Report No. 69
V. Case Law on the English Act of 1968
16.59. Case law after Act of 1968.-
A few cases interpreting the English Act of 1968 are discussed below. Stupple v. Insurance Co. Ltd., (1971) 1 QB 50: (1970) 3 ALL ER 230 (CA), decided with reference to section 11 of the Civil Evidence Act, 1968 (U.K.), was a case of action for conversion based on a conviction for robbery. It was stated by Buckley, L.J., that he could not dis-cover any measure of the weight which the unexplored fact of the conviction should carry. Lord Denning M.R., on the other hand, in the same case, considered that the conviction was 'a weighty piece of evidence of itself. In the absence of an over riding majority view, Stirling J. In Wright v. Wright, The Times, February 5, 1971: (1971) 2 cur L 354., followed Buckley L.J.'s view.
16.60. The reversal of the common law rule in England appears to have helped the person pleading the conviction in a number of cases. In Wauchoe v. Mordecai, (1970) 1 WLR 371 : (1970) 1 All ER 417, the plantiff was knocked off his bicycle by the defendant opening his car door on the road. The defendant was convicted of a breach of the Motor Vehicle Regulations. The previous conviction furnished evidence of the facts.
16.61. In another English case,1 the respondents' conviction for incest has admitted as evidence to support the Wife's petition for divorce on that 'ground.
1 Taylor v. Taylor, (1970) 1 WLR 1148: (1970) 2 All ER 609 (CA).
VI. Amendment if Needed
16.62. Whether amendment desirable.-
The question that now arises for consideration is whether the law in India should be changed-
(a) so as to admit a previous conviction as evidence of commission of the act constituting the evidence; and, if so,
(b) the weight to be attached to such conviction.
16.63. There seems to be a dilemma. If the previous conviction is made merely prima facie evidence, but not conclusive, the later court would obviously be free and bound to allow evidence to be offered by the convicted person to rebut his conviction and prove his innocence.
16.64. This would provoke the opposite party to produce further proof of the guilt itself. Such a situation would sometimes take away much of the advantage that is likely to result from the proposed admissibility of the conviction-saving of time. It, on the other hand, the conviction is made conclusive, then, there is danger of injustice ensuing, if no scope for rebuttal is allowed. The difficulty thus presents itself in the shape of a dilemma-if the previous conviction is not conclusive, it does not save time; if it is conclusive, it may work injustice.
16.65. Defending the judgment in Hollington v. Hewthorn, (1943) 1 KB 587, one learned author1 forcefully put the point thus-
"Manifestly there is no way in a given case of determining the probative value of a conviction to establish the truth of the propositions on which it was based. If there were no other evidence, we might indulge in a presumption and to settle the matter. But if there is other evidence on the question, what effect should be given to the fact that another jury on an unknown state of the evidence arrived at a given conclusion? The present jury, if it really considers the matter, must either blindly accept the conclusion of the first jury or ignore it because there is no rational alternative."
1. E.W. Hinton in 27 Illinois LR 195.
It was suggested to us that for the difficulty of the right to be attached to the conviction in any particular case, a possible solution may lie in admitting the conviction as evidence that the defendant committed the offence, but admissible evidence to the contrary should still be allowed. In this way the admission in evidence of the conviction would at least serve the purpose of putting the defendant at his peril, if he declined to give evidence to the contrary. In other words, the conviction should be made evidence, but it should be rebuttable by contrary evidence.
16.67. The following rough draft of the provision that could be inserted was suggested:-
"42A(1). Where the fact1 that a person committed an act constituting an offence is in issue or is a relevant fact in a suit or proceeding other than a trial for that offence, a conviction of that person for that offence is relevant to show that he committed that act:
(a) a conviction shall not be so admissible unless it appears to the court that its admission is in the interests of justice;
(b) nothing in this section shall preclude the production of any evidence showing that such person did not commit such act.
42A (2). Where, in any proceedings in a Court in India in its jurisdiction in respect of a matrimonial cause, a person has been found guilty of adultery, the decree or order of the court reciting or based upon that finding shall, in any subsequent proceedings in a Court in India in its jurisdiction in respect of a matrimonial cause, be admissible against such person as evidence of the adultery, notwithstanding that the parties to the proceedings in which the finding is tendered are not the same as the parties to the proceedings in which the decree or order was made."
The following points were urged in support:-
(i) Theoretical-The present opposite party cannot object on the ground of harassment-since he was not a party to the earlier criminal prosecution.
(ii) Practical-There may be a case where fresh evidence is discovered, showing innocence of the convicted person.
(iii) Juristic-Both parties should be allowed to give evidence about a fact.
(iv) Legislative Policy-The evidence Act avoids making one fact conclusive proof of another fact, except in a very small number of cases.
(v) Overall view-The suggested amendment is a happy compromise between the present rigid position (conviction is not relevant at all) and the other possible extreme position (conviction is conclusive proof).
(vi) As to the suggested provision regarding matrimonial causes, the situation is this-the co-respondent in a divorce action is now the principal respondent. His wife will not be required to prove adultery by him again
After considerable discussion, we have decided not to recommend any such change.
1. This is wider than section 13, Explanation 2.