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 credibility of witnesses in a criminal trial. More specifically, W.D. examines sexual assault cases and burdens of proof in evidence law.
Background
DW, a 42-year-old man, was charged with sexually assaulting a 16-year-old girl, TW, on two occasions while driving her to her boyfriend's house. TW was staying at DW's 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 DW, but also 32% of the 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 Dw's house. The testimony of DW was poor, but it is 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. Counsel for the Crown requested the recharge in order for the judge to explain what evidence may assist the jury in making a finding on the issue of credibility.
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."
The judge erred in the short recharge in that he characterized the core issue to be determined by the jury as to whether they believed the complainant or whether they believed the appellant. The counsel for the appellant objected to the recharge, but the trial judge's response was that he did not feel that he left the jury with the impression that they must accept the appellant's evidence in order to acquit him. Thus, the appeal to the Court of Appeal was initially dismissed.
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:
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.
Comments
Based on Cory's second point, "If you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit" (a more contentious point), the jury is essentially told to choose between two conflicting stories. Certainly, if the jury rejected all of the evidence of the accused, it is difficult to see how that very evidence, having been rejected, could raise a reasonable doubt. However, if a jury could reject part of the evidence of the accused and still reasonably entertain a doubt as to his guilt based on other parts of the accused's evidence.