TESTIFYING IN A DOMESTIC OR SEXUAL ASSAULT TRIAL

Canadian law provides that an accused has the right to remain silent. Accordingly in a criminal trial, only the accuseds lawyer may call the accused to the stand to testify. The defence lawyer may only do so upon the instructions of their client. In many trials, there is no advantage to calling the accused as a witness. However, there are some types of charges that generally (or perhaps practically) require the accused to testify in their defence. Typical examples are he said she said charges, such as routinely arise in domestic assault or sexual assault allegations. This results due to the manner in which a sexual or domestic assault allegation is presented to the court.

At its simplest, a typical domestic or sexual assault trial will consist of a complainant saying: he hit me or he forced himself on me. Certainly, the allegation would be presented with more detail, but the he hit me is the core of the matter from which criminal culpability ensues. Through effective cross-examination, lacunae of the allegation can be demonstrated, bias can be presented, motive to fabricate can be shown. These are the internal inconsistencies from which a judge may choose to reject the testimony of the complainant. However, it is often necessary, practically speaking, for the accused to take the stand, in essence to answer the core of the allegations. The core of the denials, much like the allegations themselves, are simple: I never hit her or, there was sex, but I believed it was consensual because of X, Y and Z

When the accused testifies, the judge is required to analyse the evidence through the lens of a case referred to as W.D. The first two parts of the W.D. test requires the judge to consider whether he or she believes some or all of the accuseds evidence. If the accused is believed, or the evidence of the accused leaves the court with a reasonable doubt, then the judge must acquit. To this effect, it is imperative that the accused present well as a witness. A strong witness will answer questions directly, with factual information, and not present unwanted opinions or theories unless requested to do so by the questioner. A strong witness will not present any chaff from which the Crown can build their straw man. With enough chaff from a lousy witness, the straw man is soon beat down with the available internal and external inconsistencies. In this respect, a poor witness will ramble, avoid questions, provide unwarranted opinions to the court and attempt to portray themselves as the victim. These witnesses soon find themselves being subject to the Judges rolling eyes or menacing glares; after all, this trial is about your alleged behaviour, not hers. Having watched thousands of witnesses present over the course of my career, and having demolished many complainants on the stand, I always advise my clients of the classic pitfalls that even intelligent witnesses find themselves in when they testify. As your advocate and advisor, its better that I separate the wheat from the chaff, before the Judge does it for you. In theory, the truth will set you free; but the truth needs to be presented in a way that makes sense to the court.