Witness giving Contradictory Evidence

The offence of a witness giving contradictory evidence is outlined in section 136(1) of the Criminal Code. 

A witness in a judicial (court) proceeding commits the offence of giving contradictory evidence when, with the intention to mislead, they give testimony that contradicts testimony they have given in a previous judicial proceeding on the same matter.

Examples

Person A testifies that person B has committed an offence, but when cross-examined the next day testifies that person B has not committed the offence and that instead person C has committed the offence. Person A has intent to mislead the court.

Person C, the sole witness to a robbery, states at the preliminary inquiry that the car she saw used as a getaway vehicle was a white BWM. At the trial, she then describes the getaway vehicle as a blue Honda Civic. Person C could have made this statement with the intent to mislead the court and divert attention from the true culprit.

Cases

R. v. S.G.T., 2015  SKQB 11

In  R. v. S.G.T., the accused was convicted on one count of giving contradictory evidence as a witness when he testified in his own defence on appeal and gave an explanation for why he sent an email which contradicted the explanation he gave at trial. 

R. v. Desnomie, 2005 SKCA 148

In  R. v. Desnomie, the accused was convicted of one count of giving contradictory evidence as a witness when she testified at a second-degree murder trial that she had initially lied when she testified at the preliminary hearing.  

Offence Specific Defence(s)

No Intention to Mislead

Where the witness does not intend to mislead but has remembered something at trial that happens to contradict their previous testimony at the preliminary hearing, for example, they have not completed the offence of giving contradictory evidence.

Outside of a Judicial Proceeding

Where the first contradictory statement is made outside of a judicial proceeding it cannot be considered alongside those made within a court proceeding to justify a charge of a witness giving contradictory evidence.

For example, if person A makes a verbal statement to a police officer that person B committed the murder, but then at trial testifies that person C did it, the statement person A made to the police officer may not be considered in charging person A as a witness giving contradictory evidence, however, it could affect their credibility.

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