Testing evidence to reveal credibility
“The law does not clothe the trial judge with a divine insight into the hearts and minds of the witnesses.” – Justice O’Halloran in the Canadian case of FARYNA VS CHORNY (1952).
One of the questions students often pose to their law teachers is: how do you resolve a case where there is no corroborating testimony – “a case of his word against mine”?
The truth is that whether the claimant’s case is corroborated or not, the trial judge or other decision-maker will have to assess the credibility of the contending parties.
In the Canadian case of R vs D.D.S (2006), Saunders JA, in a judgment delivered in the Nova Scotia Court of Appeal (while quoting extensively from the most often cited Canadian case on the issue: Faryna vs Chorny, above), discussed the issue of credibility and the judge’s role as a finder of truth.
His remarks and those of Justice O’Halloran are a caution against those who are quick to draw a conclusion one way or another from the impression they have of a witness. The trial judge’s task is much more difficult than is sometimes appreciated. The quotation that follows is taken from paragraphs 77 and 78 of the judgment:
“ Before leaving the subject and for the sake of future guidance, it would be wise to consider what has been said about the trier’s place and responsibility in the search for truth. Centuries of case law remind us that there is no formula with which to uncover deceit or rank credibility. There is no crucible for truth, as if pieces of evidence, a dash of procedure and a measure of principle mixed together by seasoned judicial stirring will yield proof of veracity. Human nature, common sense and life’s experience are indispensable when assessing creditworthiness, but they cannot be the only guide posts.
“Demeanour too can be a factor taken into account by the trier of fact when testing the evidence, but standing alone it is hardly determinative. Experience tells us that one of the best tools to determine credibility and reliability is the painstaking, careful and repeated testing of the evidence to see how it stacks up. How does the witness’s account stand in harmony with the other evidence pertaining to it, while applying the appropriate standard of proof in a civil or a criminal case?
“ In this regard, I find it helpful to repeat the lucid observations of Justice O’Halloran in the oft-cited case of Faryna vs Chorny  2 D.L.R 354 at 356: ‘. . . But the validity of evidence does not depend in the final analysis on the circumstance that it remains uncontradicted, or the circumstance that the judge may have remarked favourably or unfavourably on the evidence or the demeanour of a witness; these things are elements in testing the evidence but they are subject to whether the evidence is consistent with the probabilities affecting the case as a whole and shown to be in existence at the time; and cf. Brethour vs Law Society of B.C.,  2 D.L.R at pp. 141-2.
“If a trial judge’s finding of credibility is to depend solely on which person he thinks made the better appearance of sincerity in the witness box, we are left with a purely arbitrary finding and justice would then depend upon the best actors in the witness box. On reflection, it becomes almost axiomatic that the appearance of telling the truth is but one of the elements that enter into the credibility of the evidence of a witness. Opportunities for knowledge, powers of observation, judgement and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility.
A witness by his manner may create a very unfavourable impression of his truthfulness upon the trial judge, and yet the surrounding circumstances in the case may point decisively to the conclusion that he is actually telling the truth. I am not referring to the comparatively infrequent cases in which a witness is caught in a clumsy lie.
“The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions.
“In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognise as reasonable in that place and in those conditions. Only thus can a court satisfactorily appraise the testimony of quick-minded, experienced and confident witnesses, and those shrewd persons adept in the half-lie and of long and successful experience in combining skilful exaggeration with partial suppression of the truth.
“Again a witness may testify what he sincerely believes to be true, but he may be quite honestly mistaken. For a trial judge to say, “I believe him because I judge him to be telling the truth”, is to come to a conclusion on consideration of only half the problem. In truth it may easily be self-direction of a dangerous kind.
“The trial judge ought to go further and say that evidence of the witness he believes is in accordance with the preponderance of probabilities in the case and, if his view is to command confidence, also state his reasons for that conclusion. The law does not clothe the trial judge with a divine insight into the hearts and minds of the witnesses. And a court of appeal must be satisfied that the trial judge’s finding of credibility is based not on one element only to the exclusion of others, but is based on all the elements by which it can be tested in the particular case.”
• Cecil McCarthy is a Queen’s Counsel. Send your letters to Everyday Law, Nation House, Fontabelle, St Michael. Send your email to [email protected]