Civil Trials Bench Book — Evidence

Hollington v F Hewthorn and Co Ltd: One purpose of Pt 3.5 was to overrule in most cases the “rule” in Hollington v F Hewthorn and Co Ltd [1943] KB 587, in which the English Court of Appeal held (at 594–595, 601–602) that a conviction of the driver of a motor vehicle for negligent driving was inadmissible in an action by a passenger in that vehicle to recover damages for injuries received as a result of the driver’s negligence.

This purpose has been effected, first, by s 91, which excludes evidence of a decision in another proceeding, or of a finding of fact in that other proceeding, in order to prove the existence of a fact that was in issue in that proceeding. Secondly, s 92(2) excepts from the operation of s 91 the admission or use of evidence that a party, or a person through or under whom a party claims, has been convicted of an offence, and excludes the application to such evidence of both the hearsay rule in s 59 (evidence of a previous representation made by a person is not admissible to prove the existence of a fact that the person intended to assert by the representation) and the opinion rule in s 76 (evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed). Section 92(1) similarly excepts from the operation of s 91 the admission or use in evidence of the grant of probate, letters of administration or a similar order of a court to prove the death, or date of death, of a person or the due execution of a testamentary document.

The theory of this scheme is described by Campbell J, in Gonzales v Claridades (2003) 58 NSWLR 188 at [66]:

Hence, once the evidence of a conviction becomes admissible in accordance with s 92, it does not have the effect of an estoppel, but the party disputing the facts established by the conviction has an evidentiary onus in relation to that issue.

A civil judgment in a superior court of record may nevertheless be used to prove the identity of the parties to the litigation and of the issues raised in that litigation as disclosed in that document, as those facts were not issues in the other proceedings: National Mutual Life Association of Australasia Ltd v Grosvenor Hill (Qld) (2001) 183 ALR 700 at [46]–[51].

A conviction in other proceedings may be established by a certificate stating the fact of the conviction, given pursuant to s 178 of the Evidence Act which proves that fact, but s 91 prevents that certificate providing evidence of the truth of the facts on which the conviction was based: Antoniadis v TCN Channel Nine Pty Ltd (unrep, 12/3/97, NSWSC) at 2–4; Prothonotary of the Supreme Court of New South Wales v Sukkar [2007] NSWCA 341 at [9].

Where, however, the content of a judgment in another proceeding is relevant to a fact in the litigation in which it is tendered other than proving the truth of that material (for example, to show knowledge on the part of a person who has read the judgment of the findings made in that judgment), the judgment is admissible for that non-hearsay purpose, but s 91 prevents the operation of s 60 to make the document evidence of the truth of those contents: Ainsworth v Burden [2005] NSWCA 174 at [109]; ALRC No 38, par 171.

In proceedings by a gaming machine manufacturer for an injunction against a former employee to prevent him using confidential information gained in the course of his employment, the defendant’s conviction for having used such information unlawfully to obtain payments from its machines installed in clubs was admitted as proof that he had done so: Ainsworth Game Technology Ltd v Michkoroudny [2006] NSWSC 280 (Young CJ in Eq) at [4].

Bass v TCN Channel Nine Pty Ltd [2006] NSWCA 343 was concerned with defamation proceedings arising out of a program telecast by the defendant which included allegations made by the plaintiff, a building subcontractor, against the union to which the plaintiff’s employees belonged, and the response to those allegations by the union which conveyed imputations that the plaintiff was a “shonk” (that is, a dishonest person) and that he could not be relied on to pay his employees. The jury at the first trial found that the first imputation was true but that the second imputation was not true. The judge at that trial upheld a defence of qualified privilege to the second imputation, based on the right of the union to defend itself against the plaintiff’s attack and of the defendant’s right to publish both sides of the dispute, but ruled that the plaintiff could not rely in reply on an allegation of malice by the defendant, based on its knowledge that the allegations made by the union were untrue. On appeal, the last of those rulings was reversed, and a new trial was ordered, limited to the issues of malice and damages. At the limited new trial, the judge allowed evidence of the jury’s verdict in the first trial that the plaintiff was a shonk (that is, a dishonest person). It was argued by the plaintiff on appeal that, as the trial was limited to the separate cause of action arising out of the second imputation, that finding was irrelevant to the limited new trial based on the cause of action arising out of the second imputation. The Court of Appeal held (at [21]–[24]) that the jury’s finding in the first trial that the plaintiff was dishonest was relevant to his credit in relation to factual issues relating to the cause of action based on the second imputation, and that the plaintiff was estopped by that finding from denying that he was dishonest. Reliance was also placed on s 93, which saves the operation of the law relating to res judicata and issue estoppel.

In proceedings to establish whether a defendant was precluded by the forfeiture rule from obtaining a benefit from the death of the person which he had caused by malicious wounding, evidence that a verdict of not guilty by reason of the defendant’s mental illness had been entered to the charge of malicious wounding was held to be inadmissible to establish an estoppel relating to the defendant’s mental illness: Permanent Trustee Co Ltd v Gillett (2004) 145 A Crim R 220 at [38]–[41]. See also Batey v Potts (2004) 61 NSWLR 274 (Gzell J) at [8]–[13].

In proceedings seeking an order that the solicitor should pay the costs that were ordered against his client, s 91 of the Evidence Act 1995 (NSW) does not prevent a court, exercising the jurisdiction that s 99 of the Civil Procedure Act 2005 (NSW) confers, from having regard to findings in its principal judgment: King v Muriniti (2018) 97 NSWLR 991 at [44]–[46], [49].

Odgers, Uniform Evidence Law (13th edn at [EA.92.150]) suggests that s 167 of the Evidence Act may be utilised by the party against whom the judgment or conviction is to be tendered to apply for an order requiring the attendance for cross-examination of any witness in the earlier proceedings, in accordance with the explanation for the proposal leading to Pt 3.5 given in ALRC No 26, vol 1, par 779. Odgers points out that a request for such an order is defined in s 166(g) as including the determination of questions in relation to a conviction, being evidence to which s 92(2) applies, but draws attention also to s 169(5)(g), which enables the court considering the issues under s 167 to take into account whether another person is available to give evidence about the facts that were in issue in the proceedings in which the conviction was obtained.

The general effect of Hollington v F Hewthorn and Co Ltd on evidence of an acquittal has not been altered by the Evidence Act. In Helton v Allen (1940) 63 CLR 691, the High Court held (at 710) that such an acquittal does not operate as an estoppel in subsequent proceedings, nor would the fact of the acquittal be admissible in evidence in those proceedings. In Pringle v Everingham [2006] NSWCA 195, the Court of Appeal held (at [34]) that Pt 3.5 did not alter the common law concerning acquittals, following Gonzales v Claridades, above, at [62]–[68]. The issue did not arise in the appeal from that decision, reported as Gonzales v Claridades (2003) 58 NSWLR 211.

Legislation

Further References