Credibility is vital in criminal cases, with the result coming down to whom the judge or jury chooses to believe. Impeaching the credibility of a witness is therefore important, and one way to do this is to show that the witness has contradicted themselves by making a prior inconsistent statement that is different to what they have said at trial.
This article will consider the impact a prior inconsistent statement can have at trial. We will also review a recent decision of the Court of Appeal for Ontario in which an accused appealed his convictions on the basis that the trial judge misapprehended the complainant’s prior inconsistent statements.
What is a prior inconsistent statement?
A prior inconsistent statement is a statement that differs from a witness’s evidence in court. An error or inconsistency in the recollection of an event may impact on the witness’s credibility and the accuracy of all their evidence.
The prior statement may be sworn or unsworn and written or oral. For example, it could be evidence given in another proceeding or a statement given to a police officer.
Canada Evidence Act requires witness’s attention to be drawn to relevant parts of the statement
The Canada Evidence Act contains provisions on prior inconsistent statements. If a witness is cross-examined on a prior statement for the purpose of showing a contradiction, before the contradictory proof can be given, the witness’s attention must be drawn to the parts of the prior statement that are intended to be used to contradict the witness.
If the prior statement was an oral statement and the witness does not admit that they made it, proof may be given that the witness did make it. However, the circumstances of the supposed statement must be mentioned to the witness.
Implications of making a prior inconsistent statement
Firstly, making a prior inconsistent statement may impact on the judge or jury’s credibility assessment of the witness. In particular, a number of inconsistencies, or a serious one, may cast doubt on the reliability of the witness’s evidence.
Secondly, in some circumstances, it may be possible to seek to admit the prior inconsistent statement for its truth, rather than only to impact the witness’s credibility.
As the recent decision of R. v S.G. shows, prior inconsistent statements might also ground an appeal in the event of a conviction.
Complainant alleged assault and sexual assault
After the accused and the complainant met on an online marriage site, the accused travelled to India where he married the complainant. The complainant moved to Canada and the relationship subsequently deteriorated.
The complainant made a first statement to police in September 2017, which was video recorded, alleging an assault by choking in August 2017. In September 2018, she made a second statement alleging sexual assault in March 2017 and an assault by pushing in July 2017.
Accused was convicted despite prior inconsistent statements
At trial, the accused argued that the complainant fabricated the allegations to gain an advantage in family law proceedings in India. He argued that parts of the complainant’s evidence given in the proceedings in Indian were inconsistent with her evidence at trial. At trial, the complainant said their relationship was fine before she came to Canada. However, in the proceedings in India, she claimed that the accused assaulted her while in India for the wedding.
The complainant testified in India that the accused assaulted her in May 2017, however, this was not disclosed in either police statement or during the trial.
The trial judge decided that these were not material inconsistencies and that the complainant’s evidence was credible. The accused was convicted of sexual assault and two counts of assault.
On appeal, accused argued trial judge misapprehended the evidence
The accused appealed the convictions, arguing that the trial judge misapprehended the complainant’s evidence. Specifically, the accused claimed that the prior inconsistent statements were significant and related to material aspects of the case. He also argued that the chronology of events was misapprehended – only one assault was reported in the first statement, but the judge only considered why the reporting of the sexual assault was delayed.
Court of Appeal decided that the prior inconsistencies were material
The Court of Appeal held that the prior inconsistent statements were material and therefore, the trial judge misapprehended the evidence. The Court explained that the misapprehensions were on matters of substance because a key issue was determining whether the complainant had a motive to fabricate the complaints. The Court stated:
“In this trial where credibility was the pivotal issue, the failure of the trial judge to appreciate the significant inconsistencies undermines her assessment of the complainant’s credibility.”
Convictions set aside and new trial ordered
The Court of Appeal considered that the trial judge also misapprehended the evidence about the timing of the complainant’s disclosure of the pushing assault.
The two misapprehensions, taken together caused a miscarriage of justice in the circumstances of the case. The Court explained:
“Credibility was the central issue in this trial. The misapprehensions were on matters of substance, about material issues, and played an essential role in central planks of the trial judge’s credibility analysis.”
The Court of Appeal set aside the convictions and ordered a new trial.
Contact the Criminal Defence Lawyers at Barrison Law in Oshawa for Representation for Domestic Assault and Violence Charges
The criminal defence lawyers at Barrison Law have extensive experience dealing with domestic assault charges on behalf of clients in the Durham and Central East Regions of Ontario. We understand the personal nature of domestic assault charges and the potentially harmful consequences for you and your family.
We can help you with every stage of the criminal law process, from bail hearings to trial. We accept cases on private retainer and Legal Aid. We offer a 24-hour phone service because we know that help may be needed around the clock. To arrange a free initial consultation on your criminal law matter, call us at 905-404-1947 or reach out online.