Report No. 69

XXIII. "Admissible"

6.83. For reasons which will be indicated later1, when we discuss the distinction between "relevant" and "admissible", we recommend that the expression "admissible" should be defined as meaning "admissible in evidence".

1. Para. 6.99, infra.

XXIV. Section 4

6.84. Section.- Definitions of 'may presume', 'shall presume', 'conclusive proof'.-

This takes us to section 4. The definitions of "may presume", "shall presume" and "conclusive proof", contained in this section, are of great importance in relation to presumptions. The expressions denote various classes of presumptions.

6.84A. Scheme.-

The subject of presumptions has been the subject-matter of academic discussion in other countries and, as a result, nice classifications have been made as to the various kinds of presumptions. Fortunately, the Act enables us to avoid most of these problems by providing a simple formula which, while retaining the basic classification of presumptions, does not suffer from the complexity that prevails in other countries. We shall not, at this stage, refer to the various presumptions to be found in succeeding sections of the Act. It is sufficient to explain briefly the scheme of section 4.

6.85. The section contemplates three classes of presumptions, which can be classified as-

(i) rebuttable and discretionary presumption-"may presume";

(ii) rebuttable but mandatory presumptions-"shall presume"; and

(iii) irrebuttable and mandatory presumptions-`conclusive proof'.

6.86. The first paragraph of section 4 provides that whenever it is provided by this Act that the Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it. In such a case, as is evident from the words used in the section, it rests with the discretion of the court whether or not to draw the presumption, and even if it is drawn in a particular case, it is rebuttable. Such presumptions are essentially inferences formed not by virtue of any law but by the spontaneous operation of the reasoning faculty. They correspond to what Stephen described as 'bare presumptions of fact'.1

1. Stephen Introduction to the Evidence Act, p. 174.

6.87. The second paragraph of section 4 provides that whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved. The presumption in this case is mandatory, and must be drawn where the conditions requisite, as laid down in the particular section, are satisfied. However, it is rebuttable, and the fact presumed can be 'disproved'-it being borne in mind that the expression 'disproved' bears the meaning assigned to it by section 3.

6.88. The third and last paragraph of section 4 provides that when one fact is declared by this Act to be conclusive proof of another, the Court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it. Usually, in illustrating the expression "conclusive proof", sections 112 and 113 of the Act are referred to. These sections do use the expression "conclusive proof". However, it may be noted that section 113 has been declared ultra vires.

For reasons to be given later1, we propose to recommend its deletion. Section 112 provides that birth during marriage is conclusive proof of paternity; but the section does leave scope for rebutting this presumption by showing that the parties to the marriage had no access to each other at any time when the person in question (i.e. the person born during marriage) could have been begotten.

It may also be pointed out that section 41 uses the expression "conclusive proof"; that section provides that a final judgment, order or decree of a competent court, in the exercise of probate, matrimonial, admiralty or insolvency jurisdiction, which confers or takes away any legal character etc., is conclusive proof, inter alia, that any legal character which it confers accrued at the time when such judgment, order or decree came into operation. In this section, the word 'conclusive' seems to have been suggested by the discussion by Peacock C.J. in Kanhya v. Radha, 7 WR 339 (Cal) where it is said of a decree of divorce:

"It is conclusive upon all persons that the parties have been divorced and that the parties are no longer husband and wife: but it is not conclusive, nor even prima facie evidence against the strangers that the cause for which the decree was pronounced existed." The expression "conclusive evidence" occurs also in one of the leading English cases on res judicata-the Dutchess of Kingston's case.2

1. See recommendations as to section 113.

2. Dutchess of Kingston's Case, 11 ST 262.

6.89. Lastly, section 31, provides that admissions are not conclusive proof of the matters stated.

XXV. "Relevant" and "Admissible"

6.90. Question of terminology employed in other sections.-

Before concluding our discussion of the definitions, we should deal with an important question concerning the terminology employed in other sections of the Act. The question arises by reason of the broad principle underlying the Act, namely, that evidence can be given only of facts in issue and facts relevant to facts in issu.- unless the evidence is excluded by specific rules of exclusion. Such relevant facts as are not facts in issue can be conveniently described as "collateral facts."

6.91. Section.-Relevancy and admissibility-Three proposition.-

This broad principle shows the importance of three propositions, namely-

(1) Facts sought to be proved must be connected with facts in issue.

(2) The connection must amount to relevance as provided in the Act.

(3) There should be no rules of exclusion applicable to the particular evidence.

6.92. Connection requisite.-

The first proposition stresses the importance of facts in issue and of a connection between the fact in issue and the collateral fact. The collateral fact must be relevant to a fact in issue. It must, in other words, be 'material' for the purpose of the particular dispute. According to Nokes,1 "Materiality" indicates that a fact is adequately related to a party's case; in other words, that a fact constitutes or relates to some element of his claim or defence, without which he cannot establish the right asserted, or resist the claim. The element of 'materiality' has been stressed in other writings2 also.

1. Nokes Introduction to Evidence (1967), p. 83.

2. See, for example, J.L. Montrose Basic Concepts of the Law of Evidence, (1954) 70 LQR 527.

6.93. Nature of the connection.-

The second proposition is concerned with 'relevance'. Relevance is really a question of validity of thought, or a question of probative value. The need for using the expression 'relevant in the Act has been felt only in order to indicate, broadly, the circumstances in which one fact is regarded as of probative value to another fact which is to be proved. This part of the Act-that is to say, mainly (but not exclusively) sections 5 to 16-is really a codification of rules about probative value based on ordinary principles of common sense.

To quote Stephen1 again,2 "The word 'relevant' means that any two facts are so related to each other that according to the common course of events one, either taken by itself or in connection with other facts, proves or renders probable the past, present or future existence or non-existence of that other."

1. Stephen Digest of the Law of Evidence.

2. See also supra.

6.94. As Montrose has observed1, "The concept of relevance is concerned with the relationship which the tendered evidence has to the fact it is sought thereby to prove because of the order of nature; it posits a natural connection between factum probans and factum probandum." Thayer2 often used, as a synonym for 'relevant', the phrase 'logically probative', and Wigmore used the phrase 'rationally probative'.3

1. J.L. Montrose Basic Concepts of the Law of Evidence, (1954) 70 LQR 527 (537).

2. Thayer, quoted in J.L. Montrose Basic Co.Icepts of the Law of Evidence, (1954) 70 LQR 527 (538).

3. Wigmore, cited in J.L. Montrose Basic Concepts of the Law of Evidence, (1954) 70 LQR 527 (528).

6.95. Rules of exclusion.-

The third proposition really relates to the 'admissibility' of evidence, and not to its relevance. A fact otherwise relevant may be excluded, because of some policy of the law-e.g. hearsay, opinion, character, privilege, State secrets etc. The reason for excluding hearsay evidence, evidence of opinion, character, privilege, State secrets and the like is not that the fact concerned is not relevant. Hearsay may be relevant.1 As has been often pointed out, in a trial for murder the fact that B (non-witness) told A (witness) that B saw the accused stabbing the victim, is 'relevant' in the logical and rational sense.

The relationship between the two facts-the fact in issue and what B told he saw-is such that according to the common course of nature, one fact does render the other probable. What B saw is, if not a fact in issue, at least a collateral fact. If the collateral fact is true, its truth tends to show the existence of the fact in issue. The real reason for excluding the evidence in question is the policy of the law. Relevance is a 'pre-legal' concept.2 Admissibility is legal concept. The two should be kept apart.

1. See para. 6.96, infra.

2 The expression 'pre-legal' is suggested by J.L. Montrose Basic Concepts of the Law of Evidence, (1954) 70 LQR 527 (538).

6.96. Example-Hearsay not admissible though relevant.-

The logical relevance of hearsay, can hardly be doubted, and its exclusion must, in our view, rest on the infirmities inherent in second-hand information. In fact, it has been held in Australia1 that it is proper to pay regard to hearsay, if, by accident or design, the party entitled to object to it lets it in. This shows that hearsay would be 'relevant', though this does not imply that it is admissible.

1 Walker v. Walker, 57 Commonwealth Law Re 630 (Aust).

6.97. Another example-Character and opinion.-

The same reasoning applies to character. In Brawn v. Eastern & Midlands Rly. Co., 22 QBD 391 (393). Stephen J. said, "you must not prove that a particular engine driver is a careless man in order to prove that a particular accident was caused by his negligence on a particular occasion". This is because the law excludes evidence of character as shown by habit-except in special cases, as a matter of policy. The position regarding opinion is the same. The fact that a person holds a particular opinion as to the facts in issue may be relevant; but, in general, the opinions of non-experts are excluded.

Generally speaking, it is for the tribunal of fact to formulate its own opinion on facts presented by witnesses who perceived them by the exercise of their physical senses. Nevertheless, logically, the opinion of an eye-witness who perceived the fact in issue might be of value, even though the witness had no recollection of the fact perceived, but only a recollection of an opinion formed at the time. In fact, in some cases, evidence is allowed to be given of an opinion formed by a non-expert. Age, identity, speed, and intoxication are, for example, subjects on which non-expert opinion is admissible.1-2

1 R. v. Davies, (1962) 1 WLR 1111.

2 Hudson Opinion Evidence in Intoxication, (1963) 79 LQR 31.

6.98. Flaw in the present wording.-

Now, the terminological flaw in the Evidence Act, in this respect, lies in its using the expression 'not relevant', where1 what is really meant is 'not admissible'. According to Nokes:2 "Relevance depends on reasoning, but admissibility depends on law; and, to be received in evidence, facts must be both relevant and admissible. Admissibility denotes that there is no rule of law or practice by which facts must or may be excluded. It is, thus, necessary to bear in mind the distinction between relevance and admissibility; or, more clearly, the distinction between relevance and inadmissibility."

1 E.g. Sections 51 to 55 etc.

2. Nokes Introduction to Evidence, (1967), p. 83.

6.99. Recommendation to substitute 'admissible' in certain sections and to define 'admissible'.-

In view of the inaccuracy in the present terminology as discussed above, the better course, in our view, would be to avoid the term 'not relevant' in those sections where what is meant is 'not admissible'. Whilst preserving the word 'relevant' in sections.-16, we should, therefore, substitute the word 'admissible' for the word 'relevant', wherever the former appears to be more appropriate-a definition of 'admissible' being added, in section 3, as meaning 'admissible in evidence.1

1. Section 3 to be mended to insert a definition of admissible' see para. 6.83, supra.

6.100. Confessions and character.-

The sections relating to confessions and character require some discussion in this connection. One of us was of the view1 that in section 24, the confession is, logically also, not relevant. In sections 52-55 also, according to him, character evidence is excluded because logically, it is not relevant.

The rest of us are, however, of the view that both in section 24 and in sections 52-55, the evidence would be relevant, but is excluded for certain reasons. For example, character evidence is excluded, not because it has no relevance in the sense of probative value, but for certain reasons of policy. If a man has committed a hundred thefts previously, logically he may have committed the present theft. But the law excludes such evidence for reasons which are well-known.

Similarly, involuntary confessions are not 'irrelevant', speaking logically. It is true that they are not the products of a free will. But it can be said that even if a confession is involuntary, it may be logically probative. The law excludes it for reasons of policy.

1. Shri Sen-Verma.

6.101. It may be stated that though the words 'logically relevant' are not used in the Act, the concept of logical (probative) effect is writ large in sections 5 to 16.

It could be argued that Stephen's scheme is that in the definition in the Act of 'relevant', the scope of 'irrelevant' includes what is inadmissible. It should, however, be pointed out that 'relevance' must be based on a logical connection. Section 5 provides that evidence may be given of facts 'hereby declared to be relevant'. But that does not mean that rules of admissibility are disregarded, it only shows that logical and legal relevance are not the same.

The mere fact that a fact is relevant does not make evidence of it admissible. The crucial question is, whether facts, which are relevant, should, when they are excluded on grounds of policy, be described as 'irrelevant' or whether they still remain relevant and would be better described as inadmissible. We take the latter view. In Stephen's scheme, he used the expression 'irrelevant' as covering inadmissible'. The question is whether the artificial usage should be retained, or whether there is scope for improvement, to think that an improvement is needed, and is practicable.

6.102. Recommendation.-

In the light of the above discussion, we recommend that the sections concerned should be amended accordingly,1 and also that a definition of "admissible" should be added, as suggested above.

(a)	Section 3 (a definition of admissible to be inserted).
(b)	Section 5 (Explanation to be added).
(c)	Sections 21-23 (Admissions) Section 24, 28, 29 (Confessions) Sections 32-36 (Statements out of court).	[Expression 'relevant' to be replaced by the expression 'admissible' where the context so justifies, for sections in group (c).]
		Section 38 (Law Reports) Sections 40-44 (Judgments) Sections 45-51 (Opinions) Sections 52-55 (Character).

1. The List is tentative.

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