3PLR – MATTOUK V. MASSAD
POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR
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MATTOUK
V.
MASSAD
PRIVY COUNCIL
ON APPEAL FROM THE WEST AFRICAN COURT OF APPEAL
1943 Aug. 5.
OTHER CITATIONS
[1943] A.C. 588
BEFORE THEIR LORDSHIPS:
LORD ATKIN
LORD THANKERTON
LORD PORTER
LORD CLAUSON and
SIR GEORGE RANKIN.
REPRESENTATION
Solicitors for appellant: A. L. Bryden & Co.
Solicitors for respondent: Layton & Co.
MAIN ISSUES
CRIMINAL LAW AND PROCEDURE:- West Africa – Civil proceedings eliciting allegation of a crime – rape and seduction of a minor – Competency of action – Proof of rape – uncorroborated evidence of a teenager alleging rape leading to pregnancy – attitude of court thereto
PRACTICE AND PROCEDURE – JUDGMENT – APPEAL: Trial Court – Providing more detailed statement of reasons for judgment after appeal has already been lodged using initial record of proceedings – Propriety – how considered
CHILDREN AND WOMEN LAW: Alleged rape of a 15 year old by a 42 year old family friend who was married to a 17 year old – allegation of fondling and intercourse against her will which were not reported to her parents – subsequent pregnancy and child – claim for expenses and loss of service consequent on the birth – attitude of court to the uncorroborated evidence of a teenager pertaining to rape
SUMMARY OF FACTS AND JUDGMENT
Although the action for seduction is normally based on an act of the defendant which is wrongful only as against the master and is neither actionable at the suit of the servant nor criminal, yet it may, as may any other action brought by a master for being wrongfully deprived of the service of his servant by the defendant, be based on an act which is both a tort against the servant and a felony. Proof, therefore, that the defendant to an action of seduction had intercourse with the servant against her will and was therefore guilty of the felony of rape, is no bar to the master’s right to recover damages for the loss of the servant’s service thereby occasioned.
Opinion to the contrary by the West African Court of Appeal dissented from, though its judgment was affirmed on the facts.
A trial judge should not send a more detailed statement of the reasons for his judgment to the officials of the Count of Appeal after the hearing and decision of an appeal.
APPEAL (No. 27 of 1942) from a judgment of the West African Court of Appeal (June 7, 1941), which reversed a decision of Fuad J., sitting in the Divisional Court for Ashanti of the Supreme Court of the Gold Coast (October 5, 1940).
The following facts are taken from the judgment of the Judicial Committee: The action out of which this appeal arose was brought by the appellant against the respondent for the seduction of his daughter, Mary, by the respondent. The parties were Syrians, living at Kumasi. Mary lived with her parents and younger children in a flat above some shops. The appellant worked in a store at Kumasi, and his wife worked at a shop of her own. Mary, who, apparently, was a well developed girl of 15 at the material date, gave evidence for the appellant and deposed that the respondent and his wife used to visit her parents frequently. The respondent, aged 42, was a leading man in the Syrian community, and had recently married a young wife of 17, who had a baby born on September 4, 1939.
Mary deposed to various occurrences, the first being in October, 1939, when the respondent and his wife were present, at which, she said, the respondent had followed her to another room and fondled her; another at a later date, when the same thing occurred; and the third when the respondent, his wife and Mary’s mother were sitting on the verandah and the respondent exposed his person to her. Later, about November 15, the respondent, she alleged, came to the house alone, found her alone, and followed her to her parents’ bedroom and there had intercourse with her against her will. She then referred to a second occasion when the respondent came again with his wife and the baby. They were on the verandah with Mary and her mother. Mary had the baby in her arms, and when it slept took it to the parents’ room to lay it on the bed. As she was bending over with the baby in her arms, the respondent came behind her, put one hand over her mouth and had intercourse with her against her will from behind. The room had two windows, one overlooking the verandah with drawn curtains, and a door opening into the verandah with folding doors which were open but had a curtain over them. She alleged that, as the result of that intercourse, she gave birth to a child on July 24, 1940. It was for the expenses and loss of service consequent on the birth that the appellant claimed damages. The respondent gave evidence and denied the whole of the girl’s story. The learned judge (Fuad J.) accepted the girl’s story and gave the appellant 2000l. damages. It was not suggested by the appellant’s counsel that there was any corroboration of the girl’s evidence, or that the story of a connexion against the will of the girl should be accepted, or that the story of the second intercourse could be received as having happened in the way described. The trial judge, who tried the case without a jury, said that he had to warn himself how dangerous it was to act on the girl’s evidence alone, but that, nevertheless, having watched her demeanour and that of the respondent, he came to the conclusion that she was telling the truth. The West African Court of Appeal (Kingdon (C.J. Nigeria), Petrides (C.J. Gold Coast), and Paul (C.J. Sierra Leone)) came to the conclusion that the story was wholly incredible, and entered judgment for the present respondent. They emphasized the fact that it was not even contended that the girl’s story of rape was true, and were of opinion that the trial judge was thereby reduced to reconstructing a case of intercourse by consent as to which there was no evidence, and they commented on the fact that the judge’s notes of his judgment did not discuss in any detail the facts of the occurrences which he found to be true. The appellant appealed.
1943, July 12, 13.
MAIN JUDGMENT
Aug. 5.
The judgment of their Lordships was delivered by LORD ATKIN, who stated the facts, and continued: Both the trial judge and the Court of Appeal attached importance to the difference between rape and intercourse with consent, and appear to have inclined to the view that proof of the former would not support a case of seduction. In the Court of Appeal, therefore, the difference between the story of rape as told and the story as accepted appeared the more significant.
In their Lordships’ opinion, the members of the Court of Appeal attached, perhaps, excessive importance to the falsity of the girl’s story as to rape. It is so common for young women in cases of this kind to attempt to save appearances by alleging that they were forced to consent that such a falsehood by itself does not afford a very strong ground for disbelieving a story otherwise credible, but they were on very strong ground when they dealt with the improbability of the details as narrated by the girl. As to the first occasion, when the man and the girl were in the house alone, there is nothing intrinsically improbable in the story told, but the events of the second occasion, which is supposed to have occurred within two or three yards of a verandah where the girl’s mother and the man’s wife were sitting, with an open door opening into the bedroom only veiled by a curtain, with details such as counsel for the appellant did not venture to put forward as true, throw the gravest suspicion on the credibility of the girl’s story. It is now a commonplace that in judicial inquiries it is very dangerous to accept the uncorroborated story of girls of this age in charging men with sexual intercourse. No doubt, there is no law against believing them, but in nearly all cases justice requires such caution in accepting their story that a practical precept has become almost a rule of law. In Rex v. Graham (1), on which the trial judge relied, the criminal charge had been tried before a jury. The judge had warned the jury of the danger of convicting on the complainant’s story alone, but, as the jury had convicted, the Court of Criminal Appeal did not feel justified in interfering with the decision of the only tribunal of fact. In the present case, however, the Court of Appeal were judges of fact. It was a case in which in a special degree corroboration was demanded, for not only was the girl’s story admittedly untruthful on the question of consent, but it was admittedly untrue as to the details of the second occasion. The Court of Appeal were, in the circumstances, completely justified in refusing to accept the story even when it came supported by the trial judge’s satisfaction with the witness’s demeanour. There were other circumstances, such as the girl’s failure to make any complaint against the man, her repeated denials that she knew she was pregnant, and the very significant evidence of the respondent, his wife, the wife’s mother, and the midwife who attended the wife, that after her confinement on September 4 she was for forty days unable to leave the house, and of the first three of them that she did not leave the house with or without the baby in October and November. Their Lordships, therefore, are satisfied that the judgment of the Court of Appeal was just, and that this appeal should be dismissed.
They wish to add that there seems to have been some misapprehension on the question referred to, whether proof of rape is inconsistent with seduction. The father’s or master’s cause of action is for the loss of the girl’s service, and it seems illogical in the extreme to suppose that he could recover if the girl yielded, but not recover if he lost the service because the girl was forced. In one of the earliest cases, Norton v. Jason (1), the declaration was in trespass on the case that the defendant assaulted and carnally knew the plaintiff’s daughter per quod etc. The case turned on the point that, although the daughter had lost her cause of action in trespass by reason of limitation (then four years), the father retained his independent action in case with a longer period of limitation. The fact is that in the case of rape the master would have precisely the same action, basing it on the wrong done to his servant, as in the case of any tort to the servant by which the master was deprived of her service. The action can be brought for seduction whether based on the special wrong done to the master by persuading the girl to have intercourse, or on the wrong done to the girl by the felony of rape by which the master suffered damage. It has also been decided that the fact that the wrong to the servant was a felony has no bearing on the master’s action: Osborn v. Gillett (2), where the alleged felony was manslaughter.
Their Lordships cannot pass over what appears to have been an unfortunate proceeding of the trial judge in sending to the chief registrar of the Supreme Court of the Gold Coast after the hearing and decision of the appeal what purports to be a more detailed statement of his reasons for the judgment as delivered by him. It is not clear at what stage these notes were prepared. The learned judge says they were intended for the assistance of counsel for the defence, but there can be no doubt that part of the note must have been prepared after the criticism of the Court of Appeal on the absence of any detailed reference to the evidence. However well meaning the intention, it appears to their Lordships that any practice of preparing such a note and placing it on record after appeal is objectionable, and it is to be hoped that it will not be repeated.
Their Lordships will humbly advise His Majesty that the appeal be dismissed. The appellant must pay the costs of the appeal.
CITATION OF CASES REFERRED TO
(1) (1910) 4 Cr. App. R. 218.
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(1) (1653) Style 398.
(2) (1873) L. R. 8 Ex. 88.
