R. V. W.(D.) - Reasons For Judgment

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. (Note: this is a more contentious point)

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.