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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Rattray v. Rattray [1897] ScotLR 35_294 (15 December 1897)
URL: http://www.bailii.org/scot/cases/ScotCS/1897/35SLR0294.html
Cite as: [1897] ScotLR 35_294, [1897] SLR 35_294
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SCOTTISH_SLR_Court_of_Session
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Court of Session Inner House Second Division.
[
v.
Proof — Divorce for Adultery — Letter Despatched by Defender to Co-Defender, but not Received by him.
Facts:
The pursuer in an action of divorce for adultery obtained possession of a letter from the defender to the co-defender by illegally obtaining possession of it from a post office official. No objection was taken at the proof to this letter being put in evidence as against the defender, and it was deponed to by her in her examination.
It was suggested from the Bench in the Inner House that the letter could not be used by the pursuer as evidence in respect he had obtained it by means of a crime.
Held ( diss. Lord Young) that the letter was admissible as evidence against the defender.
Opinion ( per Lord Trayner) in an action of divorce for adultery that a letter despatched by the defender to the co-defender, but intercepted, and consequently not received by him, is not evidence against the co-defender.
Opinion reserved by Lord Moncreiff.
This was an action of divorce for adultery at the instance of Alexander Wellwood Rattray of Fellowhills, Associate of the Royal Scottish Academy, residing in Glasgow, against his wife Mrs Jemima Douglas or Rattray, and Robert Darby Anderson, stock and share broker, as co-defender.
The pursuer went to the post office at Skipness, and by representing that he wanted to get back a letter which he said had been posted by mistake, induced the postmistress to show him the letters which had been posted there that day. Among these letters he discovered one which had been written by his wife to the co-defender. This letter he took from among the letters in the post office and retained in his own possession. It was consequently never received by the co-defender. This letter was as follows:—“My Dearest,—Just a hurried line to say Winnie, Jessie, and I leave here on Thursday first by ‘Columba;’ the others are to follow on Monday, so perhaps you could meet us at the station, dear—of course no one need know but what it is by accident. I have not been to Skipness since my return, so could not post a letter to you. Wellwood does not know we were in the house when I was up, so you understand. Trusting to seeing you very soon.—Ever your own, Mina. We leave for Loch Lomond on Friday, the fourth.”
The defender obtained a diligence to recover documents, which covered the letter in question, and thereupon the pursuer lodged it in process. No objection was taken before the Lord Ordinary to this letter being put in evidence against the defender, and it was put to and its terms were deponed to by her in her examination. It was maintained, however, that it was not evidence against the co-defender, as it had never been received by him.
By interlocutor dated 15th June 1897 the Lord Ordinary (Stormonth Darling) found facts, circumstances, and qualifications proven relevant to infer the defender's guilt of adultery with the co-defender, found the defender guilty of adultery with the co-defender accordingly, and pronounced decree of divorce with expenses against the co-defender.
Opinion.—[ After stating the facts and reviewing the evidence]—“So far as the case against the defender is concerned, the strongest colour of all—and a colour affecting the whole evidence—is afforded by the letter No. 12 of process. I am utterly unable to accept her explanation of its terms, and it seems to me fatal to her case.
But it was strongly urged by counsel for the co-defender that the letter was no evidence against him, because he never received it. It is certainly true that the confessions of a defender are not evidence against a co-defender. Whether that rule applies with equal force to a letter actually despatched by the one to the other, though intercepted before its receipt, I am not quite sure. I do not require to solve that question, for I think there is sufficient evidence against the co-defender apart from the letter. I shall therefore condemn him in costs, both the pursuer's own and those he has to pay for his wife. I shall not, however, award any damages to the pursuer, for in my opinion he deserves none.”
The defender and the co-defender reclaimed.
Between the date of the Lord Ordinary's interlocutor and the date of the hearing in the inner House the pursuer was tried and
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convicted of an offence under the Post Office (Offences) Acts and was sentenced to seven days' imprisonment. The Post Office (Offences) Act 1837 (7 Will. IV. and 1 Vict. cap. 36) enacts as follows:—Section 28. “Every person who shall steal a post letter bag, or a post letter from a post letter bag, or shall steal a post letter from a post office, or from an officer of the Post Office or from a mail, or shall stop a mail with intent to rob or search the same, shall … be guilty … in Scotland of a high crime and offence, and shall be transported beyond the seas for life.” Section 29. “Every person who shall steal or unlawfully take away a post letter bag sent by a Post Office packet, or who shall steal or unlawfully take a letter out of any such bag, or shall unlawfully open any such bag, shall … be guilty … in Scotland of a high crime and offence, and shall be transported beyond the seas for any term not exceeding fourteen years.”
In the course of the discussion in the Inner House, Lord Young intimated a doubt whether the Court were entitled to look at a letter which it was admitted the pursuer had obtained by means of a crime.
Argued for the defender—On grounds of public policy the pursuer ought not to be allowed to take benefit from his own crime by using what he obtained possession of through crime, as evidence to prove his case against his wife. Even if by inadvertence of parties, or the Lord Ordinary, the letter had been allowed to be used in evidence in the Outer House, it was pars judicis to refuse to consider it now, looking to the way it had been obtained. This would hold good even if the objection had been waived by parties. The labes realis of theft attached to the letter, and the Court was bound of its own motion to refuse to consider it. If the Court allowed the pursuer to use this letter in evidence, it was directly encouraging the commission of such crimes. No doubt the general rule was that all evidence which would lead to the ascertainment of the truth should be admitted. But this rule was not absolute, and in many cases was disregarded on grounds of public policy, e.g., in the case of confidential communications, and documents belonging to public departments— Arthur v. Lindsay, March 8, 1895, 22 R. 417; Little v. Smith, February 17, 1847, 9 D. 737. The cases quoted for the pursuer were not in point. In Robertson v. Thom, infra, the objection omitted to be taken was to a mere informality in the execution of the deed, and in the other cases the parties did not choose to take timeous advantage of a privilege which the law had given them. It had been held that in such circumstances the parties could not afterwards state the objections which they had omitted to put forward at the proper time. The defender was not concerned to dispute the law as laid down in these cases. The argument here was that the Court ought from regard to the public interest to refuse to consider evidence obtained by one of the parties through crime, and especially such a crime as was committed here. (2) Even if the letter was admissible, it was not evidence that adultery took place between the defender and the co-defender. At most it was only evidence that the defender was willing to commit adultery. It did not prove that the co-defender was also willing, still less that adultery took place—Fraser, Husband and Wife, vol. ii. 1172. Apart from the letter there was no evidence that the defender and co-defender had been guilty of adultery.
Argued for the co-defender—(1) The co-defender submitted that the letter ought not to be considered at all, and that it was not evidence of adultery having taken place between the defender and the co-defender, and upon this branch of the case he adopted the argument for the defender. (2) Apart from that, however, the letter was not evidence against the co-defender, for he had never received it—Fraser, Husband and Wife, vol. ii. 1173. He had no opportunity for reply or expostulation, and he might have done many things which would have rebutted any inference against him from its terms. The letter did not even prove that the co-defender was willing to commit adultery with the defender. (3) The state of the evidence might be such that the defender was proved to have been guilty of the adultery libelled, but that the case as against the co-defender was not proved. When that was the case it was quite competent and proper to find the defender guilty, but to assoilzie the co-defender—Fraser, Husband and Wife, vol. ii. 1173— Robinson v. Robinson (1859) 1 Sw. and T. 362, 29 L.J. (Mat.) 178; Stone v. Stone (1864) 3 Sw. and T. 608; Crawford v. Crawford (1886), 11 P.D. 150.
Argued for the pursuer—The letter was admissible in evidence. If it were inadmissible, it could only be as the result of some arbitrary rule which one would expect to be established either by statute or some well-recognised and settled rule of practice. There was no such statute or well-settled rule of practice. There was no general rule that a document obtained by crime could not be used in evidence by the person who had so obtained it. The result of obtaining evidence in such a way was (1) that it affected the credibility of the person committing the crime; (2) that the document could not be used in any way without admitting its having been stolen; (3) that the person committing the crime became liable to punishment. The interests of public policy were sufficiently conserved by these consequences. In the absence of some arbitrary rule which prevented the letter being looked at it must be received. The fact that it had been obtained by crime did not affect in any way its value as evidence. But apart from any general question in this case the objection came too late. The letter was produced, put to witnesses, and put in evidence without objection at the proof, and it was too late now to object to its being considered— Robertson v. Thom, December 29, 1848, 11 D. 353. When a
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proof at large has been allowed and led without objection, it was too late to take the objection that proof should have been limited to writ or oath when the case came before the Inner House, and the Court in such circumstances must consider the whole proof as led— Simpson v. Stewart, May 14, 1875, 2 R. 673; Kerr's Trustees v. Ker, November 16, 1883, 11 R. 108. Inadmissible evidence if admitted in the Court of first instance could not be disregarded by the Court of Appeal, which was bound to consider the case as the parties had seen fit to present it to the Court of first instance. The case of Arthur v. Lindsay, cit., merely decided that the Crown could not be compelled to produce certain documents against its will. It did not decide that such documents if produced could not be considered by the Court. That case therefore had no bearing on the present. Letters stolen from the Post Office were as regards this question in the same position as letters stolen from anyone. (2) The pursuer did not maintain that this letter was evidence against the co-defender. At advising—
[ His Lordship then reviewed the evidence.]
I think it is not proved that the co-defender committed adultery with the defender. But there is one item of evidence against the defender which does not affect the co-defender. It is the intercented letter.
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To put the case at its lowest for the defenders, it is not established beyond reasonable doubt that they committed the acts charged. If there is a reasonable doubt, and the difference of opinion in regard to the case rather shows that there is, the defenders are entitled to the benefit of it, and should therefore be assoilzied.
In considering a question relating to the public purposes served by the Post Office we must attend to the statutes which have been passed to protect and preserve the interest of the public in letters entrusted to that department. It is of infinite public consequence that letters committed to it should be kept safe, and should be delivered to those to whom they are addressed. It is therefore made not a crime only, but “a high crime and offence,” to steal a post letter, that is, a letter put into a post office for transmission. After being posted, it is in the custody and is the property of the Postmaster-General, and one who steals it might at one time be transported, and is now liable to penal servitude. It so happens that the pursuer took, and has been convicted of that crime of stealing, a letter posted by the defender addressed to the co-defender. I confess it is with some surprise that I find that this letter, which must have been in the hands of the Crown authorities, should have been returned for the use of the pursuer in this process. The letter is before me. It was addressed to the co-defender and posted. It was therefore in the custody of the Post Office. The Post Office officials were not entitled to deliver it to anybody else, and were bound to deliver it to him as his letter; and I should have expected that, when its purpose in the criminal charge was served, it should have been returned to the postal authorities and delivered to the co-defender. Has anything occurred to excuse the delivery of it according to their duty? Mr Anderson did not get it. I have heard no reason why it should be so. I do not think, on the proof, that I am entitled to suspect him of an intrigue with the defender. But if that had been so, and he had handed it back to the husband for his use, it would have required strong language to express my contempt for him. He was then entitled to delivery of the letter, and is so now, and I think that it cannot be used in the process on behalf of the person who stole it.
I think that the Court is bound to take notice of the statute law enacting that the pursuer's conduct was a crime (though with a discretion to the judge as to the sentence), and to reject as evidence anything obtained by a violation of the law, and still held by the pursuer who did that act. I have thought fit to express my opinion upon that general question. But even with the contents of the letter, assuming them to have been admitted, I should have reached the same conclusion.
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In this view it is not necessary to consider the question whether, assuming that the co-defender had claimed the letter, the pursuer would have been entitled to lodge it in process against his will, or if it had been restored to the co-defender, to recover it under a diligence and use it in evidence. My present opinion is that the fact that the pursuer has committed a crime against the Post Office Acts in order to obtain possession of the letter does not affect his right, if he otherwise has it, to found upon the letter, assuming that its contents establish or go to establish the existence of adulterous relations between the defender and the co-defender. The case is precisely the same, in my opinion, as if the pursuer had intercepted the letter in the hands of a private messenger; or, perhaps, to come nearer the case, as if he had found the letter—after it had been delivered—lying on the co-defender's desk, and opened it. In both these cases, strictly speaking, a crime would have been committed.
On obvious grounds of public policy any interference with the transit of letters through the Post Office is visited with punishment of exemplary severity; and any injured husband who attempts to possess himself of a letter in that way will render himself liable to the statutory penalties.
But I know of no case, and we have been referred to none, where the Court have refused to look at a document which instructed crime simply because it had been obtained without legal warrant.
The pursuer's counsel did not argue that the letter is evidence against the co-defender. I do not propose to say anything upon that subject at present, because I am prepared to decide against the co-defender on the footing that the letter is not evidence against him. But I should like to guard myself by saying that I am not satisfied that an intercepted letter may not, in the absence of collusion, be in some circumstances competent evidence against the person to whom it is addressed. It is not a confession made to a third party outwith the presence of the co-defender; it is intended for the eye of the person to whom it is addressed alone. Again, it is not a mere expression of the writer's thoughts committed to paper and kept to herself; she has put them beyond her own control by posting the letter or delivering it to the co-defender's messenger. If, for instance, it were proved that a clandestine correspondence had gone on between a married woman and a man not her husband, and that all the previous letters had been destroyed, I do not at present see why an intercepted letter, the only letter remaining, should not be some evidence against the person to whom it was addressed, subject, of course to any explanations which he might make, such as that he never received a letter couched in such terms from the lady before.
The Court recalled the interlocutor reclaimed against, and assoilzied the defender and the co-defender from the conclusions of the action, finding the pursuer liable to the defender and the co-defender in expenses.
Counsel for the Pursuer— Ure, Q.C.— Salvesen. Agents— Reid & Guild, W.S.
Counsel for the Defender— Shaw, Q.C.— W. Campbell. Agent— J. Gordon Mason, S.S.C.
Counsel for the Co-Defender— Jameson, Q.C.— J. J. Cook. Agents— Simpson & Marwick, W.S.