Court of Appeal allows conviction certificate admissibility as prima facie evidence under Succession Act 1965 s.120(1).

THE COURT OF APPEAL

Neutral Citation Number: [2017] IECA 63

Finlay Geoghegan J.

Irvine J.

Hedigan J.

Appeal. No. 2014/794

Appeal. No. 2014/771

BETWEEN

PATRICK NEVIN AND MARGARET LAVELLE (FORMERLY NORA NEVIN)

PLAINTIFFS/RESPONDENTS

AND

CATHERINE NEVIN

DEFENDANT/APPELLANT

JUDGMENT of Mr. Justice Hedigan delivered on the 7th day of March 2016

The factual background

1. Two appeals are brought before the court. The first deals with the substantive issue of admissibility of a certificate of conviction.

It is brought on behalf of the defendant against the order of Kearns P. of the 1st March, 2013, directing that the conviction of the

appellant for her husband’s murder is admissible in the within proceedings as prima facie evidence of the fact that she committed

such murder. The appellant was convicted on the 11th April, 2000, in the Central Criminal Court of the murder and soliciting the

murder of her husband, Thomas Nevin in 1996. The second appeal is brought by the defendant against the order of Kearns P of the

14th of February 2013 which refused the defendant’s application for a stay on the hearing of the plaintiff’s motion. This second appeal

has become moot. I agree with the decision of Ms Justice Finlay Geoghegan that it should be dismissed.

2. Dealing with the first appeal, the proceedings herein were instituted by plenary summons on the 4th November, 1997, and were

brought by the deceased’s mother and following her death have been maintained by the administrators of her estate, who are the

brother and sister of Thomas Nevin. These proceedings seek various declarations in relation to the appellant’s right to inherit from her

husband’s estate and damages for wrongful death. In particular the plaintiffs claim;-

“A Declaration that by virtue of Section 120 of the Succession Act, 1965 the Defendant is precluded from taking any

share either as legal right or otherwise in the Estate of the said Deceased”

3. The relevant provisions of the Succession Act 1965 are as follows:

s. 120(1) A sane person who has been guilty of the murder, attempted murder or manslaughter of another shall be

precluded from taking any share in the estate of that other, except a share arising under a will made after the act

constituting the offence, and shall not be entitled to make an application under section 117.

(4) A person who has been found guilty of an offence against the deceased, or against the spouse or any child of the

deceased (including a child adopted under the Adoption Acts, 1952 and 1964, and a person to whom the deceased was in

loco parentis at the time of the offence), punishable by imprisonment for a maximum period of at least two years or by a

more severe penalty, shall be precluded from taking any share in the estate as a legal right or from making an application

under section 117.

4. The High Court on the 23rd January, 1998, ordered that no further steps be taken in these proceedings until the final determination

of the criminal proceedings. These have now concluded. The appellant’s defence and counterclaim was delivered in 2005. She denies

therein that she murdered Thomas Nevin. A notice to admit facts was served dated 21st December 2011. Admissions were sought in

relation to the following matters:

(1) That the defendant was guilty of the murder of Thomas Nevin. To this the reply was that she denied any involvement

in his death.

(2) That she was found guilty on 11th April, 2000, by a jury in the Central Criminal Court, of the murder of Thomas Nevin.

The reply to this was that the defendant had and continues to challenge the verdict.

(3) That she was found guilty on three counts, under s. 4 of the offences against the Person Act, 1861, of soliciting

persons to murder Thomas Nevin. To this she replied that she has always denied soliciting the murder.

(4) That the transcripts of the evidence adduced at trial before the Central Criminal Court contain evidence proving that

on the balance of probabilities she was guilty of murdering and soliciting three persons to murder Thomas Nevin. This was

not admitted.

(5) That the transcripts of the evidence adduced at trial in the Central Criminal Court contain evidence that she was

guilty of murdering and soliciting three persons to murder Thomas Nevin. This was not admitted.

(6) That the Court of Criminal Appeal rejected her appeal on 14th March 2003, in a judgment delivered on that date by

Mr. Justice Geoghegan and refused leave to appeal to the Supreme Court. The defendant replied that this was correct

but referred to answers 1,2 and 3.

(7) That the Court of Criminal Appeal rejected her application, pursuant to s. 2 of the Criminal Procedure Act, 1993, on

22nd November, 2010, in a judgment delivered by Mr. Justice Hardiman. She rreplied that this was correct but also

referred to the replies to (1). (2) and (3).

5. Kearns P. in his judgment of 1st March 2013 on the substantive matter before him at paragraph 59 stated as follows;

“I prefer to base my view ultimately on the proposition that the admissibility of the murder conviction is either authorised

on foot of the decision in Crippen’s case or comes within an exception to the hearsay rule as suggested and found by the

Court of Appeal of New Zealand in Jorgensen’s case”

Later at paragraph 60 he continued;

“However, having concluded that evidence of the conviction of Catherine Nevin for murder is admissible in the plaintiff’s

various civil claims against her, I would go no further than did the Court of Appeal in New Zealand to say that the

conviction is prima facie evidence only that Catherine Nevin murdered her husband”

Submissions of the parties

6. The Court has had the benefit of helpful written and oral submissions from the appellant and the respondents. Ms. Fitzgibbon, on

behalf of the appellant, submitted that there were no cases on hearsay opened before Kearns P. No case was made, she argued, that

any witnesses who could prove the respondents’ case were unavailable or incompetent. She submitted that the trial judge relied

primarily on two things. First, the decision in Crippen’s case – In the Estate of Cunigunda (otherwise Cora) Crippen, Deceased [1911]

P. 108. This judgment did not in fact decide the core issue in this case, but only considered ‘special circumstances’ under the Court of

Probate Act 1857. It did not decide that the conviction was admissible as proof of guilt. The judge however did express such an

opinion but as such it did not form part of the ratio decidendi but was obiter dictum. Ms. Fitzgibbon also noted that this case was not

referred to in later cases dealing with this issue. The second case relied upon by Kearns P. was the New Zealand Court of Appeal

decision in Jorgensen v. News Media (Auckland) Limited [1969] NZLR 961. It rejected the English decision in Hollington v. F Hewthorn

& Company Ltd [1943] K.B. 587, in which the Court of Appeal for England and Wales held that the defendant’s conviction for careless

driving was not admissible in the civil action brought against him for negligence. In Jorgensen the evidence was admitted as an

exception to the rule against hearsay.

7. Ms. Fitzgibbon submitted that once it was decided that the certificate of conviction was a hearsay matter, then the court must go

through the appropriate test to decide whether or not it could be admitted as an exception to the rule against hearsay. She argued

that Kearns P. could not create an exception or classify it as such where he did not conduct inquiries regarded as essential according

to Irish case law notably by Denham J. in Eastern Health Board v. M.K. [1999] 2 I.R. 99. She further submitted that the certificate of

conviction does not fall into the public document exception to the rule against hearsay.

8. Ms. Fitzgibbon further noted that the trial judge did not base his decision on issue estoppel or abuse of process. It was submitted

that it could not be either of these things as there was no privity between the parties and the appellant is the defendant not the

plaintiff in these proceedings.

9. Ms. Fitzgibbon also submitted that these proceedings issued before the criminal proceedings and that the respondents were

presumably in a position to prove their case at that point. She added that if the certificate of conviction was deemed admissible, it

would be virtually impossible to defend the case.

10. Mr. Brady S.C., on behalf of the respondents, submitted that the appellant’s criminal trial lasted 42 days, during which she gave

evidence over the course of six days. He also noted that she had one of the foremost criminal defence counsel acting on her behalf.

He referred to the judgment of Kearns P. and noted the criticism of Hollington in the United Kingdom and throughout the world.

Particular reference was made to the New Zealand Court of Appeal decision in Jorgensen. He relied upon the statement therein of

North P. that there must be exceptions to the hearsay rule and that it is for judges dealing with procedural matters to make

exceptions and it does not really matter what it is called as it is a matter of procedure to ensure that justice is done. He referred this

Court extensively to the judgment of Turner J. and to the remarks of McCarthy J. in Jorgensen. Mr. Brady submitted that these views

were quite properly adopted by Kearns P. in his judgment.

11. Mr. Brady submitted that the core issue in the High Court was whether the conviction of the appellant for the murder of her

husband was admissible as prima facie evidence of her guilt of that murder in the civil proceedings. He also submitted that he was

arguing on general principles as opposed to an exception to hearsay. He noted further that the respondents’ pleadings cover both

common law and s. 120 of the Succession Act 1965.

12. Mr. Brady submitted that the trial judge was correct in deciding the matter as he did either as an exception to the hearsay rule or

on the basis that the certificate of conviction is a public document.

Decision

13. The core issue for this Court is whether Kearns P. was correct in his finding that the conviction of the appellant was admissible

“as prima facie evidence that Catherine Nevin murdered her husband”. The plaintiff seeks to admit it as prima facie evidence that

the defendant murdered her husband. In his judgment at p. 59, he stated that:-

“I prefer to base my view ultimately on the proposition that the admissibility of the murder conviction is either authorised

on foot of the decision in Crippen’s case or comes within an exception to the hearsay rule as suggested and found by the

Court of Appeal in New Zealand in Jorgensen’s case.”

14. In Crippen’s case the Court was dealing with an application for a grant of administration of the estate of Crippen’s wife. Mrs.

Crippen was survived by her husband who had been convicted and executed for her murder. Prior to his execution, he appointed his

mistress as his sole executrix and universal legatee of his will. Mrs. Crippen’s sister sought a grant of letters of administration for her

estate and to pass over the legal representative of the husband. The Court held that the murder conviction was a special

circumstance under s. 73 of the Court of Probate Act 1857, so that the husband’s legal personal representative could be passed over.

It was held by Evans P. at pp. 111 to 112 that:-

“In the present case a man who has been convicted of the wilful murder of his wife has, after his conviction, made a will

appointing a person his executrix and universal legatee, who claims, as such executrix, to administer the murdered wife’s

estate, and as legatee to be entitled to the murdered wife’s property.

These are, surely, ‘special circumstances’.

I therefore pass over and decline to appoint the executrix; and I appoint the applicant as attorney of the deceased

woman’s sister to be administrator of the deceased woman’s estate on the sister’s behalf.”

15. Evans P. stated that he believed there was nothing else necessary for him to decide before using his discretion to determine the

motion. However, he went on to say that in case he was wrong in this regard, he would state his views on the points raised in

argument. At p. 115 of his judgment Evans P. stated that:-

“In my opinion, where a convicted felon, or the personal representative of a convicted murderer who has been executed,

brings any civil proceeding to establish claims, or to enforce rights, which result to the felon, or to the convicted testator

from his own crime, the conviction is admissible in evidence, not merely as proof of the conviction, but also as

presumptive proof of the commission of the crime.”

16. Thus it is clear that as submitted to the Court by Ms. Fitzgibbon, insofar as the issue of admissibility of the conviction for murder

goes, the statement of Evans P. was obiter dictum.

17. Over 40 years later, in Hollington, the Court of Appeal for England and Wales held that the defendant’s conviction for careless

driving was not admissible in the civil action brought against him for negligence. This decision was subsequently subject to severe

criticism. The very Court of Appeal where the decision was given expressed subsequently its regret at being bound by it. Law reform

bodies charged with inquiring into it have reported adversely and the writing of jurists throughout the Common Law world have nearly

all condemned its reasoning and its conclusion.

18. In 1969, the New Zealand Court of Appeal in Jorgensen departed from the line of authority which had developed in England

following the Hollington decision. It held that the certificate of conviction was admissible evidence. In that particular case, Jorgensen

had brought a libel claim based on a statement published in the defendant’s newspaper in 1967 to the effect that Jorgensen along

with another man had, in 1963, machine gunned one Kevin Speight, whose body was found in a house with another gunshot victim.

Both men were convicted of the murder of Kevin Speight in 1964 and their appeals against their convictions were dismissed. During

the trial of the libel action the judge followed the decision in Hollington and subsequent English Court of Appeal decisions. He held that

the conviction was not admissible as evidence that Jorgensen had murdered Speight, but was admissible in relation to the mitigation

of damages. The jury was unable to agree and were discharged. Before the commencement of the second trial, a case was stated

seeking clarity on this issue. Thus it was that the case came before the New Zealand Court of Appeal. In its judgment at p. 979,

North P. stated that:-

“In the present case, on the other hand, there is already a body of judicial opinion that would justify the conclusion that

a certificate of conviction is not merely conclusive evidence that Jorgensen had been found guilty of the murder of

Speight but was admissible evidence as well in proof of the fact of guilt and that is as far as I feel obliged to go.”

19. In relation to the decision in Hollington, Turner J. at p. 990 as to the certificate of conviction being hearsay evidence stated as

follows:-

“It is true that to admit a certificate of conviction as proof of guilt is to admit hearsay, but the objection to the admission

of hearsay is fundamentally this and no more: (a) the version of the facts given in the Court may not be an accurate

transcription of what the original witness said at all; (b) even if correctly recorded, the content of what is said may be

unsatisfactory – i.e. false, unreliable, biased, prejudiced, etc. -- and there is no opportunity to demonstrate this by

cross-examination of the maker of the statement. Neither of these objections seems to me to apply, or at least to apply

in any great degree, to the admissibility of a certificate of conviction. If there is any document whose content must be

taken as satisfactorily verified it must be a certificate under the seal of the Court. There can I think be no real doubt that

a certificate of conviction under the seal of the Court constitutes unimpeachable evidence not only of the fact that the

prisoner was convicted, but also of the fact that the Court did in fact consider him guilty of the crime charged. So much

for that objection. As regards the other (viz. that the opinion of the Court might have been wrong) it is perhaps only

necessary to say that before a man be convicted in this country the Court must have come to the conclusion beyond all

reasonable doubt that he was guilty of the crime charged. It does not seem to me, therefore, that either of the reasons

normally operating to exclude hearsay exert any logical force at all in this case, and I would not allow the fact that a

certificate of conviction is technically hearsay to deter me from the proposal which I now make, that this Court should

abrogate the rule in Hollington v Hewthorn.”

20. In reliance upon this judgment, Kearns P. stated at p. 45 of his judgment as follows:-

“Even if I had not found the reasoning of the New Zealand Court of Appeal as convincing as I do, I would nonetheless

start from the position that decisions of English courts constitute persuasive authority only since this State gained its

independence. While decisions of the superior courts in the United Kingdom can be highly persuasive, I am satisfied,

principally by reference to the reasoning offered by the Court of Appeal in New Zealand, that the decision in Hollington v.

Hewthorn is unsatisfactory both for the reasons enumerated in Jorgensen, the writings of distinguished commentators

referred to therein and in the citations from later cases in the United Kingdom which were unambiguous in their

disapproval of Hollington and which ultimately led to the introduction in that jurisdiction of the Criminal Law Evidence Act

1968.

The law in this jurisdiction in my view may be taken to be that laid down in Harvey v. The King and in Crippen’s case,

cases decided in 1901 and 1911 respectively, unless subsequent Irish authority may be shown to have taken a different

course.”

21. Like Kearns P. I consider the logic of the Court of Appeal of New Zealand in Jorgensen to be compelling and I gratefully adopt it.

Thus, on the core issue before the Court, I agree with the judgment of Kearns P. The certificate of conviction of the appellant for the

murder of her husband is admissible even though it is technically hearsay. As to whether it is conclusive or merely prima facie

evidence of the guilt of the appellant for the murder of the late Thomas Nevin, or satisfies the burden on an applicant pursuant to

s.120(1) of the Succession Act those questions were not argued before this court. The plaintiff’s counsel made it clear in his

submissions to this court that he submitted only that the certificate of conviction might be admitted as prima facie evidence of her

guilt. He described this as the core issue before the court.

22. As to the admission in evidence of public documents at common law, the requirement for the admission of public documents at

common law is set out in Declan McGrath, Evidence 2nd Ed., (Dublin, 2014) at p. 323. The learned author there states that:-

“However, in general terms, to be admissible under this exception, a document must: (i) contain matters of a public

nature; (ii) have been compiled by a public official in the exercise of a duty to inquire into and record those matters; and

(iii) have been intended to be retained for and be available for public inspection.”

23. I agree with this statement of the law. In this case a certificate of conviction clearly contains matters of a public nature, has

been prepared by the trial court’s Registrar who is a public official exercising a duty to record the conviction and was intended to be

retained for and be available for public inspection. The certificate is therefore also admissible at common law as a public document.

24. In the light of the above findings, I do not consider it necessary for the Court to address the issue raised concerning the wording

of s. 120(1) of the Succession Act 1965 as opposed to section 120(4). I do agree with Kearns P. that it would be desirable that the

apparent anomaly therein be dealt with by way of an amendment.

25. In summary, I agree with the judgment of Kearns P that the certificate of conviction is admissible at least as prima facie proof

that the defendant murdered her husband. I find moreover that the certificate is also admissible at common law as a public document.

In the light of these findings, it is not necessary to address the issue raised concerning the wording of section 120(1) of the

Succession Act 1965 as opposed to section 120(4) thereof. I would dismiss the two appeals.