Oath-helping

R. v. Hariraj, 2012 ONCA 294 deals with oath-helping. Specifically, prior consistent statements (except to disprove recent fabrication or the like) cannot be used to buttress credibility:

[8]          During the course of her address to the jury, the Crown stated:

Now, I anticipate that Her Honour will instruct you on how to assess a witness' credibility.  She may explain to you that one way to assess a witness' credibility is to see if there are any inconsistencies between what a witness said at trial and what a witness said on an earlier occasion, or even any inconsistency within their statement or within their trial testimony.

In this case, you hear Mrs. Lake testify at trial.  The Crown submits that her testimony before you, which covered two nights, a number of different people, different places in the house, that her testimony was very detailed.  And, in fact, just a summary, the overview that I read to you was fairly lengthy and detailed.  She provided those detailed descriptions of where people were, what they said, what they did, what they said next, what they did next, covering those two evenings.  You also heard that Mrs. Lake provided a sworn statement to the police.  And you heard that she was subpoenaed to the preliminary inqujiry in this matter. 

Now, I don't recall any evidence that Mrs. Lake made any mistakes within her statement to the police.  That was never pointed out to her or she was never cross-examined on that by the defence lawyers.  I don't recall either defence lawyer suggesting to Mrs. Lake that she said something different in her statement than she did at trial.  Consider that.  She provided detailed testimony at trial covering the events of two separate dates and she's cross-examined by two defence lawyers and they can't point to any mistakes, anything that she might have said differently on an earlier occasion, any inconsistencies.  Can you imagine trying to make up a story like hers and provide a sworn statement to the police and testify in such detail and not get tripped up by not one buy two defence lawyers?  And she was thoroughly cross-examined.  What I'm getting at is inconsistencies.  No evidence that she said something different on an earlier occasion.  Certainly, we've had lots of cross-examination and lots of suggestions about what she might be lying – sorry – suggestion that she might be lying or why she might be lying, and I will come to that soon, but no inconsistencies.

And the Crown suggests to you that the only way that she's able to testify in such detail without any inconsistencies is because she's telling the truth.  She's telling you what she actually remembers from those two nights.  And because she's telling you what she actually remembers, she's able to get those details right.  This is very important for you to consider in your review of her testimony. [Emphasis added.]

[9]          Following the Crown's address, defence counsel moved for a mistrial.  They argued that the Crown suggested to the jury that Lake's two prior statements, which were not in evidence, were consistent statements and that the effect of the Crown's comments was oath helping.

[10]       Without hearing from the Crown, the trial judge ruled as follows:

I thought it was interesting because you never never hear it because there are never situations where the principal Crown witness is not examined on prior inconsistent statements.  So I listened with some interest for any inaccuracy in what the Crown was putting before the jury.  There was no inaccuracy in asserting that she made a statement to police because there was lots of evidence that she went down to the police, and that was mentioned several times, and that she gave her statement and was out and gone.

Then it was mentioned in evidence that there was a preliminary hearing.  And then all she said is no inconsistencies were drawn out.  She did not say there were no inconsistencies.  She said that you did not draw any inconsistencies out of it.

ANALYSIS

Did the trial judge err in failing to declare a mistrial or provide a correcting instruction with respect to the Crown's comments about Lake's consistency?

[11]       On appeal, the respondent submits that the impugned passage in the Crown's summation was in response to the defence submission that, having gone to the police, Lake had no choice but to keep on repeating her story.  The Crown was simply responding and expressing the opinion that Lake's evidence given at the preliminary inquiry and in her statement to the police were not inconsistent with her evidence at trial.  The trial judge's ruling was correct.

[12]       We disagree with this submission.  The trial judge failed to recognize that the Crown went beyond telling the jury that Lake's previous statements, which were not in evidence, were not inconsistent with her evidence at trial.  The conclusion urged by the Crown, that Ms. Lake was telling the truth because no inconsistencies were drawn out of her prior statements, is the exact conclusion against which the rule precluding the use of prior consistent statements seeks to protect. The jurisprudence has consistently recognized that there is no probative value (with certain exceptions that are not at play here), in the existence of prior consistent statements.