Browne and Dunn

Question 1

What s the rule of Brown and Dunn? Case Law?

Answer 1

Lord Hershell, LC
If you intend on impeaching a witness you are compelled to put your line of questioning to the witness whilst they are in the box. Not only a rule of professional practice, but is essential to fair play.

Question 2

Who does the fairness relate to?

Answer 2

Prosecution, Witness, Magistrate

Question 3

Two parts to the rule?

Answer 3

Fairness and weight

Question 4

How does Fairness relate?

Answer 4

Fair and proper to put questions to a witness with regard to a possible attack on their evidence.

Question 5

How does Weight relate?

Answer 5

Where evidence is given and not subject to challenge, raises the question of the weight to be given to that unchallenged evidence.

Question 6

Potential consequence of breach of Browne and Dunn?

Answer 6

The evidence may acquire more weight than it would if it had been properly challenged in cross.

Question 7

Does Brown and Dunn apply to co-defendants?

Answer 7

yes

Question 8

Case Law for Brown v DUnn in relation to Prosecution fulfilling Brown v Dunn on defendant?

Answer 8

Burnitt v CLearly & Anor.
It is not fatal, however it is expected of a prosecutor to do it.
Defendant knew of the allegation because they were in court to hear evidence and also received brief evidence etc.

Question 9

What constitutes a breach of the rule?

Answer 9

When a witness’ evidence is first challenged ONLY after they have been cross examined.

Question 10

REasons for a breach?

Answer 10

• Party may forget
• Inexperience
• No instructions from defendant
• Not represented
• Forensic choice

Question 11

Case law relating to challenging every word for Brown v Dunn?

Answer 11

R v Costello

Question 12

R v Costello?

Answer 12

Brown & Dunn does not impose any obligation upon counsel to challenge every word of witness’ evidence.
- Need only test evidence in general way, not dive into symantics.

Question 13

2 categories of remedies?

Answer 13

Strict and Liberal

Question 14

Strict applications and case laws?

Answer 14

Schneidas - A party who failed to cross examine the witness will not be allowed to call evidence to contradict their evidence
.
Khamis v R - Excluding evidence should be last resort.

Question 15

Liberal applications and case laws?

Answer 15

R v Robinson - Court may draw the inference that the defendants evidence is a recent invention where it differs from the unchallenged evidence of another witness.
Precision plastics P/LTd v Demir - Court has good reason to accept the un contradicted evidence if it is not inherently incredible.

Question 16

R v Robinson?

Answer 16

Court may draw inference that defendants evidence is a recent invention where it differs from unchallenged evidence of another witness.

Question 17

Precision plastics v Demir?

Answer 17

Court has good reason to accept evidence if it isnt inherently in credible.

Question 18

S 46 Evidence Act 1995?

Answer 18

Leave to recall witness

Question 19

S 46 1?

Answer 19

Court may give leave for party to recall a witness if they were not cross examined on evidence that has since been adduced if the evidence is admitted and;

a) Contradicts evidence of the witness
b) Witness could have given evidence on it in their evidence in chief.

Question 20

What does s 46 do?

Answer 20

Codifies facets of the Brown v Dunn rule

Question 21

What does s46 not do? case law?

Answer 21

Affect the fairness aspect of the rule. Heaton v Luczka

Question 22

Heaton v Luczka NSWCCA

Answer 22

Rule of Brown v Dunn remains alive and well under regime of evidence law, introduced by evidence act 1995.

Question 23

Does S9 evidence Act adversley affect Brown v Dunn?

Answer 23

No, as it does not expressly stipulate it. as per S 9 (1).

Question 24

Fernando v Commissioner of Police?

Answer 24

A statute can only abolish the common law where the statute states such in clear and unambiguous words.

Question 25

over riding principle of Brown v Dunn?

Answer 25

Fairness

Question 26

S 9 evidence Act?

Answer 26

Act only affects comon law where it expressly states it does.