Fiji Law Reports

Appeal against the rejection of the magistrate's recommend and the dismissal of a petition of divorce by the Supreme reme Court.

H. M. Patel for the appellant.
Mrs Billeam for the respond

The >The following judgments were read: (25th March 1977)-

HENRY J.A.

Appellant petitioned for divorce on the ground that respondent committed adultery with cith co-respondent on the night of December 31 1972. The spouses were married on July 5 1965. There are 3 children-the youngest then being about one year old. The marriage was a reasonably happy one. If adultery occurred, it was a casual act of adultery by a married woman with a marriage of some eight years duration during which 3 children were born of the marriage. Further it was with a man in respect of whom there is no evidence of association which might suggest intimacy. The circumstances, as will later be seen, were unusual and unlikely to lead to the commission of an act of adultery as alleged. Appellant relied on evidence of three admissions. There was no independent evidence to corroborate the truth of the admissions. I will deal with these admissions after relating the facts.

On this night the spouses attended a religious function at the house of one Khatub Ali at which appellant was an officiating priest. Just after midnight those present retired. Five men, including appellant and co-respondent, slept in a room near the verandah. The women and children slept in an adjoining room. All 3 children were with respondent. There was a lighted lamp in the doorway between the two rooms. According to appellant the lamp went out. Appellant said he awakened because he heard his youngest child crying. He was not questioned how he knew this if there were other children in the darkened room. Appellant said he called out to his wife who did not answer. Nor apparently did anyone else. No witness was called to support his evidence. Appellant said someone re-lit the lamp. He then noticed that the co-respondent was not in the room but at this time co-respondent came in from a different door. Appellant then went to sleep. He apparently took no further interest in either his wife or child that night.

According to appellant he asked his wife next morning why their son had been crying and where she was and she replied that she had been taken outside by co-respondent. Appellant said he noticed some white stains on her trousers and he asked her what they were and she replied that she had had sexual intercourse with co-respondent. Respondent denied making this admission and said that her husband had come into the room and had had intercourse with her and this accounted for the stains. Her account, although a translation, is better taken from the note of her evidence. She said:

"We slept in the house on the floor. There were other people there. My husband was with us. During the night my husband came and said to me, "Don't tell anyone, Don't make a noise. It is me". I recognized my husband's voice. We had been married 7 years. He came to me and both of us slept together. We spent some time together and then he went away.

The next morning I saw my husband and spoke to him. I asked him why he had come to me in somebody else's house. He just laughed but said nothing. There was a man called Hamid Khan there but I do not know him and he did not come to me that night. We went home at 8 p.m. I again asked him about why he had come to me in someone else's house. I said we are together at home. I had asked him again because he had asked me why I had mentioned it in the morning. Then he said it was Hamid Khan who came and not him. I told my husband it was him. I said I recognized his voice and knew it was him. We both slept together that night and had intercourse together. In the morning my husband said that we should both go to Court and proceed against Hamid Khan."

Respondent was later taken by her husband to the Police Station where, so she stated in evidence, she admitted adultery. She said she did this because appellant told her to say it and she obeyed him. No one was called from the Police to give details of what respondent did say, although, obviously it included the admission.

Respondent claimed that she and appellant continued marital relations. Appellant denied this. However respondent gave evidence of an attempt at abortion which refers to March 1973. Her evidence was:

"Then we both went home. This was early in January 1973. A few months later I was admitted to hospital. My husband had brought 8 tablets from the Sister. I was given them to take. I did so and became unconscious. I was taken to Hospital. There I spoke with a nurse called Asenaca. I knew her and my husband knew her. I never told her I was pregnant by someone else. I did not know she had said so in evidence. I did not get the pills from Doctor Reddy in Labasa. My husband gave them to me. I was at Taveuni for 2 years. I only came to Labasa once. That was after 6 months and at about a year before I was admitted to hospital. After release from hospital I returned to the matrimonial home. I had a normal relationship there with my husband. I came to Labasa on 15 May 1973."

Appellant was not cross-examined on this evidence nor was leave sought for him to be recalled after it arose in the evidence of respondent.

Appellant called a staff nurse who was employed at the hospital in March 1973. She deposed that respondent said the baby was not her husband's but was another man's child. She stated respondent was semi-conscious as a result of pills she had taken. The conversation was in Hindi which is the only language respondent understands. Respondent said she had no memory of speaking to the nurse. She described her own condition as being unconscious.

The case for appellant therefore rested upon three separate admissions, namely:

(1) that sworn to by appellant and denied by respondent,

(2) that admitted by respondent to have been made to the police and explained by her, and

(3) that deposed to by the nurse who stated respondent was semi-conscious.

There is no independent evidence which supports the truth of the alleged confessions. The stains are equivocal. No person present that night was called to support appellant.

The evidence was taken by a magistrate in pursuance of the powers in Part X1 of the Matrimonial Causes Ordinance 1968. In accordance with section 68 evidence was reduced to writing and duly authenticated. The hearing was then adjourned so that the record could be considered by the Supreme Court to which it was sent together with the opinion of the magistrate as to what decree, if any, the petitioner was entitled. The whole case then came before the Supreme Court which, by section 70, must consider the case, and may either accept, reject or modify the opinion of the magistrate. The Supreme Court also had power to make any one of the following orders, namely:

(i) that further evidence be taken by the magistrate;

(ii) that the case be reheard by that or another magistrate; or

(iii) that the case be transferred to itself for hearing.

Section 70(b) further provides as follows:

"Unless the Court makes any of the orders specified in the last preceding paragraph, it shall decide the case and direct what decree shall be pronounced by the magistrate."

If the Supreme Court directs that a decree be granted then, by section 71, the magistrate must pronounce that decree. The statutory scheme is clearly that only the Supreme Court can decide what relief, if any, a petitioner will get and that the Supreme Court must consider and pronounce upon the opinion of the magistrate.

The opinion of the magistrate was expressed in the following terms:

"The fact of the Respondent having had sexual intercourse during the night of the 31st December 1972 is not disputed. However, the wife maintains that it was her husband who came to her that night. I prefer the husband's version of what happened and am reasonably satisfied upon the evidence that she did commit adultery with the co-respondent at Khatub Ali’s house. I also prefer the Petitioner's account of what transpired thereafter and am satisfied that he neither condoned the adultery nor resumed cohabitation."

He recommended the grant of a decree nisi of dissolution and consequential relief. The learned judge considered the record, including the opinion of the magistrate and, after reviewing the evidence, said he was not satisfied that appellant had established the alleged act of adultery and he thereupon dismissed the petition. The present appeal is from the exercise of the function of the Supreme Court. This is important.

"94 (1) For the purposes of this Ordinance, a matter of fact shall be taken to be proved if it is established to the reasonable satisfaction of the Court.

(2) Where a provision of this Ordinance requires the Court to be satisfied of the existence of any ground or fact or as to any other matter, it is sufficient if the Court is reasonably satisfied of the existence of that ground or fact or as to that other matter."

This section must be considered in view of the finding of the magistrate that he preferred appellant's version of the events on the night and what transpired thereafter. Apart from saying which version he preferred the magistrate did not state what standard of proof he applied nor did he state any reason for the conclusion he reached. The case for appellant rested solely on uncorroborated confessional testimony. The magistrate is not, under the Ordinance, the final arbiter of the case. He can give no more than an opinion. Section 57 is explicit that the Supreme Court must determine the ground upon which a petition is based. It reads:

"57. Except as provided by this Ordinance, the Court, upon being satisfied of the existence of any ground in respect of which relief is sought, shall make the appropriate decree."

Section 70(b) states specifically that the Supreme Court shall decide the case.

I turn now to consider the terms "satisfied" and "reasonably satisfied" as they appear in Sections 57 and 91. In Briginshaw v. Bringinshaw [1938] HCA 34; (1938) 60 C [1938] HCA 34; 60 CLR 336, 362 Dixon J. said:

"But reasonable satisfaction is not a state of mind that is att or established independentndently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, 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. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency."

Dixon J. also said at p. 368, 369:

"Upon an issue of adultery in a matrimonial cause the importance and gravity of the question make it impossible to be reasonably satisfied of the truth of the allegation without the exercise of caution and unless the proofs survive a careful scrutiny and appear precise and not loose and inexact. Further, circumstantial evidence cannot satisfy a sound judgment of a state of facts if it is susceptible of some other not improbable explanation. But if the proofs adduced, when subjected to these tests, satisfy the tribunal of fact that the adultery alleged was committed, it should so find."

This question was further considered by Dixon J. in Wright v. Wright [1948] HCA 33; (1948) 77 CLR 191 whenaid at p. 210:

"