Report No. 69

7.91. Illustration.-

Illustration (a) to the section provides that where the question is whether a given document is the will of A, the state of A's property and of his family at the date of the alleged will 'may be relevant facts'. These are facts which are necessary to explain or introduce the fact in issue-the document supposed to be the will. As is apparent from the last nine words of the section, such facts are relevant in so far as they are necessary for that purpose. This, apparently, is the reason why, in this illustration and also in illustration (b), the words "may be" are used. It should also be noted that in illustration (a), only the factum of the will is in issue.

7.92. Illustration (b) deals with a case where A sues B for a libel imputing disgrace to A; B affirms the matter alleged to be libellous to be true. The position and relations of the parties at the time when the libel was published "may be" relevant facts under this illustration. The reason is that they introduce the facts in issue-the libel and the disgraceful conduct imputed thereby. The illustration also provides that the fact that there was a dispute between the parties, if it affected the relations between the parties, may be relevant; but the particulars of a dispute about the matter unconnected with the alleged libel are irrelevant.

The existence of the unconnected dispute, though not the particulars thereof, would be relevant either as introducing the alleged libel (section 9), or as constituting a motive for the libel (section 8), or as showing the conduct which influenced the libel (section 8) or as showing facts which are the cause of the libel (section 7).

7.93. In cases of libel, malice may be inferred not only from the transaction itself (i.e., the nature of the libel, with its mode and extent of publication), but also from previous ill feeling or disputes between the parties, the repetition of the libel, the publication of similar ones on other occasions1 and, in fact, from the defendant's whole conduct down to, or even at, the .time of libel.

1. Praed v. Graham, 24 Queen's Bench Division 53 (CA); Simpson v. Robinson, 12 Queen's Bench 511.

7.94. Illustration (c) relates to leaving one's house by a person accused of crime, soon after the accusation. The fact that he had some sudden and urgent business is relevant. This refers to facts which are explanatory of conduct which may otherwise appear to be incriminating or wrongful. The presumption or inference which would otherwise arise from the act of absconding (section 8) is rebutted. The fact that the accused had sudden and urgent business, rebuts the inference suggested by his suddenly leaving home after the crime was committed. Illustration (d) refers to alleged breach of contract. A statement by the person alleged to have committed the breach, explaining why he left, is relevant.

7.95. Illustration (e) not only illustrates section 9, but also throws some light on the meaning and scope of section 6.1 The illustration is as follows:-

"A, accused of theft, is seen to give the stolen property to B, who is seen to give it to A's wife. B says as he delivers it-'A says you are to hide this'. B's statement is relevant as explanatory of a fact which is part of the transaction."

Illustration (f) takes the case where A is tried for a riot and is proved to have marched at the head of a mob. The cries of the mob are relevant as explanatory of the nature of the transaction. Both illustrations (e) and (f) make it clear that statements made by a person other than the accused may be tendered in evidence as explanatory of the transaction which comprises the alleged crime.

1. See also discussion below.

7.96. Rationale of section 9.-

While sections 7 and 8 provide for the admission of facts causative of a fact relevant or in issue, section 9 generally provides for facts explanatory of any such fact. There are many incidents which, though they may not strictly constitute a fact in issue, may yet be regarded as forming a part of it, in the sense that they accompany and tend to explain the main fact, such as identity,1 names, dates, places, description, circumstances and relations of the parties and other explanatory and introductory facts of a like nature.2

The particulars receivable will necessarily vary with each individual case; it is not all the incidents of a transaction that may be proved; for the narrative might be run down into purely irrelevant and unnecessary detail. It should be noted that the facts are relevant, "in so far as they are necessary for that purpose".

1. See-

(a) R. v. Richman, 2 East PC 1035;

(b) R. v. Rooney, 7 C&P 517.

2. See R. v. Amir Khan, (1871) 9 BLR 36 (50, 51).

7.97. Questions raised by illustration (d) and (e) as to statements.-

Both these illustrations raise an important question as to whether the statements which are made relevant by those illustrations are receivable only as evidence that such statements were made, or whether they are receivable as evidence of the truth of the facts declared. It would be obvious, on a close reading of the section and the wording of the illustrations, that the former is the correct view. Under illustration (d), for example, the statement made by the person leaving the service as to a better offer made by another person, is relevant only as explanatory of the conduct of the person leaving, and does not, it is suggested, amount to any evidence that B did, in fact, make such a better offer.

That fact has to be independently proved. This view has the support of Norton.1 Since the conduct of the person leaving is a relevant fact-or rather, a fact in issue-whatever explains that conduct, is admissible under section 9. Such explanatory facts are relevant, as the section says, "in so far as they are necessary for that purpose".

1. Para. 7.99, infra.

7.98. The same comment applies to illustration (e). Though, at first sight, it may appear that, by virtue of this illustration, what a person said is going to be made evidence against the accused, it is not in reality so. Before the illustration can apply, two facts, postulated in the illustration, must exist, namely, that the accused was seen to give stolen property to B, and B was seen to give the stolen property to the wife of the accused. If these two facts are proved, then, in explanation or elucidation of the conduct of B (giving stolen property to the wife of the accused), what B said at the time becomes relevant. It is, however, relevant only for the purpose of explaining his conduct, and his statement that "A says you are to hide this" cannot be used to. prove that A said so, but can be used to prove only why B gave the property to the wife of the accused.

7.99. Comments by Norton on illustrations (d) and (e).-

Commenting on illustrations (d) and (e), Norton,1 in his work on Evidence, expresses the opinion that this section introduces a dangerous innovation. Statements explanatory under this section are admissible, irrespective of the English "hearsay" rule, which requires the presence of the person against whom the statement is made. It is necessary to distinguish the purpose for which such statements are admitted, and Norton's suggestion that the statements made by C in the one case and B in the other are receivable only as evidence of the fact that they were made and not of their truth as affecting B or A respectively, appears to be justified. No doubt, if such a statement be once admitted and the Court believes that it was in fact made, it may be difficult to exclude its purport from consideration. But the law does require the court to do so. On this interpretation of the scope of the section, there is no need to object to the illustrations under discussion.

1. Norton Evidence, p. 116, cited by Field.

7.100. Illustration (f).-

Illustration (f) to the section is taken from the case of Gordon.1 In the case put in this illustration, the cries would be made in the presence of the leader though they were the cries of third parties, and the silence of the leader would be equivalent to an admission that he acquiesced in those cries as explanatory of the common object of himself as well as of the persons whom he led. His presence, and the fact of his having led the mob, are essential pre-conditions for the application of the illustration, which also assumes that he did not protest or object to the cries. They are also declarations accompanying the transaction.

1. R. v. Lord George Gordon, (1781) 21 How ST 535 (536).

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