Friday, September 27, 2013

Adverse inference from failure to call witness

R. v. Jolivet, [2000] 1 S.C.R. 751 holds:

28                               One must also be precise about the exact nature of the "adverse inference" sought to be drawn.  In J. Sopinka, S. N. Lederman and A. W. Bryant, The Law of Evidence in Canada (2nd ed. 1999), at p. 297, § 6.321, it is pointed out that the failure to call evidence may, depending on the circumstances, amount "to an implied admission that the evidence of the absent witness would be contrary to the party's case, or at least would not support it" (emphasis added), as stated in the civil case of Murray v. Saskatoon, [1952] 2 D.L.R. 499 (Sask. C.A.), at p. 506.  The circumstances in which trial counsel decide not to call a particular witness may restrict the nature of the appropriate "adverse inference".  Experienced trial lawyers will often decide against calling an available witness because the point has been adequately covered by another witness, or an honest witness has a poor demeanour, or other factors unrelated to the truth of the testimony.  Other jurisdictions also recognize that in many cases the most that can be inferred is that the testimony would not have been helpful to a party, not necessarily that it would have been adverse:  United States v. Hines, 470 F.2d 225 (3rd Cir. 1972), at p. 230, certioraridenied, 410 U.S. 968 (1973); and the Australian cases of Duke Group Ltd. (in Liquidation) v. Pilmer & Ors, [1998] A.S.O.U. 6529 (QL), and O'Donnell v. Reichard, [1975] V.R. 916 (S.C.), at p. 929.

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