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

During the course of the two-week sexual assault trial ofJianGhomeshi, the former CBC radio host'sdefence lawyer,Marie Henein, aggressively and repeatedlyhammered away at the credibility of the three complainants, meticulouslyattacking discrepanciesand omissionsin their statementsto police, the Crown and the court.

Judge William Horkins, who ispresidingover thetrial, will render his decision next month, but before he does, he mustdecide how much to take into account the doubts raised about the complainants' credibilityand whether those questions are enough to sufficiently taint the credibility of the coreallegations.

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"Wherethere's no countervailingstory, then the judge onlyfocusesin on the credibility of the witnesses," said John Rosen, a Toronto-based criminal defence lawyer who represented convicted murdererPaulBernardo.

"And the judge may say 'Yes, this witnesshas 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 hesaid, she saidscenario, butin this trial, the 'he'Ghomeshidid not testify. Andthe specifics of the casewhetherGhomeshi punched, slapped or choked the womenwere largely unchallenged.

Ghomeshi, 48,haspleaded not guilty in courttofour counts of sexual assaultand one count of overcomingresistance bychoking,all related to assaults alleged to have taken place from 2002 to 2003.

Discrepancies in descriptions of assaults

Henein didsuggest 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 ofthe alleged assaults.

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

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

But mostly, during her vigorous cross-examination,Heneinfocused on poking holes in theevidence and statements related toevents leading up tothe alleged assaultsand the women'scontact with Ghomeshi afterward.

Heneinarguedthat thecoreallegations must be dismissedsince the complainants'credibility when it came to other detailshad been irreparablydamaged.

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

Judge entitledto takeinconsistencies into account

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

DeCouterehad told the court that she had no romantic interest inGhomeshiafter her alleged assaultandonly saw him at industry functions.

But it was later revealed in court thathours after thealleged sexual assault, she had sent him anemailsaying she wanted to have sex with himand sent him a handwritten letter days later saying she was sad they didn't spend the night together.

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

"The trial judge is clearlyentitled to consider prior inconsistencies, prevaricationsand 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 couldconceivablydecide to accept the coreof the complainants' allegationseven while rejecting their other testimony as lacking incredibility.- MichaelPlaxton, associate professor of law

Where the inconsistencies relate torelativelytangential matters, it would not be unusual for a trial judge to dismiss them, he said. Nor is a judgeforced to choose betweenaccepting a witness's evidence in its entiretyand rejecting italtogether.

"He may accept partsof it and reject other partsmeaning that he couldconceivablydecide to accept the coreof the complainants' allegationseven while rejecting their other testimony as lacking incredibility," Plaxton said.

Balance of probabilities vs. beyond reasonable doubt

In the Ghomeshicase, Plaxtonsaid,the sheer number of inconsistencies, acknowledgedlies and problems with memoryas well asplausible motives to lieandopportunities for collusion between witnesses will be difficult for the judge to discount.

The defence presented a strongcase that the complainants were notcandid 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.

Thesilenceof the accused can't be usedas evidence of guilt.- RussellSilverstein, 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 probabilitiesbut 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 lawyerRussellSilverstein. "The Crown has to present evidence ofguilt, and thesilenceof the accused can't be usedas evidence of guilt."