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Where am I now? Lawlink > Law Reform Commission > Publications > Report on Defamation
Report 11 (1971) - Defamation
Report on Defamation
To The Honourable K. M. McCaw, M.L.A.,
Attomey General for New South Wales.
1. You have made a reference to this Commission in the following terms
“To review the law and practices of the Courts in relation to libel and slander; and without limiting the generality of the foregoing, to enquire into the extent to which the Law and the practices of the Courts as at present existing in respect of Contempt, Libel, and similar legislation hamper the Press in publishing facts of public interest and in editorially commenting thereon within the limit of what is necessary for the protection of the liberty of the subject and the security of the State.”
2. This report deals only with the law and practice of the courts in relation to libel and slander. We leave for future consideration the remainder of the matters covered by the terms of reference.
3. We do not read our terms of reference as including blasphemous, seditious or obscene libels. Since, however, the Defamation Act, 1958, s. 42 (2), deals with a point of procedure relating to the offences of obscene and blasphemous libels, and since we propose the repeal of the Act of 1958, we propose, as an incidental matter, an amendment to the Crimes Act, 1900, inserting a new section 574A, to an effect similar to that of section 42 (2) of the Act of 1958.
4. Further, we do not read our terms of reference as including slander of title, slander of goods, and other cases of malicious falsehood. These are common law wrongs committed by the publication of a malicious falsehood whereby actual damage is caused to the person suffering the wrong. Save that these wrongs involve the publication of an imputation, they have no resemblance to the wrong of defamation.
5. Finally, so far as concerns the scope of this report, we are not concerned here with the protection of privacy nor with the protection of confidential information. Infringements of privacy, or disclosures of confidences, may also be defamatory, but the law of defamation was never intended to protect thesis interests and it is not a fit instrument for that task.
6. We therefore address ourselves in this report to the law of libel and slander, or defamation. One man defames another when he publishes to a third person an imputation harmful to the reputation of that other. The defamer may be liable in damages civilly at the suit of the person defamed and he may be liable to fine or imprisonment or both in a criminal prosecution. This report is concerned with the conditions of these liabilities, the defences oden to the defamer, the procedures in civil actions and in criminal prosecutions, and the remedies and sanctions available.
7. The law of defamation is a matter of peculiar difficulty because it must take account of the conflict between the interest of freedom of speech on the one hand and the right to protection from attacks on reputation on the other hand. It is a subject on which much has been written and spoken and on which strong views are held. We have thus been led to make special efforts to get informed views from people interested, or experienced, in this field of the law, both in New South Wales and elsewhere.
8. Amongst published material, we note particularly the help we have had from the Report of the Committee on the Law of Defamation (the Porter Committee) published in 1948 (Cmd. 7536), the Report on The Law and the Press by the joint working party of the British Section of the International Commission of Jurists and the British Committee of the International Press Institute (the Shawcross Report) published in 1965. We gained further valuable help from papers presented under the auspices of the Council for Advanced Legal Studies of the New South Wales Bar Association.
9. We conferred with lawyers experienced in the law of defamation. We published notices in the press inviting assistance. There was a wide response to these notices, from lawyers, from the press, from civil liberties bodies, and from other people.
10. We published a working paper on the law of defamation in October, 1968. We sent the working paper to Members of Parliament and to lawyers and others who had indicated their interest or who we thought might be interested. The working paper led to further submissions being made to us and led to public discussion in the press and elsewhere. A symposium on the working paper was held by the Sydney University Law Graduates Association.
11. In the course of our work we were given help generously by many people. We do not list them by name, but we express our gratitude to all of them.
12. One difficulty about consulting people about the law of defamation is that prospective defamers are better organized and more articulate than prospective plaintiffs. A newspaper company knows where the shoe pinches and has the experience and resources to put its views persuasively. No one has put anything to us which is intentionally unfair to plaintiffs, but it is natural that the plight of a defendant should be seen in strong colours by people who have many times been defendants. Those that put to us the side of the plaintiff included lawers with experience in defamation cases and those lawyers of course have no want of articulation or persuasiveness. Others, however, who put the case of the person defamed spoke from general feelincs of justice and fairness or, sometimes, from feelings of outrage, rather than from their own experience of assaults on reputation. They have, given us little Help on the central problem of drawing a line between protection of reputation and freedom of speech. In weighing the views which have been put to us, therefore, we have had to make allowance for the fact that these views give but an imperfect picture of those defects of the law which bear hardly on a defamed person.
13. The present law in New South Wales largely depends on the Defamation Act, 1958 (set out in Appendix A). That Act is “an Act to state and amend the law relating to defamation ….” it is in many respects a code of the law of defamation. In this the Act of 1958 departs from what was formerly the legislative policy in New South Wales and what was and still is the legislative policy in England and in most other common law countries.
14. The Act of 1958 has not been a satisfactory attempt at codification. In the minds of lawyers, the Act is held to be the source of formidable difficulties, both in substantive law and in procedure. Examples of difficulties in substantive law occur in relation to defences of privilege. We give particular mention to section 17 (c), concerning publications “made in good faith . . . for the public good”, and section 17 (h), concerning publications “made in good faith . . . in the course of . . . the discussion of some subject of public interest, the public discussion of which is for the public benefit. Both these provisions raise problems of everyday importance problems which are as yet unresolved. The provisions have been the concern of the press and civil liberties bodies as well as lawyers.
15. Another consequence of the partial codification has, we believe, been a tendency to inhibit historical writing. Section 5 states the characteristics of a defamatory imputation, and states them in a way which is unexceptionable to a lawyer. But its words “any imputation concerning any person, or any member of his family, whether livina or dead” have led to an apparently ineradicable misconception amongst historical writers. The misconception is that the Act may make the historian liable in damaoes simply because he has published an imputation disparaging the reputation of a dead person.
16. We could give further instances where the 1958 Act has not worked well, but there is no need to do so. One reason for the troubles with the Act is that, based as it is ultimately on the Indian Penal Code of 1860, it did not take into account nearly a hundred years of social change and judicial experience.
17. We think that the law of New South Wales ought not to persist in the kind of codification attempted by the 1958 Act. Accordingly we recommend that it should berepealed. Should we recommend a return to the common law, with statutory modification, or should we recommend a codification in some different form?
18. The variety of circumstances which give rise to questions relating to defamation are great. The risk that the draftsman of a code win overlook possible future cases is correspondingly great. We think that the risks of inadvertent injustice, inherent in any codification, are peculiarly serious in the law of defamation, and that in this field those risks outweigh the advantages of a code. The common law is, we believe, a more serviceable basis for the law of defamation. We recommend legislation along the lines of the proposed Bill in Appendix B to this report. The proposed Bill would modify the common law in those respects only in which we find the common law itself defective.
19. Although we do not favour an attempt to make a general code of the law of defamation, there are parts of the law which have got into so difficult a condition as to call for restatement. One such part is, we believe, the law concerning fair comment on a matter of public interest. Sections 29 to 35 of the Bill take the common law concepts of “comment” and “matter of public interest” and, in general, the common law as to the material on which a defensible comment may be based and go on to erect a structure of statutory rules which would operate to displace the common law in other respects. These sections may be regarded as a partial codification.
20. We have put our more detailed comments on the proposed Bill in the notes which are Appendix D to this report. We draw attention here to the more important effects of the proposed Bill and refer to the relevant paragraphs of the notes.
21. As to the tort of defamation, that is, what facts will entitled a plaintiff to succeed, viewed apart from matters on which the defendant may rely in order to escape liability, the proposed Bill would substantially maintain the law as it has been in New South Wales since 1847. Briefly, slander is assimilated to libel, but otherwise the con-stituents of the tort are governed by the common law.
22. We go to defences in an action for defamation. The first group of defences dealt with by the proposed Bill are defences in which proof of truth of the imputation in question is an element. At common law truth is a defence in a civil action. This remains the law in England and many other countries. In New South Wales, however, since 1847 truth alone has not been a defence: it must also be shown that the publication complained of was for the public benefit. This is a jury question.
23. We propose that the requirement of publication being for the public benefit be dropped and a requirement put in its place that the matter published relate to a matter of public interest. The question whether this new requirement is satisfied would be for the judge and not the jury: this is in accordance with the common law rule that questions of public interest are questions for the judge. This is further discussed in paragraph 65 to 70 of the notes in Appendix D.
24. We propose that truth should also be a defence where the matter complained of is published on an occasion of qualified privilege. There is a discussion of this proposal in paragraphs 71 and 72 of the notes in Appendix D. We propose also that there should be a defence based on the truth of what we have called “contextual amputations”. This is discussed in paragraphs 73 and 74 of the notes in Appendix D.
25. There is under the Act of 1958 an absolute privilege for the publication of various matters in or connected with proceedings in Parliament, judicial proceedings and proceedings of official inquiries. See sections 11, 12, 13, 40. The proposed Bill would maintain the substance of these absolute privileges, but would allow some to be governed by the common law, and would alter the lepislative expression of others. See paragraphs 75 to 87 of the notes in Appendix D.
26. As to qualified privilege, we recommend the abandonment of the list of cases in section 17 of the Act of 1958 and a return to the common law, subject to modifications in some respects. The subject is discussed in paragraphs 88 to 117 of the notes in Appendix D.
27. We come now to reports of parliamentary, judicial and other proceedings. Section 14 of the 1958 Act lists a number of reports and similar matters the publication of which, if in good faith, is defensible. The list is not exhaustive: there is still some room for the common law to operate pursuant to section 3 (2). This subject has for many years been dealt with by legislation in England and elsewhere. The legislatures have taken the lead to such an extent that there has been little consideration of the subject on common law principles: such common law doctrine as has emerged is not adequate to enable the court properly to attack new cases as they arise. There are indeed decisions of single judges which tend in the way which we think the law ought to go. Examples are Webb v. Times Publishing Co. Ltd ([1960] 2 Q.B. 535) and Thompson v. Australian Consolidated Press Ltd ((1968) 89 W.N. (Pt 1) 121). There has, however, been little consideration by appellate courts and the conservative views of the Porter Committee (in paragraph 108, page 26 of their report) do not encourage confidence that the decisions we have cited would be approved in appellate courts.
28. In these circumstances we propose a further statutory enlargement of the categories of protected reports. We propose, for example, that reports of proceedings in foreign courts be included: such reports were the subject of the cases cited in paragraph 27. We proposed this enlargement because we think that it may in general safely be presumed that the foreign proceedings in question are a matter of proper public interest in New South Wales and that the law ought to encourage rather than inhibit their discussion. Such proceedings are source material for debate and a knowledge of them is a condition of the attainment of enlightened views on current affairs. It will no doubt happen, if our recommendation on this point is accepted, that occasionally there will be unnecessary disparagement of reputation by the publication here of reports of foreign proceedings. But we think that the occasions will be rare, at least in comparison with the commonplace disparagement of reputation under privilege to which the community is accustomed in the case of reports of proceedings within New South Wales.
29. We propose the extension of the categories of Protected reports so as to embrace certain determinations of learned societies, professional and trade associations, and associations for the promotion of games and pastimes. Section 14 (1) (i) of the 1958 Act goes a little way in this direction by its protection of reports of some proceedings of the committee of the Australian Jockey Club. The real starting point by way of legislative precedent, however, is the English Defamation Act 1952 (section 7 and the Schedule to the Act). So also we propose a protection for reports of the proceedings of what may broadly be described as public companies having some connection with Australia: the legislative precedent is again in the provisions we have mentioned in the English Act of 1952.
30. There is a further discussion of our proposals regarding pro-tected reports in paragraphs 118 to 148 of the notes in Appendix D.
31. We also propose extensions to the protection for the publication of court notices and official notices: see paragraphs 149 to 160 of the notes in Appendix D.
32. The next subject which we discuss is the body of rules relating to fair comment on a matter of public interest. It is here that the law of defamation faces one of its central tasks. That task is to balance the conflicting objectives of safeguarding freedom of opinion on the one hand and providing redress for attacks on reputation on the other.
33. The concepts of “comment” and “public interest” are, we think, adequately dealt with by the common law. So too, we think that, with two exceptions, the common law adequately identifies the material on which a defensible comment may be based. The real difficulty lies in the idea of fairness, or perhaps we should say that the difficulty lies in those aspects of fairness not concerned with the concepts and identification which we have just mentioned. The idea of fairness has been the origin of much of the law relating to comment, in a way comparable to that in which the idea of malice has been the origin of much of the law relating to qualified privilege. The judicial and other learned consideration of the subject during the last hundred years or so has analysed the idea of fairness to such an extent that it is possible by legislation to deal separately with the relevant aspects of fairness and to dispense altogether with the general concept.
34. It is good to do so because in the course of the development of the law on this subject a mass of difficult and sometimes discordant caselaw has arisen and there has been a tendency, noted both here and in England, to an overrefinement of doctrine. The subject is too important for the law to be left in this condition. We have therefore been led to propose a codification of much of the law as to fair comment.
35. In short, our proposal is that defamatory matter should be defensible as comment if, besides having the character of comment, it satisfies three tests. Two of the tests would be the same in all cases. The first is that the comment must be based on proper material, for example, statements of fact which are true, or a fair report of proceedings in Parliament. The second test is that the comment must relate to a matter of public interest. The third test would vary according to the identity of the author of the comment. If the author is the defendant or a servant or agent of his, the comment must represent the opinion of the author. If. however, the author is none of these, for example, the writer of a letter or article published in a newspaper, then the defendant must have published the, comment in good faith for the information of the public or for the advancement of education or the advancement of enlightenment. The onus would be on the plaintiff to show that the third test was not satisfied.
36. Our proposals as to comment are put in legislative form in sections 29 to 35 of the Bill. There is a more detailed discussion of them in paragraphs 161 to 211 of the notes in Appendix D.
37. The next subject for discussion, in the sequence adopted by the proposed Bill, is that of reparation by apology and correction in cases of unintentional defamation. The relevant sections of the proposed Bill are sections 36 to 45.
38. Because defamation is a tort of strict liability it is from time to time committed unwittingly by reason of the existence of facts and circumstances unknown to the publisher. Liability attaches in these circumstances even where the existence of such facts and circumstances could not reasonably have been known to him. In cases where there is no intent to cause harm and no negligence, a plaintiff should be entitled to vindication of his character but in fairness no more should be expected of or demanded from the innocent defendant.
39. A section designed to alleviate the situation has proved so unsatisfactory that it has fallen into disuse. We refer to section 22 of the Act of 1958. A similar provision has been in force both in England and in New South Wales since the 1840's (Libel Act 1843, s. 2. Act 11 Vic. No. 13, ss.6, 7).
40. We have therefore been ready to avail ourselves of the scheme proposed by the Porter Committee and enacted in England in the Defamation Act 1952. It applies to cases where the words are published innocently, that is, without defamatory intent in relation to the prospective plaintiff and without negligence in relation to their possible defamatory effect upon him, In such case the prospective defendant may make an offer of amends (that is, apology and correction) supported by evidence showing innocence, acceptance of which will halt the proceedings. If the offer is not accepted then it is a defence in the action that the words were innocently published and that the offer was proper and promptly made.
41. Further comment on the provisions in the proposed Bill for offer of amends appears in paragraphs 212 to 221 of the notes in Appendix D.
42. We come now to the law relating to damages for defamation. Damages for defamation are almost always assessed by a jury and the jury has a wide range of choice in fixing the amount of the verdict. Damages may be either compensatory or exemplary. Exemplary damages, sometimes called “punitive” or “retributive” damages, are awarded, not to compensate the plaintiff for, the hurt caused by the publication complained of, but to punish the defendant for wanton wrongdoing and to mark the jury's sense of outrage at the conduct of the defendant. Quite apart from any question of punishment, compensatory damages may be aggravated, that is, enlarged, by reason of the malice or conduct of the defendant where that malice or conduct has increased the hurt suffered by the plaintiff. Evidence justifying the aggravation of compensatory damages may also be evidence justifying the award of exemplary damages. To justify an award of exemplary damages, it must appear that, in the commission of the wrong complained of, the conduct of the defendant was highhanded, insolent, vindictive or malicious, or in some other way exhibited contumelious disregard of the plaintiff's rights: Uren v. John Fairfax and Sons Pty Ltd ((1966) 117 C.L.R. 118, 129 (Taylor J.), 158 (Owen J.)). The conduct of the defendant in the period after the publication and before damages are assessed may be an indication that the publication was made in circumstances justifying exemplary damages: Triggell v. Pheeney ((1951) 82 C.L.R. 497).
43. We recommend that exemplary damages be abolished so far as concerns defamation. This is a question on which opinions are strongly held and are divergent. We must state our reasons with particularity.
44. Our first reason is simply that it is wrong that one person should profit by the punishment of another. Generations ago legislation allowing such profit was common: provision was made for actions by common informers. Such provisions had, no doubt, some justification in a society without the highly organized central government and police force which we have today. In the absence of such provisions rewarding the informer, offences would go undetected and therefore unpunished. Analogous thinking lies behind the present day cases where the authorities offer a reward to persons furnishing information leading to a conviction for some crime. But the common informer provisions are practically obsolete today: many have been repealed by the legislature and the courts have put obstacles in the way of enforcement of the provisions which remain.
45. Today the cases of defamation which call for punishment are almost always cases of defamation in a newspaper of large circulation. The offence is widely known, and the Crown authorities are well equipped to prosecute in proper cases.
46. One reason why, in a bygone age, exemplary damages were thought justifiable was that, unless the defamer were made to smart for the insult, the person defamed might attempt punishment outside the courts, for example, by challenge to a duel. That at least is not a real prospect today.
47. We think that to act on the view that the person defamed should not be entitled to profit by the punishment of the defamer is but to take another step along a road along which the law has been heading for generations.
48. Then, secondly, we think it wrong that punishment should be inflicted in civil proceedings, whether the proceeds of the punishment go to the person defamed or not. This is because civil proceedings do not provide the safeguards for the accused which a criminal prosecution provides. The defendant is liable to be ordered to disclose, before the trial documents which may help the plaintiff to succeed. After the commencement of the Supreme Court Act, 1970, the defendant in civil proceedings for defamation will be liable, as he is liable in most common law countries, to be ordered to answer questions on oath, before the trial, so that his answers may be used against him at the trial. At the trial, the standard of proof entitling the plaintiff to succeed, proof on the balance of probabilities, is lighter than the standard in criminal proceedings, that is, proof beyond a reasonable doubt. On the trial by a civil action, counsel for the plaintiff is not bound by the traditions of restraint and moderation which the Crown follows in a prosecution. Instances can be multiplied. We believe that the infliction of exemplary damages in civil proceedings is wrong because of these procedural and curial disadvantages to the defendant.
49. Thirdly, we think it wrong that it should be in the hands of a jury not only to find the defendant guilty but also to fix the amount of the punishment. We think that the defendant ought not to be punished except on the ordinary principles of criminal procedure, whereby the jury determines guilt and the presiding judge determines the amount of the penalty. This procedure not only places the quantum of punishment in the hands of a man experienced in dealing with matters of penalty, but also affords a procedural means whereby evidence of matters going to penalty can be taken separately from evidence going to guilt. For example, the wealth or poverty of the defendant is a matter relevant to the quantum of exemplary damages, but if a defen-dant put a case of poverty to a jury before verdict on liability he would take the risk of being taken to concede guilt.
50. One, aspect of the assessment of exemplary damages by a jury calls for particular mention. Where the matter complained of has been published in a newspaper and the newspaper is one which habitually publishes matter which invades privacy or emphasizes matters of sex or brutality, the opportunity is there for the plaintiff or his counsel to speak of the newspaper as a scandal sheet or a yellow rag, or otherwise in terms of inflamatory execration. But the jury is drawn from that same community whose tastes determine the content of the newspaper. Men are prone to condemn in public what they enjoy in private. In these circumstances, a jury is tempted to yield to the error of punishing by exemplary damages, not the publication of the defamatory matter complained of, but the general standards of the newspaper, standards which the jury, as part of the reading public, have had a share in forming.
51. These, then, are the reasons which lead us to recommend the abolition of exemplary damages. We pass to some other considerations which bear on the question.
52. We have had discussions with many people on this question, and many people have put their views to us in writing. Amongst those who would prefer to see exemplary damages for defamation retained, the question tended to'be examined in relation to defamatory matter in newspapers. A common approach was that many newspaper proprietors behaved badly in one way or another and that hence a newspaper did not merit any tenderness as regards damages for defamation. This approach went far beyond questions properly relevant to the measure of damages for defamation. Newspapers were charged with many vices: amongst them were invasions of privacy, shallow reporting, inaccurate reporting, slanted reporting, and appeals to the baser instincts of mankind in the shape of matter emphasising sex or brutality. We think also that there was an idea that hundreds of libels were published in newspapers for every one that led to an action for damages. It followed that occasional awards of exemplary damages still left the newspapers free of the full measure of their just deserts. These views, to the extent to which they may be well founded, go to the question of the propriety of punishing the newspaper publisher, not to the question of rewarding the person defamed, nor to the question of the proper procedure for punishment.
53. It is not our view that defamation should never be punished. It is our view that the question of punishment should be dealt with if necessary, in criminal and not in civil proceedings, and that, in common with other serious offences, it should be for the Crown law authorities to determine whether a prosecution should be instituted. It is true that there have been few prosecutions by the Crown for criminal defamation in recent years. We do not know the reason. it may be that it has seemed better to the Crown law authorities to devote their resources to the punishment of crimes having more tangibly injurious consequences.
54. There are some points which we should make about the limited consequences of our proposals for the abolition of exemplary damages in defamation. Firstly, damages, although available only on the ground of compensation for harm, would still be “at large”, in the sense that, except in the rare cases of proved special damage, damages will not be a matter of calculation. Thus a verdict for large damages given by a jury after proper directions by the judge will not be set aside on appeal unless grossly exorbitant. Secondly, conduct of the defendant which tends to aggravate the harm done by the defamation complained of, for example, conduct which tends to draw further public attention to the matter complained of, will still be a ground for enlargement of damages. Thirdly, it will still be right for a jury to award to the plaintiff such good sound substantial damages as will mark the jury's sense of the injury the plaintiff has sustained, and a jury may still properly think that a plaintiff who has been seriously defamed in a newspaper should have heavy damages by way of compensation, and quantify its verdict accordingly: Australian Consolidated Press Ltd v. Uren ((1966) 117 C.L.R. 185, 214 215. Windeyer J.).
55. On the question whether exemplary damages should or should not be permitted, some of those with whom we have discussed the matter have seen as relevant the income tax position of a person who publishes defamatory matter in the ordinary course of business. The suggestion is that the burden of exemplary damages is not so heavy as it may at first sight appear, because the damages will be an allowable deduction for the purposes of income tax: some ground for the retention of exemplary damages is seen in this situation. It appears to,be the position that damages for defamation incurred in the course of carrying on a newspaper business are an allowable deduction, but that a fine imposed in crin:linal proceedings for defamation would not be an allowable deduction. Our views on this point are as follows. First, we do not think that the law of defamation in New South Wales ought to be influenced by the state for the time being of the income tax laws of the Commonwealth. Second (putting aside the first view for the moment), in so far as the income tax laws allow a deduction for exemplary damages, the punishment intended for the wrongdoer is bome in part by the general body of taxpayers, and the punitive purpose of exemplary damages is frustrated: a criminal punishment for defamation, on the other hand, will as a rule have to be bome .by the defamer alone.
56. Apart from the abolition of exemplary damages, our recommendations also touch other questions concerning damages. These recommendations are expressed in sections 46 to 49 of the proposed Bill. They are concerned with damages where the defamed person has died, with the effect of the malice or other state of mind of the publisher, with the effect of his conduct in the court proceedings for defamation, with the relevance of reports of the proceedings, with the admissibility on the question of damages of evidence of the truth or falsity of the matter complained of, and with the significance of other recoveries for other publications of similar defamatory matter. These recommendations are further discussed in paragraphs 224 to 246 of the notes in Appendix D.
57. Criminal defamation is dealt with in Part V of the Proposed Bill ' that is, in sections 50 to 54. At present a prosecution for defamation is a rarity. if, however, our proposals for the abolition of exemplary damages are accepted, the criminal law will have a more important role in the punishment of wanton defamers. Our proposals as to the criminal law are discussed in paragraphs 247 to 261 of the notes in Appendix D.
58. Section 55 of the Bill, dealing with evidence of printing, production, publication or distribution, is based on sections 38 and 39 of the 1958 Act. There is some enlargement of the scope of the provisions. Section 55 is discussed in paragraphs 262 and 263 of the notes in Appendix D.
59. Section 56 would make an important change in the law of evidence as regards civil and criminal proceedings for defamation. Suppose A is convicted of murdering B, C publishes the imputation that A murdered B, A sues C for damages for defamation and C pleads a defence upon which an issue arises of the truth of the imputation. On the Enilish authorities, the common law does not enable C to rely on the conviction as evidence of the truth of the imputation: Hollington v. F. Hewthorn and Co. Ltd ([1943] 1 K.B. 587): cf. Jorgensen v. News Media (Auckland) Ltd ([1969] N.Z.L.R. 961). The evidence of guilt has to be given again and C is at risk that witnesses will not be available and that memories have faaed. Since the defamation proceedings may thus involve the litigation again of issues already determined between the Crown and A., the convicted man who is also plaintiff, and since in this respect the Crown is in truth the representative of the community at large, we regard this state of the law as contrary to the interests of justice. We therefore propose the enactment of section 56, by which, on the facts postulated, the conviction of A for the murder of B would be conclusive evidence for C, the defendant in the defamation proceedings, of the truth of the imputation.
60. In recommending legislation along the lines of section 56 we follow in large measure a recommendation in the Fifteenth Report of the Law Reform Committee (1967; Cmnd. 3391) enacted in part by section 13 of the Civil Evidence Act 1968 in England. The Law Reform Committee also recommended, in the same report, legislation making conviction of a crime prima facie evidence of the commission of the crime for the purposes of civil proceedings generally, and section 11 of the Civil Evidence Act 1968 makes provision accordingly. Thus in England, by statute, a conviction is prima facie evidence of guilt in civil proceedings generally and, moreover, is conclusive evidence in civil proceedings for defamation.
61. We have a reference from you “to review the law of evidence in both civil and criminal cases”. We expect that, when we report to you pursuant to that reference, we shall consider whether we should recommend the enactment of legislation along the lines of the provisions of the Civil Evidence Act 1968 other than section 13. So far as concerns proceedings for defamation, however, we, think that we should make our recommendation now, rather than wait until we deal more generally with the law of evidence.
62. There is a further discussion of section 61 in paragraph 264 to 276 of the notes in Appendix D.
63. Section 57 of the proposed Bill would abolish, in relation to civil proceedings for defamation, the privilege of a person to refuse to answer a question, or to produce any document or thing, on the ground that the answer or production might criminate him of an offence under section 51 of the proposed Bill. The section is discussed in paragraphs 277 to 279 of the notes in Appendix D.
64. We recommend that, if Parliament should legislate in the manner indicated by the proposed Bill, the Rule Committee under the Supreme Court Act, 1970, should be invited to consider making rules along the lines of the draft in Appendix C. The proposed rules are concerned with procedure and are therefore more appropriate for consideration by the Rule Committee than by the Parliament. The rules could, of course, be introduced into the rules of the Supreme Court by statute, but it seems to us inappropriate, in respect of this sm all body of rules, that Parliament should enact legislation which might be set aside at once by the Rule Committee. Another course would be to embody these procedural provisions as portion of a Defamation Act. Experience has shown, however, that statutory provisions as to procedure tend to get out of step with the general procedures of the court in question: see, for example the Defamation Act, 1958, ss. 14 (4), 22 (2), 23. Further, statutory provisions as to procedure which are appropriate to the Supreme Court would not be appropriate to the District Courts. On the other hand, rules made by the Rule Committee can readily be altered by the same Committee, whether the alterations are called for by change of circumstances or by the appearance of flaws in the existing rules; and rules for the District Courts can similarly be made, and changed, by the District Court judges.
65. The proposed rules of court are discussed in paragraphs 318 to 330 of the notes in Appendix D.
66. We have not drawn any rules of court for consideration by the District Court judges. We recommend, however, that if Parlia-ment should legislate in the manner indicated by the proposed Bill, the District Court judges should be invited to consider making rules generally in accordance with the principles of the proposed rules in Appendix C.
67. Our recommendations in this report are based on the statute law as it was on the lst January, 1970, except that we envisage that legislation founded on our recommendations should not commence before the commencement of the Supreme Court Act, 1970.
9th February, 1971.
R. G. REYNOLDS, Chairmain.
R. D. CONACHER, Commissioner.
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