te - Nedge v RTA - [1908] HCA 84 - HCA 1908 case summary

te - Nedge v RTA - [1908] HCA 84 - HCA 1908 case summary — Zoe

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Barton J. Iam of the same opinion. I need not follow my learned brother the Chief Justice in his analysis of the evidence, but will say that I totally agree with what he has said about it. As to the note-book upon which reliance was placed by the petitioner, there is a very great peculiarity about the entry with respect to the 23rd July, and that is the only day really in question, because there is no other part of the evidence upon which it is seriously attempted to base an inference of the actual commission of adultery. [His Honor then dealt with certain portions of the evidence in relation to that day and the entries in the note-book, and concluded his remarks on that subject by stating that in his opinion the peculiarity of the whole trans- action lay in the fact that the notes intended to clinch the guilt of the respondent did not contain any mention of the two principal matters upon which the witness relied at a later date, though those notes were alleged to have been made immediately after seeing the occurrences to which they refer and were in other respects very full notes indeed. His Honor continued): This peculiarity seems to me to illustrate how reasonable was the view entertained by the learned Judge of the evidence of the elder Dearman. He did not suggest that he was committing perjury, but thought that he was either mistaken, or that there was an alternative, and did not feel himself bound to adopt either view. That seems to me an entirely reasonable attitude to take up, and if we turn to the evidence of Campbell it appears still more reasonable. [His Honor then referred to the evidence of that witness and continued.) Now the petitioner came into Court to prove a direct charge of adultery and brought evidence to establish it. The witness to whom the learned Judge, after observing the demeanour and in its light weighing the evidence - of all of them, was inclined to attach the most credence was Campbell. But if the case rested on his evidence there could be no justification for a finding on the issue of adultery in favour of the petitioner. The doubt is made much stronger by the evidence of the elder Dearman in the circumstances detailed, and by the suspicion that must attach to it on the ground of the peculiarity in the notes to which I have referred. To my mind it is not a fair thing to draw from the evidence of the elder Dearman, which

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conclusion which would amount to accepting the evidence of the more doubtful witness instead of giving the preference to the evidence of the less doubtful. I do not think that would have been a judicial attitude for his Honor to take up. But he has not taken up that attitude, and while I am not prepared to say that there were not very suspicious circumstances in this case, that does not mean that the conduct of the respondent was more than indiscreet, and in many respects most improper. Before we infer adultery from circumstances we must have strong cireumstances, 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 Honor that the case con- tained nothing stronger than suspicion was one that it was per- fectly open to him to take on the evidence. We may deal with the case on the lines suggested by the case of Coghlan v, Cum- berland (1), in which Lindley M.R. said: - *" The case was not tried with a jury, and the appeal from the Judge is not governed by the rules applicable to new trials after a trial and verdict by a jury. Even where, as in this case, the appeal turns on a question of fact, the Court of Appeal has to bear in mind that its duty is to rehear the case, and the Court must reconsider the materials before the Judge with such other materials as it may have decided to admit. The Court must then make up its own mind, not dis- regarding the judgment appealed from, but carefully weighing and considering it; and not shrinking from overruling it if on full consideration the Court comes to the conclusion that the judgment is wrong. When, as often happens, much turns upon the relative credibility of witnesses who have been examined and cross-examined before the Judge, the Court is sensible of the great advantage he has had in seeing and hearing them. It is often very difficult to estimate correctly the relative credibility of witnesses from written depositions; and when the question arises which witness is to be believed rather than another, and that question turns upon manner and demeanour, the Court of Appeal always is, and must be, guided by the impression made on the Judge who saw the witnesses. But there may obviously be

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The respondent in the present appeal succeeded before the Appeal Court, and the decision of that Court is now challenged upon the ground that under the circumstances of the case that Court had no right to give the decision that it gave. We have, therefore, to consider what is the duty of a Court of Appeal. 'There is no doubt that its duty is to reconsider the evidence and to give its own judgment according to its own opinion. That is insisted upon by the respondent, and rightly, I think. But that rule has its necessary limitations. What those limitations are and how far the appellate tribunal is at liberty to disregard the decision of the primary tribunal, have at various times been the subject of serious consideration. My learned brothers the Chief Justice and Mr. Justice Barton have stated the rule, in terms with which I entirely agree, and they have read from the decision in Coghlan v. Cumberland (1), which has been already accepted as a guide by this Court. When that decision was given in England it appears that the appellate tribunals there had acted, in some cases at all events, not in complete conformity with the rules laid down, and the House of Lords had found it necessary in 1896 to state the position clearly. The case in which that was done was Riekmann v. Thierry (2). In the course of argument learned counsel urged that there was a question of fact involved or that itwas wholly a question of fact,and that the appellate Court ought not to reverse a finding on the question of fact. Lord Halsbury LC. took occasion to state the law formally in his judgment. The report is not so accessible as the reports of the House of Lords usually are, so I will read in full what was there said, because it completely reaffirms in all its branches what is laid down in Coghlan v. Cumberland (1), and is a decision of the highest authority. His Lordship said (3): - * But, my Lords, I must add that I am entirely unable to yield to the argument which has been, not unnaturally, pressed upon us by counsel. I say not unnaturally, since more than one of the learned Judges have given countenance to it by observations made in the course

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of their judgments. I mean the argument that there is a pre- sumption that we ought not to interfere with what the Judge of first instance has done. I absolutely refuse to acquiesce in any such argument. 'The hearing upon appeal is a rehearing, and I do not think there is any presumption that the judgment in the Court below is right. 'That one's mind may be, and ought to be, affected so as to lead one to distrust one's own judgment, if the appeal is from a very able or learned Judge, for whose judgment one may have great respect, is true ; and, again, if the Judge of first instance has had an opportunity of hearing the witnesses, and testing their credit by their demeanour under examination and the like, which the appellate tribunal does not possess, I can quite understand that, under those circumstances, great weight should be attached to the finding of fact at which the learned Judge of first instance has arrived. And it may also be that where a jury has found a fact, it is not a rehearing of such a fact, because the Constitution has placed in the hands of the jury, and not in the hands of the Court, the jurisdiction to find the fact, and in such a case the Court can only disturb the verdict where, in their judgment, the jury have not done their duty; short of that, the Court is bound to accept the finding of the jury, though they may think they would have found a different verdict. But upon appeal from a Judge where both fact and law are open to appeal, it seems to me that the appellate tribunal is bound to pronounce such judgment as in their view ought to have been pronounced in the Court from which the appeal pro- ceeds, and that it is not within their competence to say that they would have given a different judgment if they had been the Judge of first instance, but that because he has pronounced a different judgment they will adhere to his decision. The judgment to be pronounced by the Court of Appeal is the judgment that ought to have been pronounced by the Judge of first instance.

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opinions of the learned Judges whom I have quoted. For these reasons, I have thought it right to protest against the notion that when the Judge of first instance has decided a question he has done something which is binding upon the Court of Appeal, and that unless they think it very wrong, according to the language of the learned Judges, they must acquiesce in his judgment." His Lordship then went on to say that in his opinion the Judge of first instance was wrong, and the Court of Appeal was wrong, and that the appeal should be allowed. Lord Macnaghten concurred in that statement of the law, and so also did Lord Davey. So that the position is clearly laid down by the very highest authority that the primary duty, and in fact the whole duty, of every Court of Appeal is to give the judgment which in its opinion ought to have been given in the first instance. But there are natural limitations, that is to say, in some cases, where the evidence below is solely upon written documents, if for instance it is upon affidavit as it used to be in the old Court of Chancery, the appellate Court is in as good a position as the primary Judge to say what ought. to have been the decision ; but where viva voce evidence is taken there is a large amount of material upon which the primary Judge acts that is altogether outside the reach of the appellate tribunal. The mere words used by the witnesses when they appear in cold type may have a very different meaning and effect from that which they have when spoken in the witness box. A look, a gesture, a tone or emphasis, a hesitation or an undue or unusual alacrity in giving evidence, will often lead a Judge to find a signification in words actually used by a witness that cannot be attributed to them as they appear in the mere reproduction in type. And therefore some of the material, and it may be, according to the nature of the particular case, some of the most important material, unrecorded material but yet most valuable in helping the Judge very materially in coming to his decision, is utterly beyond the reach of the Court of Appeal. So far as their judgment may depend upon these cireumstances they are not in a position to reverse the conclusion which has been arrived at by the primary tribunal. Now it may be that in some cases the effect of what I call the unre- Vor, VII. 36

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corded material is very small, indeed insignificant, and utterly outweighed by other circumstances. It may be, on the other hand, that it guides, and necessarily guides, the tribunal to the proper conclusion. If that is the case, as I have said before, the Court of Appeal cannot say that the conclusion is wrong without disregarding the material which it knows must have been exis- tent before the tribunal below, and is necessary to a just conclu- sion. Now apply these considerations to this case where adultery is charged. It has been said, and rightly said, that direct proof is not necessary. A rule requiring direct proof in all cases would be unworkable and would defeat the ends of justice. The rule is very distinct. The case of Loveden v. Loveden (1) was referred to. That was the earliest case on the subject, having been decided in 1810. There Sir William Scott said (2) : - *'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; for it is not to lead a rash and intemperate judgment, moving upon appearances that are equally capable of two interpretations - neither is it to be a matter of artificial reasoning, judging upon such things differ- ently from what would strike the careful and cautious considera- tion of a discreet man. The facts are not of a technical nature ; they are facts determinable upon common grounds of reason ; and Courts of justice would wander very much from their proper office of giving protection to the rights of mankind, if they let themselves loose to subtilties, and remote and artificial reasonings upon such subjects. Upon such subjects the rational and the legal interpretation must be the same." In Grant y. Grant (3) Sir H. Jenner said: - * The principle applicable to cases of this description, where there is no direct and positive evidence of an act of adultery, at any particular time or place, is laid down in a variety of cases, to which it is not necessary for the Court to advert. It is not necessary to prove an act of adultery at any one particular time or place ; but the Court must look at all the circumstances together, and form its own opinion whether they lead to a fair and natural conclusion that an act of adultery has

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judgment was affirmed by the Judicial Committee of the Privy Council (1),so that it may be accepted as an authoritative state- ment as to what is sufficient to establish the charge of adultery. In my opinion, speaking for myself alone, Simpson J. had evi- dence before him upon which he might lawfully and rightly have found that adultery had been committed. That, I say, is my own opinion. [His Honor then referred to the evidence of Dear- man senior and Campbell and continued.] His Honor, however, did not accept that evidence, and we are therefore left without those facts which, whether right or wrong, were necessary at all events to draw the inference which it would be necessary to draw in order to hold that the learned Judge was wrong, or, as I think, necessary to enable the Court of Appeal to form its own opinion upon the question whether adultery was committed on 23rd July. Why I say that is this. If these facts had been established it then became a mere matter of inference depending not upon the credibility of any witness except to this extent, that the respondent and co-respondent not only deny the act, but also deny that these facts took place, and if the learned Judge had disbelieved them as to the denial of these facts it would have resulted in a mere question of inference based upon our knowledge of human nature, and the Court of Appeal is in as good a position as the primary tribunal to judge of that. I will only refer to two instances where it has been held by a Court of Appeal that it may draw such an inference. In The Glannibanta (2), Bagallay J.A., who delivered the judgment of the Court, after referring to the cases of The Julia (3) and The Alice (4), said : - * Now we feel, as strongly as did the Lords of the Privy Council in the cases just referred to, the great weight that is due to the decision of a Judge of first instance whenever, in a conflict of testimony, the de- meanour and manner of the witnesses who have been seen and heard by him are, as they were in the cases referred to, material elements in the consideration of the truthfulness of their state- ments. But the parties to the cause are nevertheless entitled, as well on questions of fact as on questions of law, to demand the

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decision of the Court of Appeal, and that Court cannot excuse itself from the task of weighing conflicting evidence and drawing its own inferences and conclusions, though it should always bear in mind that it has neither seen nor heard the witnesses, and should make due allowance in this respect. In the present case it does not appear from the judgment, nor is there any reason to suppose, that the learned Judge at all proceeded upon the manner or de- meanour of the witnesses; on the contrary, it would appear that his judgment in fact proceeded upon the inferences which he drew from the evidence before him, and while we have really the same means of considering that he had, and with this further advantage, that we have had his view of the inferences to be drawn from the evidence as well as the evidence itself made the subject of elaborate and able discussion on both sides." And the same thing was said in the House of Lords by Lord Bluckbwrn in Smith vy. Chadwick (1): - *The Court of Appeal ought to give great weight, but not undue weight, to the opinion of the Judge who tried the cause, and saw the witnesses and their demeanour, 'That gives him considerable advantages over those who only draw their informa- tion from perusing the notes. But still, though the Court of Appeal ought not lightly to find against the opinion of the Judge who tried the cause, I think that the Court of Appeal, if convinced that the inference in favour of the plaintiff ought not to have been drawn from the evidence, should find the verdict the other way." Well, that is the position, and the only difficulty in the way of the respondent here is that he does not reach the point where these inferences can be legitimately drawn. He fails to maintain that the two important facts deposed to by Dearman senior and Campbell, and assuming indeed that I am right in what inference might be drawn, he fails to substantiate the position that that inference ought to have been drawn by the learned Judge. That, as I say, depends upon circumstances not before the Court of Appeal, and, therefore, not within their power to deal with. Under these circumstances the case of The Alice (2) and the rule laid down in Coghlan v. Cumberland (3) applies, and in the result the appeal must succeed upon the ground that

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the legal principle applicable between this Court and the Full Court. Iam perfectly prepared to accept the view of the learned Chief Justice of New South Wales that an appeal should not be allowed from a Judge who saw the witnesses and found the facts unless the circumstances are not capable of any other reasonable solution than that of guilt. It is to be remembered that the Full Court may have been influenced by the fact that the respondent and co-respondent did not appear in support of the judgment they had obtained. Perhaps they were unconsciously influenced by that common feeling that is expressed in the proverb les absents ont toujours tort. But the facts here are capable of another solution, especially having regard to the free and easy manners and wholesome freedom from reserve common in Australia. In this country we do not accept the view that is accepted, I believe, in some countries in Europe that for a woman to be alone with a man upon a roadside is proof of adultery. There is no doubt that there has been gross impropriety on the part of the respon- dent, and that she has herself to blame largely if she is misunderstood. But there is no direct evidence of any act of adultery except upon 23rd July. [His Honor referred to the evidence in relation to the events of that date and continued :] It is not for us to say whether adultery was committed, but whether Simpson J. was wrong in saying that he was not satis- fied that it had been committed. He saw the witnesses and heard them give evidence. All we have before us is evidence of some suspicious circumstances, and those cireumstances are such that a Judge might reasonably come to the conclusion that the adultery had not been proved. Then as to the effect of trying to set up a false defence, that is not in itself sufficient to prove that there is not a true defence, although an attempt to set up such a defence must necessarily have very strong weight with any Court. Speaking for myself, I do not find any evidence con- necting the respondent or the co-respondent with the attempt, if there was one, to set up a false defence. But that is a matter as

te - Nedge v RTA

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