Monday, February 9, 2015

Prosecuting and defending historic cases

R v Takawgak 2015 NUCJ 07:

Delay

[3] This Court in R v DeJaeger, 2014 NUCJ 21, [2014] NuJ No 22 (QL), spoke at length of the difficulties in prosecuting, defending, and adjudicating historical offences That memories become less precise with time and that perceptions are influenced by intervening events and the passage of time is natural and understandable. However, as natural and understandable as it might be, it makes the fact finding process even more difficult.

[4] Some of the complainants in this matter were youthful, although perhaps not children, at the time of the allegations. Nevertheless, direction regarding the correct approach to assessing childhood memories is of some assistance. The standard for assessing childhood memories recounted by an adult witness is set out by McLachlin J (as she was) is R v W(R), [1992] 2 SCR 122, 74 CCC (3d) 134:

Every person giving testimony in Court, of whatever age, is an individual, whose credibility and evidence must be assessed by reference to criteria appropriate to her mental development, understanding and ability to communicate. But I would add this. In general, where an adult is testifying as to events which occurred when she was a child, her credibility should be assessed according to criteria applicable to her as an adult witness. Yet with regard to her evidence pertaining to events which occurred in childhood, the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events to which she is testifying. 

2 comments:

Kirby Evans said...

Hey Morton - here's a legal question regarding the upcoming Duffy trial. Can't Duffy's defence regarding bribery simply be - they knew who gave him the money that was supposedly a bribe, and since he (Wright) has been cleared of the crime of bribery can't Duffy's lawyer just say there is no bribe? I think your readers would like to hear your opinion on this.

James C Morton said...

Not necessarily. First, Wright has not been charged - that's not the same as being cleared (but I am NOT suggesting he is guilty, just that not being charged is not the same as an acquittal). Besides I may see something as a bribe and take it as such when it is offered merely out of friendship. So its not certain!