There is always a big pink elephant in the courtroom at a sexual assault trial. Why would a complainant make up this horrendous lie, go to the police complain and then put herself through a trial where she will be cross-examined? Does the defence have to demonstrate that the complainant has a motive to lie? The short answer is the defence must not prove a motive for the complainant to lie about the allegations.
What can the Judge do with this lack of motive to lie? Can a Judge use the lack of motive to lie to enhance the complainant’s credibility? The law is clear, when there is no evidence of a motive to lie for the complainant, Courts should not use this as a factor to assess the complainant’s credibility. The reason for this is flows from the fact that there are so many reasons for people to lie some of which could be known to the court and some which may not be. So generally, a Judge cannot enhance a complainant’s credibility as a result of no motive. In addition, if the Court required the Defence to prove that the complainant had a motive to lie it would have the effect of shifting the onus to the accused and in a criminal trial for sexual assault the burden for proving the case rests with the Crown.
If the Defence is able to lead evidence that tended to show that the complainant had a motive to lie about the allegations the use of this evidence is different. A Court can use the inference that the witnesses had a motive to lie as one factor which may be considered in assessing the credibility of a witness. If this evidence is available to the Defence it is important evidence, especially where the case for the Crown rests completely on the credibility of one witness, as happens often in sexual assault trials. The Court must keep in mind that this is only one factor to be considered in light of all the other evidence presented.
