Davis v Davis [1904] HCA 40; (1904) 2 CLR 178 (9 December 1904)

HIGH COURT OF AUSTRALIA

Davis Petitioner, Appellant; and Davis Respondent, Hughes Co-respondent Respondents.

H C of A

On appeal from the Supreme Court of New South Wales.

9 December 1904

Griffith C.J., Barton and O'Connor JJ.

Windeyer, for the appellant.

The judgment of the Court was delivered by

Griffith C.J.

This is an appeal from a decision of the Supreme Court affirming a judgment of Mr. Justice Walker dismissing the appellant's petition for a divorce from his wife on the ground of adultery. The facts of the case are not in dispute, and are in a very small compass. [His Honor stated the facts as above, and proceeded.]

On these facts the learned Judge of first instance apparently held that the petitioner had been guilty of conduct conducing to his wife's adultery. The petitioner appealed to the Full Court, who held that the petitioner had been guilty of connivance, the connivance relied on being watching to obtain evidence of the suspected adultery. Of course, in one sense, he might possibly have prevented the adultery as soon as he saw the co-respondent approaching the house, by taking steps to prevent him from entering it. There is a passage in the judgment of Lord Chelmsford in the case of Gipps v. Gipps[1], relied on in the Supreme Court, which is very material on this point: "It must be borne in mind that the offence of adultery is complete in a single instance of guilty connection with a married woman. It is the first act which constitutes the crime, and though the adulterous intercourse between the parties should continue for years, there is not a fresh adultery upon every repetition of the guilty acts, although all and each of them may furnish proof of the adultery itself." Now in this case the husband suspected the fact of adultery, and watched to obtain evidence for the purpose of proving it. The learned Judges of the Supreme Court thought that this amounted to connivance. I will state what we conceive to be the law as to connivance. As far as we know, there is no conflict of opinion on this point to be found in the books. The matrimonial law is derived from the Canon Law. The first case cited to us was Phillips v. Phillips[2], in which Dr. Lushington stated the principles of law governing the power of the Divorce Court as to connivance. The same case was relied on by the Supreme Court of New South Wales in the case of Linscott v. Linscott[3]. In that case delay in instituting the suit was held not to be evidence of connivance, and the learned Chief Justice in his judgment referred to the case of Phillips v. Phillips[4], and quoted some passages, which I will also read as applying to the facts of this case, though the application is not quite the same. Dr. Lushington says[5]: "The first case to which I refer is that of Rogers v. Rogers33 Hagg. Ecc., 57., in which Sir John Nicholl says: Without doubt, connivance on the part of the husband will, in point of law, bar him from obtaining relief, on account of the adultery which he has allowed to take place. Volenti non fit injuria is the principle on which the rule has been founded. I apprehend that the meaning of this maxim is, that there must be consent—the party must be acquiescing in (it matters not whether actively or passively), and cognizant of the adulterous intercourse of his wife. That consent must be proved, either by direct evidence or by necessary consequence from his conduct. Sir John Nicholl refers to several cases. In these cases, he says, it was held not to be necessary that any active steps should be taken on the part of the husband to corrupt the wife—to induce and encourage her to commit the criminal act. Passive acquiescence would be sufficient to bar the husband, provided it appeared to be done with the intention, and in the expectation that she would be guilty of the crime—(with the intention)—but, on the other hand, it has always been held that there must be a consent. The injury must be volenti—(nothing can be stronger than these words; and the learned Judge having stated what connivance is, proceeds to show what it is not). It must be something more than mere negligence—than mere inattention—than over-confidence—than dulness of apprehension—than mere indifference—it must be intentional connivance, in order to amount to a bar. ... If the facts are equivocal, the presumption is in favour of the absence of intention." Dr. Lushington then referred to the case of Timmings v. Timmings[7], which was also referred to by the Supreme Court, as having been disapproved of in Gipps v. Gipps[8]. An examination of the latter case, however, shows that the supposed disapproval was due to a misapprehension of the language of Lord Stowell. In the case of Timmings v. Timmings[9], Lord Stowell is reported to have said: "True it is, that a husband is not barred by a mere permission of opportunity for adultery; nor is it every degree of inattention on his part which will deprive him of relief; but it is one thing to permit and another to invite; he is perfectly at liberty to let the licentiousness of the wife have its full scope; but that he is to contrive the meeting, that he is to invite the adulterer, then to decamp and give him the opportunity, I do think amounts to legal prostitution. The analogy, as to theft, in the passage cited from Sanchez shows this doctrine." The words misapprehended are "he is perfectly at liberty to let the licentiousness of his wife take its full scope." Immediately after the passage just quoted Lord Stowell referred to Sanchez. It will be convenient here to read the passage on which he relied. Sanchez was a great writer on the Canon Law, and probably the generally acccepted view taken of connivance is derived from his work "De Matrimonio." The passage is in lib. 10 disp. 12, No. 52,—I shall read it in English—"It is lawful for a man who suspects his wife of adultery to watch her with proper witnesses so as to be able to convict her of adultery, first because that is not conniving at the offence but taking advantage of her wickedness for his own advantage; secondly, because it is one thing to invite, advise, or enjoin the commission of a wrong thing, which is never lawful, and another to allow, or abstain from removing the opportunity for wrong-doing, which is sometimes permissible for the sake of some greater good ... For instance, parents or masters of a household do no wrong in abstaining from removing some opportunity for theft from their children or dependants, when they know that they are addicted to it, in order that they may by such means be caught in the theft and recalled to rectitude." The analogy put by Sanchez shows that he did not think it connivance to watch for the purpose of discovering the existence of a suspected fact, and it is manifestly in that sense that Lord Stowell used the words that a man may let the licentiousness of his wife take its full scope, that is to say, if he suspects her, for the purpose of convicting her. The learned Chief Justice in the case of Linscott v. Linscott[10], after quoting from Phillips v. Phillips, which was decided in 1844, refers to the case of Allen v. Allen[11] which was a case before a jury, in which Mr. Justice Hill directed the jury as to the question of connivance in these words:—"To find a verdict of connivance, you must be satisfied from the facts established in evidence that the husband so connived at the wife's adultery as to give a willing consent to it. Was he, or was he not, an accessory before the fact? Mere negligence, mere inattention, mere dulness of apprehension, mere indifference, will not suffice; there must be an intention on his part that she should commit adultery. If such a state of things existed as would, in the apprehension of reasonable men, result in the wife's adultery—whether that state of things was produced by the connivance of the husband or independent of it—and if the husband, intending that the result of adultery should take place, did not interfere, when he might have done so, to protect his own honour, he was guilty of connivance."

I will refer to one other later case, Marris v. Marris[12], decided by Sir C. Creswell in 1862. In that case the husband had in a sense consented to his wife leaving him and going to live with the co-respondent. An improper intimacy had gone on for a long time between the wife and co-respondent, and the husband knew of it, but was unable to prevent its continuance. The wife expressed her intention of going away from him, and he said, in effect, "Very well, if you have definitely made up your mind, I can do no more, you had better go;" and she went. The learned Judge Ordinary said: "I cannot construe that into a willing consent that the adultery should be committed. It is an unwilling consent, given because she would not comply with the condition that he insisted upon of giving up the improper intimacy. I had a good deal of difficulty in my own mind as to the meaning of the word connivance as used in the Ecclesiastical Courts. By connivance I understand the willing consent of the husband; that the husband gives a willing consent to the act, although he may not be an accessory before the fact; that, although he does not take an actual step towards procuring it to be done, he gives a willing consent and desires it to be done." These observations, as well as all the others quoted, are entirely inapplicable to mere watching to detect a wife in the commission of the offence, the adultery of which the appellant complains having, as pointed out by Lord Chelmsford, begun long before. What the appellant was doing was merely seeking evidence of an existing fact. How then can it be suggested that he connived at or willingly assented to the commencement of the adulterous intercourse? All the evidence is to the contrary. The facts in this case do not, in our opinion, afford any evidence of connivance on the part of the petitioner in the sense in which that word is used in the Matrimonial Causes Act.

The appellant was therefore entitled to succeed.

Appeal allowed, with costs against the co-respondent. Decree nisi for dissolution of the marriage, with costs, to be made absolute in three months. Costs of suit to be paid by co-respondent.

Proctors for appellant, Shipway & Berne.

[1] 33 L.J. P.M. & A., 161, at p. 169.

[2] 1 Rob. E., 144.

[3] 18 N.S.W. L.R., Div. 12.

[4] 1 Rob. E., 144.

[5] 1 Rob. E., at p. 157.

[6] [1830] EngR 181; 3 Hagg. Ecc., 57.

[7] [1792] EngR 2642; 3 Hagg Ecc., 76.

[8] 33 L.J. P.M. & A., 161.

[9] [1792] EngR 2642; 3 Hagg. Ecc., 76, at p. 81.

[10] 18 N.S.W. L.R., Div. 12.

[11] 30 L.J., P.M. & A., 2, at p. 4.

[12] 31 L.J., P.M. & A., 69, at p. 72.