Report No. 69

Chapter 56

Presumptions-discretionary and Rebutting

Section 114

1. Introductory

56.1. Introduction.-

There are certain presumptions which are made at the discretion of the court, and are not mandatory by law. Many of these are dealt with in section 114. Nothing very general can be said about these presumptions, and the weight to be attached to them depends on the circumstances of each case. However, it can be stated that they are based on the inferential value or probative force of certain facts. Even in the absence of a statutory provision, the court could have drawn the presumptions: but the merit of having a statutory provision is that the attention of the court is immediately drawn to the fact that the particular presumption could be made.

56.2. Two conflicting presumptions.-

There may be cases where two presumptions are made, and then according to Professor Morgan,1 the solution depends on balancing the social policy underlying the presumption. For example, take a case where there is a conflict between the presumption of validity of marriage and the presumption of innocence, (that is to say, a presumption against bigamy on the one hand) and the presumption of continuance (on the other hand). Then the presumption of innocence should outweigh the presumption of continuance of life, because it is socially important that marriages are not lightly invalidated and that persons are not lightly to be assumed to be guilty of bigamy.2

1. Morgan in 44 Harvard Law Review 906.

2. See Williams Criminal Law, Chapter 23 and 61 LQR 379.

56.3. Presumptions-Nature and Rebuttal.-

Speaking about the nature of presumptions, Pressor says:1 "a presumption, as a rule of law applied in the absence of evidence, is not itself evidence, and can no more be balanced against evidence than two and a half pounds of sugar can be weighed against half-past two in the afternoon."

Most presumptions are rebuttable-hence the view that presumptions are "bats of the law flitting in the twilight, but disappearing in the sunshine of actual facts"2.

1. Prosser Handbook of the Law of Torts, (4th Edn. 1971), para. 38.

2. Mackowik v. Kanasas City. St. J. & C.B.R. Co., 94 SW 256 (262) (per Lamm, J.).

56.4. Scheme of the section.-

Section 14 deals with a group of such rebuttable presumptions. Here is the text of the section in its enacting par t:-

"114. The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.".

The Illustrations to the section state that the Court "may presume" the following facts:-

"(a) That a man in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession;

(b) That an accomplice is unworthy of credit, unless he is corroborated in material particulars;

(c) That a bill of exchange, accepted or endorsed, was accepted or endorsed for good consideration;

(d) That a thing or state of things which has been shown to be in existence within a period shorter than that within which things or states of things usually cease to exist, is still in existence;

(e) That judicial and official acts have been regularly performed;

(f) That the common course of business has been followed in particular cases;

(g) That evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it;

(h) That if a man refuses to answer a question which he is not compelled to answer by law, the answer, if given, would be unfavourable to him;

(i) That when a document creating an obligation is in the hands of the obliger the obligation has been discharged."

56.5. But these illustrations are followed by a caveat: "The Court shall also have regard to such facts as the following, in considering whether such maxims do or do not apply to the particular case before it. The caveat itself is illustrated by explanatory comments which can be conveniently called "counter illustrations". Thus-

"As to illustration (a)-A shop-keeper has in his till a marked rupee soon after it was stolen, and cannot account for its possession specifically, but is continually receiving rupees in the course of his business;"

"As to illustration (b)-A a person of the highest character, is tried for causing a man's death by an act of negligence in arranging certain machinery B, a person of equally good character, who also took part in the arrangement, describes precisely what was done, and admits and explains the common carelessness of A and himself;"

"As to illustration (b)-A crime is committed by several persons. A, B and C, three of the criminals, are captured on the spot and kept apart from each other. Each gives an account of the crime implicating D, and the accounts corroborate each other in such a manner as to render previous concert highly improbable;"

"As to illustration (c)-A, the drawer of a bill of exchange, was a man of business. B, the acceptor, was a young and ignorant person, completely under A's influence;"

"As to illustration (d)-It is proved that a river ran in certain course five years ago, but it is known that there have been floods since that time which might change its course;"

"As to illustration (e)-A judicial act, the regularity of which is in question, was performed under exceptional circumstances;"

"As to illustration (f)-The question is, whether a letter was received. It is shown to have been posted, but the usual course of the post was interrupted by disturbances;"

"As to illustration (g)-A man refuses to produce a document which would bear on a contract of small importance on which he is sued, but which might also injure the feelings and reputation of his family;"

"As to illustration (h)-A man refuses to answer a question which he is not compelled by law to answer, but the answer to it might cause loss to him in matters unconnected with the matter in relation to which it is asked;"

"As to illustration (i)-A bond is in possession of the obligor, but the circumstances of the case are such that he may have stolen it."

The illustrations are taken from the important presumptions relating to innocence,1 regularity2 and continuity,3 which were recognised at common law.

1. See Illustrations (a), (b), (g) and (h).

2. See Illustrations (c), (e), (f), (i).

3. See Illustration (d).

II. Rationale

56.6. Woodroffe1 has eloquently explained the rationale underlying section 114. "The history of jurisprudence illustrates the fact that among Judges, as among Legislators, there is a constant struggle, however ineffectual it may be, to approach uniformity in the law. Although every Judge understands that each case should be determined according to its own facts, he often finds different cases so nearly analogous in the facts presented that similar instructions to the jury or directions to himself are appropriate in each. Judges thus find themselves not only applying to different cases the same substantive rules of law, but they derive aid from precedents even in reaching conclusions as to the facts of a given case.

This is well illustrated by the growth of presumptions of law. Out of the attempts of many Judges to deduce rules for determining the probative effect of certain facts or groups of facts often recurring, have developed in England man rules called presumptions, but which widely differ in importance and intensity. English and American Courts are, however, now inclined to abandon the arbitrary rules of evidence which formerly forbade inquiry into the real facts, and but few of the numerous presumptions formerly called conclusive can now be so classified.2 The Act is a strongly marked instance of this tendency."

1. Woodroffe Evidence Act, comment on section 114.

2. Burr. Jones Evidence I, sections 8, 10.

56.7. As Stephen1 has said-"The terms of this section are such as to reduce to their proper position of mere maxims which are to be applied to facts by the Courts in their discretion2, a large number of presumptions to which English law gives, to a greater or less extent, an artificial value. Nine of the most important of them are given by way of illustration."

1. Stephen Introduction to Evidence, p. 175.

2. Emphasis supplied.

56.8. Utility of illustration.-

The principle to which legislative recognition is given in the section is obviously of an abstract character, and by reason of its generality, it is difficult to apply it to a particular case unless something more concrete is before the mind. It is because of this aspect of the matter that the legislature has chosen to give elaborate illustrations and counter-illustrations to the section. In fact, it is these illustrations which raise questions worthy of consideration, and we, therefore, proceed straightaway to a discussion of the illustrations without making further comment's on the enacting part of the section.

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