Bar Exam-type questions Flashcards
What is the rule in Browne v Dunn?
All counsel must put to witnesses so much of their client’s case as is inconsistent with that witness’ evidence and allow the witness a chance to agree/disagree/explain differences between the case put and their evidence/comment. Failure to do so could lead to witness being recalled (s.46), evidence being discounted in weight or an adverse inference (rare).
Adducing prior inconsistent statements
If she cannot remember, then counsel should seek leave under s.32 to allow Ms Young to refresh her memory by giving a copy of her statement being prepared previously for the criminal proceedings. Presuming Ms Young continues to assert that she does not remember, counsel can apply under EA s.38 to have Ms Young declared an ‘unfavourable witness’ on the basis of her prior statement which is obviously inconsistent. If leave under s.38 is granted, counsel needs to then put to Ms Young the substance of her prior inconsistent evidence – though he need not show the document to her. Once Ms Young has been questioned sufficiently in accordance with D v D rule, counsel can then tender her original police statement as an attack on Ms Young’s credibility. It is likely to be admissible per s.103 – substantially affect assessment. Once this through, s.60/s.101A means that the inconsistent statement is usable not just for its credibility purpose but also for its hearsay purpose ie to prove the truth of the representation.
What are first and second hand hearsay?
First hand hearsay is a previous representation made by a person who had personal knowledge of the asserted fact. Eg, A perceives an event. A tells B what happened. B giving evidence of what A said is B giving evidence of first-hand hearsay. Second hand hearsay is one more step removed. I.e. A observes/perceives an event. A tells B what happened. B then tells C what A said. C giving evidence of what B said is second hand hearsay, as B does not have personal knowledge of the event that A perceived.
Explain how the rule in Browne v Dunn might be applied in relation to Ms Graves’ evidence,
including an explanation as to:
(i) who would have to comply with the rule;
(ii) at what point in the proceeding the rule would have to be complied with;
(iii) whether the rule is obligatory or discretionary;
(iv) how exactly the rule would be applied on the given facts; and
(v) the possible consequences (if any) of non-compliance with the rule.
All counsel must comply with the rule in Brown v Dunn. It requires them to put to the witness before the close of XXN any factual scenarios which they will ask the court to accept as true that contradicts the account given by the witness, so that the witness might comment on it. It is an obligatory rule. In this case, Defence counsel would have to put to Ms Graves (“G”) that D never said to her that she had seen G and Jacob together in the staff car park after the Christmas Party, and that G is either mistaken about this, or being dishonest about it. DC should also put to G that there was “office gossip” about her affair with Herne also. If DC fails to comply, the Court could recall G under s46 EA so that the necessary matters can be put to her for comment. If this does not occur, trial judge may make a comment to the jury about how they have been deprived of the puttage and an opportunity to assess G as a witness as a result.
