Punishment for Defamers

Published date01 May 1965
DOIhttp://doi.org/10.1111/j.1468-2230.1965.tb01081.x
Date01 May 1965
MAY
1965
NOTES
OF
CASES
36
1
concerned. It was decided that the frail substructure of ancient
cases in which witnesses had been allowed to impeach the witnesses
on
the other side by asserting that, for whatever reason, they would
not believe them, was quite insufficient to support
so
wide a rule
as
that stated in
R.
v.
Gune~ardene.~
It
was felt that there were
no grounds
for
extending a rule anomalously allowing the expres-
sion
of
personal prejudice to cases where there might be good
scientific reasons for disbelieving a witness. The cases dealing with
the competence of mentally deranged witnesses were considered to
provide more guidance. Some reliance was placed upon an obser-
vation of Alderson
B.,
during argument in
R.
v. suggesting
that medical evidence should be before the court.
It
is
significant,
however, that
a
subsequent intervention in that case by Lord
Campbell
C.J.
asserting that the rule is exactly the same whether
the grounds
for
doubting the witness's veracity are moral or
medicaly9 is very conveniently ignored.
It
is felt that this case is an
equally slender foundation for the new rule since
it
is at least
arguable that the whole point of deciding the question as one of
competency is to prevent its being raised subsequently as a matter
of
credit.
Nevertheless,
it
is clearly sensible that such evidence should be
before the jury.
It
was faintly argued, as
it
had also been in
It.
v.
Gunewardene,a
that this would lead to practical difficulties.
It
is
easy to demonstrate that this is not the case. The claim is
sometimes made that this rule will lead to an infinite regress of
witnesses each asserting that he would not believe the witness last
called.
It
is suggested that the grotesque prospect of a stream
of doctors entering the witness box, each asserting that his predeces-
sor
is suffering from a disease preventing him from telling the truth
is unlikely to occur outside the works of N.
F.
Simpson, even
allowing for professional antagonism.
Nor
is the rule
in
R.
v.
Gunewardene
a
proof against such a similar possibility.
It
is also
said that this rule will involve a trial within a trial.
As
Lord Pearce
pointed out this will not happen often, is already provided for in
other situations, and will occasion no inconvenience since in this
case there will be no need for the
jury
to retire.
COLIN
TAPPER.
PUNISHMENT
FOR
DEFAMERS
IN
McCarey
v.
Associated Newspapers
Ltd.'
the Court of Appeal has
accepted that the restrictions placed on the right to exemplary
damages in tort
by
the House
of
Lords
in
Roolces
v.
Bnrnard
(1851) 20
I,..T.M.C.
222.
9
Ibid.
at
p.
223.
1
[1964]
1
W.L.R.
855;
[1964]
3
All
E.R.
947.
i\
19641
.
A.C.
1129
at
pp.
1220-1231,
per
Lord
Devlin,
rho
speaks
for
tbe
\\hole
louse
on
the
matter
\*OL.
25
13

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