The partial abolition of the rule in Hollington v Hewthorn in Seychelles and the admissibility of criminal convictions in civil trials: Analysing s. 29 of the Evidence Act

Abstract

Section 29(1) of the Seychelles Evidence Act provides that a criminal conviction is admissible in civil proceedings as evidence that the person who was convicted committed the offence in question. Thus s. 29(1) partially reverses the rule in Hollington v Hewthorn. Section 29(2) of the same Act provides that ‘[i]n a trial, other than in a civil trial for defamation, in which by virtue of this section a person…is proved to have been convicted of an offence by or before a court in the Republic, he shall be taken to have committed that offence unless the contrary is proved.’ The Supreme Court held that s. 29 ‘imported’ s. 11 of the United Kingdom Civil Evidence Act (1968) ‘into our laws’. In this article, the author demonstrates how courts have interpreted s. 29. He also suggests ways in which s. 29 could be interpreted to deal with foreign convictions. He argues that notwithstanding s. 29, the Hollington Rule is still applicable to earlier civil findings. Thus the findings of a court in earlier civil proceedings are inadmissible in subsequent civil proceedings. In Esparon v Philo, the Court of Appeal, the highest court in Seychelles, interpreted s. 29(2) in a manner that creates room for the argument that a person who challenges the admissibility of his conviction in civil matters has to prove his/her innocence. It is argued, inter alia, that the Court's decision should not be interpreted as imposing this very high threshold. It is enough if he proves that the person's trial was a miscarriage of justice.

Introduction

In the past, Seychelles courts, like their counterparts in some common law countries such as Namibia, ¹ Australia, ² South Africa, ³ Eswatini, ⁴ Lesotho, ⁵ Zambia ⁶ and Malawi, ⁷ followed the rule in Hollington which is to the effect that a conviction in criminal matters is inadmissible in subsequent civil proceedings as proof that the defendant, who was convicted of the offence, committed that offence. On 1 September 1992, the Evidence Act was amended to provide, in s. 29, for the circumstances in which evidence of criminal convictions is admissible in civil matters. ⁸ In Solo v Payet, ⁹ the Supreme Court held that s. 29 ‘imported’ s. 11 of the United Kingdom Civil Evidence Act (1968) ‘into our [Seychelles] laws’. ¹⁰ Section 29(2), which is discussed in this article in detail, provides that ‘[i]n a trial, other than in a civil trial for defamation, in which by virtue of this section a person…is proved to have been convicted of an offence by or before a court in the Republic, he shall be taken to have committed that offence unless the contrary is proved.’ The Court of Appeal's decision in Esparon v Philo ¹¹ creates room for the argument that for a person to successfully rely on s. 29(2) of the Evidence Act, he/she must prove that he/she was innocent of the offence of which they were convicted. ¹² In this article, it is argued, inter alia, that this understanding of the Court of Appeal's decision would be restrictive. Hence it is suggested that the court's decision should be understood broadly. The broad interpretation means that s. 29(2) should be applicable not only in cases where the person was innocent but also in cases where there was a miscarriage of justice at his trial. The author will first discuss the different provisions of s. 29. After that, he highlights the facts and decision in Esparon v Philo before analysing the decision. It is important to discuss the case of Esparon v Philo in detail because, unless the Court of Appeal departs from it, ¹³ it remains the law and binds all lower courts and will be relied on by the Court of Appeal in future cases dealing with similar issues.

Understanding s. 29 of the Evidence Act

In this part of the article, the author discusses s. 29 in detail. In particular, he examines each of the sub-sections. Where possible (in cases where case law is available), he demonstrates how Seychelles courts have interpreted each provision. Since s. 29 is going to be discussed in detail, it is necessary to reproduce it in full. It provides that:

In a trial the fact that a person, other than, in the case of a criminal trial, the accused, has been convicted of an offence by or before any court in the Republic shall be admissible in evidence for the purpose of proving, where to do so is relevant to any issue in the trial, that that person committed the offence or otherwise, whether or not any other evidence of his having committed that offence is given.

In a trial, other than in a civil trial for defamation, in which by virtue of this section a person, other than, in the case of criminal trial, the accused, is proved to have been convicted of an offence by or before a court in the Republic, he shall be taken to have committed that offence unless the contrary is proved.

In a trial for defamation where evidence is admissible of the fact that the person has committed an offence, in so far as that evidence is relevant to any matter in issue in the trial, if the person is proved to have been convicted of the offence by or before any court in the Republic he shall be conclusively taken to have committed the offence.

In a criminal trial where evidence is admissible of the fact that the accused has committed an offence, in so far as that evidence is relevant to any matter in issue in the trial, if the accused is proved to have been convicted of the offence by or before any court he shall be taken to have committed that offence unless the contrary is proved.

Where evidence that a person has been convicted of an offence is admissible under this section, then without prejudice to the reception of any other admissible evidence for the purpose of identifying the facts on which the conviction was based (a) the contents of any document which is admissible as evidence of the conviction; and (b) the contents of the information, complaint or charge sheet on which the person was convicted, shall be admissible in evidence for that purpose.

Section 29 is applicable to both civil and criminal trials. However, in this article, the focus is on civil proceedings. Since the sub-sections in s. 29 are inter-related, the author will discuss them jointly.

Under s. 29(1) of the Evidence Act, the fact that a person was convicted of an offence is admissible to prove that the person committed the offence. The following observations should be made about s. 29(1). First, s. 29 is only applicable where there is a conviction. In several cases, the Supreme Court held that the fact that a person was acquitted of an offence is not admissible under s. 29 as proof that he did not commit the alleged acts of which he was acquitted and on which the civil action is founded. ¹⁴ Although in these decisions the Supreme Court, for its reasoning, does not refer to the drafting history of s. 11 of the 1968 English Civil Evidence Act, which, as illustrated above, was ‘transplanted’ into Seychelles via s. 29 of the Evidence Act, its reasoning is supported by this drafting history. Section 11 of the 1968 English Civil Evidence Act was enacted based on the recommendations of the Law Reform Committee's Fifteenth Report on the Rule in Hollington v. Hewthorn. ¹⁵ One of the Committee's recommendations was to the effect that ‘acquittals should not be admissible evidence that the person acquitted did not do the acts in question.’ ¹⁶ During the debates on the Civil Evidence Bill in the House of Lords on 8 February 1968, ¹⁷ it was emphasised that the Bill was meant to, inter alia, reverse the Hollington Rule. ¹⁸ On the differences between convictions and acquittals, Lord Person argued that:

Convictions are to be admissible as evidence in civil proceedings; acquittals are not. The reason for the difference is that an acquittal may mean only that the jury were not satisfied beyond reasonable doubt of the accused's guilt. Under the Bill, all acquittals will continue to be inadmissible in any civil proceedings. ¹⁹

Likewise, during the debates in the House of Commons on 24 April 1968, ²⁰ it was emphasised that the Bill was meant to reverse the Hollington Rule. ²¹ Although some legislators were of the view that acquittals, as is the case with convictions, should also have been conclusive evidence of a person's innocence, ²² this was not accepted by Parliament. Therefore, an acquittal is not evidence that the person did not commit the acts of which he was acquitted.

Second, the use of the word ‘shall’ instead of ‘may’ suggests that the court before which the fact of previous conviction is adduced has no choice but to admit it. Thus, the court cannot refuse to admit evidence of a previous conviction unless it is not relevant to the issue. However, as the discussion below shows, s. 29(1) has to be read with s. 29(2). Related to the above, a previous conviction is only admissible if it is relevant to ‘any issue in the trial’. Thus, if it is not relevant to any issue in the trial, it is not admissible. The relevant issues are often determined by the parties to the proceedings and the court has to resolve them. Third, for the conviction to be admissible, it does not have to be that of one of the parties to the trial. Fourth, the person in question means both natural/individual and legal (juristic) person. This is the case because under s. 22 of the Interpretation and General Provisions Act, ²³ the word ‘person’ is defined to include ‘any public body, company or association or any body of persons corporate or unincorporated’. There are instances in which some juristic persons have been convicted of offences in Seychelles. ²⁴ Fifth, the existence of a record of previous convictions does not exclude the admissibility of other evidence which proves that the person in question committed an offence. Sixth, s. 29(1) is only applicable to convictions by Seychelles courts. Thus, the fact of a conviction by or before a foreign court is inadmissible under s. 29. Section 29(1) should be distinguished from s. 29(4). Under s. 29(4), evidence of the accused's conviction ‘by or before any court’ is admissible as prima facie proof that the accused committed the offence. This implies that the court in question does not necessarily have to be a Seychelles court. Seventh, in a criminal trial, s. 29(1) is not applicable to the accused. It is applicable to any other person. These include state and prosecution witnesses.

Section 29(2) puts some limitations on s. 29(1). As mentioned above, under s. 29(1), a court is obliged to admit evidence of a fact that a person was convicted of an offence in Seychelles. However, the probative value of that evidence will depend on the nature of the proceedings. In a civil trial for defamation, the evidence admitted under s. 29(1) is conclusive proof that the person in question committed the offence. In other words, the person against whom that evidence is being adduced does not have a right to dispute the conviction. This is evident from a combined reading of ss. 29(2) and 29(3). However, in other civil cases (excluding civil defamation cases), the evidence admitted under s. 29(1) is prima facie proof that the person who was convicted committed the offence. This is evident from the use of the words ‘unless the contrary is proved’. Thus, a person who has been convicted of an offence has the burden to prove that despite the conviction, he did not commit the offence. If he/she fails to do so, the prima facie proof will harden into conclusive proof that he/she was convicted. Thus, in cases where defendants have not challenged their convictions ²⁵ or have failed to adduce enough evidence, on a balance of probabilities, to convince courts to disregard the convictions, ²⁶ courts have held that the conviction is proof that they committed the offences in question. As will be discussed in detail below, in Esparon v Philo, ²⁷ the Court of Appeal held that for a person to succeed under s. 29(2), he/she must prove that he was innocent of the offence of which he/she was convicted. Apart from the evidence of the conviction of the offence which is admissible under ss. 29(1) and (2), the facts on which the conviction was based are also admissible under s. 29(5). The facts may be admissible, for example, to determine the extent to which the person who was convicted of the offence was negligent in the commission of the offence. This could help the court to determine the amount of damages to award to the victim of the offence.

The admissibility of previous civil proceedings

Section 29 is silent on the question of whether earlier civil proceedings are admissible as evidence of the facts in subsequent civil proceedings. Put differently, does the Hollington Rule bar a civil court from admitting the findings of another civil court as evidence? The author is not aware of any case in which a court in Seychelles has dealt with this issue. Thus, should it become necessary for a court in Seychelles to resolve that issue, it may find jurisprudence from other common law countries persuasive. Courts in different countries have approached this issue differently. In South Africa, for example, the Supreme Court of Appeal, in the case of Technology Corporate Management (Pty) Ltd and Others v De Sousa and Another, ²⁸ referred to the Hollington Rule and observed that:

Although the rule is expressed as precluding reliance on a conviction in a criminal case to prove a fact in a civil case, there are some judicial statements indicating that it may extend to preventing reliance on a judgment in one civil case as evidence to prove facts in a subsequent civil case involving different parties. ²⁹

The Court held that that view was not ‘correct’. ³⁰ Against that background, it concluded that:

The rule in Hollington v Hewthorn should not be extended beyond the circumstances to which it expressly applied [baring the admission of criminal convictions in civil matters]. In other instances where it is sought to use findings in a previous case to prove facts in a subsequent case, the test for admissibility should be relevance and the court must pay careful attention to the weight to be attached to the evidence thus tendered. ³¹

Therefore, in South Africa, the findings in a previous civil case are admissible in subsequent civil proceedings to prove the facts provided they are relevant. However, in the United Kingdom, courts have taken two approaches. In most cases, they have held that the Hollington Rule is applicable to civil proceedings. ³² That is, the findings of a court in earlier civil proceedings are inadmissible in subsequent civil proceedings before another court. However, in a few instances, courts have held that the Hollington Rule inapplicable. ³³ In other words, the findings of a court in earlier civil proceedings are admissible in subsequent civil proceedings as evidence of the facts. Case law from the UK indicates that the prevailing view is that the Hollington Rule is applicable to civil proceedings. Cases in which courts in the UK have held that the Hollington Rule is not applicable to civil proceedings include those where legislation expressly provides that the Rule is not applicable or where the civil proceedings are connected to criminal proceedings. The fact that most UK courts have held that the Hollington Rule is applicable to civil proceedings is not surprising in the light of the fact that the Law Reform Committee's Fifteenth Report on the Rule in Hollington v. Hewthorn specifically recommended that:

civil judgments generally should not be admissible but a finding of paternity in affiliation proceedings, or a finding of adultery in matrimonial proceedings in the High Court or in a county court, should be received in evidence in subsequent civil proceedings in the same manner as convictions. ³⁴

Commenting on the above recommendation, Dean argued that:

The Committee was not prepared to recognise the probative value of civil judgments to the extent of permitting their use in subsequent cases. The Report stresses the fact the standard of proof is lower in civil proceedings and that there is not the same obligation on a plaintiff, as there is on a prosecutor, to disclose evidence that may assist the defence. The judge does not have the same discretion to exclude prejudicial evidence of slight probative value. The special treatment of the findings in matrimonial causes was justified by the statutory duty of inquiry imposed on the judge, and in affiliation cases, by the ‘…high standard of proof, including corroboration of the mother’s evidence’. ³⁵

Since this issue is not expressly addressed in s. 29 of the Seychelles Evidence Act, a court confronted with this question would have to invoke s. 12 of the Evidence Act, which provides that ‘[e]xcept where it is otherwise provided in this Act or by special laws now in force in Seychelles or hereafter enacted, the English law of evidence for the time being shall prevail.’ The Court of Appeal held that s. 12 is only applicable where there is no Seychelles legislation addressing the relevant evidential issue. ³⁶ In Forte & Anor v R, ³⁷ the Court of Appeal referred to its earlier case law to the effect that s. 12 requires Seychelles courts to rely on the English law of evidence if that law ‘is not otherwise inconsistent with the 1993 Constitution and if considered relevant and keeping in line with the modern notions of the law of evidence acceptable in other democratic countries’. ³⁸ The Court of Appeal also held that s. 12 is applicable, not only to legislation, but also to common law rules. ³⁹ Thus, Seychelles courts can rely on English case law as common law rules. However, since, as discussed above, English courts have followed different approaches, it would be more appropriate for the Seychelles court to follow the dominant view—that the Hollington Rule is applicable in civil proceedings. This is especially because the drafting history of s. 11 of the 1968 English Evidence Act supports this view. As mentioned above, the Court of Appeal's decision in Esparon v Philo creates room for the argument that for a person to successfully rely on s. 29(2) of the Evidence Act, he/she must prove his/her innocence. Since this is the first case in which the Court of Appeal set that threshold when dealing with s. 29(2), it is important to discuss it in detail. This requires one to take a look at the facts and issues in the case and the Court's decision. After that, the author will analyse the decision in detail.

The facts, issues and decision in Esparon v Philo

This was an appeal from the Supreme Court (the relevant parts of the Supreme Court decision are highlighted below—after the decision of the Court of Appeal). The brief facts of the case were that the respondent and the appellant, a minor, were neighbours. The appellant argued that ‘whilst cutting grass at his place the Defendant failed to take proper precautions against any probable danger thereby hitting the Appellant with a stone in the left eye.’ ⁴⁰ The respondent was charged before the magistrates’ court and convicted of the offence of reckless and negligent act against the plaintiff and sentenced to a fine. ⁴¹ In other words, he was convicted of causing the injury to the appellant's eye. ⁴² He appealed against his conviction and sentence to the Supreme Court which dismissed the appeal and ‘re-affirmed’ the sentence by the magistrate's court. ⁴³ Equipped with the defendant's conviction, the appellant ‘approached the Supreme Court…[and] argued that as a result of the Respondent's reckless and negligent act, she suffered loss of her sight in her left eye, loss of amenities, pain, and suffering.’ ⁴⁴ Before the Supreme Court, the respondent accepted that he was convicted by the magistrate but he ‘claimed that he was innocent’. ⁴⁵ He brought an expert witness who testified that he could not have been responsible for the appellant's injury and therefore should not have been convicted. The evidence also contradicted that of the appellant's witness before the magistrate's court. The Supreme Court agreed with the respondent and dismissed the appellant's claim. It is against that background that she appealed to the Court of Appeal. ⁴⁶ Before the Court of Appeal, the appellant argued, inter alia, that the Supreme Court should have relied on the defendant's conviction as evidence that he was responsible for the appellant's injury and subsequent loss of eye sight. ⁴⁷ Specifically, she argued that the respondent's conviction should have amounted ‘to an automatic liability’ on his part. ⁴⁸ The appellant called both lay and expert witnesses. The respondent called expert witnesses. The respondent's witnesses testified that he should not have been convicted of the offence because there was no concrete evidence to prove that his grass cutter had ‘really caused the damage’ to the appellant's eye. ⁴⁹ A combined analysis of the respondent's expert witnesses’ evidence and that of the appellant's witnesses showed that there was doubt whether the respondent had caused damage to the appellant's eye. In other words, the evidence cast doubt on the validity of the respondent's conviction. ⁵⁰ Hence, in the absence of compelling evidence that the respondent was responsible for the appellant's injury, the magistrate should not have convicted him. Specifically, the respondent argued that the fact that he

[W]as convicted in 2015 does not equate to liability for causing loss to the Appellant… In addition, section 29 of the Evidence Act provides for an opportunity for an accused person to prove that he or she did not commit the crime. The standard is on the balance of probabilities. As such, that the Appellant is mistaken in believing that the Respondent's conviction automatically equates to liability or corroboration of this matter. ⁵¹

It is against that background that the court held that evidence before it ‘only lead to the conclusion that there are other possible reasons that could have led to the Appellant's condition other than the Respondent's grass cutter.’ ⁵² On the issue of the admissibility of the previous conviction, the Court referred to s. 29(2) and held that:

The…provision creates a presumption that the matter exists unless the contrary is proved. Section 29(2) thereof requires that the Respondent adduce evidence to prove his innocence. Under the prima facie rule, the record of conviction in the criminal case is admissible in the subsequent civil case as prima facie evidence of the facts stated therein, thereby shifting the burden of disproving such facts to the accused. The trial Judge affirmed that a legal burden of proof was on the defendant in such a case, which must be discharged on the balance of probabilities. This was explained in the case of Sovereign Camp W.O.W. v. Gunn that ‘the other party should not be entirely concluded and shut off from showing there was a miscarriage of justice in the criminal case’. ⁵³

The Court concluded that ‘[n]otwithstanding the Respondent's acceptance of his conviction, there is no evidence that his conduct led to the said damages and the loss suffered’. ⁵⁴ The evidence before the Supreme Court showed that during his trial and conviction before the magistrate's court, the respondent was unrepresented. ⁵⁵ The expert evidence to prove that he was not responsible for the appellant's injury and therefore did not commit the offence was also not available during his trial at the magistrate's court. It was only adduced before the Supreme Court when the appellant sued the respondent for damages. Thus the evidence to prove that he did not commit the offence was adduced during the civil case (when he challenged the appellant's suit for damages). This explains why the Supreme Court, after referring to s. 29 of the Evidence Act, observed that ‘[i]n terms of proof that he did not commit the offence, the Defendant seeks to rely on the evidence of the expert witnesses’. ⁵⁶ Thus, the Supreme Court also expected the respondent to prove, on a balance of probabilities, that he had not committed the offence. After analysing all the evidence before it, ⁵⁷ the Supreme Court concluded that ‘the Defendant has discharged the burden and shown that on a balance of probabilities he did not commit the offence. Conversely, he is not liable’ for the plaintiff's eye injury. ⁵⁸ In other words, he had proved his innocence. It is thus evident that both the Supreme Court and the Court of Appeal held the defendant had proved his innocence. The next part of the article analyses the Court of Appeal's decision.

Analysing the Court of Appeal's decision in Esparon v Philo

The Court of Appeal's decision shows that under s. 29(2), the defendant must prove, on a balance of probabilities, that he was innocent of the offence of which he was convicted. In other words, it endorsed the Supreme Court's view that the respondent had to prove that he/she did not commit the offence. Although the Court of Appeal also held that a person should be allowed to prove that there was a miscarriage of justice in the criminal case, this was meant to emphasise or explain the fact that such a person had to prove his or her innocence. The court understood a miscarriage of justice to mean the conviction of an innocent person. It is not enough to prove that he should not have been convicted of the offence on other grounds, such as, that the trial was unfair or that the evidence relied on for his conviction should have been inadmissible. Since the Court of Appeal in Esparon v Philo referred to the Alabama Supreme Court decision of Sovereign Camp W.O.W. v. Gunn in holding that the person challenging his conviction has to prove a miscarriage of justice (in the sense that he was innocent), it is necessary to take a closer look at the facts and decision in Sovereign Camp W.O.W. v. Gunn. ⁵⁹

In this case, the wife, Mrs Gunn, was convicted of the murder of her husband. Before his death, Mr Gunn had taken out a life insurance policy payable to his wife. After his murder, his daughter, as the assignee of the policy, sought to recover the policy amount for the benefit of her mother. The insurance company objected to the payment on the ground that the beneficially had murdered the policy holder. The main issue before the court ‘was whether the insured was murdered by the beneficiary’. ⁶⁰ The Court referred to case law from different courts in the United Kingdom and the United States in which courts had expressed opposing views on whether a criminal conviction is admissible in civil proceedings as proof that one of the parties committed an offence. ⁶¹ However, the Court demonstrated that in all of the insurance policy cases it referred to, courts had admitted previous convictions of insurance policy holders as proof of their convictions at subsequent civil trials as evidence that they had burnt or otherwise destroyed the insured property for the purpose of ‘cashing-in’ the insurance money or injuring the insurance company. The Court held that although such convictions were admissible in civil proceedings, courts disagreed on the weight that should be attached to the same. Courts had held that such a conviction was either ‘conclusive’ or ‘prima facie/presumptive’ proof or evidence of the fact that the convicted person committed the offence. ⁶² Against that background, the Court held that:

Since another party to a civil suit, in no way bound by the results of the prosecution is offering such record, the other party should not be entirely concluded and shut off from showing there was a miscarriage of justice in the criminal case. Else a further wrong touching property rights may be perpetrated. Certainly, on a showing of perjury in the criminal case, or newly discovered trustworthy evidence, clearly proving the convicted person was in fact innocent, such conviction should not be binding in the civil suit. But, it must be borne in mind, that the record of conviction is a solemn judicial finding, and should be clothed with a prima facie presumption of verity. Upon the introduction of such record, the burden of proof shifts to plaintiff on that issue. The evidence to overcome such prima facie showing is not to be limited to an attack on the judgment of conviction on grounds of fraud or perjury, but all evidence tending to prove the innocence of the beneficiary in fact is to be admitted, and weighed under proper instructions from the court. ⁶³

Thus, according to the Court, a criminal conviction is prima facie evidence that the person in question was convicted of an offence. The burden is on the person disputing the correctness of that conviction to prove that he/she was innocent of the offence in question. If they fail to do so, the conviction will stand as conclusive proof of that conviction. Two observations should be made about this case which perhaps influenced the court's conclusion that the person objecting to the admissibility of the previous conviction in civil matters had to prove that he/she was innocent of the offence he was convicted of. First, the court was dealing with a situation in which Mrs Dunn stood to ‘profit’ from the commission of an offence. The evidence showed that the husband had been murdered shortly after taking up the insurance policies and the accused had lied about hiding the insurance policies after murdering her husband. ⁶⁴ In other words, she came to court with ‘dirty hands’. As the Court of Appeal of Seychelles has held in several decisions, equity requires a litigant to come to court with ‘clean hands’. ⁶⁵ Second and related to the above, in all the insurance policy cases the court referred to, courts had held that a policy holder could not ‘hide behind’ the principle that criminal convictions are inadmissible in civil proceedings to ‘benefit’ from his/her crime. Thus, in insurance policy matters, courts had already created an exception to the rule and the Court would have been required to give very convincing reasons for departing from that exception. Is it against that background that the Court required the defendant to prove her innocence. Otherwise, she would have profited from her crime. Thus, since the Court of Appeal in Esparon v Philo ⁶⁶ was not dealing with a case where a person stood to benefit from his crime, the precedent in Sovereign Camp W.O.W. v. Gunn was not applicable.

However, in the earlier case of Saunders and Another v Loizeau, ⁶⁷ decided before the commencement of s. 29 of the Evidence Act, the Supreme Court of Seychelles referred to cases from the United Kingdom courts decided after the coming into force of s. 11 of the Civil Evidence Act (1968) to the effect that for a person to persuade a court not to rely on his criminal conviction in civil proceedings as proof that he had committed an offence, he had to show that they were innocent. ⁶⁸ This means that both the Court of Appeal and the Supreme Court require a person to prove his innocence if the court is not to rely on his conviction in civil matters. It is thus necessary to take a closer look at how courts in the UK have interpreted s. 11(2) of the 1968 Act. This is because this interpretation is likely to continue influencing the way in which Seychelles courts interpret s. 29 of the Evidence Act. The discussion will also enable one to conclude whether the approach taken by the Supreme Court in Saunders and Another v Loizeau, should be reconsidered.

Section 29(2) of the Seychelles Evidence Act substantially reproduced s. 11(2) of the 1968 United Kingdom Civil Evidence Act. Section 11(2)(a) of the UK Act provides that ‘[i]n any civil proceedings in which by virtue of this section a person is proved to have been convicted of an offence by or before any court in the United Kingdom or of a service offence—he shall be taken to have committed that offence unless the contrary is proved.’ In Hunter v Chief Constable of the West Midlands Police & Others, ⁶⁹ Lord Diplock held that:

Section 11 makes the conviction prima facie evidence that the person convicted did commit the offence of which he was found guilty; but does not make it conclusive evidence; the defendant is permitted by the statute to prove the contrary if he can. The section covers a wide variety of circumstances; the relevant conviction may be of someone who has not been made a defendant to the civil action and the actual defendant may have had no opportunity of determining what evidence should be called on the occasion of the criminal trial; the conviction…may have been entered upon a plea of guilty accompanied by a written explanation in mitigation; fresh evidence, not called on the occasion of his conviction, may have been obtained by the defendant's insurers who were not responsible for the conduct of his defence in the criminal trial, or may only have become available to the defendant himself since the criminal trial. This wide variety of circumstances in which section 11 may be applicable includes some in which justice would require that no fetters should be imposed upon the means by which a defendant may rebut the statutory presumption that a person committed the offence of which he has been convicted by a court of competent jurisdiction. In particular I respectfully find myself unable to agree…that the only way in which a defendant can do so is by showing that the conviction was obtained by fraud or collusion, or by adducing fresh evidence (which he could not have obtained by reasonable diligence before) which is conclusive of his innocence. The burden of proof of ‘the contrary’ that lies upon a defendant under section 11 is the ordinary burden in a civil action: proof on a balance of probabilities; although in the face of a conviction after a full hearing this is likely to be an uphill task. ⁷⁰

Thus, for the defendant to discharge the burden under s. 11, the evidence he adduces does not have to be ‘conclusive of his innocence’. Subsequent to the decision in Hunter, courts have held that once a conviction is adduced in evidence, the presumption is that the offence was committed. However, they have not required the person challenging the conviction to prove his/her innocence. Rather, such a person has to prove that he ‘was not guilty of the offence’ ⁷¹ or that ‘he did not commit the offence of which he was convicted’. ⁷² This is the case even if the person pleaded guilty to the offence. It could be that he was misadvised by his lawyer to plead guilty to an offence he did not commit. ⁷³ The burden is also discharged if the person proves that the conviction was ‘unsafe’, ⁷⁴ ‘wrong’ ⁷⁵ or ‘erroneous’. ⁷⁶ Thus, he has to prove that he was ‘wrongly convicted’. ⁷⁷ In at least one case, the Supreme Court of Seychelles held that what is required of the defendant challenging his conviction under s. 29 of the Evidence Act is to show that it was erroneous. In Karabash v Soudhooa & Others, ⁷⁸ the Supreme Court referred to its earlier case law, including Saunders and Other v Loizeau, and held that:

In several cases…the Court held that evidence of a previous conviction is admissible only to prove that a defendant committed the offence. Once admitted for this purpose, the burden of proof shifts in a civil trial to the defendant to prove the conviction was erroneous and a failure to do so results in a defendant being treated for all purposes as having committed the offence for which sentenced. ⁷⁹

In the light of the above discussion, there is room for the argument that in Seychelles, a person objecting to the admissibility of his criminal conviction in civil proceedings should not be required to prove his innocence. ⁸⁰ The only consideration should be whether there was a miscarriage of justice during the trial which casts doubt on the validity of the conviction. As the Supreme Court of the United Kingdom held, there are four instances in which it can be said that the trial amounted to a miscarriage of justice:

1. Where the fresh evidence shows clearly that the defendant is innocent of the crime of which he has been convicted.

2. Where the fresh evidence is such that, had it been available at the time of the trial, no reasonable jury could properly have convicted the defendant.

3. Where the fresh evidence renders the conviction unsafe in that, had it been available at the time of the trial, a reasonable jury might or might not have convicted the defendant.

4. Where something has gone seriously wrong in the investigation of the offence or the conduct of the trial, resulting in the conviction of someone who should not have been convicted. ⁸¹

The above examples in categories 3 and 4 show the possibility, however slim, that the person committed the offence cannot be ruled out. However, that does not mean that that person was innocent. Seychelles courts have given different examples of what amounts to a miscarriage of justice. For example, in Bakas v R ⁸² the Court of Appeal cited with approval the decision of the Australian case to the effect that:

the duty imposed on a court of appeal to quash a conviction when it thinks that on any ground there was a miscarriage of justice covers not only cases where there is affirmative reason to suppose the appellant is innocent, but also cases of quite another description. For it will set aside a conviction whenever it appears unjust or unsafe to allow the verdict to stand because some failure has occurred in observing the conditions which, in the court's view, are essential to a satisfactory trial, or because there is some feature of the case raising a substantial possibility that, either in the conclusion itself, or in the manner in which it has been reached, the jury may have been mistaken or misled. ⁸³

In Sagwe v R, ⁸⁴ the Court of Appeal explained what amounts to a ‘miscarriage of justice’. Examples of miscarriages of justice have included cases where the accused was convicted of an offence on the basis of his admission in the absence of prosecution evidence to corroborate that admission, ⁸⁵ convicting a person on the basis of a defective charge sheet (indictment), ⁸⁶ and where the court disregarded the law governing recording guilty pleas. ⁸⁷ Thus not every miscarriage of justice necessarily implies that the convicted person did not commit the offence.

The facts of the case in Esparon v Philo shows that the Court of Appeal cast doubt on the respondent's conviction because there was no evidence to prove that his grass cutter caused the victim's injury. It is also important to emphasise that under s. 29(2) there is no requirement that the person should be innocent for the exception to be triggered. A court is required to presume that he was ‘convicted’ of the offence ‘unless the contrary is proved’. It does not state that a person is presumed to have ‘committed the offence unless he proves that he is innocent’. In other words, the presumption rests on the validity of the conviction. Without a valid conviction, the presumption that he committed the offence falls away. Thus, requiring a person to prove his innocence would be a very high threshold. In Esparon v Philo, the court dealt with the admissibility of a Seychelles criminal conviction in civil proceedings. Since Seychelles is home to many foreign nationals and also many Seychellois live and work abroad, it is not far-fetched to argue that some of them may be convicted of offences abroad. Some pieces of legislation contemplate instances where a Seychelles national or resident may be convicted of an offence abroad. ⁸⁸ This requires one to discuss, however briefly, the extent to which s. 29 of the Evidence Act is applicable to foreign convictions. It is to this issue that we turn.

The admissibility of foreign convictions in civil matters

It has been illustrated above that under ss. 29(1)–(3), for evidence to be admitted that the person committed an offence, that person must have ‘been convicted of an offence by or before any court in the Republic’. This should be distinguished from s. 29(4), which provides that evidence that the accused committed an offence is admissible if he/she was ‘convicted of the offence by or before any court’. Section 29(4) is applicable to both Seychellois and foreign convictions. Otherwise, the legislature would have phrased it in the same manner as ss. 29(1)–(3) above. However, the accused can still prove, on the balance of probabilities, that although he was convicted of the offence, there was a gross miscarriage of justice or flagrant denial of justice. If the court is persuaded that there was a gross miscarriage of justice or flagrant denial of justice, for example, that he did not commit the offence, the evidence of his conviction will not be admitted as proof that he committed the offence. In other words, the court will expunge it from the record. Such an approach has been followed in some jurisdictions. For example, the Supreme Court of the United Kingdom held that a foreign conviction is inadmissible in the United Kingdom courts if the trial leading to the conviction was a gross miscarriage of justice. ⁸⁹ Likewise, the European Court of Justice has held that a foreign conviction is inadmissible if the trial leading to the conviction was a flagrant denial of justice. ⁹⁰ Since ss. 29(1)–(3) are silent on foreign convictions, it means that foreign convictions are governed by the Hollington Rule and therefore inadmissible in civil proceedings in Seychelles. This is an approach that has also been taken by the Supreme Court of the UK when interpreting s. 11 of the 1968 Civil Evidence Act. ⁹¹ However, in the UK, courts have held that foreign convictions are admissible in family (childcare proceedings). ⁹² This is because these proceedings are inquisitorial in nature and are meant to protect the welfare of children. ⁹³ Since Seychelles is a state party to the Hague Convention on the Civil Aspect of International Child Abduction (1980), courts may admit foreign convictions in deciding whether to order the return of a child to a parent who is based abroad. ⁹⁴ However, a foreign conviction should only be admissible where there is evidence that the trial resulting into the same met the minimum international standards as stipulated in Article 14 of the International Covenant on Civil and Political Rights (1966).

Conclusion

In this article, the author has analysed s. 29 of the Evidence Act. Thereafter, he has discussed the case of Esparon v Philo particularly and the application of the Hollington Rule generally. The drafting history of s. 11 of the 1968 UK Civil Evidence Act has also been discussed briefly. The relevant case law on s. 11 has also been referred to. It has been argued, inter alia, that foreign convictions are, as a general rule, inadmissible in civil proceedings. However, they should be admissible in family (welfare) proceedings. It has been illustrated that in Esparon v Philo, the Court found that the defendant had not committed the offence of which he was convicted. However, this does not mean that he was acquitted or that his conviction was expunged. It was held that the fact that a defendant has persuaded a civil court that he did not commit the offence does ‘not overturn his criminal conviction, but would only have the effect that the impact of the conviction would not be taken into account in’ the civil proceedings. ⁹⁵ Thus a person who finds himself in such a situation may have to approach the sentencing court to reopen the case, admit new evidence (which was adduced at the civil trial) and ask for an acquittal. The Court of Appeal has explained circumstances in which a court can reopen a completed case. ⁹⁶ Such a person could also approach the President, through the relevant committee, for a presidential pardon under Articles 60 and 61 of the Constitution (1993). However, the challenge is that legislation in Seychelles is silent on whether a free pardon expunges a conviction. Countries have followed two approaches on this issue. In some countries such as Canada, ⁹⁷ South Africa, ⁹⁸ Australia ⁹⁹ and New Zealand, ¹⁰⁰ legislation expressly provides that a free pardon expunges a conviction. In others, such as United Kingdom, ¹⁰¹ Swaziland, ¹⁰² Australia, ¹⁰³ Barbados, ¹⁰⁴ Pakistan ¹⁰⁵ and Fiji, ¹⁰⁶ legislation is silent on whether a free pardon expunges a conviction and courts have held that only acquittals expunge convictions. Since Seychelles legislation is silent on this issue, courts are more likely to follow the approach taken in other commonwealth countries where courts held that a free pardon does not expunge a conviction. Such a person could also approach courts to order that he should be compensated under Article 19(13) of the Constitution if he proves that he suffered a serious miscarriage of justice. ¹⁰⁷