Wednesday, July 17, 2013

Leading questions during examination in chief

R. v. Muise2013 NSCA 81 considers leading questions during examination in chief:


[23]                                             The law on the use of leading questions during direct examination was reviewed by Charron J. (as she then was) in R. v. Rose, [2001] O.J. No. 1150 :


9   A leading question is one that suggests the answer. It is trite law that the party who calls a witness is generally not permitted to ask the witness leading questions. The reason for the rule arises from a concern that the witness, who in many instances favours the party who calls him or her, will readily agree to the suggestions put in the form of a question rather than give his or her own answers to the questions. Of course, the degree of concern that may arise from the use of leading questions will depend on the particular circumstances, and the rule is applied with some flexibility. For example, leading questions are routinely asked to elicit a witness' evidence on preliminary and non‑contentious matters. This practice is adopted for the sake of expediency and generally gives rise to no concern. Leading questions are also permitted to the extent that they are necessary to direct the witness to a particular matter or field of inquiry. Apart from these specific examples, the trial judge has a general discretion to allow leading questions whenever it is considered necessary in the interests of justice: Reference Re R. v. Coffin (1956), 114 C.C.C. 1 at 22 (S.C.C.).


[24]                                             See also Maves v. Grand Trunk Pacific R. Co. (1913), 14 D.L.R. 70, (Alta. S.C., App. Div.) pp. 76-77.


[25]                                             The Supreme Court of Canada held in Reference Re R. v. Coffin(1956), 114 C.C.C. 1 at 22 (S.C.C.), that a trial judge has discretion to permit leading questions during direct examination whenever it is considered necessary in the interests of justice. It also held that a witness may refresh his or her memory by reference to his or her earlier depositions and that s. 9 of the Canada Evidence Actapplies only when such refreshing is attempted to discredit or contradict a party's own witness. Kellock J. wrote:


It is quite true that the initial answers made by the witness as to these three matters were not "accepted" by counsel for the Crown but while, as a general rule, a party may not either in direct or re‑examination put leading questions, the court has a discretion, not open to review, to relax it whenever it is considered necessary in the interests of justice, as the learned judge appears to have considered was the situation in the case at bar; ex parte Bottomley [[1909] 2 K.B. 14 at 21‑23.]; Lawder v. Lawder [(1885) 5 Ir. C.L.R. 27 at 38.]. Moreover, the authorities make it clear that a witness may be allowed to refresh his memory by reference to his earlier depositions and that it is only where the object of the examination is to discredit or contradict a party's own witness that s. 9 of the Canada Evidence Actapplies. In the present case it is evident that the object was to show that the mention by the appellant to the police of having left the Lindsay party in the company of two other persons was an afterthought which had not occurred to him when he gave his earlier account to the witness Petrie. Counsel did not wish, therefore, to discredit Petrie but to obtain from her the evidence she had given in her depositions if, on bringing the depositions to her attention, her memory would permit her to adopt them.


In Reg. v. Williams [(1853) 6 Cox C.C. 343.], a witness for the prosecution, having replied in the negative to a question put to him, was permitted by Vaughan Williams J., to have his depositions put into his hands, and, after having looked at them, to answer the question. Similarly, in Melhuish v. Collier [(1850) 19 L.J. Q.B. 493.], a witness for the plaintiff was asked by the plaintiff's counsel as to whether or not she had not made a certain answer in previous proceedings before the magistrate. The question being objected to on the ground that it went to discredit the party's own witness, the learned trial judge ruled that the question was a proper one. Upon a rule nisi for a new trial, the rule was discharged. At p. 496, Coleridge J., said:


A witness from flurry or forgetfulness may omit facts and on being reminded may carry his recollection back so as to be able to give his evidence fully and correctly, and a question for that purpose may properly be put.


As to the difference between a question directed to refreshing memory and contradicting one's own witness, the learned judge continued:


But as to the first point it is objected that the object of the question put here was to contradict and not to remind a witness and that therefore it could not be put. It is certainly very difficult to draw the line of distinction in practice and I am not now disposed to do it. In the present case I do not think the question objected to went further than was proper ...


See also The King v. Laurin [(1902) 6 C.C.C. 135.], distinguishing R. v. Duckworth [(1916) 37 O.L.R. 197].


[26]                                             In this case, the judge and defence counsel were alive to the issue of leading questions. Both raised objections to certain questions of Crown counsel on this basis.


[27]                                             Considering the whole of the evidence that was before the judge, especially the whole of KM's testimony, I am satisfied the judge did not err in exercising his discretion to allow the Crown's direct examination of KM to proceed as it did with some leading questions. A reasonable interpretation of Crown counsel's questioning of KM is that the reason he drew KM's attention to the excerpts from the transcripts of his sentencing in Youth Court and his testimony at Mr. Munroe's trial, was to obtain from KM evidence he had given in his prior depositions should his memory permit him to adopt what he had said in those depositions. Few of the questions Crown counsel asked KM were leading in nature. As argued by the Crown, what transpired in this case is more akin to the situation in Coffin, rather than what occurred in Rose. Crown counsel did not cross the line from controlled examination of KM into cross‑examination for the purpose of discrediting or contradicting him: R. v. Situ, 2005 ABCA 275 (CanLII), 2005 ABCA 275, para. 12.


[28]                                             I am also satisfied that even if the Crown's purpose had been to contradict or discredit KM, it would be appropriate to apply the curative provision ofs.686(1)(b)(iii) of the Criminal Code, R.S.C., 1985, c. C-46 because no substantial wrong or miscarriage of justice has occurred as a result of the Crown proceeding as it did. Had Crown counsel followed the procedure set out in R. v. Milgaard, [1971] S.J. No. 264, para 55, and sought permission to cross-examine KM under s. 9(2), I have no doubt it would have been granted.


[29]                                             Section 686(1)(b)(iii) provides:


686. (1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to stand trial or not criminally responsible on account of mental disorder, the court of appeal




(b) may dismiss the appeal where




(iii) notwithstanding that the court is of the opinion that on any ground mentioned in subparagraph (a)(ii) the appeal might be decided in favour of the appellant, it is of the opinion that no substantial wrong or miscarriage of justice has occurred, ...


[30]                                             Section 9(2) provides:


(2) Where the party producing a witness alleges that the witness made at other times a statement in writing, reduced to writing, or recorded on audio tape or video tape or otherwise, inconsistent with the witness' present testimony, the court may, without proof that the witness is adverse, grant leave to that party to cross‑examine the witness as to the statement and the court may consider the cross‑examination in determining whether in the opinion of the court the witness is adverse.


No comments: