of the Trial Judge that the appellant seduced the respondent's daughter Mary. That 'is a pg 92 finding of fact by the trial Judge who heard and saw the witnesses give their evidence and it follows of course that there is upon the appellant a very heavy onus of satisfying this Court affirmatively that the trial Judge was wrong in this finding of fact. With respect I accept as authoritative and binding upon this Court the dictum of Lord Esher, M.R. in the case of Colonial Securities Trust Company v. Massey (1896, 1 Q.B. 38):-

" Where a case tried by a Judge without a jury comes " to the Court of Appeal, the presumption is that the decision " of the Court below on facts was right and that presumption " must be displaced by the appellant."

In considering whether in this case the appellant has dis­charged the heavy onus it is necessary to examine at some consider­able length the evidence in the case and the very comprehensive notes of his judgment which the learned Judge in the Court below made.

In the early part of his notes the learned Judge says, "There " is no doubt that the girl had had connection with the defendant " or somebody else and her evidence that it was the defendant " stood alone." In regard to that statement it is enough to say in the first place that the girl on 24th July, 1940, gave birth to a child so that she must certainly have had connection with some man; and in the second place that counsel for the respondent .has not suggested, and indeed on the record of the evidence before us he could not possibly suggest, that there was any corroboration whatever of-the girl's evidence that it was the appellant with whom she had the sexual connection resulting in the birth of the child. All that is common ground.

In these circumstances it seems to me that the first duty of the trial Judge was to examine, and to examine with the most meticulous care, both the general lines and the particular d(1tails of the story told by the girl' when she gave her evidence as to the occasion on which the alleged sexual intercourse with the appellant took place and as to the surrounding facts immediately before and immediately after the occasion. The first observation I have to make is that in his judgment the learned Judge made no attempt whatever to examine or analyse either the general lines of the girl's ~tory or the details of it. He does not even give a summary of her story or of the facts immediately preceding or immediately following the material occasion.

The only comment which I have been able to find that the learned Judge makes on the evidence of the girl on the vital point of her story is as follows:-

"After carefully warning myself against the danger of acting on "the evidence of a single witness I have come to the conclusion that /I Mary has told the truth as to her seducer before this Court. Iwatched her demeanour as I have watched the demeanour of all the "parties and witnesses who appeared before me in this case; I found j, that of Mary and of her parents to be very much in their favour and " I certainly could not say the same of the defendant." pg 93

These remarks, though lacking in specification, are very strong and they are entitled to receive from this Court the most careful consideration. Where acceptance or rejection of a witness's story depends, or might depend, on the demeanour of the witness, an Appeal Court would certainly accept the views of the trial .judge as to demeanour. I respectfully accept on this point. the views expressed by Lindley, M.R. in the case of Coghlan v. Cllmberland (L.R. 1898 1 Ch. at pages 704 and 705) which are as follows: -

The case was not tried with a jury, and the appeal from " the judge is not governed by the rules applicable to new " trials after a trial and verdict by a jury. Even where, as " in this case, the appeal turns on a question of fact, the " Court of Appeal has to bear in mind that its duty is to " rehear the case, and the Court must reconsider the materials " before the judge with such other materials as it may have " decided to admit. The Court must then make up its own "mind, not disregarding the judgment appealed· from, but ". carefully weighing. and considering it; and not shrinking " from overruling it if on full consideration the Court comes " to the conclusion that the judgment is wrong. When, as "often happens, much turns- on the relative credibility of "witnesses who have been examined and cross-examined " before the judge, the Court is assemble of the great advantage " he has had in seeing and hearing them. It is often very ',' difficult to estimate correctly the relative credibility of " witnesses from Written depositions; and when the question (, arises which witness is to be- believed rather than another, "and that question turns on manner and demeahour, the " Court of Appeal always is, and must· be, guided by the " impression made on the judge who saw the witnesses. But " there may obviously be other circumstances, quite apart from " manner and demeanour, which may show whether a statement is credible or not; and these circumstances may warrant " the Court in differing from the judge, even on a question of " fact turning on the credibility of witnesses whom the Court " has not seen."

At this stage I propose to remedy the unfortunate omission from the judgment of the learned trial Judge and summarise the story of the girl as told in her evidence at the trial. This may conveniently be done by first summarising seven separate and material incidents to which the girl spoke. Apart from the girl's evidence as to these seven incidents there is no evidence at all as to relations proper or improper between the girl and the appellant. pg 94

(1) In October, 1939, the appellant with his wife paid a visit to the respondent's house. They were sitting on the verandah of respondent's house with the girl's mother. The girl went into the dining room to prepare coffee and the appellant followed her. In the dining room the appellant stood by the girl an~ started to feel her hands, arms, breasts, neck and back. She stepped away from him; he returned to the verandah and the girl finished making the coffee.

(2) The next time (no date given) the appellant and his wife came, the girl again went into the dining room to prepare coffee. The appellant followed her, felt one of her hands and dragged her between his legs. She drew her hand away and left the dining room, refusing to obey the appellant's signals to her to return.

(3) The next time (no date given) the appellant and his wife came they again sat in the verandah with the girl's mother. The appellant on that occasion while sitting on the verandah along with his wife and the girl's mother held his penis in his hand; it was protruding from the fly of his trousers. The girl understood that he was exposing his penis for her benefit; he was looking at her and at his penis as if pointing it out to her. This was in the presence of the appellant's wife and of the girl's mother, on the verandah in daylight.

(4) On or about 15th November, 1939, the appellant came to the respondent's house alone and happened to find the girl alone in the house. He sat on a chair in the hall. The girl excused herself saying that she was going to change her dress. Why she should want to change her dress at that particular time does not appear. She went to her parent's room to change. 'the appellant followed her, threw her on the bed, pulled off her drawers and forcibly had sexual connection with her against her will. This is the act of connection from which, according to the respondent's case, the birth of the child resulted. 'rhe girl was afraid and trembling and dared not tell her mother of this incident. The room in which this is said to have happened had a window open at the time facing a neighbour's house. The window was two paces from the bed. The parents or brother or sister of the girl might have come in at any moment while this was going on.

(5) The same evening the appellant and his wife \Came .George but the girl was in pain, went to her bedroom and Matto:c slept and did not see/the appellant or his wife at all Elie  on this occasion. Massad

(6) A few days later the appellant and his wife again visited the respondent's house, with their· baby. They were all on the verandah with the girl and her mother. The baby cried and the girl took it in her arms till it slept, when she went to lay it on the bed in the bedroom which has windows and a door opening on to the verandah. The appellant followed her into the bedroom. As she was bending over, laying the sleeping baby on the bed with her arms under the baby the appellant in the girl's own words" bent on me, drew oft' my drawers, put one of his hand8 on my mouth and I felt something hard go into me again. I wanted to make a noise but I could not because his hands was on my mouth. My arms were under the baby on the bed so I could not move. I was stooping over the bed ..

     The girl's mother and the appellant's wife were all this time on the verandah which was about three yards from the bed. The door of the bedroom on to the verandah was open with curtains hanging. Again in the girl's own words: -" I could not struggle "because my arms were under the baby. I did 'Dot draw my " hands away for fear the baby would wake up. I could not draw " my arms out even if I wanted to because he was too close to me " pushing me on to the bed. I could not move and remained " like that until he finished with me."

(7) A few days later appellant came again with his wife and baby to respondent's house. While the appellant, his wife, and the girl's mother were sitting on the verandah the girl took the baby into the bedroom to change its clothes and the appellant followed her. As to this occasion the girl said:­" He half knelt down-pushed his hand up inside " my skirt and started to feel my legs. Then I left " the baby and I went out into the verandah and "then he came out into the verandah with the " baby."

     The girl's own story of these seven incidents is the only evidence in the case that the appellant had any improper relations with the girl or even that he had any opportunity to have such relations with her. Even her own mother does not corroborate the girl as to a single one of the occasions when she said the appellant followed her into the bedroom from the verandah. It is a story which is on the face of it so manifestly and utterly impossible to believe that the question of her demeanour in telling pg 96 it could be of no importance. It' is a story of two rapes. There is no suggestion from beginning to end of the girl's evidence that this was a case of seduction-not a scintilla of evidence of any of the arts of the seducer. In cases of seduction one ordinarily expects to find evidence of conduct apart from the actual sexual intercourse showing something of the arts of the seducer. Here there is nothing of the kind. It is rape or nothing, There is not a scrap of corroboration of any kind of any of the astounding and completely incredible facts to which this girl has deposed on oath and yet the learned Judge has come to the conclusion that the girl has spoken the truth as to _ her seducer, without a word of comment on what I can only call the blatant perjury of the girl.

This is no mere attempt by a modest girl " to obfuscate the facts"; it is deliberate downright lying showing at once a marvelous though debased talent for invention and a total disregard of truth and of her oath to tell the truth. The learned Judge nowhere in his judgment explains how on the uncorrohorated and manifestly perjured evidence of the girl that she was twice " raped" by the appellant he comes to the conclusion that she was at least once" seduced." Nor can I find any explanation of that conclusion in the record, consistent with justice. A trial Judge cannot reject the evidence of the only material witness for the plaintiff and substitute a completely different story out of his imagination for the story told by that witness. That with respect seems to me what the learned Judge has done in this case; though that I confess is only a guess on my part in the complete absence of any express explanation hy the learned Judge on the point.

I may say however that counsel for the respondent gave me a clue to that guess when, finding himself unable seriously to suggest that the girl was a truthful witness, he invited this Court to assume that the learned Judge rejected the girl's story as to the " rape" and substituted some set of facts not specified, either by the learned Judge or the respondent's counsel from which the learned Judge inferred that the appellant in some way not specified had " seduced " the girl.

There is a question I should like t~ put about this curious suggestion that. the learned Judge rejected the girl's sworn story and substituted an unspecified one of his own from which he inferred that seduction had taken place. If, as the learned Judge has found so definitely, Mary was a strong-minded girl of unblemished character why should she "to the exclusion of all "other Syrians" allow herself to be seduced by the appellant, " a man older than her father and recently married to a woman " certainly better looking than herself." No answer can be given to that question of course because the learned Judge has not dis­closed the facts amounting to seduction which he has in his mind substitut!td for the facts of rape to which the girl deposed.

It is true that this is not a criminal case but it does involve on the evidence an accusation against the appellant of facts constituting the felony of rape, and it is a claim for 'damages which may be awarded on a quashi-penal basis if the Court considers that the circumstances demand it; and the respondent's counsel has argued that the circumstances of this case do merit exaggerated damages. In such cases I consider that the girl's story of rape ought not to be altogether exempt from the cautionary considera­tions which Sir Mathew Hale laid down for the guidance of Courts in cases of rape. He said:-

"If she (i.e., the woman complaining) concealed the " injury for any considerable time after she had opportunity " to complain; if the place where the fact was supposed to " be committed were near to inhabitants, or common recourse " or passage of passengers, and she made no outcry when the " fact was supposed to be done, when and where it is probable "she might be heard by others; these and the like " circumstances carry a strong presumption that her testimony " is false or feigned." (1 Hale P .C. Ch.58).

Nowhere do I find that the learned Judge in considering the girl's story of rape directed his mind to these cautionary considera­tions of Sir Mathew Hale which as is said in 'Wills on Circum­stantial Evidence (Sixth Edition at page 253) " are as cogent and much needed at the present day as when they were written."

I am afraid that, with all respect to the learned trial Judge, this is one of the cases contemplated by Sir Mathew Hale when he used these words:-

" The heinousness of the offence many times transporting "the Judge and Jury with so much indignation that they "are over hastily carried to the conviction of the person "accused thereof by the confident testimony sometimes or " malicious and false witnesses."

The learned Judge has found that the girl Mary was "a strong-minded girl." In fact he twice in his judgment stresses that opinion but, from her own story it is manifest that besides being " a strong-minded girl" she is a false witness who gave confident but completely incredible evidence. The fact that she is a strong-minded girl merely emphasises the imposl:!ibility of accepting the story she gave on oath of her relations with the appellant.

The learned Judge dealt very critically with the evidence of the appellant in certain comparatively unimportant details but in doing so it appears to me that he was "straining at ..gnats" compared with his " swallowing the camel" in dealing with the girl's evidence and I do not consider that his criticism of the appellant's evidence was of importance or that it justified his attitude towards the girl's evidence: pg 98

 One or two other passages in, the notes of the learned Judge appear to call for comment. He says: --,-" Mary told her story in " a natural manner. Cross-examination at the hands of an able "lawyer could not shake her." The plain fact is that Mary's Mory as it was elicited in examination-in-chief was so obviously a tissue of blatant lies that I am surprised that counsel even troubled to cross-examined her at all.

Again the learned Judge in dealing with the girl's story about the appellant exposing his penis to her, says: -" Young girls have " been enticed to JaIl into traps by such indecent exposures and " gestures before."- I am unable to guess where the learned Judge got that p;:l.rticular part of the expressed basis of his judgment from; it was certainly not from the evidence in this case.

The only case which, on the evidence of the plaintiff's witness Mary, the defendant had to answer was a case of rape. Mary's evidence as I have said was so obviously untrue that it collapsed of itself and left the defendant with nothing to answer. How 'possibly could he answer a case based on an undisclosed set of facts which the learned Judge in his mind and' out of his own imagi'nation had substituted for the set of facts to which the plaintiff's witness Mary deposed? The learned J ugge, even in his judgment, has not disclosed the set of facts which he in his mind decided to substitute for the set of facts to which Mary deposed.

Counsel for the respondent stressed that the learned Judge did not only heard and seen the witnesses give their evidence but that he had inspected the respondent's house. In no part of his judgment however does the learned Judge say. that he discovered any fact or facts from his .inspection which in anyway influenced his dedsion or cast any doubt on any particular evidence in the case. I am not therefore impressed by the- fact that the learned Judge did visit the house.

Great stress was laid by the respondent and ;Mary and his other witnesses on -the alleged fact that Mary never went out alone, the plain suggestion being that no one but the appellant had the opportunity to have sexual connection with her. But this seems, to me nonsense, The respondent's case on the evidence at the trial was that the appellant could and did by chance find Mary alone in the house in the middle of the afternoon and commit rape. If according to the respondent that could be done, then obviously someone else could by chance, or perhaps by arrangement, have had a similar opportunity for sexual connection without perhaps the difficulty of resistance on the part of the girl. It is certainly not established that the appellant alone had the opportunity of sexual connection with Mary at the material time.

I think that' this is just such a case as was contemplated by Lindley M.R. in the passage I have quoted from his judgment in the case of Coghlan v. Cumberland where there are circumstances quite apart from the manner and demeanour' of witnesses which warrant this Court on re-hearing the case on appeal in differing with the trial Judge even on a question of fact turning on the credibility of the witness Mary Mattouk whom this Court has not seen, and it is clear to my mind that the learned trial Judge was wrong in finding as he did. In my opinion the appeal should be allowed; the judgment of the Court below should' be set aside; and a judgment dismissing the claim should be substituted.

Since writing this judgment I have been given the opportunity of reading in advance the judgments which are about to be delivered by the learned l>resident and by the learned Chief Justice of the Gold Coast and I should like to add tllat I find myself in respectful agreement with the views they have expressed OR the various aspects of this case.

KINGDON, C.J., NIGERIA.

I concur with every word of the judgment which has been delivered by my learned brother, the Chief Justice of Sierra Leone, and I desire to add a few words in order to elaborate and emphasise certain points.

First of all I consider that. this' is a case where this Court need have no hesitation in overruling the learned trial Judge upon his finding of fact that the appellant is the father of Mary's child, because I can find no evidence supporting the respondent's case upon which he .could properly so find. Nowhere in her evidence does Mary state that appellant is the father of her child. The plaintiff-respondent's case is -specifically that Mary became pregnant and was delivered of a child as a result of the appellant having connection with her on an occasion in November, 1939, when he visited plaintiff's house and found Mary there alone. This is clear from the opening of counsel in the 00urt below, which in this country takes the place of pleadings:-

" Evidence will be led to show that th~ defendant visited " the plaintiff's house some time in November, 1939, and found " all the inmates of the house absent with the exception of "Mary Mattouk. The defendant took advantage of the "circumstances under which be found Mary Mattouk and "seduced and carnally knew her whereby she became " pregnant with a, child of which she was delivered on 24th

       " July, this year."              -

The plaintiff then, in order to prove his case, had to show that 011 this occasion, the appellant seduced Mary. It was not perhaps so clear as it should have been in the Court below, but it was made abundantly clear in this Court, that it is not and never was part of the respondent's case that the appellant had carnal knowledge with Mary by force or against her will, the case was that Mary was seduced -and that intercourse took place with her consent. This pg 100 applies equally to the occasion specifically relied upon for conception and to the one other alleged act of intercourse a few days later.

What evidence did plaintiff lead to establish his case that Mary was seduced and that intercourse took place with her consent? N one at all. Instead he led evidence that appellant had connection with Mary by force and against her will. That evidence is admittedly false and the plaintiff-respondent does not rely upon it to prove his case. Instead he, in effect, invited the learned Trial Judge to infer from the evidence given that Mary had been seduced and that intercourse had taken place with consent. The Judge did so, and in doing so based his finding of fact not on the admittedly untrue evidence which Mary gave, but on the evidence which he guessed she might have given if she had spoken the truth-in other words on no evidence at all. In saying this I have not overlooked the words of Channell, J. in the case of Rei/: 1'. Graham (4 Criminal Appeal Reports 218 at 221):-

" We do not re-try a case properly tried by the Jury. " But if we were re-trying the case we should come to the " conclusion that the girl consented to a greater extent than " she said. There were two alternatives for the Jury. The " girl had connection with the prisoner or with somebody else. " These were the alternatives. If she had connection with " the prisoner she was not an entirely truthful girl, but her "untruthfulness was in defence of her own character, and " women will lie on that point often when the rest of their " story is true. That was not pointed out to the Jury; but, " with that possible exception, everything was put fully to "them. As to the similarity referred to as existing between " her statement before the magistrate and the statement made " by her before the Jury, the explanation may be that she " learned her proof before the magistrate by heart. Unless " we are to re-try cases we can do nothing in a case like this. " It is not because the Jury might properly have found the " other way that we can do anything . We are not authorised " to re-try the case."

I cannot read into these words the meaning that, when a woman is giving evidence whereby her character and chastity are in question, the general rule that she must tell the truth, the whole truth and nothing but the truth is abrogated, and she becomes entitled to break her oath and to tell a story which is partly true and partly untrue out of which counsel will invite the Court to pick and choose the facts which he suggests are true. That would be a violation of the fundamental principles of evidence, and it is vitally important that in a case like the present there should be no such violation, for surely a man against whom a charge of this nature is made is entitled to have the actual story relied upon by the plaintiff told in the witness box in order that its truth may be tested by cross-examination and perhaps refuted by other evidence. The case of Rete 'V. Graham was a criminal case and the only thing that mattered was whether the accused had or had not had connection with the girl; but in the present case the exact circumstances in which connection took place between the appellant and Mary (if at all) are of the utmost materiality upon the question of the assessment of damages. As matters stand the learned Judge arrived at his conclusion and assessed damages without having the circumstances of the alleged seduction proved or even knowing the plaintiff's case as to those circumstances.

The learned trial Judge did not record any specific finding of fact in regard to the act of seduction. His finding is quite general :-" I have come to the conclusion that Mary has told the "truth as to her seducer before this Court." It is not clear whether he found that intercourse took place with her consent or without. The use of the. word "seducer" suggests the former, whilst the sentences "Mary told her story in a very natural "manner. Cross-examination at the hands of an able lawyer "could not shake her" suggest the latter. But in my view neither finding could be upheld, the former because there was no evidence to support it whilst there was direct evidence both by Mary and the appellant to contradict. it, the latter because it was not the plaintiff's case and has been definitely repudiated by his counsel. In other words on the cases of the parties it is common ground that intercourse did not take place without consent, and on the evidence given it is common ground that intercourse did not take place with consent. That being so it is difficult to see how it could be held that there had been intercourse between Mary and the appellant.

In my view the learned trial Judge was putting the cart before the horse when he considered the question of corroboration of Mary's story; the difficulty is to find any story to be corroborated. And the same applies to the second alleged act of intercourse. 'This is the sixth of the seven incidents enumerated by my learned brother in his judgment, and I need not repeat the unsavoury details. But I think it might be well to submit the story to a closer scrutiny.

As I see it, there are four possibilities in regard to this story namely: -

(a) It is true, or (b) it is partly true and partly untrue, the untrue part being the allegation that the acts took place without Mary's consent, or (c) it is concocted by Mary, or (d) it is concocted by plaintiff and put into Mary's mouth.

Possibility (a) can be quickly discarded, the story that a rape took place in the circumstances narrated is too fantastic for serious consideration, and it is expressly repudiated by respondent's counsel. Possibility (b) is the one upon which the respondent relies as the truth, but this also is a highly improbable story and pg 101 by other evidence. The case of Retc v. Graham was a criminal case and the only thing that mattered was whether the accused had or had not had connection with the girl; but in the present case the exact circumstances in which connection took place between the appellant and Mary (if at all) are of ,the utmost materiality upon the question of the assessment of damages. As matters stand the learned Judge arrived at his conclusion and assessed damages without having the circumstances of the alleged seduction proved or even knowing the plaintiff's case as to those circumstances.

The learned trial Judge did not record any specific finding of fact in regard to the act of seduction. His finding is quite general: -" I have come to the conclusion that Mary has told the "truth as to her seducer before this Court." It is not clear whether he found that intercourse took place with her consent or without. The use of the. word "seducer" suggests the former, whilst the sentences fairy told her story in a very natural "manner. Cross-examination at the hands of an able lawyer "could not shake her" suggest the latter. But in my view neither finding could be upheld, the former because there was no evidence to support it whilst there was direct evidence both by Mary and the appellant to contradict it, the latter because it was not the plaintiff's case and has been definitely repudiated by his counsel. In other words on the cases of the parties it is common ground that intercourse did not take place without consent, and on the evidence given it is common ground that intercourse did not take place with consent. That being so it is difficult to see how it could be held that there had been intercourse between Mary and the appellant.

In my view the learned trial Judge was putting the cart before the horse when he considered the question of corroboration of Mary's story; the difficulty is to find any story to be corroborated. And the same applies to the second alleged act of intercourse. this is the sixth of the seven incidents enumerated by my learned brother in his judgment, and I need not repeat the unsavoury details. But I think it might be well to submit the story to a closer scrutiny.

As I see it, there are four possibilities in regard to this story namely: -

(a) It is true, or (b) it is partly true and partly untrue, the untrue part being the allegation that the acts took place without Mary's consent, or (c) it is concocted by Mary, or (d) it is concocted by plaintiff and put into Mary's mouth.

Possibility (a) can be quickly discarded, the story that a rape took place in the circumstances narrated is too fantastic for serious consideration, and it is expressly repudiated by respondent's counsel. Possibility (b) is the one upon which the respondent relies as the truth, but this also is a highly improbable story and pg 102 there is no evidence to support 'it; like the story relied upon for the conception, it is a figment of the imagination, and the imagination is required not only to invent consent but to invent details in substitution for those given, for instance some other position must be invented for the hand of the appellant alleged to be on Mary's mouth. And there is this point which appears to have been lost sig1lt of, namely that if coition took place in the manner and position alleged by Mary, it must have been not merely with her passive acquiescence, but with her active assistance and co-operation, she must, for instance, have so positioned herself as to facilitate penetration; and that being so, it argues that she had considerably more experience and knowledge than she would have us believe, for an innocent girl would hardly know, on the spur of the moment, what was required of her in order to enable consummation of the act with no such shuffling of the feet, or other noise as would attract the attention of the two women only a few yards away on the verandah, and without even waking the baby. As to possibility (c) I will only say-What would one think of a girl with the pornographic mind to invent such a story? If possibility (d) is the explanation, it stamps the plaintiff's case as a concoction of falsehood.

The learned trial Judge stressed the innocence and unblemished character of Mary and found it proved that her parents were respectable, trusting and simple folk. I cannot agree that the plaintiff-respondent's case and the evidence led to support it justify these findings. On the contrary it seems to me to be established that Mary was far from innocent and that all three of them were the reverse of straight-forward .. The plaintiff's case was that intercourse took place by consent, yet the plaintiff put Mary into the witness-box for her to commit perjury and allege rape. I have already shown in my analysis of the sixth alleged incident that which ever way it is looked at, Mary comes out of it as far from innocent. Apart from that, there is her own admission that she consistently and (as they would all have us believe) 5Uccessfully attempted to deceive her parents throughout the period of her pregnancy by denying having had intercourse with any man. On the top of that comes her impudence in swearing to the Court that she did not realise that she was pregnant until her baby was born. To my mind that is a pat~t untruth; and how can such evidence be reconciled with the trial Judge's finding that " she preferred to bear her burden and suffering alone "? It is equally clear to my mind that both the father and mother of Mary gave false evidence, the father when he said-

" Between December, 1939, and July, 1940, we did not " believe she was pregnant because her mother used to ask "her always' and she always said 'No.' When she, gave " birth to a child we were surprised." pg 103

      Now these statements are either true or untrue, and that gives us the horns of a dilemma upon one or other of which the plaintiff's case must be impaled. If they are true Mary becomes stamped not merely as .0. liar but as a very particular expert in the act of telling and acting a lie, for ex hypothesi she convinced her own mother that she was not pregnant although her mother had herself experienced six confinements and had been told by both a 'doctor and a midwife that Mary was pregnant. Her mother's suspicions were aroused as is evidenced by her repeated questionings of Mary, but in spite of that, according to her mother's evidence, Mary told and acted her lie with complete success. But personally, having regard to all the circumstances, more especially to the lively suspicion which had been aroused, I find it impossible to believe that anyone of the three-father, mother or daughter-was really ignorant of the event which was about to take place. If I am right, and if, as must follow, the statements of the parents which I have quoted are untrue, then they are automatically proved guilty of attempting a base deception upon the Court and must be regarded with suspicion accordingly.

I concur in holding that tl1is appeal must be allowed and I also agree with the views which are about to be expressed by my learned brother, the Chief Justice of the Gold Coast.

PETRIDES, C.J., GOLD COAST.

I have had the advantage of reading the two judgments just delivered and have no hesitation in concurring that the appeal should be allowed. Mary's story is an amazing one. She says on three occasions in October appellant made indecent gestures and took liberties with her. On the third occasion he exposed his penis while she and her mother and appellant's wife were sitting on the same verandah. If I understand the evidence correctly she was disgusted with his behaviour as one would naturally expect any decent-minded girl to be.

In November she says appellant twice had connection with her against. her will. On the first. occasion she states, she was alone in the house and on the second, appellant's wife and her mother were on the verandah a few yards away. On this latter occasion connection is alleged to have taken place from behind while Mary was bending over a bed holding the baby. How the appellant was able to lift. up Mary's clothes, let down her drawers and at the same time put his hand over her mouth to prevent her calling out and have connection with her without awaking the baby has not been explained.- pg104

The seduction which is relied on as leading to these proceedings took place, it is alleged, on the 15th November, 1939, at about 3 to 3.30 p.m. and she gave birth to a baby on the 24th July, 1940. Mary ceased to menstruate after the 15th November. She was examined by two doctors and a midwife. Doctor Suess examined Mary on the 26th December, 1939, and according to Mary, said she might be going to have a baby and her parents said " that " cannot be because she never goes out." Subsequently Doctor Reindorf and the midwife told Mary's mother that Mary was pregnant. Her parents refused to believe them because Mary said she had never had connection with man. They were not convinced of her condition till she gave birth to the baby.

Mary in her evidence stated" From December until the baby "was born I did not realise I was pregnant." This is not reconcilable with her statement" During all this time my parents " questioner1 me about my condition but I never told them any­"thing because I was afraid."

If the respondent's version is accepted it is apparent that Mary is a consummate actress and liar. Appellant's conduct must have filled Mary with loathing and disgust. What histrionic gifts she must have had to conceal these feelings while her seducer continued to visit the house till the eve of the birth of the baby. What powers of deception she had to be able to deceive. her mother, who had had six children, in spite of what two doctors and a midwife had told her. Yet believe her Mrs Mattouk says she did, for she stated on oath " I did not know until she gave birth to the child " that she was pregnant."

If she was able to deceive her mother and father, the parents of six children, is it surprising that her demeanour in the witness ­box was so convincing?

It has been said that charges of the nature: made by Mary are the easiest to make and the most difficult to disprove. Mary's conduct in denying that she had had connection with man till the end of July and not charging appellant with responsibility till eight and a half months after the first alleged act of seduction must have put the defence in the Court below in a serious quandary. It must have made it extremely difficult for appellant to say where he was in the afternoon of the 15th November, 1939, and for his counsel to cross-examine Mary's mother as to where she was at that time. Is it surprising that faced with these difficulties the appellant's demeanour in the witness-box was not as convincing as it might have been.

That Mary lied consistently and convincingly to her parents is not in dispute. That Mary committed perjury when she said in the witness-box that she did not realise that she was pregnant until the child was born seems hardly open to doubt. pg 105