Wednesday, December 12, 2012

Reasons where witness inconsistent in evidence

R. v. Sandhu, 2012 BCCA 500 dealt with credibility and reasons for believing a witness despite inconsistencies. The Court held some explanation of the basis for accepting testimony in such cases is required:

[28] In the trial judge's reasons he did acknowledge that her testimony was inconsistent. But he concluded that the inconsistencies in the complainant's evidence did not matter because he believed her. The basis for this belief could only have been supported by his assessment of the complainant's demeanour. That is, the trial judge found that the complainant was a "creditable and credible" witness, one who appeared to be telling the truth. In the result, and apart from the reasons for her delayed complaint, the trial judge did not think it necessary to explain how he resolved the inconsistencies in the complainant's testimony on the evidence before him, and instead came to a conclusion about Mr. Sandhu's guilt based on his opinion of the complainant's demeanour


[34] There is no doubt that it can be difficult for a judge to articulate why a witness seems honest and believable. But that difficulty does not relieve the trial judge from the obligation of resolving significant evidentiary conflicts of the type that confronted the judge here. (R. v. Sanichar, 2012 ONCA 117 (CanLII) <> , 2012 ONCA 117, 280 C.C.C. (3d) 500; R. v. G.E.H., 2012 NSCA 69 (CanLII) <> , 2012 NSCA 69; and R. v. Norman 1993 CanLII 3387 (ON CA) <> , (1993), 16 O.R. (3d) 295, 87 C.C.C. (3d) 153 (C.A.).)

[35] In summary, on appellate review where the credibility of a witness/complainant is in issue, an appellate court must recognize that a trial judge is in the best position to assess credibility. There is no doubt that on appeal the view of the trial judge should be respected. However, the assessment of credibility cannot stand on an assessment of demeanour alone. Rather, where there are serious concerns about credibility (as here) a trial judge should explain at least minimally how he or she resolved those concerns. There are many ways in which such concerns may be resolved depending upon the facts of the case. In so doing the trial judge should in some manner address the conflicts within the impugned evidence. Reasons for judgment risk being assessed as inadequate if they fail to explain at all how the credibility concerns were resolved, in a manner that makes plain to an accused, the reason his evidence was rejected, or failed to raise a reasonable doubt, thus leading to his conviction.

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