Locke v Locke [1956] HCA 18; (1956) 95 CLR 165 (27 April 1956)

HIGH COURT OF AUSTRALIA

LOCKE v. LOCKE [1956] HCA 18; (1956) 95 CLR 165

Matrimonial Causes (N.S.W.)

High Court of Australia
Dixon C.J.(1), Williams(1) and Fullagar(1) JJ.

CATCHWORDS

Matrimonial Causes (N.S.W.) - Dissolution of marriage - Adultery - Standard of proof - Decree nisi - Woman charged virgo intacta - Necessity of proof of some penetration - Adultery to be found after consideration of all evidence.

HEARING

Sydney, 1956, April 24, 26, 27. 27:4:1956
APPEAL from the Supreme Court of New South Wales.

DECISION

April 27.
THE COURT delivered the following oral judgment:-
We have given anxious consideration to this case and we have arrived at the decree was obtained on the wife's petition on the ground of adultery. A single act of adultery by her husband with the intervener was charged. It was alleged to have taken place in a sedan car on the night of 22nd May 1953. (at p166)

2. Evidence for the petitioner was given of facts from which, if they stood alone, an immediate inference of adultery would arise. The husband and the woman denied not only the commission of adultery but also the more important of the incriminating circumstances. But a fact of the greatest significance was proved by medical evidence which could not be questioned and that fact was that the intervener had twice submitted herself for medical examination and that the hymen was unruptured and that she presented all the indicia of a virgo intacta. (at p166)

3. The law is that to constitute adultery as a ground of divorce, some penetration of the woman by the man, must be found to have taken place. It is not necessary that such penetration should constitute a complete act of intercourse. The act need not be complete but a mere attempt, without penetration, is insufficient. (at p167)

4. The learned judge who heard the suit inferred that some degree of penetration had occurred. The questions upon which the appeal depends are first whether the manner in which his Honour arrived at that conclusion can be defended in point of law, and second whether in any event on all of the facts of the case such a conclusion is sufficiently safe. (at p167)

5. In Chalmers v. Chalmers (1930) 142 LT 654 Hill J. had a case before him where there was medical evidence of the same kind and he had to deal with the situation which it created in considering evidence which tended to prove adultery. His Lordship said this: "The King's Proctor's intervention (in the case) had been most abundantly justified. Medical evidence had now been given which proved that the intervener had the ordinary condition of a virgin, with the hymen intact. That was not absolutely conclusive. It was just possible that there could have been some limited intercourse which would amount to adultery in law and yet cause no rupture of the hymen . . . that condition put a very heavy burden on the person asserting that the woman had committed adultery" (1930) 142 LT, at p 655 . (at p167)

6. That passage was quoted with approval by Langton J. in Thompson v. Thompson (1938) P 162 . Langton J. expressed again the view that the circumstance put a very heavy burden upon the party claiming that such a woman has committed adultery, but he added: "It is accordingly my duty to be specially careful in making inferences against them, (that is both the respondent and co-respondent). On the other hand no one nowadays contends that the fact that a woman accused of adultery is found to be virgo intacta is inconsistent with partial intercourse sufficient to sustain the charge of adultery" (1938) P, at pp 169, 170 . (at p167)

7. And then he refers to another case in which Hill J. presided, Jolly v. Jolly and Fryer (1919) 63 Sol Jo 777 . He says: "(That) is an instance in point, and shows that this most careful and discriminating judge was ready to find what he so properly described as a 'very heavy burden' discharged, where the circumstances disclosed by the evidence warranted such a conclusion" (1938) P, at p 170 . (at p167)

8. In Briginshaw v. Briginshaw [1938] HCA 34; (1938) 60 CLR 336 , and in Watts v. Watts [1953] HCA 18; (1953) 89 CLR 200 , this Court has explained the burden of proof which is applicable in all cases of adultery. (at p168)

9. The actual commission of adultery must be proved affirmatively to the reasonable satisfaction of the court but reasonable satisfaction is not a state of mind that is attained or established independently of the nature of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, a thing which applies in this particular case, 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. (at p168)

10. In such matters reasonable satisfaction should not be produced by inexact proofs, indefinite testimony or indirect inferences. (at p168)

11. In the present case it was essential that the court determining the issue of fact should weigh the whole of the testimony on both sides with the cardinal fact of the appearance of virginity presented by the intervener, and should consider whether, when all was weighed together, there was sufficient proof to the comfortable satisfaction (if we may use that expression) of the tribunal of facts. (at p168)

12. The question would be, was it possible to arrive at that comfortable satisfaction as to the not very probable conclusion that partial penetration had occurred before the man and woman in the car were disturbed. (at p168)

13. Unfortunately the learned judge did not take this course. He first formed his conclusion as to the credibility of the witnesses and as to the detailed circumstances. He treated his conclusion as to these matters as raising a presumption of adultery and then turned to the appearance of virginity presented by the intervener for the purpose of considering whether that fact sufficed to rebut the presumption of guilt which he had thus set up. (at p168)

14. There are some expressions used by Singleton L.J. in Dennis v. Dennis (1955) P 153 which his Honour may have regarded as warranting such an approach, but clearly they ought not to be so understood. Hill J. and Langton J., in the passages already cited, expressed with great clearness what is the true position. There is a single issue governed by a burden of proof and a measure of certainty that remains constant throughout. The crucial consideration supplied in this case by the condition of the intervener, as disclosed by the medical evidence, could not be placed in an independent or separate compartment or category. It necessarily possessed an importance bearing on every part of the proof in support of the issue. The learned judge's finding must therefore be put aside. (at p168)

15. This makes it necessary for us to consider for ourselves whether on the whole case an affirmative finding that some degree of penetration, or partial penetration, occurred before the parties in the car were disturbed, is an inference that could safely be made. (at p169)

16. We took the opportunity overnight of considering the evidence more closely than we could in court. No purpose can be served in this case by discussing it in detail. But perhaps it should be said that the medical evidence makes it highly improbable that any but the smallest degree of penetration could have occurred consistently with the physical facts. (at p169)

17. On the whole evidence we have no doubt that an affirmative inference that such a thing took place could not be reached with the requisite degree of judicial satisfaction. It is an unsafe conclusion. We think the petition should have been dismissed. (at p169)

18. The appeal must therefore be allowed. The order will be: - Appeal allowed. Discharge so much of the decree or order of the Supreme Court of New South Wales dated 29th December 1955 as relates to the petition of Thelma Phyllis Lorraine Locke, No. 2142 of 1953. In lieu thereof, order and decree the said petition be dismissed and that the costs of the petitioner of the suit be taxed and paid by the respondent in the suit, namely Terry James Locke. Order that the costs of this appeal of the respondent to this appeal, Thelma Phyllis Lorraine Locke, be paid by the appellant, Terry James Locke. (at p169)

ORDER

Appeal allowed. Discharge so much of the decree or order of the Supreme Court of New South Wales dated 29th December 1955 as relates to the petition of Thelma Phyllis Lorraine Locke, No. 2142 of 1953. In lieu thereof order and decree that the said petition be dismissed and that the costs of the petitioner of the suit be taxed and paid by the respondent in the suit Terry James Locke.

Order that the costs of this appeal of the respondent to this appeal Thelma Phyllis Lorraine Locke be paid by the appellant Terry James Locke.