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In getting ready and researching my submissions in an historic sexual assault trial, I got here throughout the current Courtroom of Attraction choice of R. v. H.P.S. [2012] O.J. No. 748, 280 C.C.C., (3d) 500. R. v. H.P.S. factors out a vital, albeit usually missed distinction between an trustworthy witness who tells the reality, and an trustworthy witness who’s mistaken of their recollection of occasions. That is significantly related within the space of historic sexual assault allegations the place the substance of the legal cost sometimes rests basically, if not fully, on the recollection of occasions by the complainant.
“Why would somebody lie about being sexually assaulted?”
For these wanting from outdoors the follow of legal legislation, questions come up equivalent to “why would somebody lie about this?” or “why would somebody make such horrible issues up?” are a recurring theme. Certainly, these are legitimate questions as a result of we can not think about as wise individuals that somebody would do such a factor. Nevertheless, the straightforward truth of the matter is that individuals can and do lie in legal courts and witnesses are generally mistaken. This has been proven by numerous circumstances that tragically embrace examples of wrongful convictions.
An trustworthy, but mistaken perception.
Focusing extra on the realm of historic sexual assaults, it’s not unusual to return throughout witnesses who fall into the much less diabolical, however no much less insidious class of truthfully mistaken witnesses. What I imply by that is that many individuals persuade themselves with absolute certainty that sure occasions passed off, though circumstances come up that will present this to be utterly inconceivable and conclusively false.
One merely must Google the phrases “wrongful conviction mistaken identification” to grasp how widespread and devastating these occurrences could be. This could come up out of numerous circumstances that affect the thoughts and recollections over time and may embrace rumours, forgotten data that was handed on, or recognition of an accused by unrelated triggers that result in subsequent identification within the legal proceedings.
Truthful doesn’t equal dependable.
It’s straightforward for us to equate a witness who seems (or who’s) trustworthy and forthright to them being truthful. Nevertheless, being truthful doesn’t imply an individual is being correct. So as phrases, an individual needn’t inform a lie to precise a falsehood. To make issues worse for an accused, a trustworthy however mistaken witness is probably the most harmful issue in the direction of a wrongful conviction as they’re extremely convincing as a result of to them, they’re telling the reality.
The case of R. v. H.P.S. by the Ontario Courtroom of Attraction
Because the Courtroom of Attraction in R. v. H.P.S., supra, in describing the harmful of manner proof expressed:
34 Even when the complainant seemed to be “honest,” “truthful,” and “trustworthy” – because the trial decide famous a number of occasions all through his causes – and even when the complainant believed what she was saying, it doesn’t observe essentially that what she was saying was dependable. Credibility alone, on this sense, shouldn’t be sufficient. That is significantly necessary the place the accused is going through expenses primarily based fully on allegations of historic bodily and sexual abuse, and the place additionally — as right here – there have been severe reliability points.
35 Reminiscence is fallible. Courts have lengthy acknowledged that even an apparently convincing, assured and credible witness will not be correct or dependable and that it’s dangerous to put an excessive amount of emphasis on manner alone the place there are contradictions and inconsistencies within the proof: see R. v. McGrath, [2000] O.J. No. 5735 (S.C.), at paras. 10-14; R. v. Stewart (1994), 18 O.R. (3d) 509, at pp. 515-18; R. v. Norman (1993), 16 O.R. (3d) 295, at pp. 311-15. As Finlayson J.A. famous in Stewart, at pp. 516-17:
It’s evident from his causes that the trial decide was impressed with the manner of the complainant within the witness field and the truth that she was not shaken in cross-examination. I’m not happy, nonetheless, {that a} constructive discovering of credibility on the a part of the complainant is enough to help a conviction in a case of this nature the place there may be important proof which contradicts the complainant’s allegations. Everyone knows from our private experiences as trial attorneys and judges that trustworthy witnesses, whether or not they’re adults or kids, could persuade themselves that incorrect variations of a given occasion are appropriate and they are often very persuasive. The problem, nonetheless, shouldn’t be the sincerity of the witness however the reliability of the witness’s testimony. Manner alone mustn’t suffice to discovered a conviction the place there are important inconsistencies and conflicting proof on the document: see R. v. Norman for a dialogue on this topic. [Citations omitted, emphasis added.]
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