The first plaintiff witness has given evidence-in-chief to the effect that the plaintiff and the first defendant were recently arraigned before the district court on charges of careless driving and negligently causing harm and that he knew how the plaintiff pleaded. Counsel followed up by asking him to tell the court the explanation the plaintiff gave in the court room. To this question the defendants' counsel has raised an objection on the ground that proceedings in a criminal action are inadmissible in a subsequent civil action on the same facts and quoted Hollington v. Hewthorn (F.) & Co., Ltd. [1943] 1 K.B. 587, C.A. in support. Besides, he argued that as the witness did not give the explanation, he could not see how he could be called upon to give that evidence. In reply, the plaintiff's counsel [p.787] invited the court not to equate irrelevancy with inadmissibility because evidence may be admissible although irrelevant. To him, Hollington v. Hewthorn (F.) & Co., Ltd. (supra) only deals with objection in tendering criminal proceedings. According to counsel the Hollington v. Hewthorn (F.) & Co., Ltd. (supra) rule is now qualified by the Evidence Decree, 1975 (NRCD 323). As the witness is to testify on what took place before him, he contended that the evidence is admissible.
The rule of evidence of Hollington v. Hewthorn (F.) & Co., Ltd. postulates that a conviction in a criminal court cannot be used as evidence, not even prima facie evidence, in a civil case. This is an English rule which has found its way into our jurisprudence. In England, the judges have cried for an alteration of the rule because it works out inconvenience: see for instance Goody v. Odhams Press Ltd. [1966] 3 W.L.R. 460 and Barclays Bank, Ltd. v. Cole [1967] 2 W.L.R. 166. It was, indeed, pointed out in the latter case by Denning M.R., the most vociferous proponent for a change of the rule, that in the United States of America in similar circumstances, it has been held that a conviction is not only receivable but is conclusive evidence: see Hurtt Trustee v. Stirone 416 Pa. 493 (1965).
Section 127 (1) of NRCD 323 now happily reverses the rigid rule of Hollington v. Hewthorn. That section stipulates that evidence of a final judgment in a criminal action of a court in Ghana adjudging a person guilty of a crime is admissible when offered to prove any fact essential to the judgment. A conviction is such a fact. This disposes of the controversy about the rule in Hollington v. H
