Browne V Dunn

Question 1

What is the Browne v Dunn rule as quoted in the case?

Answer 1

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.

Question 2

Is the rule a rule of professional practice?

Answer 2

Yes

Question 3

What does the case of Allied Pastoral state about the rule?

Answer 3

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 4

What does the rule mean?

Answer 4

You should put in cross examination to that witness the aspect of their evidence that you do not accept, so as to allow them an opportunity to comment.

Question 5

What are the two parts to the rule?

Answer 5

1. Fairness

2. Weight

Question 6

What is meant by fairness?

Answer 6

As per R v Costello - first aspect is the rule of fairness which requires a party to put the nature of his case in contradiction of the evidence which is given by an opponent’s witness to that witness in cross examination so as to warn the opponent that there is such an issue.

Question 7

What is meant by weight?

Answer 7

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

Question 8

What does Allied Pastoral Holdings v Com of Taxation state about weight?

Answer 8

More weight can be given to evidence that is not subject to cross examination.

Question 9

Does Browne v Dunn apply to criminal trials?

Answer 9

Yes it does as per R v Birks. Including co-defendants

Question 10

When does a prosecutor have to comply with Browne v Dunn?

Answer 10

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

Question 11

What does Whitehorn and Apostilides state the prosecution must do when a witness is unfavourable?

Answer 11

The prosecution must call all (reliable) witnesses. A party must however seek leave of the Court before putting leading questions to their own witness. This is in line with section 38 of the Evidence act

Question 12

Is a prosecutor required to Browne v Dunn a defendant?

Answer 12

No, as per Burnett v Cleary & Anor - they were present for the hearing so it does not apply. They will not be ambushed.

Question 13

Does Browne v Dunn apply to Magistrates?

Answer 13

Yes as per B v D.

Question 14

What constitutes a breach of the rule?

Answer 14

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

• party may forget
• mistake
• inexperience
• no instructions from defendant
• not represented

Question 15

How much cross examination is enough?

Answer 15

R v Costello says - Browne v Dunn does not impose any obligation upon counsel to challenge every word of a witness evidence. You cannot say it is true just because it was not challenged.

Question 16

Are there remedies are available for breaches?

Answer 16

Yes

Question 17

What is meant by a strict application of Browne v Dunn?

Answer 17

Peter Schneidas - 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. It was held that even though he was self represented he had a high knowledge of the law.

Question 18

What is a liberal application of Browne v Dunn?

Answer 18

In Seymour v ABC: the Court prohibited the offending party from submitting that an unchallenged witness is not to be believed.

Question 19

What does R v Robinson state about recent invention?

Answer 19

Court may draw an inference that the defendant’s evidence is a recent invention where it differs from the unchallenged evidence of another witness.

Question 20

What does section 46 of the Evidence Act permit?

Answer 20

You can recall a witness on matters raised by opponent and not cross examined. This is the preferred solution.

Question 21

What does section 9 of the evidence Act say about common law remedies?

Answer 21

This act does not affect the operation of a principle or rule of common law or equity.

Question 22

What is the over-riding principle?

Answer 22

Fairness