Tainted Evidence

Courts face a difficult task in finding facts at trial. Judges must determine who’s evidence they believe.

Judges are able to accept some, none or all of a witnesses’ evidence

The question of which evidence to accept can only be answered by a proper analysis of the evidence of all of the witnesses -- considering the internal consistency of each witness' evidence, its consistency with other evidence found to be reliable and its consistency with common sense and ordinary human experience.

In undertaking the fact-finding process courts often search for forms of corroboration. This is not required for a conviction but can play an important role in a trial. An easy example would be where a complainant alleges that they were punched in the face and when the police arrive that person has an injury on their face. Corroboration can also come from other witnesses. So if another person was present when the punch was said to have happened and they also testify to the punch being thrown then the complainant is corroborated and the court will be more likely to accept their evidence.

One must be careful, however in determining whether a witness can corroborate another or if there are concerns about tainting

So if two friends provide similar evidence but there is reason to believe they may have colluded together to tell a story then the court will have to carefully assess their evidence and may not find there to be corroboration.

Another form of tainting of evidence was considered in the recent case of R. v. Heintzelman. In that case a complaint of sexual assault was made against a massage technician. Victoria Police then posted a notice on their Facebook page that they were looking for other victims of Mr. Heintzelman. In the post, police provided Mr. Heintzelman’s name and other details of the allegations. The court found that though the two complainants provided similar accounts of being sexually assaulted the corroborative weight of that evidence was diminished by the Facebook post. Given the post, the court could not “test the veracity” of the evidence. In other words, there was a concern about the source of the information. Because the information was in the public domain it was possible that the details provided in court could have come from somewhere other than an actual experience.

The court suggested a public post that did not provide any identifying details would be preferable. That would ensure that the source of the witness' evidence was not from a source other than their genuine experience. Crown Counsel have chosen to file an appeal so perhaps the Court of Appeal will offer some guidance in this area.