207. The courts are accustomed to resolving factual disputes. This does not mean that the task
is always an easy one, often it is not. Nevertheless, in assessing the credibility of a witness,
and the reliability of his evidence, the courts have developed various tests which assist in
this task.
208. There is no authoritative or exhaustive list of these tests, and different judges make
different uses of, and place different emphases on, the available tests. It always has to be
borne in mind that no two cases are identical, and the tests chosen, and the degree of
reliance placed on them, must be appropriate to the particular case. These are largely
matters for the exercise of judgment by the fact-finding tribunal, which in this case is the
Commission.
209. We shall say a little about four of these tests: demeanour, inconsistency, credit and
probability.
210. First, demeanour. We had an opportunity to observe the demeanour of the witnesses, in
particular Mr Evra and Mr Suarez, and from that to judge their credibility. The demeanour
of a witness includes matters such as his conduct, manner, bearing, behaviour, delivery,
and inflexion. They are matters of impression which are not necessarily revealed by
reading a transcript of evidence. However, care should be taken not to place too much
weight on this factor, bearing in mind that giving evidence can be an unnerving
experience (even before a Commission which operates without the full formalities of a
court of law), some witnesses naturally perform better than others in such settings, and
these difficulties can be compounded when giving evidence in a foreign language or
through an interpreter.
211. Secondly, inconsistency. It can be helpful to consider whether there are inconsistencies in
the witness's evidence. Inconsistency can arise in more than one way. First, the witness's
evidence may be inconsistent with what is clearly shown to have occurred, such as in
video footage or in notes taken shortly after the incident. Secondly, the evidence may be
inconsistent with what the witness has previously said about what happened. A witness
whose evidence is inconsistent in one or more ways might be considered unreliable,
depending on the circumstances.
212. Thirdly, the credit of the witness in relation to matters unconnected with the present
dispute might be relevant. The idea here is that if a witness can be shown to have acted
dishonestly or unreliably in one situation, it can be inferred that he is acting dishonestly or
unreliably in another. The relevance of this factor is contentious, but it can have its uses in
appropriate cases. We mention it here in order to make clear that it has played no part in
our consideration. This is because neither party suggested that it should. Mr McCormick
did not submit that Mr Evra's evidence should be rejected because he had been shown to
be unreliable in making accusations or giving evidence on any other occasion. Mr Greaney
did not submit that Mr Suarez's evidence should be rejected for the same reason, or
because he had been shown to use insulting language referring to a person's colour on any
other occasion.
213. Fourthly, probability. Another useful test is to ask of the evidence as a whole, or of a
particular part of it: whose account is more probable? It should be remembered that the
improbable can sometimes be true, although such a case might require stronger evidence
before concluding that it is true.
How the fuck did McCormick miss the opportunity to use Evra's previous "unreliable and exaggerated" testimony
