Trial judge took inadmissible evidence into account in assessing credibility

Trial judge took inadmissible evidence into account in assessing credibility

Appeal from conviction. Accused was tried on two counts of assault, one count of threatening and one count of failing to comply with no-contact term of bail order. Complainant was accused’s estranged wife. Trial judge acquitted accused on all counts save for count of failing to comply. In examination-in-chief of complainant, Crown counsel introduced copies of documents from records of police in Karachi, Pakistan. First document was record of complainant’s attendance at police station in Karachi to report her concern about potential of “mishap” befalling her at hands of accused. Her fear flowed from an assault she alleged accused had committed in Pakistan previously. Second document was record of complainant’s report to Pakistan police in which she alleged that two days before, accused and two other men came to door of home where she was staying and threatened her with gun. At time of introduction of documents, it was unclear what use Crown proposed to make of them. Appeal allowed; new trial ordered. Reports complainant provided to police in Karachi were not admissible to support credibility of her allegations against accused. Trial judge was satisfied reports were true copies of police records, but that did not make them admissible. They were nothing more than prior consistent statements and presumptively inadmissible. Trial judge used complainant’s prior statements to support her credibility in relation to allegation that accused threatened her with gun. This was not harmless error. Her testimony about that incident was only evidence accused contacted her on that date in contravention of his bail order. Credibility of complainant was very much in issue, so much that trial judge was not prepared to convict on basis of her evidence on three of four counts before him. Because trial judge took inadmissible evidence into account in finding complainant credible on only count on which accused was found guilty, conviction on that count could not stand. New trial ordered on failing to comply, with suggestion to Crown to consider public interest in proceeding further.
R. v. Badar (Jan. 29, 2013, Ont. S.C.J., MacDonnell J., File No. CR-12-0000107-00AP) 105 W.C.B. (2d) 358. LT