Corke v Corke and Cook

JurisdictionEngland & Wales
JudgeLORD JUSTICE HODSON,LORD JUSTICE MORRIS,LORD JUSTICE SELLERS
Judgment Date14 December 1957
Judgment citation (vLex)[1957] EWCA Civ J1214-1
CourtCourt of Appeal
Date14 December 1957

[1957] EWCA Civ J1214-1

In The Supreme Court of Judicature

Court of Appeal

Before:

Lord Justice Hodson

Lord Justice Morris And

Lord Justice Sellers

Corke
Petitioner
and
Corke
Respondent

and

Cook
Co-Respondent

MR. H. B. GRANT (instructed by Messrs. Haslewood, Hare, Shirley Woolmer & Co., Agents for Messrs. Mayo & Perkins, Eastbourne) appeared for the Appellant, Petitioner below.

MR. DAVID E. PECK (instructed by Messrs. Hart, Reader, Rippon, Dodd & Chatfield, Eastbourne) appeared for the Respondent, Respondent below.

The Co-Respondent did not appear on the Appeal.

LORD JUSTICE HODSON
1

: This is an appeal by a husband petitioner from an Order of Mr. Commissioner Blanco White who on the 18th February 1957 dismissed a Petition for divorce based on adultery, finding that the Petitioner had not sufficiently proved the contents of his Petition.

2

The suit was defended and both the Respondent and Correspondent gave evidence denying the adultery alleged out the Commissioner found himself unable to regard either of them as witnesses of truth. He carefully considered the evidence (which is summarised in his judgment) tending to show whether or not the case was proved against the wife and Correspondent and discussed charges of cruelty made by the wife against the husband in her Answer. No complete transcript of the evidence was lodged and the Commissioner's summary has been accepted as accurate.

3

By his judgment the learned Commissioner made it clear that the balance was tilted in his mind in favour of the defence by one piece of evidence and said in terms that if that evidence were excluded further consideration would in his view be necessary before he could decide whether adultery had been proved or not.

4

Having admitted the evidence he found in favour of the defence and concluded by indicating that in his view if he were wrong there should be a new trial. This position was accepted by Counsel for the Respondent who has resisted the appeal, the Co-respondent not having been represented or taken any part in the appeal. If this concession were rightly made and there was a case for the Respondent and Co-respondent to answer on the facts found the Court would have no alternative to ordering a new trial of the Court were of opinion that the scales were weighted in favour of the defence by an inadmissible piece of evidence.

5

It is necessary first to consider what the case for the Petitioner was on the facts found by the Commissioner. The wife had left the husband, driven, not by his cruelty but by his conduct in showing her that he wanted to be rid of her. Her evidence as to this was accepted. She was thereafter living in the house 3 Bay Pond Road, Eastbourne, on an income of £3 10s. Od. a week out of which she had to pay £1 a week rent and to support herself and her children. The Petitioner lived in another part of Eastbourne. No suggestion was made against her as a mother to the children or as to her moral character. She was almost inevitably forced to take in lodgers. The Petitioner knew and aid not object to male lodgers, of which the Correspondent was not the first.

6

At the time of her alleged adultery, namely, 2nd/3rd. April 1955, she had two lodgers, a Mrs. Pelling in a small bedroom over the kitchen and the Co-respondent in a larger back room normally occupied by one or more of the children. No evidence was given to show that the Respondent and Co-respondent were on terms other than that of landlady and lodger nor was there any concealment from the husband of the position.

7

The Petitioner on the 12th March enquired by letter of the Respondent what her intentions were with regard to the co-respondent. On receipt of the letter by the Respondent the Co-respondent visited the Petitioner and they both saw the Respondent but nothing of significance occurred at this conversation and the Petitioner expressed himself satisfied although his was only a pretended satisfaction.

8

The Petitioner than engaged an enquiry agent to watch the house 3 Bay Pond Road. The effect of this evidence was that the Co-respondent came to the house at 9 o'clock, there was conversation in the Corespondent's Bedroom and creating of the bed lasting about 10 minutes somewhere about midnight. There was no dispute that the bed was creating and that the wife was sitting on the Co-respondent's bed. What she was doing in the Co-respondent's room was explained by the wife and the Co-respondent but their evidence was not accepted by the Commissioner who did not feel that their explanation was correct and expressly disbelieved the wife when she said that was the first time she had been in the Co-respondent's bedroom. Even if this answer is disbelieved, the fact remains that there was no evidence that the Respondent had ever been in the lodger's bedroom when he was there on any other occasion and the rejection of her denial is no substitute for such evidence.

9

The wife heard a noise as she said as she left the Co-respondent's bedroom, went downstairs and confronted the Petitioner and the enquiry agent who accused her of adultery which she denied. The Co-respondent came down also and so far from making any admission of adultery, abused the Petitioner roundly.

10

The Commissioner in a careful judgment recognised that the Respondent was of good reputation and that there was a considerable disparity of age between the parties; the Co-respondent being 56 and the Respondent 34 years of age and that there was nothing In the evidence to show that the relationship between the parties was other than an extremely friendly one between lodger and landlady. He also noticed that the Petitioner and the enquiry agent spoke to conversation during the 10 minutes on the night in question which struck him as remarkable if they were purporting to prove that adultery was then taking place.

11

He also noticed that Mrs. Felling, although handicapped as a witness by deafness, said that she never saw any improper conduct or familiarity between her landlady and the other lodger.

12

Upon these facts standing alone unsupported by the further matter which influenced the commissioner's mind it appears to me that the Petition should fail and that this court is in a position to support the commissioner's judgment.

13

Opportunity for adultery no doubt there was but evidence of inclination to commit adultery there is none unless it can be inferred from the circumstances that the landlady was talking to the Co-respondent who was in his bed in his own bedroom for lo minutes on the night in question. I cannot draw that inference from those circumstances nor do. I feel it possible to do so when the additional circumstance is added that the Respondent was disbelieved when she said this was the first time that she had been in the Co-respondent's room and that the Co-respondent was found to be a witness unworthy of credit having given an answer which the marital Commissioner found to be untrue with regard to his own material situation.

14

Since however the Commissioner rested his final decision on a piece of evidence which in his view settled the question in favour of the defence; and this has been the only ground of appeal argued in this Court I ought to express my view upon it, especially as if he was right in the conclusion that the matter was otherwise so evenly balanced that this piece of evidence tilted the scale in favour of the defence, there would be the necessity for a new trial if the evidence were wrongly admitted.

15

The ground of appeal reads as follows: "That the learned Judge misdirected himself in law in admitting evidence of the contents of a telephone conversation between the Respondent and one Dr. Churcher in the early morning of April 3rd, 1955, as part of the examination-in-chief of Dr Churcher and of the Respondent and Co-respondent".

16

The evidence admitted was to the effect that after the departure of the Petitioner and the enquiry agent the Respondent at the instigation of the Co-respondent rang up her doctor, Dr Churcher, and asked him to come down at once, this was about 12.30 in the morning of 2nd April, and examine her and a gentleman to prove that they had not been guilty of adultery with one another. The doctor did not come because he said he could prove nothing of the kind and when he gave evidence he confirmed that he had been asked to examine the Respondent and a person staying in the house but made it plain that any negative evidence he would have given would have been in his opinion valueless.

17

The Commissioner relied upon Article 7 of Stephen's Digest of the Law of Evidence, 12th edition page 13, which reads as follows: "When there is a question whether any act was done by any person, the following facts are deemed to be relevant, that is to say – any fact which supplies a motive for such an act, or which constitutes preparation for it; and subsequent conduct of such person apparently influenced by the doing of the act, and any act done in consequence of it by or by the authority of that person".

18

He said the conduct of the wife in ringing up the doctor seemed to be clearly admissible on the general principle indicated in that article and the words she spoke to the doctor also appeared to him to be admissible as explaining what she was doing in ringing up the doctor. He concluded by saying that this subsequent conduct throws great light upon the fact whether or not she had committed adultery.

19

The question is really whether her words spoken to the doctor can be received because her conduct in thus ringing up the doctor is of no significance without the words spoken, either given in evidence or inferred from the fact that she spoke to him at all at that time.

20

At first impression there is much to said for the view formed by the learned Commissioner; but on consideration I have come to the conclusion that this view is incorrect and not...

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