When Credibility Is An Issue: Factors to Consider Part 1

 

credibilityOften the court is required to make a finding of fact based on two competing and mutually exclusive versions of events.  When testimony is contradictory the court cannot  believe both parties but has to make a choice between them and sometimes the testimony of the parties are in such contradiction that one or the other must by lying.  That makes character and credibility a determinative issue.  Onassis v Vergottis [1968] 2 Lloyds Rep 403 at p 431.  “The main tests needed to determine whether a witness is lying or not are, I think, the following, although their relative importance will vary widely from case to case: (1) the consistency of the witness’s evidence with what is agreed, or clearly shown by other evidence, to have occurred; (2) the internal consistency of the witness’s evidence; (3) consistency with what the witness has said or deposed on other occasions; (4) the credit of the witness in relation to matters not germane to the litigation; (5) the demeanour of the witness.” Mr Justice Bingham went on to conclude that the first three of the tests may be regarded in general as giving a useful pointer to the truth, but the fourth test is more inconclusive.  The fifth is of less value ...  “the current tendency is … on the whole to distrust the demeanour of a witness as a reliable pointer to his honesty.”

Taking each factor in turn:

(1) the consistency of the witness’s evidence with what is agreed, or clearly shown by other evidence, to have occurred;

The denial of the existence of documents, or other state of facts when there is evidence to show their existence goes to the credibility issue. 

 

Cosmos Construction v Adam, 2017

18.  Mr.  Adam’s evidence suffers from material credibility problems.  At times during his evidence he appears to have exaggerated significantly.  For example he said

that the plaintiff “chose” to destroy the white copy of the quote when the onlyinformation he had was that it was accidentally destroyed.  He sought to describe

major cracking in the cement when the photograph he was referring to does not show any noticeable cracking (Exhibit 5, Tab 6, fourth from last page).  He gave

inconsistent amounts for the planter extra.  He made factually unsupported andunpleaded ad hominem attacks on the plaintiff, alleging he lack integrity and

professionalism and had appeared drunk while on the job at times (a suggestionthat was not put to Mr.  Cozma on cross-examination).  Those attacks on the

plaintiff’s credibility only damaged that of the defendant.

A review of what is said in the pleadings, the evidence filed and what is said on the stand is prudent.  Is it believable?  Is it credible? 

(2) the internal consistency of the witness’s evidence;

 

Doucett v. W.D. Excavating 2013

Page 25 (b) Inconsistent practice  Another reason to deny the Plaintiff’s Claim is that the Court also finds that the evidence of Mr.  Deming is inconsistent within itself.  In his evidence-in-chief, Mr.  Deming stated that he would not give a lump-sum figure for work that he was to do, except in the case of work to be done for a municipality.  He would only give an hourly rate.  Yet, when it came time to provide a cost for installing a septic system, the evidence is clear that he gave the price of $6,000.00. 

 

Page 26  Considering the above cost estimates, given as a lump-sum, and considering that both Ms.  Kerkhof and Mr.  Doucet stated that they were given a lump-sum figure at the beginning for the work the plaintiff was to do, the Court finds that Mr.  Deming’s actions in providing the above lump-sum figures belie his testimony that he would not do so.

 (3) consistency with what the witness has said or deposed on other occasions;

Propensity to lie can be used as evidence of bad character.  Prior inconsistent statements are potentially fertile ground for witness cross-examination. 

 

R.  v. Shawanda, 2017 ONSC 5559

 “An accused who testifies can, however, be cross-examined on prior inconsistent statements, assuming those statements are admissible: R.  v. Paris, 2000 CanLII 17031 (ON CA), [2000] O.J.  No.  4687, at para.  41.  Cross-examination on a prior inconsistent statement may be used to impeach the credibility of the accused, or in an attempt to have the accused adopt the prior statement as true.

(4) the credit of the witness in relation to matters not germane to the litigation;

Generally, statements or actions not related to the issues at trial are considered not relevant and excluded.  However, evidence that goes to credibility is an exception. 

 

R.  v. John, 2017 ONCA 622 

 The fact that a person is charged with an offence cannot degrade their character or impair their credibility: After all, the fact of charge arises from the opinion of an informant of a reasonably grounded belief in the commission of an offence, hardly the stuff of character impeachment.

 

Although the fact that a non-accused witness is charged with a criminal offence has no bearing on the credibility of the witness, thus cross-examination on the fact of charge would not be permitted on account of irrelevance, where a proper foundation has been laid, the cross-examination may be permitted.  One basis that provides a proper foundation for cross-examination on an outstanding charge occurs when the circumstances support an inference that the witness has a motive to seek favour from the prosecution because of the outstanding charge:

 (5) the demeanour of the witness.”

While memory problems can be attributed to some inconsistency of the testimony regarding events that occurred in the past the P used terms like ‘probably’ and ‘maybe’ to a point where he appeared to be hedging on his answers. 

 

 

Vallie construction Inc.  V.  Carol Minaker, 2011

[246] As to the credibility of Casarella as a witness, where his evidence conflicted with that of Minaker, I found him to be a rather unreliable witness.  To many questions in cross-examination, he would answer with expressions like “I suppose” or “I think” or “probably” or “I don’t remember”.  He did not seem to have a good recollection of the events which is not surprising since he was testifying about events that occurred three years ago.  On controversial issues, I do not accept his testimony, whether in his two trial affidavits or in his cross-examination, unless there is some documentary evidence or other reliable evidence to corroborate what he says, or unless his evidence is consistent with the probabilities taking the evidence as a whole.

The penchant for the P to say ‘incredible’ things goes to the credibility issue. 

 

 

Cosmos Construction v Adam, 2017

18.  Mr.  Adam’s evidence suffers from material credibility problems.  At times during his evidence he appears to have exaggerated significantly.  For example he said

that the plaintiff “chose” to destroy the white copy of the quote when the onlyinformation he had was that it was accidentally destroyed.  He sought to describe

major cracking in the cement when the photograph he was referring to does not show any noticeable cracking.  He gave inconsistent amounts for the planter extra.  He made factually unsupported and unpleaded ad hominem attacks on the plaintiff, alleging he lack integrity and professionalism and had appeared drunk while on the job at times (a suggestion that was not put to Mr.  Cozma on cross-examination).  Those attacks on the plaintiff’s credibility only damaged that of the defendant.

Look at what is said in the pleadings, the evidence filed and what is said on the stand.  Is it believable?  Is it credible? 

Parma v.Romina Pulcini 2014

[87] Finally, I note that these claims were inserted in the December 31, 2007 invoices which, as stated earlier, were issued when there was increasing tension between Remo and his partners.  I was given no explanation was to why these claims were not asserted earlier in the November 30, 2007 invoices.

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