Purcell v Purcell [1959] HCA 44; (1959) 101 CLR 504 (7 September 1959)

HIGH COURT OF AUSTRALIA

PURCELL v. PURCELL [1959] HCA 44; (1959) 101 CLR 504

Matrimonial Causes

High Court of Australia
Dixon C.J.(1), Kitto(2), Taylor(3), Menzies(4) and Windeyer(5) JJ.

CATCHWORDS

Matrimonial Causes - Questions tending to show adultery - Admissibility in evidence - Waiver of protection where witness has given "evidence . . . in disproof" of alleged adultery - Matrimonial Causes Act 1899-1954 (N.S.W.), s. 79.*

HEARING

Sydney, 1959, April 22, 27; September 7. 7:9:1959
APPEAL from the Supreme Court of New South Wales.

DECISION

September 7.
DIXON C.J. This appeal arises from a husband's suit in the Supreme Court of New South Wales for dissolution of marriage. The suit was dismissed by Nield J. but on appeal to the Full Court of the Supreme Court a new trial of the issues was ordered. From the order for a new trial the wife now appeals, by leave, to this Court. The marriage took place on 30th December 1946. There are no children. The petition by the husband was filed on 24th February 1955. It alleged that between October 1951 and October 1953 the respondent wife and the co-respondent had committed adultery together. But it also averred that the petitioner had condoned the adultery which however, so the petitioner alleged, had been revived by the subsequent matrimonial misconduct of the respondent wife. The wife's answer contained a denial of the adultery alleged as well as a denial of matrimonial misconduct amounting to a revival of the adultery as a ground of dissolution. Nield J. found that the adultery had been committed but that there had not been matrimonial misconduct on the part of the wife sufficient to revive it after condonation as a ground of divorce. The ground of the order for a new trial was that evidence material to the issue of subsequent misconduct had been erroneously excluded. The evidence excluded consisted of questions asked and answers sought to such questions during the cross-examination of the respondent. That form of cross-examination was disallowed as violating s. 79 of the Matrimonial Causes Act 1899-1954 which so far as material is as follows: "No witness in any proceeding under this Act whether a party to the suit or not shall be liable to be asked or bound to answer any question tending to show that he has been guilty of adultery unless he has already given evidence in the same proceeding in disproof of his alleged adultery". (at p509)

2. At the trial of this suit the respondent wife gave evidence but in the course of her testimony she did not deny that she committed adultery with the co-respondent. Nor did she deny the four chief pieces of evidence upon which the petitioner depended for proof of her adultery. The first was a complete oral confession to which the petitioner deposed and the second was a letter by the respondent to the petitioner containing unmistakable references to the commission of adultery by her. The third was an admission before her own mother in the course of an altercation with her husband in her mother's presence; and the fourth was an admission scarcely open to misconstruction to her mother-in-law. To this last there was a half-hearted qualification but no explicit denial. There were, however, two or three other pieces of evidence upon which the petitioner might rely in aid of the proofs of adultery and with these the respondent wife did deal in the course of her examination in chief. In the first place the husband in his evidence had deposed to the making by his wife to him of certain references to her relations with the co-respondent which, if she made them, must prejudice any estimate of her moral character and at the same time amount to further admissions of adultery. These statements she denied making. In the second place there was a conversation or conversations with her mother-in-law which dealt with her husband's absence and included, according to that witness' account, some admissions by the respondent wife of adultery. These she may be taken to have denied in her evidence. (at p509)

3. In these circumstances the husband contends that she had given evidence in disproof of her alleged adultery within the meaning of s. 79 so that she lost the protection of the provision contained therein by which she was neither liable to be asked nor bound to answer any question tending to show that she had been guilty of adultery. But, although her pleading had put the allegation of adultery in issue her whole evidence makes it quite clear that she was not attempting to deny by her personal evidence that she had committed adultery. She was not of course proposing to give direct evidence of her own guilty. But throughout her testimony it was plain that she was avoiding the whole issue of adultery. Indeed at one or two points where her counsel asked a question that might have led to her touching upon the topic she expressed her desire not to answer. (at p510)

4. The fact that as to two pieces of evidence having among other aspects a tendency to support the proof of adultery she gave evidence which, if believed, would reduce or destroy its probative effect does not appear to me to warrant the conclusion that she gave evidence in disproof of adultery. (at p510)

5. This peculiar phrase is not in my opinion satisfied by anything less than evidence of the party involved in the accusation of adultery tending to show that he is not guilty. In the present case the evidence which the respondent wife gave was not directed against the conclusion that she committed adultery and perhaps that is enough. But in a case where the evidence of the party or witness accused does not deny the fact of the adultery alleged or depose to facts inconsistent with it or at least tending to show that it did not occur I do not think that evidence merely tending to negative or qualify a purely evidentiary fact amounts to evidence in disproof of the alleged adultery. The policy of s. 79 may be open to question but at the time when the provision was enacted in its original form the view doubtless was that no one ought to be exposed to examination or cross-examination about his guiltiness of adultery unless he had taken it upon himself by his personal evidence to prove that he was not guilty of the adultery alleged against him. The cases decided upon the provision reveal many curious situations but none of them construes the section in a way that covers this case. In the present case had the cross-examination been admissible it might have produced some effect upon the learned judge's view about the issue of matrimonial misconduct sufficing to revive the condoned adultery. At all events that was the footing upon which a new trial was ordered. But as I think the witness remained entitled to the protection of s. 79 the cross-examination proposed could not have been wholly admissible. In the case of one or two questions which the learned judge excluded he may have gone too far but the questions were of little or no importance. (at p510)

6. A further contention was raised on the part of the husband. It was that in reaching his conclusion that there had not been misconduct on the wife's part reviving the condoned adultery his Honour had erroneously treated the wife as handicapped by steering a course which would keep her within the safeguard of s. 79 whereas in fact it was the husband's case that suffered from her refusal to venture into the more open waters of unrestricted truth. There are expressions in the learned judge's reasons which provide a foundation for this argument but having studied the judgment with the evidence I do not think that it is a matter that really affected the result. (at p511)

7. For the foregoing reasons I am of opinion that the appeal should be allowed, the order of the Full Court of the Supreme Court should be discharged and the decree of Nield J. restored. (at p511)

KITTO J. I agree in the judgment of the Chief Justice and have nothing to add. (at p511)

TAYLOR J. As I understand the course of events in this matter this was not a case in which the respondent gave evidence at the trial in disproof of her alleged adultery. The adultery was alleged to have taken place between the respondent and the co-respondent at various places between October 1951 and October 1953. During this period the petitioner and the respondent were living together and they continued to do so until November 1954. There was no direct evidence of the adultery and the proofs tendered by the petitioner consisted of an oral admission made by the respondent about October 1953, a letter subsequently written by her in which a clear admission of adultery was made, evidence of a conversation which took place between the petitioner, the respondent and the latter's mother when adultery was, again, said to have been admitted and evidence of a later oral admission in the course of a conversation between the respondent and the petitioner's mother. So far as I can see the only portion of this evidence denied by the respondent was that she made any such admission to the petitioner's mother. She agrees that she did have a conversation on the occasion in question with the petitioner's mother but she denies that on that occasion she made any such admission. It should be added that the respondent did not, in terms, deny that adultery had taken place. (at p511)

2. There was, however, other evidence in the case. Evidence was tendered by the petitioner to establish that after condonation the matrimonial offence had been revived. In the main this evidence consisted of allegations that after the petitioner had become aware of his wife's adultery and whilst they still continued to live together the latter had constantly taunted him by making invidious comparison between him and the co-respondent. These allegations were such as to provide additional evidence of the adultery alleged and they were also denied by the respondent. (at p512)

3. It may be open to question, in a case where adultery is sought to be established solely by evidence of admission, whether the respondent will lose the protection of s. 79 of the Matrimonial Causes Act if he or she, though not specifically denying that adultery has taken place, denies, in their entirety, the admissions relied upon. This, however, is not such a case and that question may conveniently be left until it arises. As I see the present case the respondent, in effect, denied that she had confessed her adultery to the petitioner's mother and also, on the issue of revival, denied that she embarked upon the course of conduct alleged by her husband. In my view this does not enable it to be fairly said, in terms of the section, that she gave evidence in disproof of her alleged adultery. Accordingly the trial judge rightly rejected questions in cross-examination which "tended to show" that she had been guilty of adultery. Accordingly I am of opinion that the appeal should be allowed and the decree of the trial judge restored. (at p512)

MENZIES J. I have had the advantage of reading the judgment of the Chief Justice, with which I agree and to which there is nothing I can add. (at p512)

WINDEYER J. The issue at the trial of this suit was whether or not the wife's conduct after her husband had condoned her adultery had revived her offence. It seems that after the husband discovered his wife's infidelity the parties for a time lived apart; but the wife returned, and cohabitation was resumed. The husband's case was that she took advantage of the forgiveness which she had thus gained, feeling that she could do so with impunity. The husband, although he had, at all events in intendment of law, forgiven his wife for her many offences, had certainly not forgotten them. He said that his wife had (in the words of the Full Court) "flaunted her infidelity in his face after the condonation and provoked him by comparing him in unfavourable terms with the co-respondent . . .". Some questions in cross-examination of the wife which the trial judge disallowed were directed to what the wife had said to the husband about the co-respondent, and to the allegations that she had told him she had enjoyed her association with the co-respondent. These questions were directly relevant to the issue of conduct reviving the condoned matrimonial offence. But they necessarily involved an implication of adultery, and were objected to on the ground that they were prohibited by s. 79. If the asking of any such question was unlawful there obviously could be no real cross-examination of the wife in relation to what was to become an important question in the suit; but that, it was argued, is the result of s. 79, on which the wife was entitled to rely. (at p513)

2. Section 79 is derived from s. 3 of the Evidence Further Amendment Act 1869 (Imp.), now s. 32 (3) of the Matrimonial Causes Act 1950 (Imp.), the history of which is referred to in Rayden on Divorce, 6th ed. (1953), p. 406; Redfern v. Redfern (1891) P 139 ; Brown v. Brown (1915) P 83 and Hensley v. Hensley (1920) 36 TLR 288 . The anomalous and unsatisfactory character of this provision is commented on in a critical article by Professor Zelman Cowen in (1949) 65 Law Quarterly Review 373 The English section differs from s. 79 in that it applies only to "proceedings instituted in consequence of adultery", whereas these words no longer appear in the New South Wales Act. The judgments in Wallis v. Wallis and Chapman (1890) 7 WN (NSW) 22; (1891) 12 LR (NSW) D 1; (1891) 7 WN 121 and Ruck v. Ruck and Croft (1911) P 90 are not, I think, reconcilable. Wallis v. Wallis and Chapman (1890) 7 WN (NSW) 22; (1891) 12 LR (NSW) D 1; (1891) 7 WN 121 seems to be correct in so far as it decides that, according to the literal terms of s. 79, the protection it gives is only lost by evidence in disproof of adultery and is thus not lost by giving evidence admitting adultery. But what was actually decided in that case was that a wife who had in the witness box admitted that she had been guilty of adultery with the co-respondent on particular dates could not be questioned about the details of their intimacy. The English decisions are not all easy to reconcile either with one another or with the literal words of the Act. The questions disallowed in the reported cases seem to have been, generally speaking, direct questions as to particular acts of adultery; and if the statements in the judgments in Bass v. Bass (1915) P 17 be correct, it would seem that a question directed to some matter in issue other than adultery would not necessarily be inadmissible merely because it presupposed adultery, provided it was not asked to elicit an answer in proof of adultery but was properly admissible on some other issue. But it is difficult to see how such a distinction could be applied or maintained in the trial of a case like this. The phrase "Any question tending to show that (the wife) has been guilty of adultery" must have some such meaning as "any question which might elicit an answer tending to show that she had been guilty of adultery". It seems that this desciption cannot be confined to direct questions as to whether particular acts of adultery occurred. Some, if not all, of the questions disallowed in the present case were thus of the kind prohibited. The critical words for present purposes are therefore "unless he (here the wife) has already given evidence in the same proceeding in disproof of his (her) alleged adultery". (at p514)

3. "Evidence in disproof" of a fact may, in the abstract, mean any evidence directed to proof of the negative, such as evidence of facts logically inconsistent with the alleged facts; or it may mean a denial or contradiction. In the reported cases it seems generally to have been assumed that, in its context in this section, it has the latter meaning. But the words are "in disproof" not "in denial". In some cases where the proof of adultery relied upon by the petitioner was the respondent's confession, a denial of the confession might, I think, be evidence given in disproof of the adultery. In one sense, such a denial is always evidence only in disproof of the making of the statement denied. But a confession is given in evidence as proof of the fact confessed. And it seems to me that if a confession were the only matter relied upon as proof of that fact, a denial of it might in some cases be considered as evidence given in disproof of the fact. That, however, is not the case here. The wife did not deny the main confessions of adultery. Moreover her counsel sedulously refrained from asking her any question which would lead her to deny her adultery. This was deliberate, so that she would not lose the protection given by s. 79 and would be able to deny, as she did, the statements her husband alleged she had made to him yet avoid effective cross-examination in relation to them. This case may be one in which s. 79 by frustrating relevant cross-examination can impede the ascertainment of the truth. Nevertheless, the section must be obeyed and I think it compels us to allow the appeal. (at p514)

ORDER

Appeal allowed. The respondent (petitioner in the suit) to pay the appellant her costs of the appeal.

Order of the Full Court of the Supreme Court discharged. In lieu thereof order that the appeal of the petitioner to that court be dismissed with costs. Restore the decree of the Supreme Court in its matrimonial causes jurisdiction dated 26th February 1957 by which the petition was dismissed and the petitioner ordered to pay the costs of the respondent.