R. v. W.(D.), [1991] 1 S.C.R. 742 is a leading decision of the Supreme Court of Canada on assessing guilt based on the credibly of witnesses in a criminal trial.

Background

D. W., a 42 year old man, was charged with sexually assaulting a 16 year old girl, T. W., on two occasions while driving her to her boyfriend's house. T.W. was staying at D.W. house at the time.

Besides her claim of the event, there was little circumstantial evidence. Her panties had semen stains from a Type A secretor, which included D. W., but also 30% population. The secretor type of the boyfriend was never known.

At trial before a judge and jury the defence argued that she was not credible. She was unemployed, illiterate, and a dropout, and had been kicked out of several houses including D. W.'s house. The testimony of D.W. was poor, but its uncertain whether it was due to lack of intelligence or deception.

At the end of the trial the judge issued its charge to the jury without mention of any issue of credibility. Less than ten minutes later the Crown made a request for a recharge to bring this issue up.

During the recharge, the judge charged to the jury that:

If in fact you believe the accused then clearly nothing took place and in fact the Crown will have failed to prove beyond a reasonable doubt that he is guilty as charged. On the other hand if you in fact believe the complainant totally, then he is guilty as charged.

On these instructions the jury returned a guilty verdict.

The issue of the appeal was whether "the erroneous recharge viewed in the context of the charge as a whole and the short time that elapsed between the main charge and the recharge could be said to have left the jury with any doubt that if they had a reasonable doubt they must acquit."

Reasons for judgment

Justice Cory, for the majority, denied the appeal.

In considering the recharge, he found that the judge erred.

It is incorrect to instruct a jury in a criminal case that, in order to render a verdict, they must decide whether they believe the defence evidence or the Crown's evidence. Putting this either/or proposition to the jury excludes the third alternative; namely, that the jury, without believing the accused, after considering the accused's evidence in the context of the evidence as a whole, may still have a reasonable doubt as to his guilt.

Cory describes the correct method of assessing credibility as follows at p.310:

Ideally, appropriate instructions on the issue of credibility should be given, not only during the main charge, but on any recharge. A trial judge might well instruct the jury on the question of credibility along these lines:

First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

Nevertheless, on examining the circumstances of the error as a whole, Cory believed that the jury had been properly instructed and the error was not sufficient to bring about an acquittal.

See also

• List of Supreme Court of Canada cases

External links

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