Cross-examination

R. v. Palmer, 2010 ONCA 804 deals with suggestions made in cross-examination. Although leading questions are proper in cross-examination (indeed, they are customary) where questions are based on the existence of statements the examiner must prove the statements. The Court held:

[4] The first ground of appeal is that the trial judge erred in failing to instruct the jury that they could not rely on the Crown's unproven suggestions in cross-examination that the accused's father had given a statement to police that contradicted the appellant's evidence. The questions did not relate to the events at the park but rather to whether the appellant telephoned his father and whether his father drove him out of the city after the incident in the park.

[5] We agree that the Crown was not entitled to put the fact of the father's statement to the accused in cross-examination without calling the father (or otherwise proving the statement) and that the exchange may have coloured the quite proper questions that followed. However, we do not accept that it had the effect of adversely affecting the appearance of the fairness of the trial in the circumstances of this case.