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HOLLINGTON »v. F. HEWTHORN AND COMPANY, ©.A.
LIMITED, AND ANOTHER. 1943
May 7, 11,
Evidence — Admissibility — Conviction — Motor-cars in collision — 12, 28.
Negligence alleged against defendant driver—Evidence of conviction
of defendant driver of careless driving—Res inter alios acta—State-
ment by person interested—Death of driver of plaintiff's cay after
action brought—Evidence of statement made by driver of plaintiff's
cay to police on day of collision—‘‘ Statement made . . . . at a time
“when proceedings were pending or anticipated '’—Evidence Act,
1938 (1 & 2 Geo. 6, c. 28), s. 1, sub-s. 3.
In an action arising out of a collision between two motor-cars on
the highway in which the plaintiff alleged negligence on the part
of the defendant driver the plaintiff sought to give evidence of —(a)
a conviction of the defendant driver of careless driving, contrary
to s. 12, sub-s. 1, of the Road Traffic Act, 1930, at the time and
place of the collision, and (b) of a statement made to a police
constable by the driver of the plaintiff's car (who had died after
action brought) after the collision and after the constable had
warned him, in accordance with s. 21 (a) of the Act, that the
question of prosecuting him for reckless, dangerous, or careless
driving would be considered :—.
Held, (a) that, both on principle and authority, evidence of the
conviction was inadmissible.
In the Estate of Crippen [1911] P. 108 ; Partington v. Partington
and Atkinson [1925] P. 34; and O'Toole v. O’Toole (1926) 42 T.L. R.
245, overruled on this point.
(b) that, whether or not a statement made to a police officer,
who is inquiring into the facts of a road accident, is admissible
under s. 1, sub-s, 1, of the Evidence Act, 1938, depends, under
s. I, sub-s. 3, of the Act, on whether the person making it is a
“person interested ” and on whether proceedings are pending or
anticipated which would involve a dispute as to any fact which
the statement might tend to establish, regarding which no
inference is necessarily to be drawn from the giving of the warning
under s. 21 of the Road Traffic Act, 1930, that warning being of
a different nature from the warning given to a suspected person
under the judges’ rules, as in Robinson v. Stern [1939] 2 K. B. 260,
but in the present case the terms of the statement justified the
inference that the person making it anticipated civil proceedings
at least, and it was, therefore, rightly held to be inadmissible.
Decision of Hilbery J., ante p. 27, on these points affirmed,
but on the facts reversed. .
APPEAL from Hilbery J.
The plaintiff, Robert Henry Hollington, the owner of a
motor-car, sued as the administrator of the estate of his son,
Basil Thomas Edmund Hollington, who had died after action
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c.A. brought, and on his own behalf, claiming damages in respect
1943 of a collision which occurred at Abridge, Essex, on April 5,
—- ~~~ 1940, between the plaintiff's car, driven by B. T. E. Hollington,
. and a car owned by the first defendants, F. Hewthorn & Co.,
auoeeeo Ld., and driven by the second defendant, Ernest Arthur Poll.
“The defendants denied negligence on the part of the second
defendant and pleaded contributory negligence. Owing to the
death of B, T. E. Hollington, the plaintiff was unable to adduce
any direct evidence of the accident, and he tendered in evidence,
in addition to evidence as to the position and condition of
the two vehicles after the collision, (2) a conviction of the
defendant, Poll, for careless driving at the time and place
of the collision, under s. 12 of the Road Traffic Act, 1930;
(b) a statement made by B. T. E. Hollington to a police
constable after the collision, and after the constable had
warned him, in accordance with s. 21 (a) of the Act, that the
question of prosecuting him for reckless, dangerous, or careless
driving would be considered. Hilbery J. ruled that neither
was admissible—(a) as being res inter alios acta ; (b) as having
been made at a time when proceedings were “anticipated,”
and, therefore, being expressly excluded by s. 1, sub-s. 3, of
the Evidence Act, 1938 (1). On a submission of “no case”
by the defendant, who called no evidence, Hilbery J. ruled that
the plaintiff had established a prima facie case of negligence,
and gave judgment in his favour for roo/, on his claim as
administrator, and for gol. 17s. 6d. on his own claim. The
defendants appealed.
Casswell K.C. and Holroyd Pearce for defendants. There
was no evidence to justify an inference of negligence by the
defendant, Poll.
Denning K.C. and Harold Simmons for plaintiff. There
are three questions which may fall for decision: (1.) Whether
on the whole case it was a legitimate inference that the
defendant was negligent. If so, there is an end of the matter.
If not, (2.) Whether a conviction of the defendant of careless
driving was admissible at common law ; and (3.) Whether the
statement made to the police by the deceased was admissible
(1) By s. 1, sub-s. 3, of the ‘‘ested ata time when proceedings
Evidence Act, 1938: ‘‘Nothing “were pending or anticipated
“in this section shall render “involving a dispute as to any
“admissible as evidence any state- ‘fact which the statement might
“ment made by a person inter- ‘“‘tend to establish.”
1 K.B. KING'S BENCH DIVISION.
under the Evidence Act, 1938. As to (1.) Hilbery J. was
entitled to draw the inference which he drew, and the question
is only whether it could legitimately be drawn, not, whether
acta. It is true that it would create no estoppel, but it is
submitted that it was admissible in chief as prima. facie
evidence of the defendant’s negligence. From the beginning
of the eighteenth century a conviction was held admissible
in subsequent civil proceedings so long as it was not founded
on the evidence of the party suing. The exception was due
to the fact that to admit the conviction in such a case would
have been an indirect way of circumventing the disability of the
party asa witness. Differences of opinion on this subject, how-
ever, are found among the greatest names. Gilbert C.B., who
died in 1726, states the rule as above in his work on Evidence,
and ed., p. 30, sub tit. “Verdicts given in evidence.” That
was the standard work throughout the eighteenth century, and
it is highly praised by Blackstone (Commentaries, 8th ed.,
bk. III., c. 23, p. 367). In Gibson v. M‘Carty (1) Lord
Hardwicke rejected evidence of a conviction because it might
have rested on the evidence of the party. It is true that in
Rex v. Warden of the Fleet (2) this class of evidence was
said to be inadmissible, but in all the books that case is not
referred to, and in Rex v. Lyme Regis (3) Buller J. said
“12 Mod. is not a book of any authority.”” On the other hand,
Buller’s Nisi Prius, 7th ed., p. 245, puts the matter too favour-
ably to the plaintiff when it refers to a conviction as conclusive
evidence. That it clearly is not. [They referred to Peake
on Evidence, Preface to 2nd ed., 1804 ; Smith v. Rummens (4) ;
Hathaway v. Barrow (5) ; Wilkinson v. Gordon (6); Blakemore
v. Glamorganshire Canal Co. (7); Justice v. Gosling (8).]
The disability of parties and their spouses was taken away
by the Evidence Acts, 1851 and 1853, but, as the accused person
could not give evidence in a criminal cause till 1898, it might
have been said before that date to be unfair to allow evidence
of a conviction to be given. In In the Estate of Crippen (9)
(1) (1736) Cases temp. Hard- (6) (1824) 2 Addams, 152, 160,
wicke 311. 161.
(2) (1699) 12 Mod. 337. (7) (1835) 2 C.M. & R. 133.
(3) (1779) 1 Doug. 79, 83. (8) (1852) 12 C. B. 39.
(4) (1807) 1 Camp. 9, 11. (9) [r911] P. 108.
(5) (1807) 1 Camp. 151.
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this court would have drawn it. With regard to (2.), Hilbery J. 2.
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evidence that a husband had been convicted of murdering his
wife was admitted, rightly, it is submitted, as evidence not only
of the fact of conviction, but of the murder. In the Estate of
Crippen (1) was followed by Ridley J. in Mash v. Darley (2),
which was affirmed on different grounds. Partington v.
Partington and Atkinson (3) and O’Toole v. O’Toole (4) are
difficult to reconcile with the view that a conviction is inad-
missible. A verdict of acquittal might also be admissible,
but, owing to the burden of proof resting on the prosecution,
its weight might be less. The verdict of a coroner’s jury is
not admissible: Barnett v. Cohen (5), which is merely cited
to distinguish it. [They also cited Rex v. General Medical
Council. Ex parte Spackman (6) and the notes to The Duchess
of Kingston’s Case (7).] There is another branch of the law
that supports the plaintiff's contention that the conviction of
the defendant is admissible. When a felony is committed
which also inflicts a civil wrong, no civil action can be brought
by the person injured until the felon has been prosecuted :
see Smith v. Selwyn (8) and The Amerika (9). It is submitted
that where the person injured has been so delayed in bringing
his civil action that an important witness has died, he must be
able to rely on the conviction obtained on the witness’s
evidence, as prima facie evidence in his action. For a con-
viction not to be admissible in such a case would be contrary
to justice. Cases which are said to be exceptions to the
general rule that convictions are not admissible in a civil
actions as being res inter alios acta are Davis v. Nest (10), Eaton
v. Swansea Waterworks Co. (11) and Petrie v. Nuttal (12). These
cases are, however, really examples of the general rule that a
conviction is prima facie evidence in a civil action. The
decision of a judicial tribunal, after going thoroughly into the
evidence, and after full opportunity for the prisoner to give
evidence, must be admissible in evidence. Since Harvey v.
Regem (13) was decided in rgor, there has been a universal
tendency to admit a conviction as prima facie evidence.
On the second question, whether the statement made to the
(1) [1911] P.. 108. (7) (1776) 2 Sm. L, C., 13th ed.,
(2) [r91g4] 1 K.B. 1; in C. A. 644, 667.
{r914] 3 K. B. 1226. (8) [1914] 3 K. B. 98.
(3) [1925] P. 34. (9) [1917] A.C. 38, 50.
(4) (1926) 42 T.L. R. 245. (10) (1833) 6 Car. & P. 167.
(5) [1921] 2 K. B. 461. (x1) (1851) 20 L. J. (Q. B.) 482.
(6) [1942] 2 K. B. 26. (12) (1856) 25 L. J. (Ex.) 200.
(13) [1901] A.C. Gor.
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police was admissible, Hilbery J. went too far in holding that c.a.
after an accident on the highway proceedings must be antici-
pated. The existence of “knock for knock” agreements ——-—-—
HoLrincTon
between insurance companies normally comes in to prevent v.
proceedings. A statement made by a party before he has
an opportunity of thinking out his case may be of great value.
Further, s. 1, sub-s. 3, of the Evidence Act, 1938, does not say
“‘when proceedings were . . . . reasonably anticipated” and the
proceedings ‘anticipated’ must be anticipated by the person
making the statement, and involve a dispute as to some fact
dealt with in the statement. Robinson v. Stern (1) is clearly
distinguishable from the present matter. There there was a
caution under the judges’ rules, and when a constable has
made up his mind to prefer a charge and so administers that
caution it is clear that proceedings are anticipated. The
statutory warning under s. 21 (a) of the Road Traffic Act,
1930, however, is very different. It is merely that the question
of a prosecution ‘‘will be considered,” and no one can then
say whether consideration will lead to proceedings or not.
It does not without more involve an inference that
proceedings are anticipated. Where a witness is alive, the
question whether he anticipated proceedings can be investigated
as a question of fact, but where he is dead his statement
should not be excluded without strict proof that proceedings
were anticipated.
Casswell K.C. in reply. The plaintiff is asking the court
to make a revolutionary change in the law of evidence as it
has stood for two-and-a-half centuries. The issue before
the magistrates who convicted the defendant, Poll, was a
different issue from that before Hilbery J. Any principle
laid down for the admission of evidence ought not to cover
a case where the res is different. It is not sufficient to say
“pars rei is the same.” If a conviction is to be admissible,
the best evidence of it must be given. The best evidence
would be to call as a witness each magistrate who would
say: “I heard So-and-so say such and such ’—which would
be hearsay—“‘and as a result I formed the opinion that the
“defendant was negligent ’’—thereby arrogating to himself
the decision of the very question which the civil court has
to decide. Rex v. Warden of the Fleet (2) is a full report,
unlike the rest of the cases in 12 Modern Reports, and, more-
over, it is reprinted in Cases determined by Sir John Holt,
(1) [1939] 2 K. B. 260. (2) 12 Mod. 337; Holt, 133.
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C.A 1698-1710. The case is an authority that a conviction
1943 Of battery is not evidence in an action for trespass for the
Hormerow Same battery. [He referred to Rex v. Horton (1), and Reg. v.
”. Fontaine Moreau,(z).] The principle of Inthe Estate of Crippen (3)
oe is not necessarily applicable in the King’s Bench Division,
“and has been doubted even in the Probate, Divorce and
Admiralty Division by Hill J., who followed it in the undefended
case of O’Toole v. O’Toole (4), relying on Partington v. Par-
tington and Atkinson (5). At best it amounts merely to a
doubtful relaxation of the ordinary rule in a special class of
case. As to the second point, if the judge had looked at the
statement made by the deceased man, he would have found
that a reasonable inference to be drawn from it was that he
must have anticipated proceedings. Apart from Robinson v.
Stern (6), the only authority appears to be Plomien Fuel
Economiser Co. v. National Marketing Co. (7), which deals with
interest, not anticipation.
Cur. adv. vult.
1943. May 28. The judgment of the court was read by
GopparD L.J. who, after stating the facts and reviewing the
evidence, continued: The plaintiff not only seeks to uphold
the judgment for the reasons given by Hilbery J., but he also
contends that evidence tendered by him was wrongly excluded.
He, therefore, asks that, if this court should find that there
was no evidence to support the judgment, there should be
a new trial at which evidence tendered by him and rejected
. could be given. Hilbery J. held that the plaintiff had estab-
lished a case. We are unable to agree that this inference
was justified. On the evidence which was before him we do
not think that a finding of negligence against the defendant
can be supported.
The evidence which was rejected by the judge and which
Mr. Denning contends ought to have been received was,
first, a certificate that the defendant, Poll, had been convicted
of driving without due care and attention on the day and in the
parish in question, and, secondly, the signed statement made
by the deceased driver to the police constable soon after the
accident, which, it is said, is made evidence by the Evidence
(1) (1817) 4 Price 150. (5) [1925] P. 34:
(2) (1848) 11 Q. B. 1028. (6) [1939] 2 K. B. 260.
(3) [x911] P. 108. (7) [1941] Ch. 248.
(4) 42 T. L. R. 245.
1K.B. KING’S BENCH DIVISION.
Act, 1938. Hilbery J. rejected the first on the ground that
it was res inter alios acta, and he held that he was precluded
from admitting the second by the judgment of this court in
Robinson v. Stern (1).
Dealing first with the conviction, Mr. Denning contends
that, as he has to prove negligence as part of his case, he
is entitled to put in the conviction, not as conclusive, but as
prima facie evidence that the defendant was driving negligently.
He admits that he must prove by oral evidence, if it is not
admitted, that the defendant is the person who was convicted,
and also, as we understand his argument, that he would in
some manner have to identify the negligence of which the
defendant was convicted with that which caused the accident.
The conviction will then still not be an estoppel, and it will
be open to the defendant to show, if he can, that he ought
not to have been convicted or that the negligence of which he
was convicted did not cause the accident, but Mr. Denning
says that the fact of his conviction is prima facie evidence
that the defendant was guilty of negligence.
Many years ago in Isherwood v. Oldknow (2) Lord Ellen-
brough, when considering the maxim ‘“‘Communis error facit
“jus,” said that it was more true to say that ‘“Communis
“opinio is evidence of what the law is,” and the first observa-
tion we would make on this part of the case is that it has been
the invariable practice of the judges for many years, certainly
for so long as any member of the court has been in the pro-
fession, to reject this class of evidence, so that nowadays
counsel have ceased to tender it in accident cases.. It is,
of course, no reflection on counsel in this case that they con-
tended for its admission, because here there is the unfortunate
fact that the material witness is dead and they had to consider
whether there was evidence which, according to the rules of
law, was admissible, whatever the prevailing practice might
be, but where it is clear that over a long period there has
been a unanimous opinion, not only of most modern text-book
writers, but among judges of first instance, that some par-
ticular class of evidence is inadmissible, the court should be
slow to differ from it unless it can be clearly shown that
the communis opinio, which we are satisfied has hitherto
prevailed, is based on wrong premises.
Before dealing with the authorities, let us consider the
question in the light of the principles of modern law relating
(rt) [1939] 2 K. B. 260. (2) (1815) 3 M&S. 382, 396.
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c.A. to evidence and see whether they support the admissibility
1943 Of the conviction on such an issue as arises in this case.
Horinovon We say “of modern law” because in former days, it is fair
o to say, the law paid more attention to the competency of
F. Hew- witnesses than to the relevance of testimony We are apt
THORN & Co. 4 forget that it was not only the parties who were incom-
petent, but also any person who was or could be interested
in the question at issue, so that parties would sometimes go
to court with releases already executed under seal ready to
be tendered to a witness to free him from any possible obliga-
tion that might prove an objection to his giving evidence.
It was not till the Evidence Act, 1843, that interested wit-
nesses, other than the parties, their husbands and wives,
were rendered competent, and by the Evidence Act, 1851,
the parties, and by the Evidence Amendment Act, 1853, their
spouses, were at last enabled to give evidence. The law
being what it was before these statutes were passed, it is not
surprising to find Sir FitzJames Stephen saying, in his Digest
of the Law of Evidence, 12th ed., p. 217, Note XVIII., that
the law of competency “was formerly the most, or nearly
“the most important and extensive branch of the law of
“evidence,” and that rules of incompetency are “nearly
“the only rules of evidence treated of in the older authorities.”
But, nowadays, it is relevance and not competency that
is the main consideration, and, generally speaking, all evidence
that is relevant to an issue is admissible, while all that ‘is
‘irrelevant is excluded.
Is it, then, relevant to an issue whether the defendant,
by negligent driving, collided with and thereby injured the
plaintiff, to prove that he had been convicted of driving
without due care and attention on the occasion when the
plaintiff was injured? As stated above, Mr. Denning admits
that he would have to identify the negligent driving which
formed the subject of the charge with that which caused the
injury to the plaintiff, for the record of the conviction itself
would show no more than that the defendant was convicted
for so driving on a certain day and in a certain parish or
place. In truth, the conviction is only proof that another
court considered that the defendant was guilty of careless
driving. Even were it proved that it was the accident that
led to the prosecution, the conviction proves no more than
what has just been stated. The court which has to try the
claim for damages knows nothing of the evidence that was
1K.B. KING’S BENCH DIVISION.
before the criminal court. It cannot know what arguments
were addressed to it, or what influenced the court in arriving
at its decision. Moreover, the issue in the criminal proceedings
is not identical with that raised in the claim for damages.
Assume that evidence is called to prove that the defendant
did collide with the plaintiff, that has only an evidential value
on the issue whether the defendant, by driving carelessly,
caused damage to the plaintiff. To link up or identify the
careless driving with the accident, it would be necessary in
most cases, probably in all, to call substantially the same
evidence before the court trying the claim for personal
injuries, and so proof of the conviction by itself would amount
to no more than proof that the criminal court came to the
conclusion that the defendant was guilty. It is admitted that
the conviction is in no sense an estoppel, but only evidence
to which the court or a jury can attach such weight as they
think proper, but it is obvious that once the defendant
challenges the propriety of the conviction the court, on the
subsequent trial, would have to retry the criminal case to
find out what weight ought to be attached to the result.
It frequently happens that a bystander has a complete and
full view of an accident. It is beyond question that, while
he may inform the court of everything that he saw, he may
, hot express any opinion on whether either or both of the
‘ parties were negligent. The reason commonly assigned is
‘that this is the precise question the court has to decide, but,
‘in truth, it is because his opinion is not relevant. Any fact
}that he can prove is relevant, but his opinion is not. The
, well recognized exception in the case of scientific or expert
} witnesses depends on considerations which, for present pur-
poses, are immaterial. So, on the trial of the issue in the
‘civil court, the opinion of the criminal court is equally irrele-
{vant. Another rule of general application is that only the
! best evidence is admissible. Where the only witness to a fact
' is dead, a party is often placed in great difficulty, but, with
. certain well-settled exceptions, the death of a witness does not
. on that account render admissible evidence that would be
objectionable if he were still alive. These exceptions are
(1.) dying declarations, in the case only of murder or man-
slaughter ; (2.) declarations in the course of business or
professional duty; (3.) declarations against interest; (4.)
declarations by testators as to contents of their wills in certain
cases; (5.) declarations as to public and general rights, but
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c.A. not as to particular facts from which a right or custom can be
1943 Proved; and (6.) certain declarations as to pedigree. To
these must be added certain statutory provisions as to putting
in depositions taken under the Indictable Offences Act, 1848,
and also statements now made evidence under the Evidence
Act, 1938, but none of these matters relate to the subject
that we have now to consider, and the fact that the plaintiff's
son has since died affords no ground for allowing a conviction,
which would not have been evidence had he been alive, to
be now put in. Hilbery J. rejected the conviction on the
ground that it was res inter alios acta, which is the reason
generally given for not admitting that class of evidence. No
doubt, it is difficult for a layman to understand why it is \
that if A prosecutes B, say, for doing him grievous bodily
harm, and subsequently brings an action against him for
damages for assault, this doctrine should apply so that he
cannot use the conviction as proof that B did assault him.
The “‘alios ” can only be the Crown who, in the case of what is
commonly called a private prosecution, is no more than the
nominal prosecutor. It is for this reason that we have stressed
the question of relevancy, and, indeed, it is relevancy that lies
at the root of the objection to the admissibility of the evidence.
Other reasons can, of course, be given for the rule, and in other
cases would have great force. A judgment obtained by,
A against B ought not to be evidence against C, for, in the I
words of the Chief Justice in the Duchess of Kingston’s Case (1),,
“it would be unjust to bind any person who could not be!
“admitted to make a defence, or to examine witnesses or to}
“appeal from a judgment, he might think erroneous: and,
“therefore... . the judgment of the court upon facts found, I
“although evidence against the parties, and all claiming,
“under them, are not, in general, to be used to the prejudice;
“of strangers.” This is true, not only of convictions, but also!
of judgments in civil actions. If given between the same’
parties they are conclusive, but not against anyone who was ‘,
not a party. If the judgment is not conclusive we have
already given our reasons for holding that it ought not to I
be admitted as some evidence of a fact which must have,
been found owing mainly to the impossibility of determining
what weight should be given to it without retrying the former
case. A judgment, however, is conclusive as against all
persons of the existence of the state of things which it actually
(1) (1776) 2 Sm. L. C., 13th ed., 644. H
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affects when the existence of that state is a fact in issue.
Thus, if A sues B, alleging that owing to B’s negligence he
has been held liable to pay xi. to C, the judgment obtained by
C is conclusive as to the amount of damages that A has
had to pay C, but it is not evidence that B was negligent :
see Green v. New River Co. (1), and B can show, if he
can, that the amount recovered was not the true measure of
damage.
We now turn to the authorities. Mr. Denning first relies
on certain passages in Gilbert on Evidence, described by
Blackstone as an excellent treatise which it is impossible to
abstract or abridge without losing some beauty and destroying
the chain of the whole: Commentaries, 8th ed., bk. IIL,
chap. 23, p. 367. The author had long judicial experience
as Lord Chief Baron, both in Ireland and in England, and his
writings have always been held in high repute. This book,
however, has, from the point of view of the modern lawyer,
the disadvantage already referred to that it deals so much
more with competency than any other subject. On the
point we are now discussing the learned author lays down
that a verdict on an indictment shall not be given in evidence
if found only on the oath of the party in the cause, for that
would enable him to give evidence indirectly on his own
behalf, but he maintains that, if the verdict was found partly
on other evidence, it is admissible and ought to sway in the
determination of the same fact, whether the verdict be on
an indictment or action. It may be diminished in point of
authority, he says, by showing that it was in part founded on
the oath of the party, and the jury are to respect it no further
than they presume it given on the credit of the other witnesses.
The learned author cites no authority for this opinion other
than stating: “This is the practice ex relatione Mr. Phipps
“1700” (which was only two years after Gilbert was called
to the bar), and it would seem to confront a jury with an
impossible task. The editor of the seventh edition of Buller’s
Nisi Prius evidently took the view that a verdict obtained
even in part on a party’s evidence, could not be admitted :
see p. 245, note (a), and it is fair to say that he gave no clear
assistance on the matter one way or the other. The note to
which reference has just been made and for which Bridgman,
who edited the seventh edition is responsible, says : ‘‘the effect
“of verdicts in criminal cases on the civil rights of the parties
(x) (1792) 4 Term Rep. 589.
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“does not appear to be clearly settled.” (x). This was the
view of the author of Peake on Evidence, as is shown in his
preface to the second edition published in 1808, and at p. 46
he sums up the cases to which he has referred in the earlier
pages by saying that they seem to show that such evidence
is in no case admissible although he says “this is opposed
“to the dictum of Gilbert.” Starkie, writing in 1833, says
(and ed., vol. i., p. 235): ‘“‘As a general rule it seems that a
“verdict or judgment in a criminal case is not evidence of
“the fact upon which the judgment was founded, in a civil
“proceeding.” For this he cites Rex v. Warden of the Fleet (2).
It is true that Modern Reports have been said to be of little
or no authority, but this case is also reported in almost
precisely the same terms in the volume of reports that bears
the name of Sir John Holt, and, unlike many of the cases in
this series, this is a full report and, as we have just said, is
treated as an authority by Starkie. In the case as reported
it was laid down by the full court in a trial at bar that a
conviction could be no evidence against the warden on a debt
on a bond, nor for the prisoner in false imprisonment against
the warden, because it would not be between the same parties,
for conviction at the suit of the King for battery cannot be
given in evidence in an action for trespass for the same battery.
The next case is Gibson v. M‘Carty (3), where the admission
of a conviction was opposed on the ground that it might
have .been obtained on the evidence of the party. Lord
Hardwicke, then Lord Chief Justice of the King’s Bench,
rejected the evidence on this ground, but referred to a case
relating to the family of the Hilliards. The case he had in
mind is evidently Hillyard (sic) v. Grantham (4), in which he
had been counsel and to which he refers in some detail in
Brownsword v. Edwards (5). In that case he said that at
trial in the King’s Bench on a question of legitimacy the
sentence of a consistory court that the father and mother
(1) Reporter's Note. In Boileau ‘“‘Holt, 1688-1710," published
v. Rutlin (1848) 2 Ex. at p. 677, 1738. There are two other, and
Parke B. stated with reference to much ‘later, series of ‘“Holt’s
Buller’s Nisi Prius that “ the
“treatise was written by Lord
“Bathurst, though published in
“the name of Mr. Justice Buller.”
(2) 12 Mod. 337; Holt, 133.
This is the folio volume of
“Cases determined by Sir John
“Reports,” Nisi prius, published
1818 by F. L. Holt, and Equity
cases, by William Holt, 1845.
(3) Cases temp. Hardwicke, 311.
(4) (Unrep.)
(5) (1751) 2 Ves. Sen. 245.
1K.B. KING’S BENCH DIVISION.
had lived in fornication was rejected, “first because it was a
“criminal matter and could not be given in evidence in a
“civil cause, and, secondly, because it was res inter alios ayo
a x @ 3 .LLINGTON
acta and could not affect the issue.’ The importance of v.
this is that it would seem that, when ruling on the evidence _F. Hew-
THORN & Co.
in Gibson v. M‘Carty’(1), Lord Hardwicke had in mind the
doctrine that res inter alios acta could not be relevant to the
issue. Blakemore v. Glamorganshire Canal Co. (2) shows that
the earlier cases, while based on nice considerations as to
competency of witnesses, might all have been decided on the
‘ground that the evidence tendered was res inter alios acta and
so inadmissible. The judgment in that case was delivered by
Parke B., and is a clear authority against the admission of this
class of evidence. So, too, is the passage in the opinion of
Blackburn J., delivered to the House of Lords in Castrique v.
Imrie (3), where he says, without any qualification, that “a
“judgment of conviction on an indictment for forging a bill
“of exchange, though conclusive as to the prisoner being a
“convicted felon, is not only not conclusive, but is not even
“admissible evidence of the forgery in an action on the bill.”
Turning now to the cases on which Mr. Denning relies,
in Wilkinson v. Gordon (4), Sir John Nicholl, dealing with
the question whether the record of a conviction could be
admitted to prove a bigamy, said: “I apprehend the true
“rule to be that a record of conviction is evidence of the
“same fact in a civil cause, only that it is not conclusive
“evidence,” and for this he cited Gilbert on Evidence. This
was a case in the Prerogative Court and decisions at Doctors’
Commons were not binding on the courts at Westminster.
The decision was given in 1824, and so was before the judgment
of the Court of Exchequer in Blakemore’s case (2). Moreover,
the exact contrary was ruled in 1858 by Sir Cresswell Cresswell
as judge ordinary, in March v. March (5), where, in giving leave
to prove a divorce case based on bigamy by affidavit
evidence, he said: ‘‘Remember that bigamy must be proved.
“Proof of the conviction of bigamy will not suffice.” It
may frequently happen that where bigamy or any other crime
has to be proved in a civil proceeding, the prisoner on his
trial had pleaded guilty. Proof of the confession by a witness
present at the trial is admissible because an admission can
(1) Cas. temp. Hardwicke, 311. (4) 2 Addams, 152, 161.
(2) 2C.M. & R. 133. (5) (1858) 28L. J. (P. & M.) 30,
(3) (1870) L. R. 4H. L. 414, 434.
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c.A. always be given in evidence against the party who made it.
1943 In the present case, had the defendant before the magistrates
Vici nieron pleaded guilty or made some admission in giving evidence
°. that would have supported the plaintiff's case, this could
we ba have been proved, but not the result of the trial.
“It remains to deal with three more recent cases, all in the
Probate, Divorce and Admiralty Division. The first is Im the
Estate of Crippen (1), where the administration of the estate of
an intestate wife was sought, passing over the legal personal
representative of her husband, who had been convicted of
murdering her. Sir Samuel Evans P. admitted the conviction
as proof that he had murdered her. The only point that
was actually decided was that the fact that the husband
was a convicted felon was a sufficient special circumstance
to justify passing over his personal representative, and so
far the decision is beyond criticism, but the President went
on to consider the cases, some of which have already been cited
in this judgment, and came to the conclusion that he could
admit the conviction as prima facie proof that the husband
had murdered his wife. The convenience of the decision is
obvious, but we cannot agree that the authorities support it.
It is difficult to understand how the learned President regarded
the judgment of Bramwell L.J. in Leyman v. Latimer (2),
which he quoted but apparently disregarded. That was a
libel action, and the words complained of were that the
plaintiff was a convicted felon, which was strictly true, but
later in the libel he was called also a felon editor. To justify
the last words, the lord justice said that the defendants must
show that the plaintiff had actually committed felony, and
then said: “It is plain from the numerous authorities cited
“in Taylor on Evidence . . . . that a conviction for felony is
“res inter alios acta, and of itself is no evidence in any civil
“proceeding that the person convicted has committed a felony.”
One would have thought this was a sufficiently clear ruling
by a very high authority. Nor can we agree with the view
‘that the President took of the passage in the opinion of
Blackburn J. in Castrique v. Imrie (3), already cited. With
all respect to the opinion of the learned President, we do not
think that the authorities justified him in admitting the
conviction as proof that the husband had murdered his wife.
The next case is Partington v. Partington and Atkinson (4).
(1) [1911] P. 108. (3) L.R. 4 H.L. 414, 434.
(2) (1878) 3 Ex. D. 352, 354. (4) (1925] P. 34.
1 K.B. KING'S BENCH DIVISION.
There a husband, who had previously been found to have been
guilty as a co-respondent, petitioned for divorce. Counsel
for the co-respondent in the husband’s suit put in the decree
in the former suit, apparently without objection, and the
petitioner’s counsel appear to have accepted that it was some
evidence against him, though not an estoppel. The authorities
we have been considering were not cited, and the matter seems
to have been treated as a matter of practice. Horridge J.
admitted the decree as some evidence, though not as an
estoppel, and allowed the petitioner to give evidence denying
the adultery which had been found against him in the previous
suit. Then, in O’Toole v. O’Toole (1), Hill J. admitted proof
of a conviction of the respondent of perjury in swearing that
he had not had connexion with a certain woman as evidence
that he had committed adultery with her. Hill J. obviously
had considerable doubt on the matter, but thought Par-
tington’s case (2) justified him in admitting the evidence.
In our opinion, these three cases go beyond and are contrary
to the authorities and ought not to be followed in future.
There is one further observation we may make on this
part of the case. The contention that a conviction or other
judgment ought to be admitted as prima facie evidence is
usually supported on the ground that the facts have been
investigated and the result of the previous investigation is,
therefore, at least some evidence of the facts that thereby
have been established. To take the present case, it could be
said that the conviction shows that the magistrates were
satisfied on the facts before them that the defendant was
guilty of negligent driving. If that be so, it ought to be open
to a defendant who had been acquitted to prove it, as showing
that the criminal court was not satisfied of his guilt, although
the discussion by text-book writers and in the cases all turn on
the admissibility of convictions and not of acquittals. If a
conviction can be admitted, not as an estoppel, but as prima
facie evidence, so ought an acquittal, and this only goes to
show that the court trying the civil action can get no real
guidance from the former proceedings without retrying the
criminal case. Without dealing with every case and text-
book that were cited in the argument, we are of opinion that,
both on principle and authority, the conviction was rightly
rejected.
Before parting with this question, we may add that in a
(1) (1926) 42 T.L. Ri 245. (2) [r925] P. 34.
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KING’S BENCH DIVISION. [1948]
note in the Law Quarterly Review, vol. xlii, p. 144, it is
suggested that these three cases in the Probate Division
can be supported by the application of the maxim “Omnia
“‘presumuntur rite esse acta.” The author of the note
would limit the admissibility as prima facie evidence of
judgments which are res inter alios acta to those cases in which
the State has an interest in seeing that the truth of the facts
necessary to support the judgments is established, that is to
say, convictions and decrees nisi, and this, he contends, is
required as a matter of common sense. If such an exception
is made, it ought to be by legislation and not by judicial
decision. In any case, it is a very debatable point whether
more weight ought to be given to a conviction or a decree-nisi
than to any other judgment. The King’s Proctor does not,
and cannot, investigate every case in which a decree nisi is
granted. With the enormous increase in divorce cases that
has taken place in the last twenty years, it would be impossible
to inquire into more than a very small proportion, nor do we
see that there is any more reason why the decision of a
criminal court, whether a court of summary jurisdiction,
quarter sessions or assizes, should be considered of greater
evidential value than one given in a court exercising civil
jurisdiction. If a conviction of murder is admissible, so
must one be of a motoring or licensing offence, and to say
that the State has an interest in summary convictions of this
sort so as to attribute particular value to them as evidence,
seems to us, with all respect, to be more theoretical than
practical. In many, perhaps in most, cases the correctness
of the conviction would not be questioned, but where it is,
its value can be assessed only by a retrial on the same evidence.
However convenient the other course may be, it is, in our
opinion, safer in the interests of justice that on the subsequent
trial the court should come to a decision on the facts placed
before it without regard to the result of other proceedings
before another tribunal.
The last point that arises is whether the statement made by
the deceased to the police constable ought to have been
admitted under the provisions of the Evidence Act, 1938.
Hilbery J., without looking at the statement, refused to
admit it, holding that the question of its admissibility was
concluded by the judgment of this court in Robinson v.
Stern (x). The question turns on s. 1, sub-s, 3, of the Act
(1) [1939] 2 K. B. 260.
1K. B. KING’S BENCH DIVISION.
which renders inadmissible a statement by a person interested
at a time when proceedings were pending or anticipated
involving a dispute as to any fact which the statement might —
tend to establish. Robinson v. Stern (1), did not decide that
a statement made to a constable who is inquiring into the
facts of a road accident can never be admitted. It depends
on whether the person making it is interested, as, no doubt,
ordinarily the driver of a car involved in the accident would
be, and also on whether proceedings are pending or anticipated.
To enable the court to decide on the admissibility of the
statement, the court is permitted, by s. 1, sub-s. 5, to look at
it, and then draw any reasonable inference from its form and
contents. That is what this court did in the case cited, and
they drew the inference that the defendant in that case must
have anticipated proceedings. We have looked at the state-
ment that was tendered in evidence in the present case, and
counsel have agreed that the warning required by s. 21 of the
Road Traffic Act, 1930, was given to the deceased before he
made it. In the circumstances of this case, we do not draw
any inference from that fact. It was not the same sort of
warning, nor were the circumstances in which it was given the
same, as in Robinson v. Stern (1). Here we find from the
statement that the defendant at first practically admitted
that the accident was his fault, but some time afterwards
came and said it was the fault of the deceased. In these
circumstances we think that the deceased must have antici-
pated the likelihood at least of civil proceedings and, con-
sequently, the statement was not admissible. The result is
that the defendant’s appeal succeeds ; and there is no ground
for sending the case back for a new trial. Judgment will be
entered for the defendant with costs here and below.
Appeal allowed.
Solicitor for defendants: P. A. Gascoin.
Solicitors for plaintiff: Leader, Henderson & Leader.
(1) [1939] 2 K. B. 260. .
jJ. W. H.
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