Taylor (J.) v Taylor (I. L.)
| Jurisdiction | England & Wales |
| Judgment Date | 30 April 1970 |
| Judgment citation (vLex) | [1970] EWCA Civ J0430-3 |
| Court | Court of Appeal (Civil Division) |
| Date | 30 April 1970 |
[1970] EWCA Civ J0430-3
In The Supreme Court of Judicature
The Court of Appeal
(Civil Division)
(From: Mr. Commissioner Joseph Jackson, Q.C. - Newport)
Lord Justice Davies
Lord Justice Fenton Atkinson and
Lord Justice Phillimore
Mr. BRUCE CAMPBELL, Q.C. and Mr. R.J. MADDOCKS (instructed by Messrs. Haymon & Walters, Agents for Messrs. Emmanuel Marks & Cocker, Abertillery, Mon.) appeared on behalf of the Appellants (Wife, Petitioner, and Party cited).
Mr. ROGER GRAY, Q.C. and Mr. T.R. CROWTHER (instructed by Messrs. Lyndon, Moore & Co., Newport, Hon.) appeared on behalf of the Respondent (Husband, Respondent).
LORD JUSTICE DAVIES: This is an unusual and unfortunate case. It is an unusual case because the learned Commissioner who tried it had to decide whether or not a husband who had been found guilty of incest on his 14-year-old daughter was rightly convicted. It is an unfortunate case because one of the main grounds of complaint of the hearing before the learned Commissioner was a criticism — in my opinion a well-founded criticism — of the manner in which the learned Commissioner conducted the hearing.
It is an appeal from a decision of Mr. Commissioner Jackson given at the Newport Assizes on the 11th September of last year. He had before him a petition by the wife, Mrs. Taylor, for dissolution of marriage on the ground of adultery and also of cruelty, though the cruelty does not come into it since? the alleged cruelty is based on the adultery. The adultery alleged by her was incestuous adultery with their daughter Eileen in May of 1962, when, as I have said, Eileen was 14 years old. The husband denied that adultery and cross-prayed for dissolution of the marriage, also on the ground of adultery with three men; one was a man called Ginger Davies and that adultery was admitted by the wife in her discretion statement; and the other two were men called respectively Holmes and Jones. The incest which the wife alleged had been the subject of criminal proceedings at the Newport Assizes on the 20th and 21st November, 1962, when, before Mr. Justice Thesiger and a jury, the husband was found guilty on four counts of incest, on I think the 2nd, 3rd and 4th May and the 15th May, 1962. He was, as I say, convicted, and he was sentenced to three years concurrent on each count. He had, of course, by the time the matter came before Mr. Commissioner Jackson served- the appropriate part of his sentence. It is to be observed that after the conviction in November, 1962, he applied for leave to appeal against his conviction. The matter was before the Court of Criminal Appeal, constituted by the Lord Chief Justice Mr, Justice Ashworth and Mr. Justice Winn, on the 5th March, 1963, when the court refused leave to appeal against the conviction and (greeted that 42 days of the time he had been in prison should not countagainst his sentence.
The history of the matter is this. The husband and the wife were married on the 25th June, 1940, he being then 22 and she being 19. At all material times they lived in or near Abertillery. There were three children of the marriage, a girl born in 1942, a boy born in 1943, and the girl Eileen, to whom I have referred, born on the 9th March, 1948. There was another child, Sandra, born on the 25th August, 1961, who was admittedly not begotten by the husband. The husband is a man of fairly considerable criminal record, and I will advert to that later on.
On the 5th December, 1960, the wife petitioned for divorce on the ground of cruelty. She had Legal Aid. In that petition she did not ask for the discretion of the court to be exercised in her favour. She says in her discretion statement in the present suit that she did commit adultery with Ginger Davies, and she says that Sandra is the offspring of that union. Perhaps I might read now (I will have to come back to it) the material paragraph in her discretion statement. She says that she was extremely despondent after the husband had been sent to prison. Then she says: "It was while I was in this depressed and despondent mood that shortly before Christmas, 1960, I met Ginger Davies. He brought presents for the children and entertained them and he was very sympathetic and helpful. On this festive occasion we were in a convivial mood at my house when, in a moment of weakness, I permitted him to have intercourse with me. My husband was still in prison. A child was born as a result of the adultery". As I say, that child was born on the 25th August, 1961.
On the 27th May, 1961, the husband was released from prison. Before that the wife had left home and gone to live in the house of Mr. Holmes, the party cited. She said and he said that at all times there was nothing improper between her and Mr. Holmes. She said, rightly or wrongly, that she went to him, then being several months pregnant, because the husband had written to her from prison saying he did not want her with him when he come out. However, shortly before the birth of Sandra - some week or so - she want back to the matrimonial home, and there the child wasborn. They having resumed cohabitation, in September, 1961, the divorce petition, to which the husband had put in an Answer denying the wife's charges, alleging condonation and praying for restitution of conjugal rights, was by consent dismissed.
We move on now to May, 1962. The wife apparently had owed a debt, or the balance of a debt, in the sum of £4. There must have been a judgment summons taken out and, as a result, for non-payment of that sum she was committed to Cardiff Gaol, where she was incarcerated from the 1st to the 7th May, 1962, Eileen was at the matrimonial home, and was there with Sandra. Eileen's evidence, both in the criminal trial of November, 1962, and the hearing of this suit nearly seven years later — she now, of course, had grown up and was about 21 — was that the husband had sexual intercourse with her probably four times, on the 2nd, 3rd and 4th May, 1962, which she described in great detail, and also on a subsequent occasion on a settee in the house on the 15th May, when, of course, the wife was no longer in Cardiff and would be somewhere about the house. The husband and wife were on bad terms. It had been suggested by the husband — and Mr. Gray has made some play with this matter this morning, it being one of the few points that he could possibly take in this case — that the wife had infected him with venereal disease in the autumn of 1961 and also in the following year.
On the 22nd May, 1962, the wife left, having intercepted Eileen when she was on her way back from school, and they returned to Mr. Holmes's house. Eileen then, and there is a great deal of dispute as to how it came out, told her mother and Mr. Holmes of the incest which she alleged her father had committed upon her. On the 23rd May, the next day, Holmes went to the police, and I shall be reading shortly the evidence which the police officer gave as to the enquiries that he made of the husband in consequence. As I have already indicated, the husband was subsequently prosecuted and was committed for trial at Newport Assizes, where he was convicted.
When he was in prison the wife, in March, 1963, went back to the matrimonial home at 15 Tillery Street, and subsequentlypetitioned for dissolution. Pleadings took place. There was a great deal of delay in hearing the suit, a fact which enraged the Commissioner to a considerable degree, as a result of which ho eventually sent the papers to the law Society. At the end of it all the Commissioner found that the husband had not had intercourse with his daughter. He said there was what he described as a "coldly calculated conspiracy" between Mrs. Taylor and Eileen (though he did not find that Mr. Holmes was a party to it) to give false evidence and to bring a false charge against the husband. Curiously enough, the motive which was suggested at the hearing of the divorce suit for this conspiracy was that it was by way of revenge because the husband had not paid the £4 which would have stopped the wife from being committed to Cardiff Gaol. At the criminal trial the suggested motive was a quite different one, a rather odd one, as Mr. Justice Thesiger pointed out in his summing-up, namely, to threaten him (and it was said that he was threatened) with this prosecution unless he was prepared to make over the house to Mrs. Taylor. Those are the main dates and the history of the case.
There are two short matters of law to which I think I should refer before going any further. The first is as to the provisions of the Civil Evidence Act, 1963, section 11, which was in force at the time of the divorce hearing. Section 11 (1) provides as follows: "In any civil proceedings the fact that a person has been convicted of an offence by or before any court in the United Kingdom or by a court martial there or elsewhere shall (subject to sub-section (3) below) be admissible in evidence for the purpose of proving, where to do so is relevant to any issue in those proceedings, that he committed that offence, whether he was so convicted upon a plea of guilty or otherwise and whether or not he is a party to the civil proceedings; but no conviction other than a subsisting one shall be admissible in evidence by virtue of this section".
Then sub-section 2 provides: "In any civil proceedings in which by virtue of this section a person is proved to have been convicted of an offence by or before any court in the UnitedKingdom or by a court-martial there or elsewhere - (a) he shall be taken to have committed that offence unless the contrary is proved"…"
That section obviously, in contradistinction to section 15 of the same Act, which deals with the effect of convictions when they fall to he considered in an action...
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