Credibility is key in criminal cases, as we have previously written about. If the explanation provided by the accused is believed, they may walk away without conviction. Conversely, the outcome will be largely different if the accused’s evidence is deemed far-fetched or dishonest. Due to the high stakes involved in criminal cases, credibility must be assessed in a fair way. If a credibility assessment is not performed fairly, it may ground an appeal against a conviction on the basis that there has been a miscarriage of justice.
This article looks at what this means, including reference to a recent decision of the Court of Appeal for Ontario where the accused appealed against the trial judge’s credibility assessment on the basis that it was procedurally unfair and resulted from misapprehending material evidence.
What is the impact of a miscarriage of justice?
Section 686 of the Criminal Code (the “Code”) permits a court of appeal, when dealing with an appeal against a conviction, to allow the appeal if it decides that:
- the verdict was unreasonable or not supported by the evidence;
- the judgment wrongly decided a question of law; or
- there was a miscarriage of justice.
If the appeal court allows an appeal, it sets aside the conviction and decides to either order a new trial or acquit the accused. There are some limited circumstances in which the court could choose to dismiss the appeal even if it agrees with the accused. This may occur when a court decides that there was a legal error but nonetheless, no substantial wrong or miscarriage of justice occurred.
What is a miscarriage of justice?
The Code does not define the phrase “miscarriage of justice.” The courts have explained that there is no strict formula for determining when an irregularity constitutes a miscarriage of justice. Most types of error which render the trial unfair procedurally or substantively could ground such an argument. As the Court of Appeal for Ontario said in R. v Spiers:
“The gravity of the irregularities and the impact of these on trial fairness and the appearance of fairness are to be evaluated on a case-by-case basis.”
Of specific relevance to this article, there may be a miscarriage of justice if the trial judge decided the accused’s credibility in a procedurally unfair way and by misapprehending evidence.
Accused was convicted of fraud and possessing the proceeds of crime
In R. v Tran, the accused was convicted of one count of fraud over $5,000 and one count of possession of proceeds of crime over $5,000.
The Crown alleged that another man used false return documents to credit over half a million dollars from the company he worked for to several credit cards, including some in the accused’s name. The other man pleaded guilty before the accused’s trial. The Crown tendered the credit card transactions at trial.
Accused said he was not aware of the fraudulent scheme
The accused testified that he did not know that the transactions were fraudulent. He explained that the other man asked for a loan to help his father who was undergoing treatment. The accused loaned him $240,000 without a written contract, but he explained his income sources. The other man allegedly told the accused that his money was tied up in the company and that he would repay the loan through credit card transactions. He also testified for the defence.
Trial judge rejected the accused’s explanation, finding it “far-fetched”
The trial judge had to determine whether the Crown had proved beyond a reasonable doubt that the accused knew that the transactions were fraudulent. The judge convicted the accused, noting the other man’s testimony that the first time he told the accused of the fraud was at the accused’s trial:
“I find it rather far-fetched that [the other man] would say nothing to [the accused] for five years and leave [the accused] suspended in ignorance on the basis of his charges.”
The credibility assessment was procedurally unfair
The accused argued on appeal that this credibility assessment was made in a procedurally unfair manner because the Crown did not raise in cross-examination the issue that the two had not communicated after the accused was charged.
The Court of Appeal agreed with the accused, explaining that the Crown did not suggest to either of them that they had communicated after the accused’s arrest, or that they had colluded or concocted their evidence. The Crown also did not argue this in closing submissions. Therefore, a key reason for the trial judge rejecting the accused’s evidence was never put to the accused.
It was also tainted by a misapprehension of the evidence
The other man testified that he was not allowed to communicate with the accused under the terms of his release, which was continued after sentencing. The Court of Appeal decided that the trial judge ignored an obvious explanation for why the two did not communicate, as the other man was not permitted to.
The Court of Appeal decided that this constituted a misapprehension of the evidence. These two errors resulted in a miscarriage of justice. The Court set aside the accused’s convictions and ordered a new trial.
Contact the Criminal Defence Lawyers at Barrison Law in Oshawa for Experienced Defence Against Fraud Charges
The criminal defence lawyers at Barrison Law have the skill and experience to defend you against fraud and other property charges. There is normally more than one side to the story, and your side must be told effectively. We want to understand your unique circumstances so that we can advise you on a strategy to obtain the best outcome possible.
Barrison Law serves clients in the Durham Region. Our offices are located close to the Durham Consolidated Courthouse. Please get in touch with us online or by phone at 905-404-1947 to speak with an experienced criminal lawyer about your situation. We are proud to offer a free initial consultation and offer a 24-hour service line.