This is the third in a series on testifying in court.  This part deals with believability – what is it and what is the test.

The starting point in any trial is that an accused person is presumed innocent until their guilt is proven beyond a reasonable doubt based on admissible, credible and reliable evidence.

The Supreme Court of Canada’s decision in R. v. W.(D.), [1991] 1 SCR 742 clarified that:

“Where credibility is important, the trial judge must instruct the jury that the rule of reasonable doubt applies to that issue.  The trial judge should instruct the jury that:

  1. if they believe the evidence of the accused, they must acquit;
  2. if they do not believe the testimony of the accused but are left in reasonable doubt by it, they must acquit;
  3. even if not left in doubt by the evidence of the accused, they still must ask themselves whether they are convinced beyond a reasonable doubt of the guilt of the accused on the basis of the balance of the evidence which they do accept. “

In other words, the accused must be acquitted if the jury (or judge – in a judge alone trial) is not convinced beyond a reasonable doubt that an accused is guilty.  This must be true because of the presumption of innocence; only when a jury is convinced, not on a balance of probabilities, but on a standard of beyond a reasonable doubt, can an accused person be found guilty.

In many trials, the evidence comes down to the credibility and reliability of the testimony of the people who were at the scene of the alleged crime. Credibility refers to the truthfulness of a statement given by a witness.  Reliability refers to the accuracy (or veracity) of that statement.  In some cases, a witness may honestly believe a statement to be true. Nevertheless, it may not be an accurate reflection of events.  This can happen when a witness was intoxicated at the time of the incident, not paying attention to details or simply not in a position to observe as much as they thought that they did.  Sometimes, objective evidence such as a photograph or video can be used to demonstrate the unreliability of a witnesses observation.  Often times, though, it is the skill of a lawyer’s cross-examination that proves a witness to be not credible or reliable in their testimony.  You can put our expertise to work for you by contacting us at [email protected] or (416) 900-6999.