Briginshaw v Briginshaw
60 CLR 336(Judgment by: McTiernan 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:
McTiernan J.
In my opinion the appeal should be dismissed. Martin, J, in dismissing the petition, said -- "I have done my best to decide, but the petitioner must satisfy me that his story is true." There His Honour professed to fulfil the duty, which is imposed on the court by ss 80 and 86 of the Victorian Marriage Act 1928, to consider whether it was proved to his reasonable satisfaction that the petitioner's allegation of adultery was true. If His Honour had limited his observations to that statement, the contention would hardly have arisen that he misdirected himself as to the minimum of proof required to establish an allegation of adultery. That contention is based on the observations which follow. They were in these terms --
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.
It is contended, firstly, that it is apparent from these observations that the evidence did produce in the mind of the court such a degree of persuasion of the truth of the petitioner's allegations of adultery as to entitle him to a divorce; and, secondly, that the court did not find in his favour because it treated the allegations as allegations of a crime which the law required to be proved beyond a reasonable doubt. Now, it would be quite contrary to settled principle to accede to the contention that the court ought to find that an allegation of adultery is established when the court thinks that it is more probable that adultery was committed than that it was not, and the court's state of persuasion rises no higher than that. The second contention is, I think, based on a misunderstanding of the learned Judge's observations. It assumes that he treated the case as a criminal trial in which he was bound to apply the criminal standard of proof. But it is apprehended that the purpose of this observation was not to indicate that the trial was criminal as distinguished from civil, but to indicate that it was not a case in which the mere preponderance of evidence would suffice to establish the petitioner's allegations of adultery. Indeed, it is well established that the procedure in divorce is not a criminal procedure -- Mordaunt v Moncreiffe , (1874) LR 2 H.L. Sc. 374; Redfern v Redfern , [1891] P 139; Branford v Branford , (1878) 4 P D. 72. It is not conceivable that His Honour laboured under the misconception which the leading case of Mordaunt v Moncreiffe long ago removed. But in referring to the case as one to be distinguished from a purely civil case, His Honour has the support of high authority. In Mordaunt v Moncreiffe , Lord Hatherley, after saying that the procedure in divorce was not criminal procedure, added -- "It is true that the consequences of a divorce may be far more severe than those in any merely civil suit, but it is consequentially only that this result takes place" -- p 393. (Italics mine.) Cf. In the Estate of L ., [1919] VLR at p 36, per Cussen, J, 24 ALR at 412. Moreover, the Rules of the Supreme Court of Victoria do not include divorce and matrimonial causes within the classification of civil proceedings -- Rules of the Supreme Court of Victoria, Chs I. and II., 1916. See also Victorian Supreme Court Act 1928, ss 15 and 19.
The contention that Martin, J, ascribed the character of a criminal proceeding to the trial must fail. But do his observations show that he required an unduly strict standard of proof of the allegations? He declared that he was not satisfied beyond reasonable doubt. I agree with my brother Rich, J, in the view that the validity of this direction depends on whether it departs from the standard of proof required by the Act. The Act does not expressly import the standard of proof applicable to a merely civil suit, that is. a preponderance of evidence. Nor does it import the criminal standard as such, that is, proof beyond reasonable doubt. The duty of the court in trying an issue of adultery is to consider whether it is satisfied that the allegation is true. English law adopts the reasonable rule that the strictness of the proof of an issue should be governed by the nature of the issue and its consequences. Lord Brougham's speech in defence of Queen Caroline describes an ascending scale of issues which illustrates this principle.
The evidence before us," he said, "is inadequate even to prove a debt, impotent to deprive of a civil right, ridiculous for convicting of the pettiest offence, scandalous if brought forward to support a charge of any grave character, monstrous if to ruin the honour of an English Queen."
The law presumes against guilt of vice and immorality -- Best on Evidence , pp 309, 349 (2nd ed ).
A learned authority says, however, that the presumption against moral wrong-doing is not so strong as the presumption against criminal wrong-doing -- Kenny, Outlines of Criminal Law (New Edition), p 343. Here moral wrong-doing means misconduct, which is not also criminal at law. The proof of the issue of adultery involves the displacement of this presumption of innocence in favour of the person charged. The presumption is not to be regarded as a weak one. The consequences of the proof of the issue succeeding include the dissolution of the marriage bond and the loss of status. The Courts, therefore, in the exercise of their jurisdiction to grant a dissolution of marriage on the ground of adultery, have adopted a standard proportionate to the gravity of the issue. The measure of proof necessary to satisfy the court has been described in this court in these terms --
Before we infer adultery from circumstances we must have strong circumstances such as would impel a reasonable mind to the conclusion that a petitioner had proved adultery. Mere suspicion is not enough. The view taken by His Honour that the case contained nothing stronger than suspicion was one that it was perfectly open to him to take on the evidence
-- Dearman v Dearman , (1908) 7 CLR at p 557, 15 ALR at 290, per Barton J.
The strictness of proof required is illustrated by the attitude taken by the Courts to admissions of adultery made by the accused spouse. In Robinson v Robinson and Lane , (1858) 1 Sw. & Tr. 362, 164 ER 767, which was decided in the first year of the operation of the English Matrimonial Causes Act 1857, it was decided that the admissions of a wife charged with adultery, unsupported by any confirmatory proof, may be acted upon as conclusive evidence upon which to pronounce a divorce, provided that the court is satisfied that the evidence is trustworthy, and that it amounts to a clear, distinct and unequivocal admission of adultery. See also Williams v Williams and Padfield , (1865) LR 1 P & D. 29; and Read v Read , (1905) VLR 424 , 11 ALR 332. The standard of proof which the Courts require has been frequently explained. The following instance may be given. In Allen v Allen , [1894] P at 251-2, Lopes, LJ, adopting the words of Sir William Scott in Loveden v Loveden , said --
It is not necessary to prove the direct fact of adultery, nor is it necessary to prove the ... fact of adultery in time and place, because, to use the words of Sir William Scott in Loveden v Loveden ,
'if it were otherwise, there is not one case in a hundred in which that proof would 'be attainable; it is very rarely indeed that the parties are surprised in the direct fact of adultery. In every case almost the fact is inferred from circumstances which lead to it by fair inference as a necessary conclusion; and, unless this were the case, and unless this were so held, no protection whatever could be given to marital rights.'
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."
It is not correct to say that the Act requires a charge of adultery to be proved with the same strictness as a grave charge of crime. But Martin, J, did not adopt an erroneous standard in declining to be satisfied that the allegation of adultery was established because he had a reasonable doubt. It is impossible to say that he should have felt that degree of satisfaction which the law requires the tribunal to have before finding a spouse guilty of adultery while he was oppressed with a reasonable doubt. We are asked to say that the learned Judge was wrong in not finding the issue of adultery proved. The evidence has already been discussed in detail. The learned Judge said that he could gather nothing adverse to any of the witnesses from their demeanour. The evidence affords ground for suspicion, but in my opinion the evidence is not such as should satisfy a reasonable mind that the petitioner's allegations of adultery are true.