Browne V Dunn Flashcards
What is the rule of Browne v Dunn?
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
Is Browne V Dunn a common law rule?
No, its a rule of professional practice
What are the 2 parts to the rule of Brown v Dunn?
Fairness
Weight
What is the case authority on Fairness?
R V Costello
Allied Pastoral Holdings v Com of Taxation
“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”
Browne v Dunn - Weight and Fairness
Weight – Where evidence is given and not subject to challenge, it raises the question of the weight to be given to that unchallenged evidence.
Fairness – Fair and proper to put question to a witness with regard to attack on their evidence. Should have opportunity to agree or contradict.
Weight if no B & D
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
What is the case authority for not cross-examining the defendant about the prosecution version?
Burnett v Cleary & Anor
How much cross examination is enough? R v Costello
Not to challenge every word just to do it in a general way.
“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 a general way, misunderstand the rule.”
Two types of remedies?
Strict and Liberal
Strict Application and authority?
Peter Schneidas [1980]4 ACR 101– Court refused to allow evidence to be called by defendant upon certain points to contradict crown witness whom Schneidas failed to cross-examine on those points
Liberal Application
Seymour v ABC Precision Plastics P/Ltd v Demi’s Reid v Kerr S46 Evidence Act R v Robinson - court may draw an inference that the defendants evidence is a recent invention where it differs from the unchallenged evidence of another witness
Section 46 - Leave to recall a witness
Section 46 Evidence Act
May grant leave to recall witness on matters raised by opponent and not cross examined if matter was admitted into evidence and it contradicted the witness in chief, or he could have given that evidence in chief.
S46 and common law
S46 Does not prohibit the use of previously available to common law.
Fernando v The Commisioner of Police a statute can only abolish the common law where the statute states in clear and unambiguous words.
s9 Evidence Act
Section 9 Evidence Act
This act does not affect the operation of a principle or rule of common law or equity in relation to evidence in a proceeding to which this act applies, except so far as this act provides otherwise expressly or by necessary intendment.
