Defence Evidence – to call or not to call; a case of Private Stock
One of the decisions that an accused has to make at the conclusion of the Crown’s case is whether to call evidence or not.
I recently acted for an individual with a severe hearing problem. He was charged with bootlegging mickey bottles of Private Stock.
He wrote his questions and answers on a little pad of paper that he always kept with him and I used my laptop.
At the conclusion of the process, I ended up with my side of a dialogue about the circumstances in which an accused may elect not to testify or call evidence – it is an issue that comes up frequently, so I thought I would post it:
The Crown has finished its side of the case so I just asked the Judge to throw out the charge because there is no evidence that there was any booze in the bottles, they could have had apple juice in them for all we know.
Yes they were Private Stock bottles but no one said that there was actually any Private Stock in the bottles. No witnesses were called and the police did not check the bottles that you gave T and N. There was no evidence that the bottles were sealed.
Before the Judge hears your side of the story, she has to be satisfied that the Crown has done its job in at least getting to the point where it is possible to convict you.
When I use the word “possible” I do not mean that the judge will convict you. I just mean that it is legally possible to convict you. If the Crown is missing evidence on a crucial point it is legally impossible to convict you. For example, if the Crown does not prove that there was alcohol in the bottles that went to T and N, it is impossible to prove that you were bootlegging.
If the judge agrees that the Crown has not proved a key part of the case she will throw the charge out and it will not be necessary for you to testify.
Even if it is legally possible to convict you, the judge has to be satisfied that the evidence is strong enough to convict you. She could say that it is possible for the court to think that the Private Stock bottles contained Private Stock whiskey. BUT before she can actually find you guilty she has to be sure of that. So first the question is – Is it legally possible to convict you? After that, later in the case, she still has to decide if the evidence is strong enough to say you are guilty.
If it is impossible to convict, she has to throw the case out.
While we wait for her to make up her mind, here are some other things to think about.
If she decides that it is possible for her to convict you, the next question she has to ask herself is “Is bootlegging proven beyond a reasonable doubt?” and here, even if it is possible to convict, if the Crown didn’t prove that there was actually whiskey in the bottles, the judge may have a doubt about whether you actually gave anyone any booze.
When Court starts up again, if the judge decides that it is possible to convict you, you have 2 choices:
1) I say to the Judge that the case is not strong enough to find you guilty – that she can not be sure that the bottles had booze in them – that there is a reasonable doubt about that OR
2) you tell the Court your side of the story.
Correct, if you pick # 1, you do not have to testify about the issue of whether or not the bottles contained whiskey. The Crown had to prove that. One of the options you have is to not testify and I will say “the Crown didn’t prove that he actually sold alcohol to anyone. All the Crown proved was that he gave 2 people bottles with Private Stock labels.”
No, if you decide to go this way, it will not be necessary for you to testify at all.
The reason you need to decide is because you do not get to do both 1 AND 2. You either tell your side of the story OR you ask the judge to throw it out because it is not proven beyond a reasonable doubt. You cannot do both.
The problem is that if you testify, the judge will then know that there was alcohol in the bottles and a hole in the case will be filled in. I know your side of the story is that you did not sell the bottles, but if there is a hole in the case, it might be better not to help the Crown by filling it in.
It is your right to tell the Court your side of the story but that will fill in the gap about the bottles containing alcohol and then the judge will have to decide if she believes that you are just giving it away as a gift. The bank record showing your residential school money will help support your story but it is still up to the judge to decide if she believes you.
The judge made a comment about one of the people who had a bottle when I said that it would have been easy for the Crown to prove that there was alcohol in the bottle; the judge said that would be for the end of the case. So she is aware that there is a hole in the Crown’s case. If it is a big enough hole, she will throw it out right away when we come back from the lunch break BUT if it is not a big enough hole, you will need to decide if 1) you just want me to say that the Crown did not prove beyond a reasonable doubt that the bottles actually contained alcohol OR 2) you want to tell the Court your side of the story.
If you decide not to testify, the Crown will have to ask the judge to infer that there was alcohol in the bottles. There is a difference between knowing something and inferring something. Inferring something means figuring it out from other stuff that is evidence before the Court. So, for example, if there was evidence that the Private Stock bottles were still sealed, you could infer that they contained whiskey. But I am going to say that there is no basis for any inferences about what is in the bottles because we don’t know anything at all about the bottles other than that they had liquor labels on them and there is no evidence that you were being paid for them.
After we hear if the judge is prepared to throw the case out because it is impossible to convict you, you need to decide whether:
- I just tell the judge to dismiss the charge because there is no evidence about what the bottles had in them – if anything at all. For all we know, they may have been empty. OR
- You tell your side of the story.
I am not really sure why Court works that way but the bottom line is that you simply ask the Court to find that the case is not strong enough OR you can tell your side of the story – not both.
So, if the judge decides not to throw the case out, I am going to be asking you if:
1) you want me to simply say “the case is not proven beyond a reasonable doubt.” or
2) you want to testify and have your witnesses testify about the gift
The last thing is that if you decide not to testify, the judge could still find you guilty and even if you do testify, the judge could still find you guilty.
It is your decision to make – I can’t tell you what to do.
It is impossible to know for absolutely sure what she is going to do but there is a definite hole in the case or she would have already said it is possible to convict you. She took the break over lunch to decide whether to throw it out because it is a real problem in the Crown’s case. If she didn’t think so, she would have said it right away. She wouldn’t need time to think about it.
So after she makes her decision, I will be asking you if you want to testify or not. Ok?
The other thing is that the stuff that you have written down is important for me to know about because I need to know everything that you think might help with the case, but only a small part of it is stuff that I can actually use in Court (like the stuff about your witnesses for example). So thanks for writing that stuff out.
This is a problem for the Crown because the police officer should not have seized those bottles from you. He did not have the right to arrest you so the Crown cannot use that evidence in Court. I already told the Crown that I would be objecting to the use of anything that was seized because he was not supposed to arrest you; she agreed not to use it in Court. So the judge does not know ANYTHING about what was seized from your backpack. BUT nothing stopped the Crown from calling your witnesses to say what you gave them.
That is good for us because if she knew that there were sealed bottles of Private Stock in your backpack, with booze in the bottles, she could infer that the other bottles had alcohol in them too.
If you testify, you will have to tell the Court the truth – that you gave the bottles to N and T and that you got no money from them. You will also have to talk about having $88,000 in the bank and that you don’t need to make money by bootlegging. BUT
If you do NOT testify you will not have to say anything, I will tell the judge about there being no evidence that there was alcohol in the bottles (T’s bottle and N’s bottle).
So the judge just ruled that would be POSSIBLE to convict you but did not say that she would convict you – she just said that it is legally possible to convict you. She obviously knows about the hole in the case because she agreed that there is nothing to say that there was alcohol in the bottles.
From her comment, I think that you have a good shot at winning the case by saying that there is no evidence that the bottles actually held alcohol in them and I think, but I cannot promise, that you will win if you just stick with that issue.
Are you ok with simply leaving it at that – we will say that there is no proof that alcohol was sold? You will not have to testify – ok?
The Judge agreed with me – It was up to the Crown to prove that the bottles had booze in them and the evidence is not there! You WIN!!!!
No I don’t drink Private Stock – just saying thanks is good enough.
It was my pleasure to help you.