Report No. 69

VI. Recommendations

8.80. Recommendations.-

Our recommendations relating to section 13, then, are as follows:

(a) The following Explanation should be added to the section:

"Explanation.-A previous legal proceeding, whether it was or it was not between the same parties or their privies, may be relevant as a transaction or instance, within the meaning of this section; and, when a legal proceeding so becomes relevant under this section, a judgment delivered in that proceeding is admissible as evidence of such legal proceeding, but not so as to make relevant the findings of facts or the reasons contained in the judgment; but nothing in this Explanation is to affect the relevance of a judgment under any other section.".

(b) An Exception excluding recitals of boundaries should be added on the following lines:

"Exception.-Nothing in this section shall render relevant recitals of boundaries in documents which are not between the same parties or their privies.".

8.81 to 8.86. Section 14.-

Section 14 is an important section and may be quoted:

"14. Facts showing existence of state of mind, or of body or bodily feeling.-Facts showing the existence of any state of mind, such as intention, knowledge, good faith, negligence, rashness, ill-will or good-will towards any particular person, or showing the existence of any state of body or bodily feeling, are relevance, when the existence of any such state of mind or body or bodily feeling, is in issue or relevant.

Explanation 1.-A fact relevant as showing the existence of a relevant state of mind must show that the state of mind exists, not generally, but in reference to the particular matter in question.

Explanation 2.-But, where, upon the trial of a person accused of an offence, the previous commission by the accused of an offence is relevant within the meaning of this section, the previous conviction of such person shall also be a relevant fact.

Illustrations:

(a) A is accused of receiving stolen goods knowing them to be stolen. It is proved that he was in possession of a particular stolen article. The fact that, at the same time, he was in possession of many other stolen articles is relevant, us tending to show that he knew each and all of the articles of which he was in possession to be stolen.

(b) An accused of fraudulently delivering to another person a counterfeit coin which, at the time when he delivered it, he knew to be counterfeit.

The fact that, at the time of its delivery, A was possessed of a number of other pieces of counterfeit coin is relevant.

The fact that A had been previously convicted of delivery to another person as genuine a counterfeit coin knowing it to be counterfeit is relevant.

(c) A sues B for damage done by a dog of B's which B knew to be ferocious.

The facts that the dog had previously bitten X, Y and Z, and that they had made complaints to B, are relevant.

(d) The question is, whether A, the acceptor of a bill of exchange, knew that the name of the payee was fictitious.

The fact that A had accepted other bills drawn in the same manner before they could have been transmitted to him by the payee if the payee had been a real person, is relevant, as showing that A knew that the payee was a fictitious person.

(e) A is accused of defaming B by publishing an imputation intended to harm the reputation of B.

The fact of previous publications by A respecting B, showing on the part of A towards B, is relevant, as proving A's intention to harm B's reputation by the particular publication in question.

The facts that there was no previous quarrel between A and B, and that A repeated the matter complained of as he heard it, are relevant, as showing that A did not intend to harm the reputation of B.

(f) A is sued by B for fraudulently representing to B that C was solvent, whereby B, being induced to trust C, who was insolvent, suffered loss

The fact that, at the time when A represented C to be solvent, C was supposed to be solvent by his neighbours and by persons dealing with him, is relevant, as showing that A made the representation in good faith.

(g) A is sued by B for the price of work done by B, upon a house of which A is owner, by the order of C, a contractor.

A's defence is that B's contract was with C.

The fact that A paid C for the work in question is relevant, as proving that A did, in good faith, make over to C the management of the work in question, so that C was in a position to contract with B on C's own account, and not as agent for A.

(h) A is accused of the dishonest misappropriation of property which he had found, and the question is whether, when he appropriated it, he believed in good faith that the real owner could not be found.

The fact that public notice of the loss of the property had been given in place where A was, is relevant, as showing that A did not in good faith believe that the real owner of the property could not be found

The fact that A knew, or had reason to believe, that the notice wa given fraudulently by C, who had heard of the loss of the propert: and wished to set up a false claim to it, is relevant as showing that th fact that A knew of the notice did not disprove A's good faith.

(i) A is charged with shooting at B with intent to kill him. In order to show A's intent, the fact of A's having previously shot at B may be proved.

(j) A is charged with sending threatening letters to B. Threatening letters previously sent by A to B may be proved, as showing the intention of the letters.

(k) The question is; whether A has been guilty of cruelty towards B, his wife.

Expressions of their feeling towards each other shortly before or after the alleged cruelty, are relevant.

(l) The question is, whether A's death was caused by poison.

Statements made by A during his illness as to his symptoms, are relevant facts.

(m) The question is, what was the state of A's health at the time when an assurance on his life was effected.

Statements made by A as to the state of his health at or near the time in question, are relevant facts.

(n) A sues B for negligence in providing him with a carriage for hire not reasonably fit for use, whereby A was injured.

The fact that B's attention was drawn on other occasions to the effect of that particular carriage, is relevant.

The fact that B was habitually negligent about the carriages which he let to hire, is irrelevant.

(o) A is tried for the murder of B by intentionally shooting him dead.

The fact that A, on other occasions shot at B is relevant, as showing his intention to shoot B.

The fact that A was in the habit of shooting at people with intent to murder them is irrelevant.

(p) A is tried for a crime.

The fact that he said something indicating an intention to commit that particular crime is relevant. The fact that he said something indicating a general disposition to commit crimes of that class, is irrelevant.".

8.87. Principle.-

The principle of the section is that if the existence of a mental or bodily state or bodily feeling is in issue or relevant, then acts from which the existence of such mental or bodily state or bodily feeling may be inferred, are also relevant. This may be described as the positive aspect. The first Explanation stresses the negative aspect, and is in the nature of a restriction.

8.88. Five parts of the section.-

The section could be analysed into five part.-(a) the provision permitting evidence, (b) the conditions for applying the section, (c) the restriction on the scope, (d) the use of the evidence and (e) mode of proof.

8.89. Proof of mental state.-

First, as to the proof of the mental state admissible under the section. A man's intention or, for that matter, any mental state, is a matter of fact capable of proof. "The state of a man's mind is as much a fact as the state of his digestion. It is true that it is very difficult to prove what the state of a man's mind at a particular time is; but, if it can be ascertained, it is as much a fact as anything else."1 Intention ,can, thus, be proved like any other 'fact', by the evidence of conduct and surrounding circumstances. The state of mind is not only relevant, but a fact in issue, in many criminal cases where the offence under trial requires a mental element. Often, it may be in issue in civil suits also, where the suit is in tort and the liability is not absolute.

1. Edingto v. Pitzmauried, (1885) 29 Ch D App 483 (Bowen, LJ.).

8.90. Proof of mental and physical condition.-

Now, the mental and physical condition of a person may be proved either by that person speaking directly to his own feelings, motives, intentions and the like, or by the evidence of another person describing facts from which the given condition may be inferred.1

1. Balmakand v. Ghansam, 1894 ILR 22 Cal 391 (406).

8.91. A person may himself give evidence about his mental state. So, in an English case1 for malicious prosecution, where the defendant himself was called and was asked in examination-in-chief, "Had you any other object in view, in taking proceedings, than to further the ends of justice?", the question was admitted.

1. Hardwick v. Coleman, 1 F&F 531.

8.92. And, on a question of domicile, a person may state what his intention was in residing in a particular place.1

1. Wilson v. Wilson, LR 2 P&D 435 (444).

8.93. However, there are certain shortcomings in a person testifying as to his own state of mind. If a person's acts and conduct are shown to be at variance and inconsistent with the intent he swears to, then his own testimony in his own favour would ordinarily obtain very little credit.

8.94. Moreover, it is obvious that in many cases the evidence of the person himself may not be available. Hence, it is open to other witnesses also to testify as to state of mind. But other person may not, in general, testify directly to the state of mind of the first, and may state only those external and perceptible facts which may form the material of the Court's decision. In general, witnesses must speak to facts and let the inference from those facts be drawn by the Court or jury.1

1. Swift Evidence, 111 (cited in Woodroffe) "A witness must swear to facts within his knowledge and re-collection and cannot swear to mere matters of belief".

8.95. Section 14 is in accordance with the principles mentioned abov.- principles laid down in numerous English case1-namely, that, to explain a state of mind, evidence is admissible, though the evidence does not otherwise bear upon the issue to be tried. As regards this principle, there is no difference between civil and criminal cases.2

1. R. v. Richardson, 2 F&F 346 (Williams, J.).

2. Blake v. Albion Life Assurance Society, 4 CPD 102.

8.96. Mens rea.-

While on this question, a reference may be made to mens rea, Archbold1 states:

"It has always been a principle of the common law that mens rea is an essential element in the commission of any criminal offence against the common law In the case of statutory offences, it depends on the effect of the statute There is presumption that mens rea is an essential ingredient in a statutory offence, but this presumption is liable to be displaced either by the words of the statute creating the offence or by the subject-matter with which it deals. Unless a statute clearly or by implication rules out mens rea, a man should not be convicted unless he has a guilty mind. In finding whether mens rea is excluded, the court should consider whether the offence consists in doing prohibited acts or in failing to perform a duty which only arises if a particular state of affairs exists."2

1 Archbold's Criminal Pleadings, Evidence and Practice in Criminal Cases, 33rd Edn., pp. 23-24.

2 The quotation is to be found at p. 398 of Vol. 1 of Woodroffe, 2nd Edn.

8.97. In State v. Lakshman Das, (1966) 69 Bom LR 808 (827, 828), Patel J. observed:

"Section 14 next relied upon on behalf of the prosecution makes facts relevant if (1) they show the existence of any state of mind or (2) the state of body or bodily feeling, such state of mind or body is in issue or is relevant. Explanation 2 says that the prior conviction of a person for an offence is relevant if the offence itself is relevant under this section. It would seem that it only means that if the prosecution brings forth the evidence of a prior offence as being relevant under this section, then it may also prove the conviction, which would make the evidence of previous offence more effective in its being accepted. It is also true that the general tendency of an accused cannot be proved as that would amount to proving his bad character, but the facts offered in proof must show the state of mind in reference to a particular matter in question."1

1. State v. Lakshman Das, (1996) 69 Bom LR 808 (827, 828).