Briginshaw v Briginshaw

60 CLR 336

(Judgment by: Starke J.)

Briginshaw v.

High Court of Australia - Full Court

Judges: Latham CJ
Rich J
Starke J
Dixon J
McTiernan J

Judgment date: 18, 19 May, 30 June 1938

Judgment by:
Starke J.

This is an appeal on the part of a husband from a decision of the Supreme Court of Victoria, dismissing his petition which prayed the dissolution of his marriage, on the ground of the adultery of his wife.

The Marriage Act 1928 (Victoria) provides in s 80, that upon any petition for the dissolution of marriage, it shall be the duty of the court to satisfy itself so far as it reasonably can as to the facts alleged; and in s 86 that, subject to the provisions of the Act, the court, if it is satisfied that the case of the petitioner is established, shall pronounce a decree nisi for the dissolution of marriage.

The trial Judge examined the evidence given in the cause with some care, and finally concluded --

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.

One might think, on such a grave charge as adultery, that "no reasonable or just man" ought to infer guilt unless his evidence satisfied him beyond reasonable doubt of the truth of the charge. We, however, listened over two days to arguments directed to the point that the measure of proof required by the Judge was too high, and that he ought to have been satisfied on a balance or preponderance of probabilities. Even on the argument addressed to us, the matter is one of degree: it depends upon "the strength of conviction that must be produced in the mind of the tribunal." Sir James FitzJames Stephen, referring to the rule that a criminal offence must be proved beyond all reasonable doubt, observes --

The word reasonable is indefinite, but the rule is not worthless because it is vague. Its real meaning, and I think its practical operation, is that it is an emphatic caution against haste in coming to a conclusion adverse to the prisoner

-- A General View of the Criminal Law of England , p 183. Professor Thayer, in his Preliminary Treatise on Evidence , pp 552 and 337, says -- "In civil cases it is enough if the mere balance of probability is with the plaintiff, but in criminal cases there must be a clear, heavy, emphatic preponderance." Phipson, Evidence (5th ed ), p 6, states the proposition in a few words -- "Civil cases may be proved by a preponderance of evidence, criminal charges must be proved beyond a reasonable doubt." See also Motchall v Massoud , [1926] VLR 273 ; [1926] ALR 271. The difference in measure has never been defined -- Sodeman v The King , [1936] 55 CLR at 233.

Matrimonial causes are in their nature civil proceedings, but the method in which judges have from time to time dealt practically with the proof of adultery and other charges in matrimonial cases is instructive. In Loveden v Loveden , (1810) 2 Hagg. Cons. pp 2 and 3, Sir William Scott said -- "In every case almost the fact is inferred from circumstances that lead to it by fair inference as a necessary conclusion." "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." In 1894 the court of Appeal cites the case with approval -- Allen v Allen , [1894] P 252. In 1842, in Dillon v Dillon , (1842) 3 Curt. at pp 116-117, 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.

It is strange to find so near a parallel in Dr Lushington's language to that used by the Judge in the present case.

Adultery was not indictable at common law, though it exposed the guilty party in other days to ecclesiastical censure and to penance. But Dr Lushington regards the effect and not the actual character of the proceeding. In modern times we find the Lord Chancellor Birkenhead saying that an allegation of adultery is a serious allegation which must be strictly proved -- Gaskill v Gaskill , [1921] P at 431; and in a case praying a decree of nullity on the ground of impotency the Lord Chancellor stated that the petitioner must "remove all reasonable doubt, for the charge ... is ... a grave and wounding imputation" -- C . v C ., [1921] P at p 400. Again, the Supreme Court of New South Wales invariably requires that a matrimonial offence be established beyond reasonable doubt -- Doherty v Doherty , (1934) 34 SR (NSW) 290. And in Edmunds v Edmunds and Ayscough , [1935] VLR at p 183, Lowe, J, made the common-sense observation that the distinction was "more a matter of words than of substance." See also Ross v Ross , [1930] AC at pp 17, 23 and 25; Statham v Statham , [1929] P 131.

The truth is that civil causes may (not must) be decided on a balance of probabilities. If the proof brings no strength of conviction to the mind of the tribunal or, what is much the same thing, does not satisfy the tribunal beyond reasonable doubt of the truth of the fact alleged, especially in the case of serious allegations, such as adultery or fraud, or crime, then the allegation remains unproved or, to use the language of the Marriage Act, which is the test in this case, the court is not satisfied as to the facts alleged, and the case for the petitioner is not established. But this was the position of the Judge in the present case, though I do not understand why he did not keep to the words of the Marriage Act, especially as this court is so meticulous in its scrutiny of the language used in judgments and in charges to juries. Even if the probabilities of the case preponderated in favour of the petitioner's allegations, they brought no strength of conviction to the Judge's mind, and did not satisfy him beyond reasonable doubt of the truth of the allegation of adultery. Consequently the court was not satisfied of the fact alleged or that the petitioner had established his case. Looking at the evidence printed in the transcript, I am not surprised. Both the respondent and the co-respondent denied adultery on oath, and all that the petitioner relied upon was the evidence of paid agents of statements made by the respondent which were wholly denied by them in all essential matters. Such evidence does not necessarily lead the "guarded discretion of a reasonable and just man to the conclusion" that the adultery charged in this case is proved.

And the appeal should be dismissed.