Jian Ghomeshi judge must decide whether witness credibility issues taint core allegations

The judge in the Jian Ghomeshi sexual assault trial must decide whether the questions raised about the credibility of some aspects of witnesses' testimony are enough to taint the credibility of the core allegations in the case.

With no countervailing story, judge likely to focus on credibility of witnesses

Jian Ghomeshi did not testify in his sexual assault trial, and the specifics of the case, whether Ghomeshi hit, slapped or choked several women, were largely unchallenged by his defence attorneys. (David Donnelly/CBC)

During the course of the two-week sexual assault trial of Jian Ghomeshi, the former CBC radio host's defence lawyer, Marie Henein, aggressively and repeatedly hammered away at the credibility of the three complainants, meticulously attacking discrepancies and omissions in their statements to police, the Crown and the court.

Judge William Horkins, who is presiding over the trial, will render his decision next month, but before he does, he must decide how much to take into account the doubts raised about the complainants' credibility and whether those questions are enough to sufficiently taint the credibility of the core allegations.

"Where there's no countervailing story, then the judge only focuses in on the credibility of the witnesses," said John Rosen, a Toronto-based criminal defence lawyer who represented convicted murderer Paul Bernardo.

During her vigorous cross-examination, Ghomeshi's lawyer, Marie Henein, mostly focused on poking holes in the statements witnesses made about the events leading up to the alleged assaults and their contact with Ghomeshi afterward. (Chris Young/Canadian Press)

"And the judge may say 'Yes, this witness has difficulty here, this witness had difficulty there, but on the core issue, I accept her evidence.' In which case, there will be a conviction."

Sexual assault cases often boil down to a he said, she said scenario, but in this trial, the 'he' — Ghomeshi — did not testify. And the specifics of the case — whether Ghomeshi punched, slapped or choked the women — were largely unchallenged.

Ghomeshi, 48, has pleaded not guilty in court to four counts of sexual assault and one count of overcoming resistance by choking, all related to assaults alleged to have taken place from 2002 to 2003. 

Discrepancies in descriptions of assaults

Henein did suggest to Lucy DeCoutere, one of the three complainants, that the choking incident she described in court "never happened" and that she had been "lying about it." And she did point out some discrepancies regarding the specifics of the alleged assaults. 

Another of the complainants gave conflicting accounts of whether she was pushed down to the ground or pulled down by her hair, for example. One witness gave differing accounts of whether she was choked or slapped first by Ghomeshi. And another said Ghomeshi used one hand to squeeze her throat, then changed her account of the incident to say he used two.

Danielle Robitaille, one of the lawyers representing Ghomeshi, suggested that the inconsistencies in witnesses' testimony raised reasonable doubt about whether the incidents happened at all and whether there was an 'absence of consent.' (Darren Calabrese/Canadian Press)

In closing, defence co-counsel Danielle Robitaille suggested that the inconsistencies in testimony raised reasonable doubt about whether the incidents happened at all and whether there was an "absence of consent."

But mostly, during her vigorous cross-examination, Henein focused on poking holes in the evidence and statements related to events leading up to the alleged assaults and the women's contact with Ghomeshi afterward.

Henein argued that the core allegations must be dismissed since the complainants' credibility when it came to other details had been irreparably damaged.

"If a witness lies even about a peripheral thing, it destroys her credibility," said Rosen.

Judge entitled to take inconsistencies into account

The first witness had told police and the court she had no subsequent contact with Ghomeshi after two alleged attacks but later acknowledged she sent him two emails and a picture of herself in a bikini more than a year later. The woman said she sent the emails to bait Ghomeshi into calling her to explain his actions.

DeCoutere had told the court that she had no romantic interest in Ghomeshi after her alleged assault and only saw him at industry functions. 

But it was later revealed in court that hours after the alleged sexual assault, she had sent him an email saying she wanted to have sex with him and sent him a handwritten letter days later saying she was sad they didn't spend the night together.

Henein did suggest to Lucy DeCoutere, one of three complainants, that the assault she described in court 'never happened' and that she had been 'lying about it.' (Alexandra Newbould/CP)

The third woman, who told police she would only feel safe being out with Ghomeshi in public after her alleged assault, failed to disclose that days later, she had a consensual sexual encounter with him.

"The trial judge is clearly entitled to consider prior inconsistencies, prevarications and outright lies in determining whether, and to what extent, a witness is worthy of belief," said Michael Plaxton, an associate professor at the University of Saskatchewan's College of Law. 

He could conceivably decide to accept the core of the complainants' allegations even while rejecting their other testimony as lacking in credibility.- Michael Plaxton, associate professor of law

Where the inconsistencies relate to relatively tangential matters, it would not be unusual for a trial judge to dismiss them, he said. Nor is a judge forced to choose between accepting a witness's evidence in its entirety and rejecting it altogether.

"He may accept parts of it and reject other parts — meaning that he could conceivably decide to accept the core of the complainants' allegations even while rejecting their other testimony as lacking in credibility," Plaxton said.

Balance of probabilities vs. beyond reasonable doubt

In the Ghomeshi case, Plaxton said,  the sheer number of inconsistencies, acknowledged lies and problems with memory — as well as plausible motives to lie and opportunities for collusion between witnesses  — will be difficult for the judge to discount.

The defence presented a strong case that the complainants were not candid and forthright and that they tailored their evidence in order to present themselves in a particular light, he said.

"The question, then, may be whether the trial judge has a compelling basis for concluding that the core of their testimony should be regarded as any more reliable and credible than their other testimony," Plaxton said.

The silence of the accused can't be used as evidence of guilt.- Russell Silverstein, criminal defence lawyer

"And, of course, at the end of the day, the trial judge may always conclude that he believes the complainants' evidence on a balance of probabilities but not beyond a reasonable doubt."

For a criminal case, beyond a reasonable doubt is the bar that must be met.

As well, the judge can't draw any inference against the accused for not presenting any evidence or testifying.

"He walks into court presumed innocent," said Toronto-based criminal defence lawyer Russell Silverstein. "The Crown has to present evidence of guilt, and the silence of the accused can't be used as evidence of guilt."