Briginshaw v Briginshaw
60 CLR 336(Judgment by: Dixon J.)
Briginshaw v.
Briginshaw
Judges:
Latham CJ
Rich J
Starke J
Dixon J
McTiernan J
Judgment date: 18, 19 May, 30 June 1938
Judgment by:
Dixon J.
In the course of reviewing the evidence which I have summarised above, Martin, J, said that all the witnesses gave their evidence well, and that he could gather nothing adverse to them from their demeanour. He concluded his reasons for judgment thus --
I do not know what to believe. I have been very much troubled. I think that Lamprill holds the key. It seems that he may have held a pistol at both parties' heads. I have done my best to decide, but the petitioner must satisfy me that his story is true. I think I should say that, if this were a civil case, I might well consider that the probabilities were in favour of the petitioner; but I am certainly not satisfied beyond reasonable doubt that the evidence called by the petitioner should be accepted.
The view which His Honour has thus expressed places the appellant in an unusually favourable position in attacking what otherwise might have been regarded as a finding of fact, upon which the opinion of the primary Judge must prevail. For it not only excludes the demeanour of the witnesses as a source of enlightenment, but it suggests at least an inclination of mind towards the acceptance of the version of the facts supporting the appellant's case. At the same time, the learned Judge, in expressing his want of certainty as the ultimate reason for his decision, adverts to a standard of persuasion the application of which to an issue of fact in a matrimonial cause is open to dispute. The case thus comes to depend in a great measure upon a proper understanding of the exact opinion which His Honour formed, and of the degree to which his mind was affected by the strength of the petitioner's case. My own interpretation of what he said is that, not only had the evidence fallen far short of satisfying his mind beyond reasonable doubt of the adultery alleged, but that he had not formed an actual belief that adultery took place, although he thought that possibly he might consider that the probabilities disclosed by the evidence were greater in favour of that conclusion than against it.
At common law two different standards of persuasion developed. It became gradually settled that in criminal cases an accused person should be acquitted unless the tribunal of fact is satisfied beyond reasonable doubt of the issues the burden of proving which lie upon the prosecution. In civil cases such a degree of certainty is not demanded. The distinction obtained long before the publication in 1824 of Starkie's Law of Evidence ; but the form in which the higher standard of persuasion is described is said to have been influenced by passages in that work. The learned author, who occupied the Downing Chair of Common Law, wrote --
It is to be observed, that the measure of proof sufficient to warrant the verdict of a jury varies much, according to the nature of the case. Evidence which satisfies the minds of the jury of the truth of the fact in dispute, to the entire exclusion of every reasonable doubt, constitutes full proof of the fact; absolute mathematical or metaphysical certainty is not essential, and in the course of judicial investigations would be usually unattainable. Even the most direct evidence can produce nothing more than such a high degree of probability as amounts to moral certainty. From the highest degree it may decline, by an infinite number of gradations, until it produce in the mind nothing more than a mere preponderance of assent in favour of the particular fact. The distinction between full proof and mere preponderance of evidence is in its application very important. In all criminal cases whatsoever, it is essential to a verdict of condemnation that the guilt of the accused should be fully proved; neither a mere preponderance of evidence, nor any weight of preponderant evidence, is sufficient for the purpose, unless it generate full belief of the fact to the exclusion of all reasonable doubt
-- (1st ed ) pp 450-451, (4th ed ) pp 817-8.
When, however, he passes to the standard of proof in other cases, he describes it in less positive and definite terms (1st ed ) p 451, (4th ed ) p 818 --
But in many cases of a civil nature, where the right is dubious, and the claims of the contesting parties are supported by evidence nearly equipoised, a mere preponderance of evidence on either side may be sufficient to turn the scale. This happens, as it seems, in all cases where no presumption of law, or primá facie right, operates in favour of either party; as, for example, where the question between the owners of contiguous estates is whether a particular tree near the boundary grows on the land of one or of the other. But even where the contest is as to civil rights only, a mere preponderance of evidence, such as would induce a jury to incline to the one side rather than the other, is frequently insufficient. It would be so in all cases where it fell short of fully disproving a legal right once admitted or established, or of rebutting a presumption of law.
This mode of stating the rule for civil issues appears to acknowledge that the degree of satisfaction demanded may depend rather on the nature of the issue. In the course of a discussion of the matter containing no less wisdom than learning, Professor Wigmore says --
In civil cases it should be enough to say that the extreme caution and the unusual positiveness of persuasion required in criminal cases do not obtain. But it is customary to go further, and here also to attempt to define in words the quality of persuasion necessary. It is said to be a state of mind in which there is felt to be a 'preponderance of evidence' in favour of the demandant's proposition. Here, too, moreover, this simple and suggestive phrase has not been allowed to suffice; and in many precedents sundry other phrases -- 'satisfied,' 'convinced,' and the like -- have been put forward as equivalents, and their propriety as a form of words discussed and sanctioned or disapproved, with much waste of judicial effort
-- Wigmore on Evidence (2nd ed ), Vol V, s 2498. It is evident that Professor Wigmore countenances as much flexibility in the statement and application of the civil requirement as did Mr Starkie. The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved.
The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding, are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Every one must feel that when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency. Thus Mellish, LJ, says -- "No doubt the court is bound to see that a case of fraud is clearly proved, but on the question at what time the persons who have been guilty of that fraud commenced it, the court is to draw reasonable inferences from their conduct" -- Panama and South Pacific Telegraph Company v India Rubber, Gutta Percha and Telegraph Works Company , (1875) LR 10 Ch App 515 at p 530.
In the same way, in dealing with the question in what county the publication of a criminal libel had taken place, Best, J, said --
I admit, where presumption is attempted to be raised as to the corpus delicti , that it ought to be strong and cogent; but in a part of the case relating merely to the question of venue, leaving the body of the offence untouched, I would act on as slight grounds of presumption as would satisfy me in the most trifling case that can be tried in Westminster Hall
-- R v Burdett , (1820) 4 B. & Ald. 95 at p 123, 106 ER 873 at p 884.
It is often said that such an issue as fraud must be proved "clearly," "unequivocally," "strictly," or "with certainty" -- cf. Mowatt v Blake , (1858) 31 L.T. O S 387; Kisch v Central Railway Company of Venezuela , (1865) 12 L.T. 295; Lumley v Desborough , (1870) 22 L.T. 597. This does not mean that some standard of persuasion is fixed intermediate between the satisfaction beyond reasonable doubt required upon a criminal inquest and the reasonable satisfaction which in a civil issue may (not must) arise from a preponderance of probability. It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained. When, in a civil proceeding, a question arises whether a crime has been committed, the standard of persuasion is, according to the better opinion, the same as upon other civil issues -- Doe d. Devine v Wilson , (1855) 10 Moo. P C. 502 at pp 531-2, 14 ER 581 at p 592; Boyce v Chapman , (1835) 2 Bing. N.C. 222, 132 ER 87; Vaughton v London and North-Western Railway Company , (1874) LR 9 Ex 93; Hurst v Evans , [1917] 1 KB 352; Brown v McGrath, Motchall v Massoud , [1926] VLR 273 , 32 ALR 271; Nelson v Mutton , (1934) 8 A.LJ 30; Gerder v Evans , (1933) 45 Lloyd's List R 308 at p 311; sed qure as to the statement of Swift, J, in Herbert v Poland , (1932) 44 Lloyd's List R 139 at p 142. See, further, Wigmore on Evidence , Vol V p 472, para 2498 (2) (I). But, consistently with this opinion, weight is given to the presumption of innocence, and exactness of proof is expected.
These illustrations show the good sense of Professor Wigmore's statement that, in civil cases, it should be enough to say that the extreme caution and the unusual positiveness of persuasion required in criminal cases do not obtain.
But the development of the two standards of proof or persuasion is the work of the common law. In jurisdictions which do not derive from the common law there has been some uncertainty as to their recognition or adoption. In the Ecclesiastical Courts, before the passing of the Matrimonial Causes Act 1857, no attempt had been made to define the degree of certainty which should be felt before finding a spouse guilty of adultery. But as the issue in most cases depended upon circumstantial evidence, and as the testimony was taken out of court, it was natural that the reasons given by the court for its decision in particular cases should often contain general observations as to the nature and amount of evidence required to justify a finding. Many expressions and statements of Lord Stowell upon the subject are reported. Thus -- "The court representing the law draws that inference which the proximate acts unavoidably lead to" -- Elwes v Elwes , (1796) 1 Hag. Cons. 269 at p 278, 161 ER 549 at p 552.
It is undoubtedly true that direct evidence of the fact is not required, as it would render the relief of the husband almost impracticable; but I take the rule to be that there must be such proximate circumstances proved as, by former decisions, or on their own nature and tendency, satisfy the legal conviction of the court that the criminal act has been committed
-- Williams v Williams , (1798) 1 Hag. Cons. 299 at pp 299-300, 161 ER 559.
The only general rule that can be laid down upon the subject is that the circumstances must be such as would lead the guarded discretion of a reasonable and just man to the conclusion; for it is not to lead a rash and intemperate judgment, moving upon appearances that are equally capable of two interpretations, neither is it to be a matter of artificial reasoning judging of such things differently from what would strike the careful and cautious considerations of a discreet man
-- Loveden v Loveden , (1810) 2 Hag. Cons. 1 at p 3, 161 ER 648, 649.
To prevent ... the possibility of being misled by equivocal appearances, the court will always travel to this conclusion with every necessary caution; whilst on the other hand it will be careful not to suffer the object of the law to be eluded by any combination of parties to keep without the reach of direct and positive proof
-- Burgess v Burgess , (1817) 2 Hag. Cons. 223 at p 227, 161 ER 723 at p 724.
The test formulated twenty years later by Sir Herbert Jenner Fust, where the evidence was not direct, differed only in expression --
It is not necessary to prove an act of adultery at any one particular time or place; but the court must look at all the circumstances together, and form its own opinion whether they lead to a fair and natural conclusion that an act of adultery has taken place between the parties at some time or other
-- Grant v Grant , (1839) 2 Curteis 16 at p 57, 163 ER 332 at p 336. Up to that time no analogy appears to have been sought in criminal proceedings. But in Dillon v Dillon , (1842) 3 Curteis 86 at p 116, 163 ER 663 at p 674, Dr Lushington said --
As far as concerns the wife, in effect, this is not a civil but a criminal proceeding, and, if there be any doubt, she is entitled to the benefit of it; the evidence, perhaps, may preponderate in favour of the husband, but I cannot say that it is free from reasonable doubt.
Later in the same judgment he described the case as one "of great doubt' -- at pp 117-674. In Davidson v Davidson , (1856) Deane 132 at p 135, 164 ER 526, he referred to the presumption of adultery arising from proof of what he called a criminal intention and of opportunity, but added that the court required "to be satisfied that actual adultery has been committed."
When Sir Cresswell Cresswell came in 1858 from the Common Pleas to the new court of Divorce and Matrimonial Causes, he seems to have been content to describe the standard of proof of adultery in the language ordinarily employed at nisi prius . For instance, in Alexander v Alexander , (1859) 2 Sw. & Tr. 95 at p 101, 164 ER 928 at p 931, he says --
In deciding this question [of adultery] we must act upon the same principles as juries are directed to act upon in deciding similar cases. It is a well-known principle of our jurisprudence that the party who alleges misconduct against another is bound to establish such misconduct by affirmative evidence. Unless, therefore, it is proved to the satisfaction of the court that the respondent has been guilty of the misconduct imputed to her, it is bound to dismiss the petition.
In Miller v Miller , (1862) 2 Sw. & Tr. 427 at p 433, 164 ER 1063 at p 1064, in refusing to disturb a jury's finding against adultery, the same learned Judge said -- "The petitioner was in this case, as in others, bound to prove the affirmative; and if he failed to do so to the satisfaction of the jury they were bound to find against him." In another such case -- Gethin v Gethin , (1862) 2 Sw. & Tr. 560 at p 563, 164 ER 1114 at 1116, Sir Cresswell Cresswell upheld the finding, on the view that the jury may have said -- "We are not satisfied with the evidence; we are left in such doubt that we feel we cannot safely draw the inference suggested, and therefore we find that the charge is not proved."
Putting aside the line of authorities which deal with the special question of confessional evidence, no further attempt to formulate or define the measure of proof of adultery appears to be reported, until Allen v Allen , [1894] P at p 252, when Lopes, LJ, after setting out the statement of Lord Stowell in Loveden v Loveden (above ), dealt with proof by circumstantial evidence as follows: --
To lay down any general rule, to attempt to define what circumstances would be sufficient, and what insufficient upon which to infer the fact of adultery, is impossible. Each case must depend on its own particular circumstances. It would be impracticable to enumerate the infinite variety of circumstantial evidentiary facts, which of necessity are as various as the modifications and combinations of events in actual life. A jury in a case like the present ought to exercise their judgment with caution, applying their knowledge of the world and of human nature to all the circumstances relied on in proof of adultery, and then determine whether those circumstances are capable of any other reasonable solution than that of the guilt of the party sought to be implicated.
Lord Stowell's statement in Loveden v Loveden (above ) and the comments of Lopes, LJ, were applied in Woolf v Woolf , [1931] P 134. Apparently these passages adequately describe the nature and amount of proof of adultery required in England in ordinary daily practice. The language used by more than one of their Lordships in Ross v Ross , [1930] AC 1, shows, I think, that satisfaction beyond all reasonable doubt is not the criterion applied where proof of adultery depends on circumstances. For, if that had been the accepted test, it would indeed be strange if it were not applied or relied upon as part of the reasons for holding, as a majority of the House of Lords did, that the circumstances failed to establish guilt. So far from applying this standard, Lord Buckmaster first speaks of proof of adultery "as a matter of inference and circumstance"; and then, in denying the sufficiency of the fact that the parties are thrown together in an environment which lends itself to the commission of the offence, states the necessary qualification thus -- "Unless it can be shown ... that the association of the parties was so intimate and their mutual passion so clear that adultery might reasonably be assumed as a result of an opportunity for its occurrence" -- [1930] AC at p 7. Lord Atkin, alluding to the circumstances telling in favour of innocence, says simply -- "Such a charge in such circumstances ought to be fully proved" -- p 23. Lord Thankerton said -- "Admittedly the respondent must prove facts which are not reasonably capable of an innocent construction" -- p 25.
Although confessional evidence has been the subject of special or independent treatment in the authorities, the result has been to establish no different measure of persuasion. Corroboration should be looked for, but -- "The true test seemed to be whether the court was satisfied from the surrounding circumstances in any particular and exceptional case that the confession was true" -- per Sir Samuel Evans, P , Weinberg v Weinberg , (1910) 27 T.L.R 9; cf. Getty v Getty , [1907] P 334.
There are, however, two English cases containing statements that particular issues should be proved in the Matrimonial Causes Jurisdiction beyond reasonable doubt. In Statham v Statham , [1929] P 131 at p 139, Lord Hanworth, M.R , says that an allegation of sodomy should be proved beyond reasonable doubt, with due and cautious consideration of the witnesses and their evidence. No such expression is used by the two Lords Justices.
In Gaskill v Gaskill , [1921] P at pp 432-4, Lord Birkenhead applied to matrimonial causes the rule relating to legitimacy, namely, that to bastardise a child conceived and born during wedlock, it is not enough to establish a mere preponderance of probability in favour of the inference that the husband did not beget the child; the presumption of legitimacy is not rebutted unless the proof excludes all reasonable doubt. The use of the phraseology of the Criminal jurisdiction is due to Lord Lyndhurst, in Morris v Davies , in 1827 (5 Cl & F. 163 at p 215), a case the course of which is fully examined by Cussen, J, in The Estate of L ., [1919] VLR 17 at p 30, 24 ALR 404 at p 409 et seq . Cussen, J, concludes his consideration of the legitimacy rule by saying --
The expression 'beyond reasonable doubt' recalls the ordinary direction in criminal cases that it is necessary that the jury should be satisfied of guilt beyond reasonable doubt before they disregard the primary presumption of innocence. It may be that the origin of the rules in cases like the present is that adultery was and to a certain extent still is regarded as an offence, and it is not to be imputed on a mere balance of probabilities as in an ordinary civil case
-- at p 36 VLR, p 412 ALR This does not appear to me necessarily to imply that His Honour considered that always and for all purposes adultery must be established beyond reasonable doubt. In New South Wales, however, it has come to be the accepted rule that on a trial with a jury of a petition for dissolution on the ground of adultery, the direction should be that the jury must be satisfied of adultery beyond reasonable doubt -- see Godfrey v Godfrey , (1907) 24 WN NSW 57; Tuckerman v Tuckerman , (1932) SR NSW 220; Doherty v Doherty , (1934) 34 SR NSW 290.
In Edmunds v Edmunds , [1935] VLR 177, Lowe, J, after referring to the rule adopted in New South Wales, and comparing it with that expressed in Allen v Allen (above ), said in effect that the difference was only a matter of expression. No doubt in most cases the difference is of no importance whatever. For it must very rarely happen that a tribunal of fact, upon a careful scrutiny and critical examination of the circumstances proved in evidence or of the testimony adduced, forms a definite opinion that adultery has been committed and yet retains a doubt, based upon reasonable grounds, of the correctness of the opinion. For the very practical reason that the decision of cases has not been found to depend upon the distinction the necessity has not arisen in England of attempting to define with precision the measure or standard of persuasion required before adultery is found in a matrimonial cause. At the same time, I think that the foregoing discussion of the authorities makes it clear that in England the high degree of persuasion exacted in criminal jurisdiction has not been adopted as the standard where adultery is in issue in the Matrimonial Jurisdiction. It is a common-experience that in criminal matters the great certainty demanded has a most important influence upon the result. The distinction between that and a lower standard of persuasion cannot be considered unreal. Upon an issue of adultery in a matrimonial cause the importance and gravity of the question make it impossible to be reasonably satisfied of the truth of the allegation without the exercise of caution and unless the proofs survive a careful scrutiny and appear precise and not loose and inexact. Further, circumstantial evidence cannot satisfy a sound judgment of a state of facts if it is susceptible of some other not improbable explanation. But if the proofs adduced, when subjected to these tests satisfy the tribunal of fact that the adultery alleged was committed, it should so find.
This view of the law makes it necessary to return to the conclusion expressed by Martin, J. If I thought that His Honour had formed a definite opinion that the respondent had committed adultery with the co-respondent, and had abstained from giving effect to his opinion because he applied the standard of persuasion appropriate to criminal cases, I should regard a re-hearing as necessary. But, as in effect I have already said, I do not so interpret his reasons. Nor do I think that His Honour means to convey that he has not directed his mind to any other question than whether adultery was established beyond reasonable doubt. From the whole tenor of his reasons, I think that it clearly appears that His Honour found himself unable to arrive at any satisfactory or firm and definite conclusion that adultery had been committed, although conceding that, perhaps, in the probabilities arising upon the evidence, there was some preponderance of those for, over those against, such a conclusion. It follows that, in order to succeed upon this appeal, the petitioner must satisfy this court, either that the learned Judge ought to have been satisfied of the adultery alleged, or that his conclusion was determined by some mistake or error in his reasonings upon the facts. As for the first alternative, I must acknowledge that the respondent's and co-respondent's account of the matter, as recorded, has filled me with much misgiving, but I do not think that the materials warrant a court of Appeal in finding affirmatively the adultery of which the trial Judge was not satisfied.
As for the second alternative, His Honour's reasons were made the subject of criticisms of which two deserve express reference. It was said that one of the hypotheses mentioned by the learned Judge as perhaps explaining the failure of the respondent to make an indignant denial of adultery was opposed to the evidence. He said that perhaps she was too thunderstruck to reply. This observation was nothing more than one of two suggestions as to why she did not behave as might have been expected &\ a priori . It is not, I think, an essential step in the reasoning determining the conclusion.
The second of the two criticisms related to the failure of either party to call Lamprill. His Honour evidently desired to hear his evidence, which he felt might remove some of the difficulties presented by the case. It is said that the learned Judge ought to have inferred that Lamprill would not support the co-respondent's case. Lamprill's evidence could not affect the respondent. But in any case I regard His Honour, not as drawing any inference adverse to the petitioner from his failure to call Lamprill, but simply as explaining that he felt that Lamprill was in a position to solve certain of the difficulties he felt. As they remained unsolved, he was unable to arrive at any affirmative conclusion.
In my opinion the appeal should be dismissed.