Browne V Dunn Flashcards
Is brown v Dunn a rule of law?
No it is a rule of professional practice
What is the rule of brown v Dunn?
Lord hershall “ I have always understood that if you intend to impeach a witness you are bound whilst he is in the box to give him an opportunity of making an explanation, which is open to him, and it seems to me that it is not only a rule of professional practice in the conduct of a case but is essential to fair play and fair dealing with witnesses.
Allied Pastoral Holdingsv Commissioner of Taxation: “it is necessary to put to opponent’s witnesses in cross examination the nature of the case upon which it is proposed to rely on contradiction of his evidence.”
How many parts to the rule? What are they?
2 parts. Fairness and weight.
What does the rule in Browne V Dunn mean?
When you 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 the evidence which you do no accept so as to allow them an opportunity to comment.
What is the overarching principle of browne v Dunn?
Fairness
What does fairness mean? Cite authority
R v Costello “fairness requires a party to put the nature of the case in contradiction of the evidence given by an opponents witness to that witness in cross examination so as to warn the opponent that there is such and issue and to enable the opponent to give evidence in corroboration of the 1st parties case.
” it is fair and proper to put questions to a witness with regard to a possible attack on the evidence of the witness. The witness must be cross examined and should have the opportunity to agree or contradict evidence which touches upon that witness testimony.”
What does weight refer to?
Where evidence is given and not subject to challenge it raises the question of weight to be given to that unchallenged evidence
Allied pastoral holding v commissioner of taxation: if a witness is not subject to cross examination in relation to a particular matter upon which he has given evidence,then that that circumstance would often be very good reason for accepting the evidence of that witness upon that matter.
If there is a breach of browne v Dunn what weight may be given to the evidence?
The evidence may acquire more weight than it would have had if it had been properly challenged in cross examination.
Does the principles of browne v Dunn apply in criminal trials?
R v Birks is authority for the principal applying to criminal trials.
What are four ways that browne v Dunn applies in criminal trials?
- need to be involved in a criminal trial
- if Defendant providing different version than browne v Dunn applies
- it applies to co defendants
- it also applies in a modified form to young children and vulnerable witnesses
What does the authorities of R v Felon and Italino v State of WA refer to?
Browne V Dunn applies to each co accused
What is the authority of R v E(2012)?
Browne V Dunn applies to children and vulnerable witnesses
How does browne v Dunn apply to the prosecutor when will they have to comply with the principles?
- A defence witness gives evidence contrary to the prosecution version
- A prosecution witness is unfavourable
- The defendant gives evidence contrary to the prosecution version
Do we have to browne v Dunn defendants cite authority?
No although it could be expected of a prosecutor. Burnitt v Clearly & Amor
Why don’t prosecutors have to cross examine the defendant?
Burnitt v clearly & Anor:
The defendant knew of the allegation as he was in court at the time.
The defendant was not ambushed because of the prosecution did not attack the defendant does not result in any injustice to the defendant.
There is no rule that obliges the prosecution to attack the denial of the prosecution case (although to do so would be expected of the prosecutor)
What is the authority of R v whitehorn
And R v apostilidis authority for?
The prosecution must call all reliable witnesses.
A party must seek leave of the court before putting leading questions to their own witnesses. Section 38 evidence act provides the means for this to happen In respect to unfavourable witnesses
Why may a breach of browne v Dunn occur?
Party may forget mere oversight, mistake Inexperience Flagarant incompetence No instructions from the defendant Not represented Forensic choice
When does a breach of browne v Dunn occur?
When a witness’s evidence is first challenged only after they have been cross examined.
How much cross examination is enough?
R v Costello: 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 weight or connect by reason or his failure to do so.
What remedies are available?
Strict or liberal remedies.
What factors determine what remedy will be applied?
Depends on the circumstances of each case and securing fairness.
What is a strict application of the rule?
Refusing to allow evidence to be called to contradict evidence not cross examined
Peter Schneidas “court refused to allow evidence to be called by the Defendant upon certain points to contradict a crown witness whom she had failed to cross examine on those points.”
Khamis v r “excluding evidence should be a last option and not one of first resort.”
Bradley v matloob “it would be wrong unreasonable or even perverse to reject evidence up on which there has been no relevant cross examination”
What is a liberal application of the rule?
May allows evidence in rebuttal by granting leave for a party to recall a witness pursuant to section 46 evidence act
What is the authority of Seymour v ABC?
An authority for a liberal application of the rule of browne v dunn which prohibited the offending party from submitting that the unchallenged witness couldn’t be believed.
Similarly precision plastics pty ltd v demir: the court has good reason to accept the uncontradicted evidence if it is not inherently incredible.
What is the authority or Reid v Kerr?
Authority for a liberal application of the rule of browne v Dunn- jury might have no justification for rejecting those unchallenged parts of a witness evidence. The court may allow evidence in rebuttal by recalling a witness. S 46
What is The authority of R v Robinson?
Court may draw an inference that the defendants evidence is a recent invention where it differs from unchallenged evidence of another witness. However hofer v r provides that prosecution can’t assume recent invention unless a proper basis is established
Highlight the issue seek leave to recall the witness defence may prefer explanation
What is section 46 evidence act?
Leave to recall a witness.
The court may grant leave to recall a witness for evidence on matter 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 inference drawn or intended.”
Does section 46 over ride common law?
No. Section 46 evidence act does not prohibit the use of previously available common law remedies.
Fernando v commissioner of police - statute can only abolish the common law where the statute states in such in a clear ambiguous words.
Section 46 does not do this.
S9 evidence act further provides that the act does not affect the operation of common law or equitable rules or principles in a proceeding unless the act provides otherwise.
If a defendant is self represent how does the court consider the rule in Browne V Dunn?
R v Birks and R v Zorad: if an accused person is not represented the court may apply a wider discretion in favour of the accused in relation to a breach of the rule.
Who does browne v Dunn apply to?
Defendant, co offenders and also the prosecutor
What two types of remedies are available?
Strict and liberal remedies
