Browne v Dunn

Question 1

What is the Rule of Browne v Dunn and who said it?

Answer 1

Lord Hershell, LC in Browne v Dunn stated:

“My lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give the opportunity of making an explanation which is open to him; and, as it seems to me, that is not only a RULE OF PROFESSIONAL PRACTICE in the conduct of the case, but it is essential to fair play and fair dealing with witnesses.

Question 2

Is Browne v Dunn legislated or common law OR a rule of law?

Answer 2

No. Browne v Dunn is a RULE OF PROFESSIONAL PRACTICE. It is strictly a rule of Common Law and is a requirement of the Court without being a legislative requirement.

Question 3

How many parts to the rule and what are they?

Answer 3

2 parts.

1st part: Fairness; and
2nd part: Weight.

Question 4

What does the rule of Browne v Dunn mean?

Answer 4

When you intend to discredit or not accept the evidence of a witness, as a matter of fairness and consequently the weight to be attached to that evidence, you should put in cross-examination to that witness the aspects of their evidence that you do not accept, so as to allow them an opportunity to comment.

Question 5

What is a potential consequence if Browne v Dunn is breached in relation to Weight of evidence?

Answer 5

When considering the result of a breach of Browne v Dunn, one potential consequence is that the evidence may acquire MORE WEIGHT than it would have had if it had been properly challenged in cross-examination.

Question 6

Does Browne v Dunn apply in Criminal Trials in NSW? Cite the authority.

Answer 6

YES. Browne v Dunn does apply in criminal trials in NSW.
R v Birks found: in criminal matters the rule’s practical content needs to be related to the circumstances of the particular case. One of those circumstances is that we are involved in a criminal trial.

Question 7

When will a Prosecutor have to comply with Browne v Dunn?

Answer 7

1. A defence witness gives evidence contrary to the prosecution version.
2. A prosecution witness in unfavourable.
3. The defendant gives evidence contrary to the prosecution version.

Question 8

What did Whitehorn and Apostilides find in relation to Browne v Dunn and the Prosecutor?

Answer 8

When a prosecution witness is unfavourable:

Whitehorn and Apostilides make it clear that the prosecution must call all (reliable) witnesses.

A party must seek leave of the Court before putting leading questions to their own witness.

Section 38(1)(a) of the Evidence Act provides the means for this to happen.

Question 9

What constitutes a Breach of the Browne v Dunn Rule?

Answer 9

A breach of the rule will occur when a witness’s evidence is first challenged, ONLY after they have been cross-examined.

• party may forget (mere oversight), mistake
• inexperience (“flagrant incompetence” - R v Birks)
• No instructions from the defendant
• Not represented
• Forensic choice

Question 10

What does R v Costello say in relation to Browne v Dunn

Answer 10

Browne v Dunn does not impose any obligation upon counsel to challenge every word of witness’ evidence (for fear) that any word not so challenged will be given greater weigh or cogency by reason of his failure to do so.

Crown prosecutors who submit to juries that any particular phrase or statement not specifically challenged in cross-examination should be taken as having accepted as true, even when the issue has been taken in general way, misunderstand the rule.

Question 11

What are the two categories of application of Browne v Dunn?

Answer 11

Strict and liberal application

Question 12

In relation to a remedy for Browne v Dunn, what caselaw relates to strict application?

Answer 12

Peter Schneidas [1980] - Court refused to allow evidence to be called by the defendant upon certain points to contradict a Crown witness whom Schneidas failed to cross examine on those points.

(Party who failed to cross-examine the witness will be prevented from calling evidence that contradicts a witness’ testimony).

Question 13

In relation to a remedy for Browne v Dunn, what caselaw relates to strict application?

Answer 13

Khamis v R [2010] NSWCCA

Regarding Schneidas remedy to B v D, it was found:

• Doesn’t apply in Victoria
• Excluding evidence should be “a last option and not one of the first resort” and “A rule that is grounded in fairness should not be used, except as a last resort, to exclude evidence going to the question whether a person is guilty or not guilty of a criminal charge. That would be to respond to procedural unfairness by imposing substantive unfairness.

Question 14

In relation to a remedy for Browne v Dunn, what caselaw relates to strict application?

Answer 14

Bradley v Matloob [2015] NSWCA 239 R

Non-compliance with B v D does not mean that the court is obliged to accept the evidence of the witness in question, for example where the evidence is inherently illogical or unreliable, or where the opposing party calls evidence of a substantial nature directly contradicting the evidence on which there was no cross-examination, in many cases it would be wrong, unreasonable or even perverse to reject evidence upon which there has been no relevant cross-examination.

Question 15

In relation to a remedy for Browne v Dunn, what did Seymour v ABC find in relation to liberal application?

Answer 15

Seymour v ABC

• prohibiting the offending party from submitting that an unchallenged witness is not to be believed.
• on appeal, the court may reject any submission relying on untested evidence.

Question 16

In relation to a remedy for Browne v Dunn, what caselaw relates to liberal application?

Answer 16

Reid v Kerr

“A jury might have no justification for rejecting those unchallenged parts of a witness’ evidence”.

Question 17

In relation to a remedy for Browne v Dunn, what caselaw relates to liberal application?

Answer 17

R v Robinson

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

Question 18

What does Section 46 of the Evidence Act remedy in relation to a breach of the rule of Browne v Dunn?

Answer 18

Section 46 provides leave to recall witnesses

(1) The court may give leave to a party to recall a witness to give evidence about a matter raised by evidence adduced by another party, being a matter on which the witness was not cross-examined, if the evidence concerned has been admitted and:
(a) it contradicts evidence about the matter given by the witness in examination in chief, or
(b) the witness could have given evidence about the matter in examination in chief.
(2) A reference in this section to a matter raised by evidence adduced by another party includes a reference to an inference drawn from, or that the party intends to draw from, that evidence.

Question 19

What does Section 46 of the Evidence Act allow for?

Answer 19

Leave to recall a witness.

May grant leave to recall a witness for evidence on matters raised by opponent and not cross-examined, if that matter was admitted into evidence and it contradicted the witness in chief, or he could have given that evidence in chief. Evidence includes a inference drawn or intended.

Question 20

How does Section 46 of the Evidence Act and Browne v Dunn apply to one another?

Answer 20

• S46 codifies facets of the rule of Brown v Dunn
• S46 does not affect the fairness aspect of the rule:

“The rule of Brown v Dunn remains alive and well under the regime of evidence law introduced by the Evidence Act”.

Question 21

Section 46 is one remedy to overcome a breach of Browne v Dunn - do Common Law remedies still exist?

Answer 21

Section 46 does not prohibit the use of previously available common law remedies.

Section 9 of the Evidence Act states: “This Act does not affect the operation of a principle or rule of common law or equity.

Fernando v the Commissioner of Police found: “a statute can only abolish the common law where the statute states such in clear and unambiguous words”.

Question 22

Section 46 and Common Law remedies. Top slide page 12

Answer 22

Section 9 of the Evidence Act:

“Application of Common law and equity”

(1) The Evidence Act does not affect the operation of a principle or rule of common law or equity in relation to evidence (ie: Brown v Dunn) in a proceeding to which this Act applies, except so far as this Act provides otherwise expressly or by necessary intendment.
(2) Without limiting subsection (1), this Act does not affect the operation of such a principle or rule so far as it relates to any of the following:
(a) admission or use of evidence of reasons for a decision of a member of a jury, or of the deliberations of a member of a jury in relation to such a decision, in a proceeding by way of appeal from a judgment, decree, order or sentence of a court,
(b) the operation of a legal or evidential presumption that is not inconsistent with this Act,
(c) a court’s power to dispense with the operation of a rule of evidence or procedure in an interlocutory proceeding.

Question 23

What did J Hunt say in Allied Pastoral [1983] in relation to Browne v Dunn?

Answer 23

“… it is necessary to put to an opponent’s witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence”..

Question 24

Describe Fairness and Browne v Dunn

Answer 24

“It is fair and proper to put questions to a witness with regard to a possible attack on the evidence of that witness”.

Question 25

In Allied Pastoral Holdings v Comm of Taxation, Hunt J states:

Answer 25

“..if a witness is not cross-examined in relation to a particular matter upon which he has given evidence, then THAT circumstance would often be very good reason for accepting the evidence of that witness upon that matter”.

Question 26

Does Browne v Dunn apply in Criminal trials and what is the authority?

Answer 26

Yes, Browne v Dunn DOES APPLY in criminal trials in NSW - the authority is R v BIRKS.

Question 27

Does Browne v Dunn apply to co-defendants? Cite Authority.

Answer 27

Yes, Browne v Dunn does apply to co-defendants. R v Felon and also Italiano v State of WA.

Question 28

Does Browne v Dunn apply to child witnesses/in the Children’s Court? Cite authorities.

Answer 28

Yes. Browne v Dunn is applied in a modified form for cross-examination of very young/child witnesses and other vulnerable witnesses.

R v E [2012]
R v Will [2012]
Ward v The Queen

Question 29

Yeldham, J in Burnitt v Cleary and Anor is the caselaw for what?

Answer 29

That you do NOT have to Browne v Dunn a Defendant about the prosecution version.

*. As the Defendant has been served a brief by the Prosecution and evidence has been disclosed and as the Defendant is usually in Court throughout and is aware of the evidence of all other witnesses, this means the Defendant is “on notice” prior to giving evidence.

Question 30

In Burnitt v Cleary and Anor, Yeldham J held:

Answer 30

“… the Defendant knew of the allegation because he was in Court at the time. He was not ambushed. Because the Prosecutor did not attack the Defendant does NOT result in any injustice to the Defendant.

THERE IS NO RULE THAT OBLIGES THE PROSECUTOR TO ATTACK THE DEFENDANT’S DENIAL OF THE PROSECUTION CASE (ALTHOUGH TO DO SO COULD BE EXPECTED OF A PROSECUTOR).

Question 31

Do you have to Browne v Dunn other defence witnesses?

Answer 31

Yes. You do not have to Browne v Dunn the Defendant, as he is aware of the case, however you DO have to Browne v Dunn other Defence witnesses.

Question 32

What 2 x caselaws relate to liberal application of Browne v Dunn?

Answer 32

Seymour v ABC and Precision Plastics Pty Ltd v Demir

Question 32

In relation to a remedy for Browne v Dunn, what did Prescision Plastics Pty Ltd v Demir find in relation to liberal application?

Answer 32

Court had good reason to accept the uncontradicted evidence if it is not “INHERENTLY INCREDIBLE”

Question 33

R v Costello is the authority for Fairness. What was said in relation to applying the rule of Browne v Dunn and fairness?

Answer 33

Applying the rule means warning the opponent that there is such an issue and to enable the opponent to give evidence in corroboration or contradiction of the first party’s case.

Question 34

Allied Pastoral is the authority for Weight. What was said in relation to applying the rule of Browne v Dunn and weight?

Answer 34

A potential consequence of not applying the rule is that evidence may acquire more weight than it would hav if it had been properly challenged - the Court may accept unchallenged evidence as fact.

Question 35

How does the rule apply to unfavourable witnesses?

Answer 35

Apostilides held that a prosecutor will have to comply with the rule if a prosecution witness becomes unfavourable and leave has been granted to put leading questions to them - this is because the prosecution must call all witnesses.

Question 36

Why is a prosecutor not obliged to apply the rule when the defence gives evidence? Cite Authority.

Answer 36

Burnitt v Cleary held that the prosecution does not have to cross-examine the Defendant about the prosecution version - the defendant already knows of the allegation because he is in court and all the prosecution evidence has already been disclosed.

Question 37

What constitutes a breach of the rule of Browne v Dunn?

Answer 37

A breach of the rule will occur when a witness’ evidence is first challenged only after they have been cross examined (ie: oversight, inexperienced, unrepresented).

Question 38

How much cross-examination is enough?

Answer 38

R v Costello held that the rule does not impose any obligation upon counsel to challenge every word of witness’ evidence for fear that any word not so challenged will be given greater weight by reason of his failure to do so.