[Supreme Court Appeal No: 60/2017]
Clarke C.J. McKechnie J. MacMenamin J. Dunne J. O'Malley J.
PATRICK NEVIN AND MARGARET LAVELLE (FORMERLY NORA NEVIN)
PLAINTIFFS/RESPONDENTS
AND
CATHERINE NEVIN
DEFENDANT/APPELLANT
JUDGMENT of Ms. Justice Iseult O'Malley delivered the 7th day of February 2019
Introduction
1. This appeal concerns the admissibility of a criminal conviction for murder in civil proceedings subsequently brought against the person convicted of that murder. The proceedings here relate to the succession rights of Mrs. Catherine Nevin, who was convicted in April 2000 of murdering her husband Mr. Thomas Nevin. She was also convicted of soliciting three men to murder him. The family members of the late Mr. Nevin ("the plaintiffs") seek, in effect, to establish that she (and now, following her own death, her estate) is debarred from inheriting any part of Mr. Nevin's estate. The issue of admissibility arises in the context of a motion seeking a ruling brought by the plaintiffs in advance of the substantive hearing. While the claim against the defendant is framed in terms of both common law principles and the provisions of s.120 of the Succession Act 1965, the issue before the Court relates only to the question of the applicable common law rules.
2. The proceedings were initiated by Mr. Nevin's mother, the late Mrs. Nora Nevin, in 1998. After her death in September 1999, the two siblings of Mr. Nevin now named in the title were joined as plaintiffs. Mrs. Catherine Nevin died while the appeal was awaiting a hearing before this court, and the persons named in the title are her personal representatives. For the avoidance of confusion, I will continue to refer to her as the defendant.
3. Both the High Court and the Court of Appeal held that the conviction was admissible evidence in the proceedings. In its determination dated 31st July, 2017 this Court granted leave to appeal in relation to issues identified by it as being of concern - specifically: whether a motion of this type was appropriate in the circumstances; whether the effect of the Court of Appeal judgment was to compel the plaintiffs to prove a matter of public record, or to compel the defendant to seek to impugn her conviction; whether it would be an abuse of process for the defendant to mount what could be seen as a collateral attack on her conviction; and whether the decision in Hollington v. F. Hewthorn & Co . [1943] KB 587 represents the law in Ireland.
4. The plaintiffs' position is: that they were entitled to bring the application in order to seek the guidance of the Court and that the defendant did not raise any issue on the substantive appropriateness of the motion; that the decision in Hollington v. Hewthorn . to the effect that a criminal conviction is inadmissible in subsequent civil proceedings is wrong and is not the law in this jurisdiction; that the conviction is prima facie (rather than conclusive) evidence that the defendant committed murder; and that, therefore, it would not be an abuse of process for her to challenge that evidence in the civil proceedings.
5. No criticism was made of the motion by the defendant in the High Court or the Court of Appeal (although there was an unsuccessful attempt to prevent the High Court hearing from going ahead on the date fixed). However, in response to the terms of the determination, a submission has been made that it was not appropriate. This is made mainly on the basis of the defence lodged, which denies guilt of the murder. It is argued that, should the Court rule that the conviction amounts to prima facie evidence, the application will not result in any saving of court time or costs because the plaintiffs will still be obliged to prove the case in full. The plaintiffs have not particularised any evidential difficulties that would be resolved by proof of the conviction. It is also argued that the case is likely to turn on the provisions of the statute rather than on common law principles, but the question of the proper construction of s.120 of the Succession Act 1965 is not encompassed in the motion.
6. The defendant submits that, no matter what criticism may be made of it, Hollington v Hewthorn represents the law in this jurisdiction. Although it is of persuasive authority only in this jurisdiction, the Oireachtas would have been aware of it when enacting the Succession Act in 1965.
Background facts
7. Mr. Thomas Nevin was murdered on the 19th March, 1996. At the time of his death he was married to the defendant. There were no children in the marriage and he died intestate. The defendant was arrested and charged with the murder, and solicitation of the murder, in April 1997. The plenary proceedings were commenced by the mother of Mr. Nevin in November 1997 but did not progress, pending the final determination of the criminal trial process. The reliefs sought in the proceedings are as follows:-
(a) a declaration that the defendant is disinherited at common law from taking any share in the estate of the deceased;
(b) a declaration that by virtue of s.120 of the Succession Act 1965 the defendant is precluded from taking any share either as a legal right or otherwise in the estate of the deceased;
(c) a declaration that the defendant is not entitled to any share in the public house premises known as Jack White's Inn, Brittas Bay, Co. Wicklow or to any other assets of the deceased;
(d) damages pursuant to the Civil Liability Act 1961 against the defendant for the wrongful death of the deceased;
(e) a declaration that the said licensed premises and other assets form part of the estate of the deceased;
(f) a declaration that the plaintiff is the sole person entitled to share in the deceased's estate;
(g) an order pursuant to s.27(4) of the Succession Act 1965 appointing the plaintiff personal representative of the estate of Thomas Nevin deceased;
(h) an injunction restraining the defendant from disposing of any assets of the deceased or any part of the said licensed premises or other assets.
8. It is important to stress that the plaintiffs' claim is, accordingly, based both on common law and on statute. The statutory basis for the claim that the defendant was precluded from inheriting is set out in s.120(1) of the Succession Act 1965. That section provides as follows:-
"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."
9. It is also important to note s.120(4), as amended, which provides:-
" A person who has been found guilty of an offence against the deceased, or against the spouse or civil partner 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."
10. The defendant was ultimately convicted of murder, and of the three counts of soliciting to murder, in April 2000. She continued at all times to maintain her innocence. Her conviction was affirmed by the Court of Criminal Appeal in March 2003, and that Court refused to grant a certificate of leave to appeal to the Supreme Court. An application brought to the European Court of Human Rights was rejected in 2003. An application to have her conviction declared a miscarriage of justice (on the basis of a claim that new or additional information had come to light) was rejected by the Court of Criminal Appeal in November 2010. A further application was then brought for a certificate granting leave to this Court. This was struck out, in the absence of submissions being filed, in December 2012. It appears that an application for leave to re-enter was lodged in February 2013 (shortly before the hearing of this motion) and was refused.
11. This motion, seeking a ruling as to the admissibility, "in civil proceedings", of the evidence of the murder conviction, ultimately came on for hearing before Kearns P., who delivered judgment in March 2013 (see Nevin and Lavelle v Nevin [2013] IEHC 80).
The High Court Judgment
12. Kearns P. described the issues before the Court as being, firstly, whether a criminal conviction for murder was admissible in a later civil proceeding brought against a person convicted of that murder; and secondly, if so, whether it was conclusive evidence of such murder, or prima facie evidence only. If the latter, it would be open to a defendant to argue that he or she should not have been convicted of the murder. However, as noted by Kearns P., the plaintiffs in this case did not contend that the conviction, if admitted, amounted to conclusive evidence.
13. Kearns P. first considered the statutory position under the Succession Act 1965. He noted the difference in wording between the two subsections set out above, with what he described as the "extraordinary omission" from s.120(1) of a reference to a "finding" of guilt. He saw no rational explanation for this, given that such a finding was required in respect of the lesser offences referred to in s. 120(4), and given that a finding of guilt was a concept appropriate to the criminal, rather than civil, process. In his conclusion on this aspect he said.:-
"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. Turning to the common law position, the President carried out a detailed examination of the case law and ultimately arrived at the conclusion that the conviction of the appellant for the murder of her husband should be admissible as prima facie evidence of the fact that she committed the murder. This view was based, firstly, on the views of Sir Samuel Evans as enunciated in Crippen (In the estate of Cunigunda (otherwise Cora) Crippen deceased) [1911] P 108. In that case the issue was a dispute as to the entitlement of Crippen's executrix to administer the estate of the wife he had murdered. The wife had died intestate, and at that time a husband (or, after his death, his personal legal representative) was entitled to a grant of letters of administration unless "special circumstances" were shown. The President of the Probate Division decided that the husband's conviction for a felony constituted special circumstances. He then went on to give an obiter opinion on the evidential issue. He rejected the argument of the executrix that the murder conviction was inadmissible as res inter alios acta , stating that he thought that the true principle expressed in that phrase was that a transaction between two parties, in judicial proceedings, ought not to be binding upon a third party not involved in those proceedings. Therefore, neither the evidence given, nor the verdict, nor the judgment of a court could be used to the prejudice of persons who were not party to the earlier case. He noted that under the then-current criminal trial procedure (as opposed to the era from which many of the authorities dated) permitted an accused person to make a defence, examine witnesses and appeal against conviction. In those circumstances he felt that the maxim omnia praesumunter rite esse acta should apply, and he concluded in the following terms.:-
"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."
15. Kearns P. then considered the case of Hollington v. F. Hewthorn & Co. [1943] KB 587 (usually referred to as Hollington v Hewthorn and discussed in more detail below), in which it was held that a criminal conviction was inadmissible in subsequent civil proceedings arising from the same facts. He noted that the judgment in that case had been the subject of extensive critical commentary and that the position in the United Kingdom had been altered with the enactment there of s. 11 of the Civil Evidence Act 1968. He then gave extensive consideration to the decision of the Court of Appeal of New Zealand in Jorgensen v. News Media (Auckland) Limited [1969] NZLR 961, referring to it as a decision that "may fairly be characterised as the best common law authority on this particular topic." That Court had declined to follow Hollington v Hewt horn and had held that a conviction for murder was admissible evidence (although not conclusive) of the fact of guilt of the crime charged, at the time and place named in the indictment.
16. Turning to the Irish authorities, Kearns P. distinguished the decision in Kelly v Ireland [1986] I.L.R.M. 318 (where O'Hanlon J. had held that it was an abuse of process for the plaintiff in a civil action to challenge the correctness of his conviction). In so doing the President accepted the submission made on behalf of the defendant in the instant case to the effect that, since she was the defendant rather than the plaintiff, she could not be described as mounting a collateral attack on her conviction. He also accepted that in Kelly O'Hanlon J., while sympathetic to an argument similar to that made by these plaintiffs, had specifically left open the issue of the admissibility of a conviction. The judgment of Lardner J. in Breathnach v Ireland [1989] I.R. 489 was, Kearns P. felt, to the same effect as that in Kelly . The final Irish authority cited , Madden v Doohan [2012] IEHC 422, did not specifically address the issue arising in this case.
17. The President concluded that the Irish cases did not support the proposition that the rule in Hollington v Hewthorn represented the law in this jurisdiction and, indeed, evinced a "strong inclination" in the opposite direction. He held that the conviction in the instant case should be admissible as prima facie evidence of the fact that the defendant had murdered her husband, basing his view ultimately on the proposition that its admissibility was either authorised by Crippen or came within an exception to the hearsay rule as held in Jorgensen.:-
"The reasons for so holding were set out with particular clarity in the judgment of Turner J. in [Jorgensen] and they are (a) that there can be no real doubt that a certificate of conviction constitutes unimpeachable evidence not only of the fact that a person was convicted, but also that the court did in fact consider the person guilty of the crime (in other words any of the usual objections to hearsay - that the version given in court may be unsatisfactory as false, unreliable, biased, untested by cross-examination etc - simply do not arise) and (b) any objection that the court may have been wrong is more than addressed by the requirement that the court before convicting must be satisfied beyond all reasonable doubt that the person was guilty of the crime charged."
18. Kearns P. concluded that to rule out evidence of the conviction as completely inadmissible would be "contrary to logic and common sense and offend any reasonable person's sense of justice and fairness". However, he was not prepared to go further than the position adopted in Jorgensen. While the conviction of the defendant for the murder of her husband should be admissible in the civil proceedings, it amounted to no more than prima facie evidence.
The Court of Appeal Judgment
19. The defendant's appeal to the Court of Appeal was dismissed by a unanimous court, with judgments being delivered by Finlay Geoghegan and Hedigan J.J.
20. Finlay Geoghegan J. noted that the Court was not asked in the motion to determine the proper construction of s. 120(1) of the Act of 1965, but she felt it advisable to comment briefly on the views expressed by Kearns P. on this aspect. While not giving any conclusive view on the interpretation of the section, she offered a different view to that set out by the President.:-
"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."
21. Finlay Geoghegan J. disagreed, therefore, with the judgment of Kearns P. insofar as it might be read as determining that proof of conviction would not of itself meet the proofs required by section 120(1). She was not expressing a conclusive view on the proper interpretation of the section, but felt that that the question whether the conviction was admissible as prima facie evidence of the fact that the defendant was guilty of the murder would become relevant only if it was decided in the High Court, after full consideration at or prior to the substantive hearing, that proof of the conviction of the appellant for the murder of her husband did not satisfy the requirements of section 120(1) (and possibly in relation to the claim at common law).
22. Finlay Geoghegan J. went on to say that it was unfortunate that the Court of Appeal was being asked to determine a question as to the admissibility of evidence as a preliminary issue in proceedings that sought relief under s.120(1), in advance of that section being construed by the trial court. That question of admissibility might not arise if the trial court took a different view of the legislation to that of Kearns P. However, no point had been taken in the appeal on basis that the matter should not have been determined as a preliminary issue.
23. Finlay Geoghegan J. accepted the submission of the defendant that Kearns P. had erred insofar as he considered the law in this jurisdiction to be as stated in the passage from Crippen quoted above, as the comments relied upon from that case were obiter . However, she held that the admission in evidence of the conviction was justified on the grounds of necessity and relevance. Furthermore, she agreed with the President that the reasoning in Jorgensen v. News Media (Auckland) Limited [1969] NZLR 961 in relation to Hollington v. Hewthorn was compelling. The conviction followed a trial in due course of law, and all appeals had been exhausted. She held that its reliability and relevance were undeniable and that Kearns P. had been correct in saying that its exclusion would "be contrary to logic and common sense and offend any reasonable person's sense of justice and fairness".
24. Hedigan J. agreed that the quoted passage from Crippen was obiter and that the reasoning of the Court of Appeal of New Zealand in Jorgensen was preferable to that in Hollingto n. He therefore agreed with the decision of Kearns P. on the core issue - the certificate of conviction, although technically hearsay, was admissible as at least prima facie evidence. He considered that the certificate would also be admissible at common law as a "public document". He felt that it was not necessary in the circumstances to address the issue raised concerning s.120(1), but he expressed agreement with Kearns P. that it was desirable that the apparent anomaly should be dealt with by way of amendment.
Submissions of the Parties
25. In relation to the first issue identified in the determination of this Court, it should be borne in mind that although the solicitor for the defendant sought to defer the hearing of the plaintiff's motion, Kearns P. was satisfied that counsel on both sides had agreed that it could be dealt with. The plaintiffs point out that the defendant did not, in either the High Court or the Court of Appeal, complain of the nature of the motion. She had, rather, asserted on affidavit that the hearing of the motion would be prejudicial to applications she wished to make in the Court of Criminal Appeal. Having heard evidence confirming the agreement of counsel, Kearns P. refused the application by the defendant's solicitor and the matter proceeded.
26. However, as this Court has raised the question, the defendant has submitted that the bringing of the motion was inappropriate.
27. The defendant's submissions set out a list of relevant factors which may be summarised as follows:
(i) The hearing of a preliminary issue is, as a matter of practice, almost exclusively sought by defendants rather than plaintiffs, and it is inappropriate for a plaintiff to seek to circumscribe the ability of the defendant to defend the proceedings.
(ii) The preliminary hearing procedure is not appropriate for a determination of an evidentiary issue. In the instant case, the factual matrix in which the disputed issue arises - whether the defendant murdered her husband - would only become apparent at the full hearing, as would the necessity or otherwise to extend the list of exceptions to the hearsay rule.
(iii) The plaintiffs rely upon the contention that they will find it virtually impossible to prove the murder if the conviction is not admitted, but have not particularised either the evidence they intend to adduce or the difficulties involved. That, again, is a matter that will only become clear at the hearing and it therefore cannot be said with certainty that the preliminary procedure would result in any saving of time or costs.
28. The defendant relies upon the judgments of this Court in Campion v South Tipperary [2015] 1 I.R. 716 and L.M. v Commissioner of An Garda Síochána [2015] 2 IR 45 and says that dealing with this matter as a preliminary hearing did not accord with the criteria set out therein. It did not present the possibility of terminating the claim altogether, or even the possibility of a saving in costs or time by reducing the issues to be tried. The defendant denied that she murdered her husband, and the plaintiffs have accepted that the conviction, if admissible, is prima facie evidence only. The defendant argues that it is therefore not apparent that the admission of the conviction would save any time or effort at all.
29. The plaintiffs, in addition to setting out the procedural history of the motion, rely on Campion in making the straightforward argument that it would have been "bad case management" not to have run the issue. They say that there is no dispute as to the fact of conviction, and that the determination of the question of admissibility will save a substantial amount of time and costs.
30. On the second and third issues, it is submitted by the defendant that the question of there being any collateral attack on the prior conviction cannot arise if the court were to rule either a) that the conviction offers conclusive proof of guilt (a proposition not argued for by the plaintiffs) or b) that it is inadmissible as evidence (the defendant's position). In the event, however, that the court takes the third view and upholds the ruling that it is prima facie evidence, then it is submitted that it is not a collateral attack on the conviction for a defendant in a civil case to assert innocence. This defendant denied guilt in the trial, and she is not the party who has put her guilt in issue in these proceedings. It would not be an abuse of process, in circumstances where the proceedings are not between the same parties or their privies, and the defendant must be entitled to resist the plaintiffs' claim on its merits.
31. The plaintiffs accept this analysis. They explain their position by reference to the fact that they are relying on the common law rather than statute, and therefore are attempting to avoid the constitutional issues that would arise if the argument was to be made that the conviction was conclusive evidence.
32. On the fourth question, the defendant points out that the principle in Hollington v Hewthorn has not been impugned in the Irish courts prior to this case. The decision in the case was based on the authorities considered in the judgment, most of which, it is submitted, represent the law as carried over into the law of this State in 1922. They submit that it therefore remains good law in this jurisdiction. While it is accepted that the decision has been subject to criticism, it is submitted that the target has mainly been the perceived unjust outcome in the case, rather than the Court's analysis of the authorities as they stood at the time that the case was decided.
33. The plaintiffs submit that the decision of the Court of Appeal on the admissibility of the conviction was correct. They submit that would be contrary to logic, common sense, justice and fairness to exclude the evidence.
Discussion
34. The plaintiffs have chosen to base their plenary claim on both the common law and the provisions of s.120 of the Succession Act 1965. However, the argument about the admissibility of the conviction for murder has been confined squarely to the common law principles, and in particular to the issue whether Hollington v Hewthorn is good law in this jurisdiction. The question whether the admissibility issue is affected by the interpretation of the statute has been referred to but not fully addressed.
35. It must be noted, if only with hindsight, that this was not, perhaps, the ideal basis for a preliminary ruling in the case, although one can understand why the parties took the positions that they did.
36. It is true that most applications for a preliminary ruling are brought by defendants seeking to terminate, or at least cut down the scope of, a plaintiff's claim. However, that does not mean that it is necessarily inappropriate for a plaintiff to seek a ruling, in advance of a substantive hearing, as to the evidential basis on which they may proceed. The plaintiffs in this case obviously needed to know whether they were going to be required to prepare for a lengthy and complex hearing, aimed at establishing the same matters as the criminal trial, which might well have consumed the full resources of the estate. I think that the problem with this particular motion is the fact that it deals only with the common law aspect of the disputed principles. It is generally undesirable to conduct a debate about a common law rule without full attention to a potentially relevant statute. As pointed out by Finlay Geoghegan J., the primary relief sought by the plaintiffs is a declaration or order pursuant to section 120. The fact is that this section embodies the governing legal rules in relation to rights of inheritance where a relevant criminal offence has been committed. In a dispute about succession rights involving an allegation that a relevant offence was committed, one might think that it would be preferable to start with a consideration of the evidential requirements of that section. It is possible that the section could be interpreted in such a way as to displace any common law rules.
37. I would be inclined, therefore, to the view that this particular motion was not framed in such a way as to fully meet the requirement that a trial of a preliminary issue (where sought by a plaintiff) should have the possibility of saving significant time and costs.
38. The decision in the case concerned in part the admissibility of a conviction for careless driving in an action for negligence. The plaintiff contended that the order of conviction (which certified that the defendant driver had been convicted of driving without due care and attention on the day and in the parish in question) was prima facie evidence of negligent driving. It was accepted by the plaintiff that he would have to prove that the defendant was the person who was convicted, and would have to identify the driving, the subject of the conviction, with the accident. It would, on the plaintiff's case, have been open to the defendant to show that he should not have been convicted or that the negligence of which he was convicted had not caused the accident. The trial judge ruled against the plaintiff on the issue, holding that it was covered by the res inter alios acta doctrine (i.e. that the criminal trial was "a matter between others").
39. The judgment of the Court of Appeal (delivered by Lord Goddard) commences with the observation that, for as long as any member of the Court could remember, it was the invariable practice of the judges to reject this class of evidence and that counsel had ceased to tender it in "accident" cases. The court should be slow to differ from the communis opinio unless it was clearly shown to be based on wrong premises.
40. The judgment notes that many of the earlier authorities were concerned with issues relating to the competency of witnesses, in an era when plaintiffs, defendants and any other person with an interest in the outcome of a civil action were not competent to give evidence. Before engaging in detailed consideration of those authorities, Lord Goddard therefore analysed the issue as he saw it in terms of the modern law, where relevance was the key concept for admissibility. With that in mind, the question was whether the conviction was relevant. This question was answered in the following terms.:-
"In truth, the conviction is only proof that another court considered that the defendant was guilty of careless driving. Even if it were 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 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."
41. The Court considered that in order to identify the careless driving with the accident it would be necessary, in most if not all cases, to call before the court trying the civil claim substantially the same evidence as had been given in the trial. This meant, in its view, that 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.
42. Further, it was accepted by the plaintiff that the conviction did not create an estoppel and would, if admitted, simply be evidence to which the civil court could attach such weight as it thought proper. If the defendant was challenging the propriety of the conviction, and the conviction was not conclusive, the civil court would have to "retry" the criminal case to establish what weight should be attached to the result.
43. The judgment goes on to suggest that admission of the conviction would breach the rule against the admissibility of non-expert opinion evidence. For example, even a witness who had a complete view of an accident would not be permitted to express an opinion as to which party was negligent - their opinion would not be relevant.:-
"So, on the trial of the issue in the civil court, the opinion of the criminal court is equally irrelevant."
44. Exclusion of the evidence was also felt to be justified by the injustice of binding third parties who did not have an opportunity to participate in the proceedings (whether civil or criminal) now sought to be relied upon. For that reason, judgments could not be conclusive as against a non-party. Again, if they were not conclusive, to admit them as evidence would involve retrying the original case to determine the weight to be attached.
45. The analysis of the earlier authorities against admission of the evidence refers chiefly to the res inter alios acta doctrine. Lord Goddard referred in particular to Blakemore v Glamorganshire Canal Co (1832) 38 E.R. 639, which he said was a clear authority against the admission of this class of evidence. It seems relevant that he considered that the "alios" being referred to could only be the Crown, who in a private prosecution was "no more than a nominal prosecutor". Next, the judgment refers to Castrique v Imrie (1870) L.R. 4 H.L. 414, where Blackburn J. had stated "without qualification" that a conviction on an indictment for forging a bill of exchange, though conclusive as to the person being a convicted felon, was not admissible evidence of forgery in an action on the bill. Lord Goddard also cited Leyman v Latimer (1878) 3 Ex, D. 352. This was a defamation action arising from the description of the plaintiff (a newspaper editor) as a "convicted felon" and a "felon editor". The Court of Appeal held that the first statement could be justified by the defendant simply by proving the conviction. In relation to the second, Bramwell L. J. said that the defendants would have to prove that the plaintiff had actually committed a felony.:-
"It is plain from the numerous authorities cited in Taylor on Evidence…that a conviction for felony is alios res inter acta, and of itself is no evidence in any civil proceeding that the person convicted has committed a felony."
46. The reference to Taylor was to the 6th edition of that work. Bramwell L.J. thought the rule represented good policy.:-
"…for, if a man will bring charges of this sort against others, he should be required to fully prove them; and it should always be open to a man, so attacked, to show his innocence, if he can."
47. Brett and Cotton L.JJ. took a somewhat different approach, based on the proposition that a man who had served his punishment could no longer be described as a felon. However, Lord Goddard clearly took the view that Bramwell L.J.'s dictum was "a sufficiently clear ruling by a very high authority".
48. Of the cases relied upon by the plaintiff in Hollington v Hewthorn , Lord Goddard noted that the first ( Wilkinson v. Gordon 2 Addams 152, which held in 1824 that a conviction for bigamy was admissible) was a decision of the Prerogative Court and not binding on the common law courts. Furthermore, a directly contrary decision was given in a divorce case by a judge ordinary in 1858 ( March v March (1858) 28 L.J. (P.& M.) 30).
49. Referring to the view expressed by Sir Samuel Evans in Crippen , Lord Goddard said that while the "convenience" of the decision was obvious, it was not supported by authority. The Court also disapproved of decisions to the like effect in two divorce cases.
50. Finally, on this issue, the Court commented that if a conviction was to be admitted it must follow that an acquittal could be admitted as evidence in favour of the defendant. This, it thought, only went to show that if the order of the criminal court was admitted as evidence the civil court could get no real guidance from the criminal proceedings without retrying the case.
51. Hollington v Hewthorn was to be the subject of both judicial and academic criticism in the years following. In a case note in the Law Quarterly Review (vol.59, published soon after the judgment) Goodhart expressed some doubt as to its correctness from the point of view of both principle and practicality. He noted that Blakemore came from the era when a party in a cause could not give evidence on his own behalf. Parke B. had held that it followed that it would not be proper to allow a party to put in evidence of a conviction that had been obtained by his evidence in the criminal trial "on account of the inconvenience which it would occasion". Goodhart commented that the words used left it unclear as to whether a conviction would be admissible if the party in the civil suit had not given evidence in the criminal trial, and whether Parke B. was holding that the res inter alios acta principle applied to criminal verdicts as well as civil records. The basic question, Goodhart felt, was whether a criminal verdict did not more nearly resemble a judgment in rem than it did an ordinary civil action inter partes , so that it should to some degree be evidence of the facts on which it was necessarily based.
52. Goodhart also queried the reliance by Lord Goddard on Blackburn J's dictum in Castrique v Imrie , noting that there had been no authority cited in his judgment, and that it was not likely to be considered a reasonable or practical rule by the business community
53. He pointed out that the law does in some respects give special weight to convictions, referring here to the provisions of the Criminal Procedure Act 1865. Section 6 of that Act (which is still in force in this jurisdiction and which applies to civil as well as criminal trials) permits the questioning of a witness about any felony or misdemeanour convictions. The convictions may be proved if the witness denies them. Goodhart queried whether this procedure could have any justification if the conviction was not evidence that the witness had committed the crime in question.
54. Two examples of the unfortunate effects of Hollington v Hewthorn are found in decisions of the Court of Appeal where it was followed, albeit with extreme reluctance. Goody v Odhams Press Ltd [1966] 3 All E.R. 369 was a libel action brought by a man who had been convicted of robbery and other offences arising out of the so-called "Great Train Robbery", who was serving a sentence of thirty years. The allegedly libellous material was an article published some months after his conviction that referred to the part he played in the robbery. He argued successfully that the paper could not rely on the conviction for its plea of justification, but must prove that he was in fact one of the robbers. Lord Denning (who had been the losing advocate in Hollington v Hewthorn ) stated bluntly that he thought the decision was wrong. Danckwerts L.J. observed that the law on the subject had "got into some queer twists and tangles". Salmon L.J. referred to the "strange" rule, and said that he wholeheartedly agreed with Lord Denning.
55. An analogous situation arose in Barclays Bank v Cole [1966] All E.R. 948. The defendant had been convicted of robbing a bank. The plaintiff bank sued him for money had and received, alleging that he had robbed it, and the defendant denied the allegation. The issue in the appeal was whether or not he was entitled to a jury trial (which was in part a discretionary matter), but in addressing this question Lord Denning noted that the plaintiff was being forced to prove the defendant's guilt "all over again" because of Hollington v Hewthorn . Diplock L.J agreed that the "technical" rule was "ripe for re-examination". In deciding that the trial judge had correctly exercised his discretion in ruling that there should not be a jury trial, all three members of the court agreed that the conviction meant that the defendant had no reputation entitling him to the protection of a jury.
56. The issue was referred to the Law Reform Committee by the Lord Chancellor. In its report, that body (which included a number of senior members of the judiciary and the legal profession) said of Holington v Hewthorn .:-
"Rationalise it how one will, the decision in this case offends one's sense of justice. The defendant driver had been found guilty of careless driving by a Court of competent jurisdiction. The onus of proof of culpability in criminal cases is higher than in civil: the degree of carelessness required to sustain a conviction for careless driving is, if anything, greater than that required to sustain a civil cause of action in negligence. Yet the fact that the defendant driver had been convicted of careless driving at the time and place of the incident was held not to amount even to prima facie evidence of his negligent driving at that time and place."
57. Later in the same passage the Committee considered the comparison made by Lord Goddard between the effect of the conviction and the opinion of a bystander who sees the accident.:-
"It is in a sense true that a finding by any Court that a person was culpable or not culpable of a particular criminal offence or civil wrong is an expression of opinion by the Court. But it is of a different character from an expression of opinion by a private individual. In the first place, it is made by persons, whether Judges, Magistrates or juries, acting under a legal duty to form and express an opinion on that issue. In the second place, in forming their opinion they are aided by a procedure, of which the law of evidence forms part, which has been evolved with a view to ensuring that the material needed to enable them to form a correct opinion is available to them. In the third place, their opinion, expressed in the form of a finding or verdict of guilty or not guilty in criminal proceedings or a judgment in civil proceedings, has consequences which are enforced by the executive power of the State."
58. The Committee agreed that the test for the admissibility of evidence was whether the material in question had any probative value. In that regard it said.:-
"Our further premise is that any decision of an English Court upon an issue which it has a duty to determine is more likely than not to have been reached according to law and to be right rather than wrong. It may therefore constitute material of some probative value if the self-same issue arises in subsequent legal proceedings. A conviction upon a contested trial is consistent only with the opinion of the criminal Court's being that it has been established, not merely on the balance of probabilities, but beyond reasonable doubt, that the conduct of the accused did constitute the criminal offence with which he was charged and that it has been so established upon all the material known to the prosecution or the defence and considered by either to be relevant to the issue of guilt….
…We consider that such a conviction has a high probative value in establishing the cause of action in a subsequent civil action founded upon the same conduct, in which the onus of proof is lower. We have no doubt in principle that evidence of the conviction should be admissible."
59. Ultimately Hollington v Hewthorn was effectively reversed by the Civil Evidence Act 1968.
60. The judgment was given thorough consideration by the Court of Appeal of New Zealand in Jorgensen v News Media (Auckland) Limited [1969] N.Z.L.R. 961. The plaintiff had been convicted in 1964 on a charge of murder, and his appeal was dismissed. In 1967 he instituted libel proceedings against the defendant for publishing the allegation that he had been a principal or party to the murder. In a pre-trial case stated, the Court of Appeal was asked whether the conviction was admissible and, if so, what weight was to be accorded to it.
61. Three judgments were delivered. North P., after recording those criticisms of Hollington v Hewthorn set out above, suggested that Lord Goddard had perhaps overstated the position when he said that for many years there had been a unanimous body of judicial opinion rejecting this class of evidence. It may be important to note that North P. thought that such rejection was correct in "accident" cases, and said that the same practice was followed in New Zealand. The point here was that a conviction for a breach of road traffic regulations would usually have little probative value, since it would not give much assistance in determining the cause of the accident. However, outside this limited field the exclusion of the evidence could cause very grave problems - here, he instanced Goody and Barclays Bank v Cole as cases where it could result in a denial of justice.
62. North P. referred in some detail to the early authorities mentioned above. Without needing to go into the same level of detail, I note here his view that there was general agreement that Blackburn J's dictum in Castrique v Imrie was obiter . He considered that the Court in Hollington v Hewthorn had "unaccountably" overlooked a significant authority - the decision of the Court of Appeal in Hill v Clifford [1907] 2 Ch 236. There, a deed of partnership in a dental practice entitled one partner to determine the partnership if another was guilty of professional misconduct. Two of the partners were struck off the register of dentists by the General Medical Council for conduct that was "infamous or disgraceful in a professional respect". It was argued, on the basis of Leyman v Latimer and Castrique v Imrie , that the order of the Council was not admissible in the partnership action.
63. The Court of Appeal held that the Council order was admissible as evidence of the existence of conduct which was infamous or disgraceful in a professional respect, the proof of which fact had been essential to the validity of the striking-off order. Unless and until evidence to the contrary was given, it proved that the persons concerned were guilty of statutory misconduct. Cozens-Hardy M.R. and Buckley L.J agreed that the order was a proceeding in rem, akin to an inquisition in lunacy. It belonged to the class of in rem judgments which were admissible, although not conclusive, in other proceedings.
64. North P. accorded great weight to the decision of the Privy Council in Harvey v The King [1901] AC 601. The question determined in that case was whether a defendant had established that he suffered from a "misfortune" within the meaning of the rules on judgment in default by proving that he had been found to be of unsound mind by a Master in Lunacy. It was held that he had. Per Lord Lindley.:-
"The orders are not conclusive evidence of anything except their own existence; but, being made by a competent tribunal in a matter within its jurisdiction, they cannot be rejected as inadmissible, or as no evidence of the truth of those facts recited in them which are essential to their validity. They are admissible as prima facie evidence, and if uncontradicted they ought to be regarded as sufficient evidence of those facts, not only in this country, but in all His Majesty's dominions."
65. North P. found the reasoning in Hill v Clifford , Crippen and Harvey v The King to be preferable to Hollington v Hewthorn . Dealing more specifically with the latter, he rejected as unjustified the proposition that the verdict of a criminal court, given after a trial in which the party now defending the civil action was afforded every opportunity to defend himself, was to be equated with the opinion of a witness. He agreed with the views of the Law Reform Committee on this aspect. He was not satisfied, either, that the res inter alios acta maxim had any application. It was correct that a non-party should not be prejudiced by a judgment in personam , but the person who had been a party in the earlier case was in a different position. The comment in the 3rd edition of Cross on Evidence, to the effect that the maxim should be seen as something that had contributed to the historical development of the modern law of evidence, and not as a fundamental rule, was endorsed. Further, North P. rejected the equation of the probative value of a conviction with that of an acquittal, having regard to the burden and standard of proof in a criminal trial.
66. Finally, North P. said that the only matter that concerned him was the argument that the proposed evidence did not fit within a recognised exception to the rule against hearsay. In this regard he referred to the well-known decision of the House of Lords in Myers v Director of Public Prosecutions [1965] A.C. 1001, where two of the Law Lords (in a minority on this aspect) considered that it was competent for that tribunal to create new exceptions to the rule against hearsay without legislative intervention. North P. did not feel it necessary to go that far, having regard to the body of judicial opinion justifying the conclusion that a certificate of conviction was admissible evidence and proof of the fact of guilt. He felt that it would probably come under the existing exception relating to public documents.
67. Turner J. believed that it had indeed been the settled practice in New Zealand and Australia that such evidence had been excluded in accident cases since before Hollington v Hewthorn . However, the decision had never previously been the subject of a judgment in the New Zealand Court of Appeal and it was therefore possible for the Court to come to the conclusion that it was wrong in principle.
68. He did not accept that the maxim res inter alios acta was applicable in the circumstances, where the person whose participation in the crime was now sought to be proved was not a stranger to the earlier proceedings.:-
"It was a conviction of himself, in proceedings to which he was himself a party."
69. Notably, Turner J. considered that Hollington v Hewthorn was correct in equating a verdict with the opinion of a witness, and in regarding the evidence of that opinion as hearsay. However, he took the position that the pre-eminent test for admissibility was the degree of logical relevance. He saw the evidence in question as being of "immense" relevance, requiring only a small degree of judicial legislation to be held admissible.
70. Having considered the authorities already discussed here, Turner J. concluded that the better view was that expressed in Harvey v The King and that neither fundamental principle nor the balance of authority required the court to decide that Hollington v Hewthorn should continue to be followed.
71. On the hearsay point, Turner J. stressed that the normal objections under this heading - that the court might be given an inaccurate account of what had been said or that the content of what was reported might be false or unreliable in circumstances where the maker could not be cross-examined - did not arise. The certificate of conviction was unimpeachable evidence of the fact of conviction, and the verdict could only have been reached upon proof beyond all reasonable doubt.
72. McCarthy J. said that in his view the most powerful argument made for exclusion in Hollington v Hewthorn was that the conviction was, in essence, opinion. It represented the opinion of a court on the facts proved in evidence. It might also be said to have been hearsay evidence. However, neither of these exclusionary grounds had ever been absolute, and from time to time exceptions had been created. Both the rules and the exceptions were judge-made. If the New Zealand Court of Appeal, after weighty consideration, reached the viewpoint that in the interests of justice and to meet the particular conditions of the times it was desirable to create a new exception, and it was not obstructed from so doing by compelling or highly persuasive authority to the contrary, it should take that step. He felt that the considerations in favour of admissibility in this case were overwhelming. Firstly, the English cases by no means all went the one way. Secondly, the grounds upon which Hollington v Hewthorn was reasoned were not satisfying. Thirdly, a conviction after a trial requiring proof beyond reasonable doubt was as probative a piece of opinion or hearsay evidence as it was possible to imagine.:-
"Fourthly, there is something almost of the character of a judgment in rem about the decision of a conviction after trial: surely common sense requires us to say that such a conviction should at least be some evidence not only that the convicted was convicted but also that he was guilty of the crime of which he was convicted - the weight to be given to that evidence to be determined in each case by the subsequent tribunal having regard to the circumstances surrounding the conviction and the evidence later proffered by the convicted person."
73. The fifth consideration, for McCarthy J., was that failure to admit the conviction in circumstances such as those before the court would lead to "positive and manifest injustice".
The status of Hollington v Hewthorn in Ireland
74. It will be recalled that the defendant has argued that Hollington v Hewthorn was based on an analysis of a body of case law of long standing and that therefore, no matter what criticisms might have been made about it, it represents an authoritative statement of the law as it applied in this State in 1922. On this argument, it could not be departed from by the courts here. Any alteration would require legislative intervention as it did in the United Kingdom.
75. It seems to me that the reason for introducing legislation in the UK was that, apart from the manifest problems that the decision created, the judgment had been followed at least twice in the Court of Appeal and was presumably being applied consistently in the lower courts. By contrast, there has to date been no considered decision on the issue in this jurisdiction and nothing to indicate that it has been considered to be a binding rule. It is evident from the discussion above that the result in Hollington v Hewthorn was by no means a foregone conclusion, and that there was a strong line of authority which pointed in the opposite direction. In particular, the judgments in Crippen , Harvey v. The King and Hill v. Clifford (all of which pre-date the independence of this State) afforded cogent arguments for admissibility. The judgments in Jorgensen demonstrate, in my view, the frailty of the reasoning in Hollington v Hewthorn both in terms of principle and practicality. I therefore consider that it was open to the High Court in this case to refuse to follow it.
76. The root of the problem may lie in the fact that the earlier rationale for an exclusionary rule had evaporated, but the Court of Appeal nonetheless applied what was, on any view, the strictest version of it. A judge-made rule adopted at a time when many prosecutions were initiated by private individuals; when an accused person could not give evidence on his own behalf; when there was no court of appeal; when the onus and standard of proof applicable in criminal trials had not been definitively determined; and when parties could not give evidence in their own civil actions has to be re-examined as to its fitness for purpose at a time when each of those features has been eliminated or otherwise provided for. One should also bear in mind the extra protection now available (under the Criminal Procedure Act 1993) to those who continue to maintain their innocence after an unsuccessful appeal.
77. A conviction on indictment now requires the prosecution, acting in the name of the People of Ireland, to prove guilt beyond reasonable doubt on the basis of admissible evidence adduced in the course of a trial and appeal run in accordance with constitutional and legal requirements. What, now, could be the justification for a purported rule that the conviction is not evidence of guilt in subsequent civil proceedings involving that individual? In principle, I cannot see any. I agree with the criticisms of Hollington v Hewthorn and the principled and practical reasons for adopting the opposite view. However, it may be necessary to enter some caveats.
78. The first is that none of the discussion in this case is intended to affect the principle that a third party should not be prejudiced by proceedings in which he or she had no part. That issue, and the question whether there are circumstances where such a party should indeed be bound by the verdict in a criminal trial, does not arise in the present circumstances.
79. Secondly I note the general agreement of the members of the Court in Jorgensen with the proposition that such evidence would normally be excluded in "accident" cases. This seems entirely practical. Indeed, the outcome in Hollington v Hewthorn may well have been correct purely on the question of relevance and the lack of probative value of the evidence. If the order of conviction merely recited the date and parish of the incident of careless driving (rather than, as the Law Reform Committee believed, the time and place) then the plaintiff would in any event have had to prove both that the driving involved in the offence was the driving involved in the accident, and that the careless driving actually caused the accident. Charges of careless or dangerous driving simpliciter will often cover driving over a period of time and, obviously, some distance. A trial judge might well conclude that the evidence in a particular case will have to be heard in full and that proof of the conviction will add little apart from prejudicial effect. Similar considerations might arise in other personal injury cases where there has been, for example, a conviction for a breach of workplace safety regulations. Proof that such a breach had occurred might not involve proof of the level of negligence required in a civil action, and/or might not assist in establishing causation.
80. By their nature, however, some convictions will be highly specific. Taking road traffic cases again, a conviction for dangerous driving causing the death of a named individual will involve proof of each of those elements. To admit it as prima facie evidence in an action for damages involves no unfairness to the defendant and may obviate the necessity to rerun the evidence from the criminal trial. There will be no scope for confusion, no doubt but that the offence involved the same incident as the death and no doubt that the causative link was proved between the driving and the death. Similarly, evidence of a conviction in a case of murder or manslaughter will leave no scope for argument in a case such as this one as to whether the conduct constituting the offence is the conduct alleged to have brought about the death.
The rules against hearsay and non-expert opinion
81. As stated by Kingsmill Moore J. in Cullen v Clarke [1963] I.R. 368, the rule against hearsay is a general rule, subject to many exceptions, that evidence of words spoken by a person who is not produced as a witness is inadmissible to prove the truth of the facts asserted by those words. In the context of the instant case, it is necessary to examine precisely what the objection is to the evidence of the conviction. The order of the court is undoubtedly a public document within the criteria identified by Hedigan J. and must therefore be admissible to prove the contents. However, (and here I respectfully disagree with Hedigan J.) the "contents" of the document will simply record the verdict and order of the court - the fact that the individual was found guilty and was sentenced. Those matters are not in dispute. The real objection is to the drawing of a conclusion to the effect that the verdict "proves" guilt for the purposes of the civil proceedings.
82. Since the record of conviction is admissible as an exception to the hearsay rule, the core of the argument, in my view, concerns the relevance. Does admitting the record simply inform the court that, on another occasion, a group of individuals came to a particular opinion about the fact in issue? Is the proposed evidence therefore to be equated with the opinion of a non-expert witness?
83. Kingsmill Moore J. also offered a useful formulation of the rule against non-expert opinion evidence, in Attorney General (Ruddy) v Kenny (1960) 94 ILTR 185.:-
"It is a long standing rule of our law of evidence that, with certain exceptions, a witness may not express an opinion as to a fact in issue. Ideally, in the theory of our law, a witness may testify only to the existence of facts which he has observed with one or more of his own five senses. It is for the tribunal of fact - judge or jury as the case may be - to draw inferences of fact, form opinions and come to conclusions."
84. As McGrath says (Evidence, 2nd ed.), the primary rationale for the rule is to prevent witnesses from usurping the role of the tribunal of fact whose function it is to draw inferences from, and reach conclusions on the basis of, the facts deposed to by witnesses. The objection here, therefore, is that evidence of the opinion formed by other persons in other proceedings (i.e. the jury in the criminal trial) should not be permitted to influence the findings in the current proceedings.
85. Although the point has not really been addressed in this case I am inclined to the view expressed by Goodhart in his commentary on Hollington v Hewthorn and by McCarthy J. in Jorgensen that a criminal conviction has a status greater than that of an expression of opinion, and has something of the character of a judgment in rem. It is not binding against all the world, but belongs to the class of cases described in Hill v Clifford as admissible, although not conclusive, in other proceedings. However, if it is indeed to be regarded simply as an opinion it is undoubtedly one that must carry considerable weight in any subsequent dispute as to whether the defendant engaged in the conduct constituting the criminal offence. The jury in a criminal trial has been presented with all of the admissible and relevant evidence available to the prosecution and defence, has considered the issue in the light of the presumption of innocence and has reached a legally binding, dispositive conclusion on the basis that there is no reasonable doubt on the issue. Where the avenues of appeal have been exhausted, the process prescribed by the constitutional order for the determination of guilt is complete.
86. I would therefore agree with the analysis of Kearns P., the judgments of the Court of Appeal, the judgments in Jorgensen drawn upon by them, and the analysis of the Law Reform Committee. The evidence in question suffers from none of the normal infirmities of hearsay or opinion and has the quality of reliability that comes from a criminal trial concerned with the question whether or not the prosecution has proved a case beyond reasonable doubt. It is difficult to see how confidence in the administration of justice would be aided if civil courts were to exclude that evidence on the application of a technical and out-dated rule, and could then to come to a conclusion on that a plaintiff has not shown that it is more likely than not that the defendant committed the crime.
Section 120 of the Succession Act 1965
87. The observations of both the President and the members of the Court of Appeal on the construction of the section are obiter in the circumstances of this particular appeal, but, since they were made, it may be helpful to offer some further remarks.
88. It will be recalled that Kearns P. held that s.120 was ambiguous because of the absence of the word "found" in subs.1, and that it must be strictly construed in favour of the person against whom it was sought to enforce it. Accordingly, he found that it could be seen only as a declaration of public policy to the effect that the perpetrator of a crime should not be its beneficiary. Finlay Geoghegan J. disagreed, observing that the section was open to the interpretation that the court could be satisfied that a person "has been guilty of the murder" by proof that the person had been convicted of the murder, with any appeal having been dismissed or the time for appeal having expired. The order of conviction would obviously be admissible for this purpose.
89. My own provisional view, in the absence of full argument, would be that the remarks of Finlay Geoghegan J. on this issue are correct. I think it is useful to consider the precise effects and policy of subsections 1 and 4. To recap, subs.1 deals with murder, manslaughter and attempted murder. In each of these cases, the person who is "guilty" of the act constituting the offence will have no entitlement to a legal right share, no right to make an application under s.117 of the Act, and will not inherit under a will unless it was made after the commission of the offence. This exception can arise, obviously, only in the case of attempted murder.
90. Subsection 4 deals with crimes against a broader range of victims. Where there is a conviction for an offence of the specified minimum gravity, there will be no legal right share and no entitlement to apply under section 117. However, the offender can inherit under the terms of a will, no matter when it was made. Subsection 4 expressly operates only where there has been a criminal conviction.
91. It seems to me that there are two principal differences between the scenarios envisaged by the legislature that might explain the third difference - that is, the absence of any reference to a conviction in subsection 1.
92. Where a death is the result of murder or manslaughter there is, firstly, a direct causal connection between the criminal act and the benefit that might otherwise inure to the offender from the death. In barring any claim to that benefit, the legislature has not altered the common law principle that a person should not be allowed to make a financial gain from having unlawfully caused a death. In the case of any other crime, there is no such causal connection between the unlawful act and the possible succession rights (save where distinct issues such as fraud or duress arise).
93. Secondly, in the case of any crime not causing death the legislature has barred the operation of what might be termed both the default rules of inheritance and the statutory right to apply to a court in order to make the case that the applicant should have been provided for by the testator. However, the legislature has acknowledged the right of a person offended against to decide for himself or herself whether or not to forgive the offender and make provision for him or her. In a case as grave as that of attempted murder, such provision will be recognised only if it was made after the criminal act. In any other case, it is sufficient if a testator refrained from amending a will previously made. Either way, it is a matter for the personal decision of the testator. Manifestly, these considerations do not apply where there is a death.
94. That being so, it could certainly be argued that the legislature decided that, in the case of non-fatal offences other than attempted murder, the penal effects of the rules should apply only where the offence had been sufficiently serious to lead to a complaint, and only where that complaint led to a conviction. To provide otherwise might interfere unduly with family relationships and with the intentions of testators, as well as potentially leading to litigation between relatives over long-since forgotten or forgiven misdeeds.
95. However, wholly different considerations might be seen to arise in relation to homicide. The causal connection is clear. The previous intentions of the deceased towards the offender cannot be the decisive factor, and the rule preventing the making of financial gain from the wrongful death takes precedence. It is arguable, therefore, that the legislature considered the importance of this rule to be such that a putative beneficiary should be disinherited if it can be shown on the balance of probabilities in a civil action that he or she unlawfully caused the death, even if no prosecution ensued. It must be remembered that the factors influencing a decision of the Director of Public Prosecutions include the need to prove the criminal offence beyond reasonable doubt.
96. If the foregoing is correct, it might throw some light on the application of subs.1 in a case where a charge of murder has been proved beyond reasonable doubt in a court of competent jurisdiction and all avenues of appeal have been exhausted. If the word "guilty" refers in the first instance to a state of fact - a proven fact that the defendant committed murder - it is difficult to see why the establishment of that fact beyond reasonable doubt, in the process designed by our legal and constitutional system for the administration of criminal justice, should not be accepted as relevant and admissible in a court hearing a civil action that turns upon establishment of the same fact on the balance of probabilities.
97. It must be stressed again that this discussion has not been the subject of full argument and the decision of the Court will be binding only on the common law issue. Despite the comments made above, I do not disagree with the views expressed in the High Court and the Court of Appeal as to the desirability of clarification of s.120 by the legislature.
Conclusion
98. The ruling sought by the plaintiffs in this case relates only to the admissibility of the defendant's conviction for murder "in civil proceedings". I agree with the analysis of the Court of Appeal, to the effect that this was an unduly narrow approach in that the proper interpretation of s.120 of the Succession Act 1965 remains to be determined, and may be dispositive of the issue of admissibility.
99. It should perhaps be noted that this judgment is concerned only with the situation that arises where the defendant, whose conviction is proposed to be proved, maintains his or her innocence of the crime. An admission of guilt is always admissible, as an admission against interest.
100. Having considered the question of admissibility in the light of the common law authorities, I am satisfied that evidence of the conviction is in principle admissible.
101. The record of the conviction is a public document, admissible to prove the fact of the conviction as an exception to the hearsay rule. While proof of the fact of the conviction might, in one sense, be seen simply as evidence of the opinion of the jury, it is in my view an "opinion" that carries far greater weight than that of a witness in a hearing, by virtue of the nature of the process through which it is produced. On the other hand its relevance may be open to dispute depending on the facts of the individual case. A trial judge in a civil action may have to consider whether the facts recited in the order of conviction are sufficiently related to the issues to be determined - if not, admission of the record may be refused.
102. For the reasons discussed in the judgment I am of the view that Hollington v Hewthorn was wrongly decided in terms of principle and practicality. It was not an inevitable decision, having regard to the then-extant authorities and also to the changes in the underlying rules relating to the conduct of criminal trials that might have justified a different approach in earlier times. The experience in the courts of England and Wales following the decision demonstrates that the exclusion of such evidence is manifestly capable of bringing about irrational and unjust results.
103. I would therefore dismiss the appeal.
