Criminal Law

Criminal trials not credibility contests: Webb

By AdvocateDaily.com Staff

A recent decision in a sexual assault appeal is a reminder of the high bar the Crown faces to achieve a conviction in a criminal trial — proving a charge beyond a reasonable doubt, Toronto criminal lawyer Melanie Webb tells AdvocateDaily.com.

Alberta’s Court of Appeal recently ordered a new trial for a man convicted of sexual assault, and sentenced to 30 months in jail, following an encounter between two strangers at a music festival, after finding the trial judge’s decision failed to explain why the defendant’s version of events could not be believed in light of ambiguous evidence.

“This is an interesting case because you have a situation where the complainant is credible, and both stories could be true,” says Webb, principal of Melanie J. Webb Barrister. “But when you have two competing versions, it’s not a credibility contest.

“If you’re not sure what happened and there is some ambiguity, you can’t simply say: ‘I believe the complainant, and therefore the defendant is guilty.’ If you can’t decide who to believe, then you must acquit."

According to the decision, the defendant and the complainant engaged in consensual sexual relations one evening a few hours after meeting at the festival, but he stopped when she told him she did not want to have intercourse.

The next morning, they resumed kissing and fondling. The man again positioned himself to engage in intercourse and she objected. The only point of disagreement between the two was that she testified he stopped only after briefly penetrating her, while he insisted he stopped before any penetration, the appeal court decision said.

Both agreed that he said he was sorry as she abruptly left, though the man said his apology was only for misreading the situation, rather than for engaging in intercourse.

Two members of the appeal court panel focused on the connection between the woman’s angry and abrupt departure and the trial judge’s decision to convict.

“With respect, the trial judge’s reasoning on this crucial point is troubling because the complainant’s abrupt departure was equally supportive of both the appellant’s and the complainant’s testimony. The complainant may have left as suddenly as she did because intercourse had occurred against her will or because she was upset that the appellant tried again to have intercourse even after she had made it clear she did not want that,” they wrote.

“Given the fundamental ambiguity of this evidence and its pivotal role in the trial judge’s reasoning, it was incumbent on the judge to consider and explain why the appellant’s equally plausible account for the complainant’s sudden departure was not true and did not raise even a reasonable doubt,” the appeal judges added, finding the failure fatal to the conviction and ordering a fresh trial.

“On this evidence, it was not enough to simply accept the evidence of the complainant and by that process reject that of the appellant,” the judgment concludes.

Webb, who was not involved in the case and comments generally, says it could lead to a revamp of the way an accused person’s credibility is assessed when applying the reasonable doubt standard after the same two Alberta appeal court judges used their ruling to criticize the three-step analysis laid out in the landmark 1991 Supreme Court judgment in R. v. W.(D.):

  • In the first step, the trial judge or jury must ask whether they believe the testimony provided by the accused. If so, it must result in an acquittal. If not, then they must proceed to step two.
  • The second step sees the trier consider whether the accused’s evidence causes her or him to have a reasonable doubt concerning their guilt. If so, an acquittal must be entered. The third step is only required if the answer to both the first and second questions is ‘no.’
  • The final step requires the trial judge or jury to consider the totality of the evidence presented to determine if the accused’s guilt has been proven by the Crown beyond a reasonable doubt.

“With respect, it is time to revisit the W(D) instruction and address some of the issues that have emerged,” the judges wrote, adding that it can be confusing to jurors if delivered without “contextualization or elaboration.”

The first prong, in particular, is “not entirely accurate,” they wrote, claiming it can be viewed too narrowly because of its reference only to the evidence of the accused, when in fact it applies to all exculpatory evidence. At the same time, it can be construed too broadly because of the failure to mention that it does not apply to evidence that is inculpatory or neutral.

The second prong of the test is also confusing to jurors as laypeople, they said, because it goes against their natural inclination to ignore the possibility that information, though disbelieved, may be true.

Webb says criminal appellants often take issue with a judge’s reasoning when it comes to the assessment of credibility.

“What you will sometimes see is that the judge literally recites the W.(D.) instructions at the beginning of their decision, but then doesn’t refer to it at any point later,” she says.

“In a jury trial, simply reciting that in the charge to the jury, without further elaboration, is usually insufficient. In a judge alone trial, it is generally unnecessary to go into a further explanation of the principle. However, what is critical is that the judge’s application of the W.(D.) test and chain of reasoning is clear," says Webb.

"In cases such as the one in Alberta, where there are two plausible accounts, and an ambiguous event that might well support either side, it is essential for the trial judge to consider whether the accused’s evidence might be true.”

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