Court File and Parties
COURT FILE NO.: CRIMJ(P) 137/13
DATE: 2013 11 12
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
A. M. Morris, for the Crown
- and -
CHRISTOPHER MARTIN
E. Brown, for the Defence
HEARD: November 7, 2013
RULING RE BROWNE v. DUNN ISSUE
HILL J.
Subject to any further Order by a court of competent jurisdiction, an Order has been made in this proceeding by the Honourable Justice S. Casey Hill directing that the identity of the complainant and any information that could disclose such identity, shall not be published in any document or broadcast or transmitted in any way
INTRODUCTION
[1] Christopher Martin stands charged with sexual assault and common assault of his girlfriend.
[2] On behalf of the prosecution, the complainant, A.H., testified first followed by a friend, T.B., and A.H.’s aunt, M.H. The final Crown witness was Peel Regional Police Service Constable K. Wilson.
[3] The accused testified on his own behalf. The second defence witness was Peel Regional Police Service Constable B. Campbell.
[4] In her evidence, A.H. alleged that on October 18, 2012 she was raped by the accused at his residence and a short time later punched in the face in the course of an argument in which the accused was physically aggressive.
[5] T.B. and M.H. provided evidence of the complainant’s demeanour and appearance in the hours following the alleged offences and further described the nature of A.H.’s report to them of what she said was done to her.
[6] Constable Wilson interviewed the complainant on October 18 and described observed injuries.
[7] The accused described consensual sexual intercourse followed by an argument, including with physical dimensions, between he and the complainant. Mr. Martin maintained that not only did he not punch A.H. but that he sought to defend himself as he was beaten with a bowl and a telephone charger by his girlfriend.
[8] Constable Campbell, the first police officer with whom A.H. had contact on October 18th, made observations of the complainant and took an oral report from her as to what had occurred the night before.
[9] Once the evidence completed, it was manifestly apparent that there were significant aspects of the evidence called in the defence case upon which the defence did not cross-examine the complainant.
[10] Not surprisingly, in closing submissions in this judge-alone trial, the issue of the rule in Browne v. Dunn (1893), 1893 65 (FOREP), 6 R. 67 (H.L.) figured prominently.
POSITIONS OF THE PARTIES
[11] On behalf of the Crown, Mr. Morris favoured the court drawing an adverse inference to the accused’s credibility from the failure to provide any meaningful opportunity for the complainant to respond on several important matters upon which she was not challenged but in relation to which the defence was seeking to have her disbelieved by the court. Crown counsel submitted that the situation was not a matter of tactical avoidance by the defence but very likely the result of the accused making up facts as he went along.
[12] Crown counsel quite properly observed that while caution is warranted in unnecessarily prolonging any trial this is especially so for a complainant in a sexual assault prosecution.
[13] Mr. Brown frankly acknowledged that aspects of the statement attributed to A.H. by Constable Campbell ought to have been put to the complainant in cross-examination. Counsel urged a recall of the witness to address important matters raised in the defence upon which A.H. was not cross-examined.
ANALYSIS
Governing Principles
[14] The Browne v. Dunn rule is designed to provide fairness to witnesses and the parties in a trial – it is “a sound principle of general application”: R. v. Lyttle, 2004 SCC 5, [2004] 1 S.C.R. 193, at para. 65; R. v. Hall, 2010 ONCA 421, at para. 18. At para. 64 of the Lyttle decision, the court stated:
The rule in Browne v. Dunn requires counsel to give notice to those witnesses whom the cross-examiner intends later to impeach. The rationale for the rule was explained by Lord Herschell, at pp. 70-71:
Now, my Lords, I cannot help saying that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses. Sometimes reflections have been made upon excessive cross-examination of witnesses, and it has been complained of as undue; but it seems to me that a cross-examination of a witness which errs in the direction of excess may be far more fair to him than to leave him without cross-examination, and afterwards to suggest that he is not a witness of truth, I mean upon a point on which it is not otherwise perfectly clear that he has had full notice beforehand that there is an intention to impeach the credibility of the story which he is telling.
[15] The rule is by no means fixed or inflexible – the effect to be given to the absence or brevity of cross-examination depends upon the circumstances of each case: R. v. Palmer, 1979 8 (SCC), [1980] 1 S.C.R. 759, at pp. 781-2; Lyttle, at para. 65; R. v. Giroux (2006), 2006 10736 (ON CA), 207 C.C.C. (3d) 512 (Ont. C.A.), at para. 42 (leave to appeal refused, [2006] S.C.C.A. No. 211); R. v. Malou, 2013 ABCA 167, at para. 20.
[16] Confronting the witness of whom it is going to be said or suggested that he or she was not telling the truth not only prevents the “ambush” of a witness (R. v. Verney (1993), 1993 14688 (ON CA), 87 C.C.C. (3d) 363 (Ont. C.A.), at para. 28) by providing the witness an opportunity to explain before contradictory evidence is adduced, but also, if necessary, permits the “advancing [of] further facts in confirmation of the evidence which he [or she] has given”: R. v. Pouladian-Kari, [2013] EWCA Crim 158, at para. 56; R. v. Fenlon (1980), 71 Cr. App. R. 307, at p. 313.
[17] When can it be said that Browne v. Dunn rule has been breached? As a general proposition, it occurs when a party who subsequently introduces contradictory evidence or argument fails to cross-examine an earlier witness “on an essential matter” (Verney, at para. 28), upon “a central feature of the Crown’s case” (R. v. Paris (2000), 2000 17031 (ON CA), 150 C.C.C. (3d) 162 (Ont. C.A.), at para. 25) or matters considered to be “significant” with “markedly different” versions (R. v. S.H., 2010 ONCA 515, at para. 5; Giroux, at para. 47) also describable as issues which are not “mere details” but which “lay at the heart of the … defence” (Hall, at para. 18) – in other words, “a witness should be confronted with matters of substance” (Giroux, at para. 46).
[18] “Drawing the line is not always easy”: S.H., at para. 4. It was observed at para. 28 of the Verney case that:
… counsel must not feel obliged to slog through a witness's evidence-in-chief putting him on notice of every detail that the defence does not accept. Defence counsel must be free to use his own judgment about how to cross-examine a … witness. Having the witness repeat in cross-examination, everything he said in chief, is rarely the tactic of choice.
[19] Similar judicial statements underline this distinction: Giroux, at para. 46 (“defence counsel need not waste everybody’s time by going through every single minor detail on which a witness’s testimony may differ from that of the accused”); S.H., at para. 4 (“It is not necessary that counsel put every potentially contradictory detail to a witness”).
[20] Over time, experience with clear breaches of the rule has, on a case-by-case assessment, led to a variety of prophylactic options including mistrial, recall of the witness uncross-examined on the matter(s) of substance, instruction that the contradicting evidence may be afforded less weight in light of a principal witness’ lack of opportunity to explain, etc.
[21] To some extent, the choice of remedy is driven by the cause of the breach. Of course the causes of an apparent breach of the rule are themselves varied including:
(1) counsel has made an informed tactical decision not to cross-examine on the relevant issue
(2) counsel, through a slip or inadvertence, neglected to cross-examine
(3) counsel hears the contradicting evidence for the first time when his or her witness is in the witness stand – evidence emerging on account of late discovery, first-time recollection or simply because the witness is making up the evidence as he or she goes along.
[22] Often it will be exceedingly difficult for a presiding trial judge to determine why a breach has occurred. For example, while defence counsel may be in a position to inform the court, if asked during a discussion about breach and remedy, that his or her decision was premised on the basis of one of the first two reasons listed above, counsel is foreclosed on account of solicitor-client privilege from disclosing that he or she became aware of the contradictory evidence only when the client testified.
[23] In appropriate circumstances, and despite the risks of incursion on privilege and an accused’s pre-trial right to silence, it has been said that a prosecutor may be entitled to cross-examine an accused upon omissions in his or her counsel’s questioning of principal Crown witnesses to suggest that the accused’s testimony was recently fabricated: R. v. Marshall (2005), 2005 30051 (ON CA), 200 C.C.C. (3d) 179 (Ont. C.A.), at paras. 55-68 (leave to appeal refused [2006] S.C.C.A. No. 105).
[24] The circumstances of a particular case may permit the court to safely infer what has occurred. For example, in a trial where the court chose to draw an adverse inference to the credibility of an accused on a specific point, it was observed in R. v. P.F., 2012 ONCA 807, at para. 16 that:
We also do not accept counsel’s characterization of the trial judge’s ruling as effectively placing the burden of a lawyer’s tactical error on the appellant. There is nothing in the record to suggest that counsel made an error in judgment in not cross-examining A.P. [the complainant] about the consents referred to in P.F.’s evidence.
[25] In Hall, at para. 18, the court stated that: “We can only conclude that defence counsel, who is both an able and experienced criminal defence lawyer, made a tactical decision not to cross-examine on these two matters” which “amounted to a breach of the rule in Browne v. Dunn”.
[26] The extent of the application of the rule, and the necessary remedy, are within the discretion of the trial judge having regard to the totality of the relevant circumstances including the cause of the breach, the degree of departure from the rule, the number of matters of substance at issue and their relative degree of importance to adjudication of the case, the relative fragility of the witness, the positions of the parties, etc.
[27] A trier’s decision to assign less weight or credence to contradicting evidence where an earlier witness was not given notice of that evidence and an opportunity to respond or explain is properly characterized as “a matter of discretion”: S.H., at para. 8; R. v. Drydgen, 2013 BCCA 253, at para. 22. This is a permissive, not a necessary, inference: Paris, at paras. 27, 29.
[28] Be that as it may, there is some authority suggesting that corrective action by recalling the uncross-examined witness may present as the preferable option. In R. v. McNeill (2000), 2000 4897 (ON CA), 144 C.C.C. (3d) 551 (Ont. C.A.), at paras. 47 to 50, the court observed:
In cases such as this, where the concern lies in a witness's inability to present his or her side of the story, it seems to me that the first option worth exploring is whether the witness is available for recall. If so, then assuming the trial judge is otherwise satisfied, after weighing the pros and cons, that recall is appropriate, the aggrieved party can either take up the opportunity or decline it. If the opportunity is declined, then, in my view, no special instruction to the jury is required beyond the normal instruction that the jury is entitled to believe all, part or none of a witness's evidence, regardless of whether the evidence is uncontradicted.
The mechanics of when the witness should be recalled and by whom should be left to the discretion of the trial judge.
In those cases where it is impossible or highly impracticable to have the witness recalled or where the trial judge otherwise determines that recall is inappropriate, it should be left to the trial judge to decide whether a special instruction should be given to the jury. If one is warranted, the jury should be told that in assessing the weight to be given to the uncontradicted evidence, they may properly take into account the fact that the opposing witness was not questioned about it. The jury should also be told that they may take this into account in assessing the credibility of the opposing witness.
Depending on the circumstances, there may be other permissible ways of rectifying the problem. The two options that I have mentioned are not meant to be exhaustive. As a rule, however, I am of the view that they will generally prove to be the fairest and most effective solutions.
[29] Although McNeill speaks of the “aggrieved party” as holding a priority position in identifying the remedial course occasioned by breach of the rule, it is recognized that the party responsible for breaching the rule could seek leave to have the relevant witness recalled (P.F., at paras. 14, 16; Giroux, at para. 48; S.H., at para. 7) or the court could do so on its own motion: Giroux, at para. 48; Marshall, at para. 55.
The Principles Applied
[30] In light of Mr. Brown’s very proper concession that he ought to have cross-examined A.H. regarding aspects of her statement as reported by Constable Campbell and introduced by the defence, markedly contradicting A.H. on substantial issues, including the timing of the texting by the complainant, her conduct during sexual intercourse, and a reason advanced for not immediately complaining to the police, the potential for a recall of the witness emerged as a real option. The defence fully intended to assert in closing submissions that the officer’s evidence should be employed to disbelieve the complainant on these key points.
[31] The accused’s testimony raised further Browne v. Dunn concerns. Mr. Martin provided evidence on certain matters of substance not put to the complainant in cross-examination. For example, the accused raised a reason for A.H. having animus against him (an accusation of flirting with T.B. a short time before the alleged assaults) and provided details respecting the after-sex phase of the narrative during which the common assault is alleged to have occurred. This included admission of throwing A.H.’s phone and a testimonial posture raising self-defence to an attack by the complainant with a bowl and a phone charger.
[32] My assessment of A.H. as a complainant-witness, in the sense of her strength and stability to withstand an additional few minutes of questioning, for the most part not dealing with return to the particulars of the alleged sexual assault, favoured her return to the courtroom to be given the opportunity to respond to about ten identified issues, issues important enough to materially factor into determination of the case as a whole. As well, the submission of the Crown that the accused made up his evidence on these points as he went along would of course remain a viable argument depending on A.H.’s responses to the very tailored and specific areas upon which the court permitted additional questioning.
[33] In all the circumstances, fairness to A.H., and the prospect of doing justice to the case itself, supported recall of the witness for additional cross-examination by Mr. Brown and such re-examination as may be necessary by Mr. Morris.
HILL J.
DATE: November 12, 2013
COURT FILE NO.: CRIMJ(P) 137/13
DATE: 2013 11 12
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: HER MAJESTY THE QUEEN v. CHRISTOPHER MARTIN
BEFORE: HILL J.
COUNSEL: M. Morris, for the Respondent
E. Brown, for the Applicant
RULING RE BROWNE v. DUNN ISSUE
HILL J.
DATE: November 12, 2013