JUDGMENT of Ms. Justice Finlay Geoghegan delivered on the 7th day of March 2017
1. These are two appeals against orders made by the High Court (Kearns P.) on the 14th February 2013, in the defendant’s motion and on the 1st March 2013, on the plaintiff’s motion. The single judgment was given by the High Court on the 1st March 2013, which includes the reasons for which the order refusing the defendant’s application was made and also for its determination on the plaintiffs motion that “the conviction of the defendant for her husband’s murder is admissible in the within proceedings as prima facie evidence of the fact that she committed such murder”.
2. The order of 1st March 2013 was made on a motion brought by the plaintiffs on the 11th April 2012, seeking the preliminary trial of an issue of law on “the admissibility of the evidence of the defendant’s trial and subsequent conviction for the murder of her husband, Thomas Nevin”.
3. The background to the proceedings is that the defendant’s husband, Thomas Nevin, was killed on the 19th March 1996. The defendant was subsequently charged with the murder, and also soliciting the murder, of her husband. On the 11th April 2000, following a trial of 42 days before a judge and jury in the Central Criminal Court, the defendant was found guilty of:-
“(i) Murder, contrary to common law and s. 4 of the Criminal Justice Act 1964 and s. 2 of the Criminal Justice Act 1990 of Thomas Nevin at Jack White’s Inn aforesaid;
(ii) soliciting to murder, contrary to s. 4 of the Offences Against the Person Act 1861, one John Jones to murder Thomas Nevin;
(iii) soliciting to murder contrary to s. 4 of the Offences against the Person Act 1861, one Jerry Heapes, to murder Thomas Nevin;
(iv) soliciting to murder, contrary to s. 4 of the Offences against the Person Act 1861, one William McClean to murder Thomas Nevin.”
4. These plenary proceedings were commenced initially by the mother of the deceased, and subsequent to her death have been continued by two siblings of the deceased. The proceedings seek, primarily, declarations at common law and pursuant to s. 120 of the Succession Act 1965, (“the 1965 Act”) that the defendant is disinherited or precluded from taking any share either as a legal right or otherwise in the estate of the deceased.
5. The plenary proceedings have had a protracted history. This was primarily caused by the criminal proceedings, appeals against the conviction, an application for a miscarriage of justice, an application for a certificate under s. 29 of the Courts of Justice Act 1924, and an application to the European Court of Human Rights, all of which had been dismissed or struck out by February 2013. The defendant has filed a full defence denying any involvement in the murder of the deceased.
6. These two appeals were initially made to the Supreme Court, and, in October 2014, transferred to this Court pursuant to Article 64 of the Constitution.
7. The appeal against the order of the 14th February 2013 was moot at the time of the hearing before the Court of Appeal. That order refused the defendant’s application for a stay on the hearing of the plaintiffs’ motion. The basis of the application was that there was an outstanding application to the Court of Criminal Appeal for leave to re-enter to apply for a certificate pursuant to s. 29 of the 1924 Act. That has since been refused. Notwithstanding that it is now moot, the defendant/appellant contended that it had a costs implication. Insofar as that is relevant, I would dismiss that appeal and uphold the decision of Kearns P. to refuse the application for a stay on the plaintiffs’ motion for the reasons he set out in his judgment of 1st March, 2015.
8. The appeal to this Court was principally focused on the determination as a preliminary issue that the conviction of the defendant for her husband’s murder is admissible in the plenary proceedings as prima facie evidence of the fact that she committed such murder.
The Issue in the High Court and on Appeal
9. Kearns P. in his judgment expressed the view that the issue “in the present proceedings”, by which I think he meant the application on the motion before him, was “a simple one”. I respectfully disagree. He identified the issue in the following terms:
“The issue in the present proceedings is a simple one. Is a criminal conviction for murder admissible in a later civil proceeding brought against a person convicted of that murder? If not admissible, then it would follow that a defendant in a civil case would be in precisely the same position as a person who was acquitted or never charged with the offence in question. The conviction could not be used in any way whatsoever in the civil case.
If, on the other hand, the conviction is admissible, is it conclusive of the fact that the defendant murdered her husband or is it simply prima facie evidence of that fact, leaving to the defendant the right to argue that she should not have been convicted? In this regard, it is important to state at the outset that the plaintiffs do not contend that the conviction, if admitted, is conclusive against the defendant, nor do they any longer contend that evidence given at the criminal trial is in some way admissible in the civil proceedings.”
10. The reason for which the issue is complex, and for which it appears to me extremely important that this Court make clear the very limited issues with which it was dealing on appeal, is first, the fact that the plaintiffs indicated that the claim is being pursued both at common law and pursuant to s. 120(1) of the 1965 Act, which perhaps explains the general formulation of the issue as relating to the admissibility of the conviction “in civil proceedings” as distinct from its admissibility in a claim pursuant to s. 120(1) of the 1965 Act. Second, is the approach taken by Counsel for the plaintiffs of only seeking an order of admissibility of the conviction as prima facie evidence, even in relation to the claim pursuant to s. 120(1) of the 1965 Act, which is likely to be the central issue in the full hearing of the proceedings.
11. The proper construction of s. 120(1) of the 1965 Act was not in issue before this Court. It is unclear to what extent it was argued in submissions before the High Court. Notwithstanding this, views were expressed by the trial judge in the course of his judgment and I am concerned that we might be taken to agree with them if they were left without comment. I therefore propose briefly considering them.
12. Kearns P. set out s. 120 of the 1965 Act, of which ss. (1) and (4) are principally relevant. These provide:-
“(1) A sane person who has been guilty of the murder, attempted murder or manslaughter of another shall be precluded from taking any share in the estate of that other, except a share arising under a will made after the act constituting the offence, and shall not be entitled to make an application under s. 117.
. . .
(4) A person who has been found guilty of an offence against the deceased, or against the spouse or any child of the deceased (including a child adopted under the Adoption Acts 1952 and 1964, and a person to whom the deceased was loco parentis at the time of the offence), punishable by imprisonment for a maximum period of at least two years or by a more severe penalty, shall be precluded from taking any share in the estate as a legal right or from making an application under section 117.”
13. He then said:
“In making his submissions to the effect that the criminal conviction was admissible as prima facie evidence in this case, Mr. Brady on behalf of the plaintiffs accepted that a significant difference in wording appears in subsection (4) of s. 120 from that contained in subsection (1). The former contains the words ‘found guilty’, whereas the wording of subsection (1) states only that the person be ‘guilty of the murder’.
It is far from easy to see why the legislature, when inserting the words ‘found guilty’ in subsection (4), omitted the same term from subsection (1), given that the overall thrust of the section is to provide that certain forms of conduct should have particular consequences in terms of succession rights. In McGuire’s commentary on the Succession Act, 1965 (2nd Ed., at 291) the author does not address this particular difficulty, noting merely that:-
‘It was a rule of public policy at common law that a person should not be permitted to benefit from a crime. For that reason, where a sane person was guilty of murder or manslaughter, he was precluded from taking any benefit from the will or intestacy of his victim.’
A similar statement appears in Spierin’s Succession Act 1965 (3rd Ed. at par 757) who in addition notes: -
‘In the previous edition of this book it was suggested that the wording of the section, referring as it does to a person ‘who has been guilty’ rather than to a person ‘who has been found guilty’ (as in sub-s (4) does not appear to require a conviction before the disqualification on benefit applies. However the terms ‘murder’, ‘attempted murder’ and ‘manslaughter’ are terms of art in the criminal law and it is perhaps difficult to imagine that a court would apply the disqualification if there is no conviction.’
It is an extraordinary omission from s. 120 (1) for which it is difficult to find any rational explanation, given that a ‘finding of guilt’ is required under s.120 (4) for lesser offences and having regard further to the fact that ‘guilt’ is a finding appropriate to the criminal rather than the civil process. One is left not knowing what the section is to mean, unless one supplies the word ‘found’ to subsection (1) where in the text it does not appear. In those circumstances of uncertainty, and given that the section is undoubtedly punitive and conclusive in both nature and effect, its terms must clearly be subject to rules of strict construction in favour of the person against whom it is sought to enforce it.
It seems to me the defendant must be the beneficiary of this ambiguity so I am satisfied that the issue before the Court cannot be resolved by reference to the specific provisions of section 120 (1). I am satisfied that, as presently worded, the section cannot be invoked in aid by the plaintiffs to determine the issue in the conclusive way provided for by its terms. Indeed counsel for the plaintiffs, in arguing only that the criminal conviction is admissible as prima facie evidence in the civil case, implicitly accepts that this is the correct approach. It seems to me that s.120 (1) only goes so far as to be declaratory of a public policy which is that the perpetrator of the crime of murder should not be its beneficiary.”
14. As appears, the persons precluded from taking a share in an estate pursuant to s. 120(4) include a person “who has been found guilty of an offence [emphasis added]” whereas the exclusion under subs. (1) is of a person “who has been guilty of the murder”. As pointed out by Kearns P. it is far from easy to see why the Oireachtas used this different form of wording. Nevertheless in so far as the above passages may indicate that Kearns P. concluded that proof of a conviction for murder (with all appeals exhausted) does not of itself meet the proofs required by s.120(1), I respectfully disagree.
15. The interpretation of section 120(1) may not be considered obvious by reason of the difference in wording with s. 120(4). However, one potential interpretation is that a court asked to make a declaration that a person is precluded from taking a share in the estate may be satisfied that the person “has been guilty of the murder . . .” by proof that such person has been convicted or found guilty of the crime of murder of the deceased and any appeal has been dismissed or time for appeal expired. If this is the true construction (and I am not so holding), then proof in the plenary proceedings that the defendant was convicted of the murder of her husband would be sufficient to meet the requirements of section 120(1). If, however, it is determined at the full hearing this is the true construction then the only question on admissibility would be whether the order of the Central Criminal Court recording the conviction of the defendant is admissible in the plenary proceedings as proof of the conviction. Such admissibility is not in dispute. It is expressly accepted in the written submission on behalf of the defendant that this is the position. Such order or certificate is a public document and as such admissible as prima facie evidence of the facts stated therein i.e. of the conviction or finding of guilt of the murder.
16. It is only if some other construction is the proper interpretation of s. 120(1) that the question of the admissibility or otherwise of the conviction as prima facie evidence of the fact that the defendant was guilty of the murder of her husband becomes relevant.
17. I wish to make very clear that I am not expressing any concluded view on the proper interpretation of s. 120(1). It remains to be fully considered by the High Court following submissions from both parties at or prior to the full hearing of the plenary proceedings. It is not an issue which should be considered as already determined either by the judgment of Kearns P. or this Court.
18. I have drawn attention to this by reason of the views expressed on s. 120(1) by Kearns P. in his judgment which if left without comment might have lead to an implication that this Court agreed with same. It is also appropriate to draw attention to the phrase used “guilty of the murder” and to recall that, as noted in the extract from Spieren referred to by Kearns P., murder is a term of art defined by s. 4(1) of the Criminal Justice Act 1964. Further there appears to have been no consideration in the High Court of the judgment in Cawley v. Lillis [2011] IEHC 515 [2012] I.R. 281 where a conviction for manslaughter was received in evidence (albeit it would appear without objection) and Laffoy J., having referred to it and the absence of an appeal, stated at p.284:
“[4] The conviction of the defendant for the manslaughter of the deceased has certain implications in relation to the distribution of the estate of the deceased by virtue of the application of s. 120 of the Succession Act 1965.”
Having referred to s.120(1) and (5) she continued:
“[6] By application of those provisions, the defendant is precluded from succeeding to any interest in the estate of the deceased. . . .”
19. In Cawley v Lillis it does not appear that there was any dispute in relation to the above interpretation of s. 120 of the 1965 Act. If, however, the approach in Cawley v. Lillis is followed at the full hearing of these proceedings, the admissibility issues on this appeal do not arise.
20. If, however, on a proper construction of s. 120(1) it is decided that proof of the conviction of the appellant for the murder of her husband does not satisfy the requirements of s. 120(1) of the 1965 Act, then the question as to whether or not Kearns P. was correct in deciding that the conviction is admissible as prima facie evidence of the fact that the defendant, committed or was guilty of the murder of the deceased may become relevant.
21. For my part, it appears to me unfortunate that this Court is now in the position of being asked to determine, as a preliminary issue, the admissibility of evidence in proceedings which seek as a primary relief a declaration or order pursuant to s. 120(1) of the 1965 Act, in advance of the proper construction of that section being determined by the trial court. If, as might well have been done, a hearing on a preliminary issue was sought as to the proper construction of s. 120(1), it might be that the more general issue which Kearns P. was asked to decide, and which this Court is now being asked to review on appeal, might not fall for decision. This Court is being asked to review the correctness of a decision of the High Court upon an assumption (but without in any way determining) that the admissibility of such evidence might become relevant at the hearing of the proceedings.
22. However, as no ground of appeal was advanced against the determination of this issue as a preliminary issue, and in advance of the determination of what the court requires in order to be satisfied on the proper construction of s. 120(1), this Court is now required to consider whether or not it should uphold the determination made by Kearns P.
23. The trial judge reached his decision for a number of reasons. First, he considered that the permissible starting point was what he perceived to be the law as enunciated in Crippen (In the estate of Cunigunda (otherwise Cora) Crippen deceased) [1911] P 108. Second, he was persuaded by the reasoning of the Court of Appeal of New Zealand in Jorgensen v. News Media (Auckland) Limited [1969] NZLR 961, that the conviction should be admissible as an exception to the hearsay rule. As such an exception he considered that it should be admissible as prima facie evidence only of guilt. He also added the following at pp. 59-60 of his judgment:-
“To rule out the conviction as completely inadmissible would, in my view, be contrary to logic and common sense and offend any reasonable person’s sense of justice and fairness. An alternative interpretation whereby it is admitted as prima facie evidence is clearly open on the authorities in this jurisdiction. There is the clearest public policy consideration for so holding and it is set out starkly and unambiguously in s. 120 of the Succession Act 1965. That policy consideration may be characterised as being no more and no less than that the perpetrator of the crime of murder should not be the beneficiary of it.”
Submission on Appeal
24. Ms. Fitzgibbon, the solicitor who appeared for the appellant, primarily focused her submissions on the incorrect reliance placed by Kearns P. on the decision in Crippen’s case. She submitted that the matters relied upon therein by the trial judge were in fact obiter and did not form part of the ratio of the case. Second, she submitted that in accordance with the Supreme Court judgment in Eastern Health Board v. M.K. [1999] 2 I.R. 99, Kearns P., prior to admitting the conviction as an exception to the hearsay rule, ought to have considered and conducted an inquiry as to whether it was necessary to adduce such hearsay evidence and also as to the reliability of the proposed hearsay evidence.
Discussion and Decision
25. At the outset, I repeat again that it is unsatisfactory that this Court has to decide only upon the admissibility of the conviction as prima facie proof of the guilt of the defendant of the murder of her husband. I deliberately put the issue in that way as whilst the actual order made pursuant to the judgment of Kearns P. is that it is admissible “as prima facie evidence of the fact that she committed such murder” nevertheless as the issue which will require to be determined by the trial judge on any construction of s. 120 is whether or not the trial judge is satisfied that she “has been guilty of the murder” and having regard to the judgment of the trial judge the intent appears to have been that it be admitted “as prima facie evidence of the fact that [the defendant] is or has been guilty of such murder”.
26. I accept the submission made on behalf of the appellant that insofar as Kearns P. considered the law in this jurisdiction to be that as stated by Sir Samuel Evans in his judgment in Crippen’s case, where he said:-
“In my opinion, where a convicted felon, or the personal representative of a convicted murderer who has been executed, brings any civil proceeding to establish claims, or to enforce rights, which result to the felon, or to the convicted testator from his own crime, the conviction is admissible in evidence, not merely as proof of the conviction, but also as presumptive proof of the commission of the crime.”
that Kearns P. was in error. Ms. Fitzgibbon is in my view correct in her submission that upon a full reading of the judgment in Crippen’s case, this observation should properly be considered as obiter as distinct from part of the ratio of the case. I would add however, that it was cited with apparent approval by McCarthy J. in the Supreme Court in Ireland v Kelly and Concannon [1992] ILRM 582, a case concerning an application for an order for administration with will annexed to the Chief State Solicitor pursuant to s.27(4) of the 1965 Act, where the executor had been convicted of the murder of the testator’s sister. That judgment refers to the conviction of the executor (without any issue relating to the admissibility of such evidence) and also contains observations on the policy behind s. 120 of the 1965 Act.
27. Notwithstanding, I am of the view that the decision of the trial judge should be upheld and insofar as it may be considered that the admission of the conviction in the present proceedings involves an extension of the exceptions to the rule against hearsay it is justified both upon grounds of necessity and relevance. I am in agreement with the trial judge that the reasoning in Jorgensen v. News Media (Auckland) Limited [1969] NZLR 961 is compelling against following Hollington v. F Hewthorn & Company Ltd [1943] K.B. 587 which is not binding on the courts in this jurisdiction.
28. The evidence of the conviction is of one following a trial before judge and jury in due course of law with all appeals exhausted. Its reliability is undeniable, as is its relevance to the claim where the issue is whether the defendant is “guilty of the murder of . . .” It is also necessary as to exclude admission of the conviction as evidence would, as put by Kearns P., “be contrary to logic and common sense and offend any reasonable person’s sense of justice and fairness”.
Conclusion
29. I would dismiss both appeals.
JUDGMENT of Mr. Justice Hedigan delivered on the 7th day of March 2016
The factual background
1. Two appeals are brought before the court. The first deals with the substantive issue of admissibility of a certificate of conviction. It is brought on behalf of the defendant against the order of Kearns P. of the 1st March, 2013, directing that the conviction of the appellant for her husband’s murder is admissible in the within proceedings as prima facie evidence of the fact that she committed such murder. The appellant was convicted on the 11th April, 2000, in the Central Criminal Court of the murder and soliciting the murder of her husband, Thomas Nevin in 1996. The second appeal is brought by the defendant against the order of Kearns P of the 14th of February 2013 which refused the defendant’s application for a stay on the hearing of the plaintiff’s motion. This second appeal has become moot. I agree with the decision of Ms Justice Finlay Geoghegan that it should be dismissed.
2. Dealing with the first appeal, the proceedings herein were instituted by plenary summons on the 4th November, 1997, and were brought by the deceased’s mother and following her death have been maintained by the administrators of her estate, who are the brother and sister of Thomas Nevin. These proceedings seek various declarations in relation to the appellant’s right to inherit from her husband’s estate and damages for wrongful death. In particular the plaintiffs claim;-
“A Declaration that by virtue of Section 120 of the Succession Act, 1965 the Defendant is precluded from taking any share either as legal right or otherwise in the Estate of the said Deceased”
3. The relevant provisions of the Succession Act 1965 are as follows:
s. 120(1) A sane person who has been guilty of the murder, attempted murder or manslaughter of another shall be precluded from taking any share in the estate of that other, except a share arising under a will made after the act constituting the offence, and shall not be entitled to make an application under section 117.
(4) A person who has been found guilty of an offence against the deceased, or against the spouse or any child of the deceased (including a child adopted under the Adoption Acts, 1952 and 1964, and a person to whom the deceased was in loco parentis at the time of the offence), punishable by imprisonment for a maximum period of at least two years or by a more severe penalty, shall be precluded from taking any share in the estate as a legal right or from making an application under section 117.
4. The High Court on the 23rd January, 1998, ordered that no further steps be taken in these proceedings until the final determination of the criminal proceedings. These have now concluded. The appellant’s defence and counterclaim was delivered in 2005. She denies therein that she murdered Thomas Nevin. A notice to admit facts was served dated 21st December 2011. Admissions were sought in relation to the following matters:
(1) That the defendant was guilty of the murder of Thomas Nevin. To this the reply was that she denied any involvement in his death.
(2) That she was found guilty on 11th April, 2000, by a jury in the Central Criminal Court, of the murder of Thomas Nevin. The reply to this was that the defendant had and continues to challenge the verdict.
(3) That she was found guilty on three counts, under s. 4 of the offences against the Person Act, 1861, of soliciting persons to murder Thomas Nevin. To this she replied that she has always denied soliciting the murder.
(4) That the transcripts of the evidence adduced at trial before the Central Criminal Court contain evidence proving that on the balance of probabilities she was guilty of murdering and soliciting three persons to murder Thomas Nevin. This was not admitted.
(5) That the transcripts of the evidence adduced at trial in the Central Criminal Court contain evidence that she was guilty of murdering and soliciting three persons to murder Thomas Nevin. This was not admitted.
(6) That the Court of Criminal Appeal rejected her appeal on 14th March 2003, in a judgment delivered on that date by Mr. Justice Geoghegan and refused leave to appeal to the Supreme Court. The defendant replied that this was correct but referred to answers 1,2 and 3.
(7) That the Court of Criminal Appeal rejected her application, pursuant to s. 2 of the Criminal Procedure Act, 1993, on 22nd November, 2010, in a judgment delivered by Mr. Justice Hardiman. She rreplied that this was correct but also referred to the replies to (1). (2) and (3).
5. Kearns P. in his judgment of 1st March 2013 on the substantive matter before him at paragraph 59 stated as follows;
“I prefer to base my view ultimately on the proposition that the admissibility of the murder conviction is either authorised on foot of the decision in Crippen’s case or comes within an exception to the hearsay rule as suggested and found by the Court of Appeal of New Zealand in Jorgensen’s case”
Later at paragraph 60 he continued;
“However, having concluded that evidence of the conviction of Catherine Nevin for murder is admissible in the plaintiff’s various civil claims against her, I would go no further than did the Court of Appeal in New Zealand to say that the conviction is prima facie evidence only that Catherine Nevin murdered her husband”
Submissions of the parties
6. The Court has had the benefit of helpful written and oral submissions from the appellant and the respondents. Ms. Fitzgibbon, on behalf of the appellant, submitted that there were no cases on hearsay opened before Kearns P. No case was made, she argued, that any witnesses who could prove the respondents’ case were unavailable or incompetent. She submitted that the trial judge relied primarily on two things. First, the decision in Crippen’s case - In the Estate of Cunigunda (otherwise Cora) Crippen, Deceased [1911] P 108. This judgment did not in fact decide the core issue in this case, but only considered ‘special circumstances’ under the Court of Probate Act 1857. It did not decide that the conviction was admissible as proof of guilt. The judge however did express such an opinion but as such it did not form part of the ratio decidendi but was obiter dictum. Ms. Fitzgibbon also noted that this case was not referred to in later cases dealing with this issue. The second case relied upon by Kearns P. was the New Zealand Court of Appeal decision in Jorgensen v. News Media (Auckland) Limited [1969] NZLR 961. It rejected the English decision in Hollington v. F Hewthorn & Company Ltd [1943] K.B. 587, in which the Court of Appeal for England and Wales held that the defendant’s conviction for careless driving was not admissible in the civil action brought against him for negligence. In Jorgensen the evidence was admitted as an exception to the rule against hearsay.
7. Ms. Fitzgibbon submitted that once it was decided that the certificate of conviction was a hearsay matter, then the court must go through the appropriate test to decide whether or not it could be admitted as an exception to the rule against hearsay. She argued that Kearns P. could not create an exception or classify it as such where he did not conduct inquiries regarded as essential according to Irish case law notably by Denham J. in Eastern Health Board v. M.K. [1999] 2 I.R. 99. She further submitted that the certificate of conviction does not fall into the public document exception to the rule against hearsay.
8. Ms. Fitzgibbon further noted that the trial judge did not base his decision on issue estoppel or abuse of process. It was submitted that it could not be either of these things as there was no privity between the parties and the appellant is the defendant not the plaintiff in these proceedings.
9. Ms. Fitzgibbon also submitted that these proceedings issued before the criminal proceedings and that the respondents were presumably in a position to prove their case at that point. She added that if the certificate of conviction was deemed admissible, it would be virtually impossible to defend the case.
10. Mr. Brady S.C., on behalf of the respondents, submitted that the appellant’s criminal trial lasted 42 days, during which she gave evidence over the course of six days. He also noted that she had one of the foremost criminal defence counsel acting on her behalf. He referred to the judgment of Kearns P. and noted the criticism of Hollington in the United Kingdom and throughout the world. Particular reference was made to the New Zealand Court of Appeal decision in Jorgensen. He relied upon the statement therein of North P. that there must be exceptions to the hearsay rule and that it is for judges dealing with procedural matters to make exceptions and it does not really matter what it is called as it is a matter of procedure to ensure that justice is done. He referred this Court extensively to the judgment of Turner J. and to the remarks of McCarthy J. in Jorgensen. Mr. Brady submitted that these views were quite properly adopted by Kearns P. in his judgment.
11. Mr. Brady submitted that the core issue in the High Court was whether the conviction of the appellant for the murder of her husband was admissible as prima facie evidence of her guilt of that murder in the civil proceedings. He also submitted that he was arguing on general principles as opposed to an exception to hearsay. He noted further that the respondents’ pleadings cover both common law and s. 120 of the Succession Act 1965.
12. Mr. Brady submitted that the trial judge was correct in deciding the matter as he did either as an exception to the hearsay rule or on the basis that the certificate of conviction is a public document.
Decision
13. The core issue for this Court is whether Kearns P. was correct in his finding that the conviction of the appellant was admissible “as prima facie evidence that Catherine Nevin murdered her husband”. The plaintiff seeks to admit it as prima facie evidence that the defendant murdered her husband. In his judgment at p. 59, he stated that:-
“I prefer to base my view ultimately on the proposition that the admissibility of the murder conviction is either authorised on foot of the decision in Crippen’s case or comes within an exception to the hearsay rule as suggested and found by the Court of Appeal in New Zealand in Jorgensen’s case.”
14. In Crippen’s case the Court was dealing with an application for a grant of administration of the estate of Crippen’s wife. Mrs. Crippen was survived by her husband who had been convicted and executed for her murder. Prior to his execution, he appointed his mistress as his sole executrix and universal legatee of his will. Mrs. Crippen’s sister sought a grant of letters of administration for her estate and to pass over the legal representative of the husband. The Court held that the murder conviction was a special circumstance under s. 73 of the Court of Probate Act 1857, so that the husband’s legal personal representative could be passed over. It was held by Evans P. at pp. 111 to 112 that:-
“In the present case a man who has been convicted of the wilful murder of his wife has, after his conviction, made a will appointing a person his executrix and universal legatee, who claims, as such executrix, to administer the murdered wife’s estate, and as legatee to be entitled to the murdered wife’s property.
These are, surely, ‘special circumstances’.
I therefore pass over and decline to appoint the executrix; and I appoint the applicant as attorney of the deceased woman’s sister to be administrator of the deceased woman’s estate on the sister’s behalf.”
15. Evans P. stated that he believed there was nothing else necessary for him to decide before using his discretion to determine the motion. However, he went on to say that in case he was wrong in this regard, he would state his views on the points raised in argument. At p. 115 of his judgment Evans P. stated that:-
“In my opinion, where a convicted felon, or the personal representative of a convicted murderer who has been executed, brings any civil proceeding to establish claims, or to enforce rights, which result to the felon, or to the convicted testator from his own crime, the conviction is admissible in evidence, not merely as proof of the conviction, but also as presumptive proof of the commission of the crime.”
16. Thus it is clear that as submitted to the Court by Ms. Fitzgibbon, insofar as the issue of admissibility of the conviction for murder goes, the statement of Evans P. was obiter dictum.
17. Over 40 years later, in Hollington, the Court of Appeal for England and Wales held that the defendant’s conviction for careless driving was not admissible in the civil action brought against him for negligence. This decision was subsequently subject to severe criticism. The very Court of Appeal where the decision was given expressed subsequently its regret at being bound by it. Law reform bodies charged with inquiring into it have reported adversely and the writing of jurists throughout the Common Law world have nearly all condemned its reasoning and its conclusion.
18. In 1969, the New Zealand Court of Appeal in Jorgensen departed from the line of authority which had developed in England following the Hollington decision. It held that the certificate of conviction was admissible evidence. In that particular case, Jorgensen had brought a libel claim based on a statement published in the defendant’s newspaper in 1967 to the effect that Jorgensen along with another man had, in 1963, machine gunned one Kevin Speight, whose body was found in a house with another gunshot victim. Both men were convicted of the murder of Kevin Speight in 1964 and their appeals against their convictions were dismissed. During the trial of the libel action the judge followed the decision in Hollington and subsequent English Court of Appeal decisions. He held that the conviction was not admissible as evidence that Jorgensen had murdered Speight, but was admissible in relation to the mitigation of damages. The jury was unable to agree and were discharged. Before the commencement of the second trial, a case was stated seeking clarity on this issue. Thus it was that the case came before the New Zealand Court of Appeal. In its judgment at p. 979, North P. stated that:-
“In the present case, on the other hand, there is already a body of judicial opinion that would justify the conclusion that a certificate of conviction is not merely conclusive evidence that Jorgensen had been found guilty of the murder of Speight but was admissible evidence as well in proof of the fact of guilt and that is as far as I feel obliged to go.”
19. In relation to the decision in Hollington, Turner J. at p. 990 as to the certificate of conviction being hearsay evidence stated as follows:-
“It is true that to admit a certificate of conviction as proof of guilt is to admit hearsay, but the objection to the admission of hearsay is fundamentally this and no more: (a) the version of the facts given in the Court may not be an accurate transcription of what the original witness said at all; (b) even if correctly recorded, the content of what is said may be unsatisfactory - i.e. false, unreliable, biased, prejudiced, etc. -- and there is no opportunity to demonstrate this by cross-examination of the maker of the statement. Neither of these objections seems to me to apply, or at least to apply in any great degree, to the admissibility of a certificate of conviction. If there is any document whose content must be taken as satisfactorily verified it must be a certificate under the seal of the Court. There can I think be no real doubt that a certificate of conviction under the seal of the Court constitutes unimpeachable evidence not only of the fact that the prisoner was convicted, but also of the fact that the Court did in fact consider him guilty of the crime charged. So much for that objection. As regards the other (viz. that the opinion of the Court might have been wrong) it is perhaps only necessary to say that before a man be convicted in this country the Court must have come to the conclusion beyond all reasonable doubt that he was guilty of the crime charged. It does not seem to me, therefore, that either of the reasons normally operating to exclude hearsay exert any logical force at all in this case, and I would not allow the fact that a certificate of conviction is technically hearsay to deter me from the proposal which I now make, that this Court should abrogate the rule in Hollington v Hewthorn.”
20. In reliance upon this judgment, Kearns P. stated at p. 45 of his judgment as follows:-
“Even if I had not found the reasoning of the New Zealand Court of Appeal as convincing as I do, I would nonetheless start from the position that decisions of English courts constitute persuasive authority only since this State gained its independence. While decisions of the superior courts in the United Kingdom can be highly persuasive, I am satisfied, principally by reference to the reasoning offered by the Court of Appeal in New Zealand, that the decision in Hollington v. Hewthorn is unsatisfactory both for the reasons enumerated in Jorgensen, the writings of distinguished commentators referred to therein and in the citations from later cases in the United Kingdom which were unambiguous in their disapproval of Hollington and which ultimately led to the introduction in that jurisdiction of the Criminal Law Evidence Act 1968.
The law in this jurisdiction in my view may be taken to be that laid down in Harvey v. The King and in Crippen’s case, cases decided in 1901 and 1911 respectively, unless subsequent Irish authority may be shown to have taken a different course.”
21. Like Kearns P. I consider the logic of the Court of Appeal of New Zealand in Jorgensen to be compelling and I gratefully adopt it. Thus, on the core issue before the Court, I agree with the judgment of Kearns P. The certificate of conviction of the appellant for the murder of her husband is admissible even though it is technically hearsay. As to whether it is conclusive or merely prima facie evidence of the guilt of the appellant for the murder of the late Thomas Nevin, or satisfies the burden on an applicant pursuant to s.120(1) of the Succession Act those questions were not argued before this court. The plaintiff’s counsel made it clear in his submissions to this court that he submitted only that the certificate of conviction might be admitted as prima facie evidence of her guilt. He described this as the core issue before the court.
22. As to the admission in evidence of public documents at common law, the requirement for the admission of public documents at common law is set out in Declan McGrath, Evidence 2nd Ed., (Dublin, 2014) at p. 323. The learned author there states that:-
“However, in general terms, to be admissible under this exception, a document must: (i) contain matters of a public nature; (ii) have been compiled by a public official in the exercise of a duty to inquire into and record those matters; and (iii) have been intended to be retained for and be available for public inspection.”
23. I agree with this statement of the law. In this case a certificate of conviction clearly contains matters of a public nature, has been prepared by the trial court’s Registrar who is a public official exercising a duty to record the conviction and was intended to be retained for and be available for public inspection. The certificate is therefore also admissible at common law as a public document.
24. In the light of the above findings, I do not consider it necessary for the Court to address the issue raised concerning the wording of s. 120(1) of the Succession Act 1965 as opposed to section 120(4). I do agree with Kearns P. that it would be desirable that the apparent anomaly therein be dealt with by way of an amendment.
25. In summary, I agree with the judgment of Kearns P that the certificate of conviction is admissible at least as prima facie proof that the defendant murdered her husband. I find moreover that the certificate is also admissible at common law as a public document. In the light of these findings, it is not necessary to address the issue raised concerning the wording of section 120(1) of the Succession Act 1965 as opposed to section 120(4) thereof. I would dismiss the two appeals.
