Does a failure to cross-examine a witness have any impact on the credibility of the accused?

Alberta, Canada


The following excerpt is from R. v. Melnick, 2005 ABPC 220 (CanLII):

Doherty J.A. extensively reviewed the effect of Browne v. Dunn. At paras. 22-23 he wrote: “¶22 Where a witness is not cross-examined on matters which are of significance to the facts in issue, and the opposing party then leads evidence which contradicts that witness on those issues, the trier of fact may take the failure to cross-examine into consideration in assessing the credibility of that witness and the contradictory evidence offered by the opposing party. The effect of the failure to challenge a witness's version of events on significant matters that are later contradicted in evidence offered by the opposing party is not controlled by a hard and fast legal rule, but depends on the circumstances of each case... ¶23 The potential relevance to the credibility of an accused's testimony of the failure to cross-examine a complainant on matters that the accused subsequently contradicts in his testimony will depend on many factors. These include the nature of the matters on which the witness was not cross-examined, the overall tenor of the cross-examination, and the overall conduct of the defence. In some circumstances, the position of the defence on the matters on which the complainant was not cross-examined will be clear even without cross- examination. In other circumstances, the areas not touched upon in cross-examination will not be significant in the overall context of the case. In such situations, the failure to cross-examine will have no significance in the assessment of the accused's credibility. In other circumstances, however, where a central feature of the complainant's evidence is left untouched in cross-examination or even implicitly accepted in that cross-examination, then the absence of cross-examination may have a negative impact on the accused's credibility.”

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