Court of Criminal Appeal
| Published date | 01 January 1965 |
| Date | 01 January 1965 |
| DOI | http://doi.org/10.1177/002201836502900104 |
| Subject Matter | Article |
Court of
Criminal
Appeal
EVIDENCE OF WITNESS'S MENTAL
CONDITION
R.
v. Toohey
THE above case (1964 3W.L.R. 1286) raised avery
important question in
the
law of evidence; whether evidence
of a witness's mental condition can be called to discredit
the
witness. Setting aside
the
question whether
the
existing law
prohibits evidence of this nature, general considerations of
attaining justice point to
the
desirability of placing
such
evidence before ajury, whether it is a witness for
the
prosecu-
tion or for
the
defence whose mental state is in issue.
If
a
witness is in fact handicapped by some defect of
mind
it is
obvious
that
his evidence
must
be suspect.
The
facts giving rise to this question were
that
on
the
7
May
1964
the
appellant and two
other
men
stood their trial
before
Judge
Kelly Carter
and
a
jury
at
the
Central Criminal
Court
on an indictment containing two counts:
(I)
that
on
the
25 January 1964 they
had
assaulted one Roger Barry
Madden
then
aged 16
with
intent to rob
him;
and (2)
that
on
the
same
occasion they had demanded money
with
menaces from him.
The
jury
disagreed.
On
the
27
and
29
May
1964
the
defendants
were tried again before
Mr.
Commissioner
Humphreys
and a
jury
and on this occasion theywere convicted on
the
first count.
The
appellant was sentenced to two years' imprisonment.
At
both
trials
the
evidence was
the
same except
that
on
the
first trial a
Dr.
Warren, a police surgeon was called for
the
defence and gave certain evidence which
the
learned Commis-
sioner disallowed on
the
second trial as inadmissible having
regard to
the
decision of
the
Court
of Criminal Appeal in
R.
vGunewardene (1951 2
K.B.
600; 16
J.C.L.
62).
Madden's
evidence was to
the
following effect.
That
he
was walking in
the
neighbourhood of a cinema at
Eltham
on
the
evening of
the
25 January 1964 when he
met
the
three
defendants, two of whom (Gibbons and Watson) he already
24
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