TESTIFYING PART 3 – BELIEVE WHAT I SAY
17 January, 2017
By Sweta Tejpal
This is the third in a series on testifying in court. This part deals with believability: what it is and how it is assessed.
The starting point in any criminal trial is that an accused person is presumed innocent until guilt is proven beyond a reasonable doubt on admissible, credible and reliable evidence.
The Supreme Court of Canada’s decision in R. v. W.(D.), [1991] 1 S.C.R. 742 clarified that, when credibility matters, the jury must be instructed that reasonable doubt applies to that issue:
If they believe the evidence of the accused, they must acquit.
If they do not believe the accused’s testimony but are left in reasonable doubt by it, they must acquit.
Even if the accused’s evidence does not leave them in doubt, they must consider whether the evidence they do accept proves guilt beyond a reasonable doubt.
In other words, the accused must be acquitted if the jury—or the judge in a judge-alone trial—is not convinced beyond a reasonable doubt of guilt. This follows from the presumption of innocence. The standard is not a balance of probabilities.
In many trials, the evidence turns on the credibility and reliability of testimony from people who were at the scene of the alleged crime. Credibility concerns whether a witness is truthful. Reliability concerns whether the account is accurate. A witness may honestly believe a statement to be true, yet their account may not accurately reflect what happened. This can arise when a witness was intoxicated, was not paying attention to details, or could not observe as much as they thought.
Objective evidence, such as a photograph or video, may show that an observation was unreliable. Cross-examination may also expose problems with a witness’s credibility or reliability.
To discuss a criminal matter, contact us at mail@lawyer4u.ca or 416-900-6999.
CONTINUE THE TESTIFYING SERIES
Part 3 — Believe What I Say