Archive for January 31st, 2019

Perhaps The Judge Should Have Been More Careful

posted by Judge_Burke @ 21:59 PM
January 31, 2019

There is an apocryphal story about a trial lawyer who asked to approach the bench and said to the judge, “Your honor, I don’t mind your trying my case for me but please don’t lose it for me.” Thanks to Judge Wayne Gorman for sending this case my way:

In R v. Quintero-Gelvez, 2019 ABCA 17 January 18, 2019, the accused was convicted of the offence of sexual assault.  He appealed from conviction.  One of the grounds raised alleged that the trial judge’s interference with his counsel’s cross-examination of the complainant caused the trial to be unfair.

The appeal was allowed and a new trial ordered. The Alberta Court of Appeal concluded that the trial judge’s interventions “compromised” the defence (at paragraph14):

A review of the transcript of the cross-examination of the complainant reveals a significant number of situations in which the trial judge prevented defence counsel from asking certain questions without having first received an objection to them from Crown counsel, or rephrasing them so that her version of the question is answered, not that of the defence. Many of these situations would not, alone, be sufficient to establish that the trial had been unfair, or that counsel had not been able to advance the defence. However, taken cumulatively and in the context of the many additional interjections made by the trial judge limiting cross-examination of the complainant, we conclude that the defence was compromised.

The Court of Appeal noted that the trial judge “interjected almost 50 times in the course of the cross-examination of the complainant” (at paragraph 13).  The Court of Appeal provided a number of examples.  One involved an attempt by defence counsel to cross-examine the complainant on what she told medical personnel, concerning the incident, when she was being examined at the hospital.

Cross-examination on Comments Made to Medical Personnel:

The Court of Appeal indicated that the trial judge “refused to allow defence counsel to ask the complainant if she had testified to events that she had not described to medical personnel attending her at the hospital:

Trial Judge: …Are you going to be asking this witness to comment on the medical records?

Defence Counsel: Very little.

Trial Judge: How can she comment on medical records that she did not prepare?

Defence Counsel: It—it –there are notes where she’s—it’s either an RN or a doctor saying what was told to her by [the complainant].

Trial Judge: I am not following you. Are you alleging that she made prior inconsistent statements to medical personnel?

Defence Counsel: Not—not inconsistent, just statement that—just statements that did not come out in testimony.

Trial Judge: But those statements would not be admissible for the truth—well, they might be admissible for the truth of their content, depending on whether the Crown is…

Crown Counsel: Well, she—

Trial Judge:–seeking to admit them as K.G.B. or something, but if they are consistent statements, they are not admissible for the truth of their content, prior consistent—

Defence Counsel: She can admit—

Trial Judge: Prior consistent statements are inadmissible.

Defence Counsel: Yeah….I want to ask her—

Trial Judge: I think he can ask her, Did you tell the doctor such and so.

Defence Counsel: That’s it.

Trial Judge: Well, just ask her that.

Defence Counsel: So the—doctor’s notes that I’m looking at …

Trial Judge: She cannot comment on something another person prepared.

The Court of Appeal concluded that the “last statement is an error of law”. The Court of Appeal concluded that defence counsel “was entitled to ask her if she told the doctor at the hospital that she thought she’d been drugged because she could not remember periods of time and was dizzy, and, if the medical records did not record her reporting this to the doctor, to ask her about that inconsistency” (at paragraph 22).

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