Browne V Dunn

Question 1

Is brown v Dunn a rule of law?

Answer 1

No it is a rule of professional practice

Question 2

What is the rule of brown v Dunn?

Answer 2

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.”

Question 3

How many parts to the rule? What are they?

Answer 3

2 parts. Fairness and weight.

Question 4

What does the rule in Browne V Dunn mean?

Answer 4

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.

Question 5

What is the overarching principle of browne v Dunn?

Answer 5

Fairness

Question 6

What does fairness mean? Cite authority

Answer 6

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.”

Question 7

What does weight refer to?

Answer 7

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.

Question 8

If there is a breach of browne v Dunn what weight may be given to the evidence?

Answer 8

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

Question 9

Does the principles of browne v Dunn apply in criminal trials?

Answer 9

R v Birks is authority for the principal applying to criminal trials.

Question 10

What are four ways that browne v Dunn applies in criminal trials?

Answer 10

• 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

Question 11

What does the authorities of R v Felon and Italino v State of WA refer to?

Answer 11

Browne V Dunn applies to each co accused

Question 12

What is the authority of R v E(2012)?

Answer 12

Browne V Dunn applies to children and vulnerable witnesses

Question 13

How does browne v Dunn apply to the prosecutor when will they have to comply with the principles?

Answer 13

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 14

Do we have to browne v Dunn defendants cite authority?

Answer 14

No although it could be expected of a prosecutor. Burnitt v Clearly & Amor

Question 15

Why don’t prosecutors have to cross examine the defendant?

Answer 15

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)

Question 16

What is the authority of R v whitehorn

And R v apostilidis authority for?

Answer 16

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

Question 17

Why may a breach of browne v Dunn occur?

Answer 17

Party may forget mere oversight, 
mistake 
Inexperience 
Flagarant incompetence 
No instructions from the defendant 
Not represented 
Forensic choice

Question 18

When does a breach of browne v Dunn occur?

Answer 18

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

Question 19

How much cross examination is enough?

Answer 19

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.

Question 20

What remedies are available?

Answer 20

Strict or liberal remedies.

Question 21

What factors determine what remedy will be applied?

Answer 21

Depends on the circumstances of each case and securing fairness.

Question 22

What is a strict application of the rule?

Answer 22

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”

Question 23

What is a liberal application of the rule?

Answer 23

May allows evidence in rebuttal by granting leave for a party to recall a witness pursuant to section 46 evidence act

Question 24

What is the authority of Seymour v ABC?

Answer 24

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.

Question 25

What is the authority or Reid v Kerr?

Answer 25

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

Question 26

What is The authority of R v Robinson?

Answer 26

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

Question 27

What is section 46 evidence act?

Answer 27

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.”

Question 28

Does section 46 over ride common law?

Answer 28

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.

Question 29

If a defendant is self represent how does the court consider the rule in Browne V Dunn?

Answer 29

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.

Question 30

Who does browne v Dunn apply to?

Answer 30

Defendant, co offenders and also the prosecutor

Question 31

What two types of remedies are available?

Answer 31

Strict and liberal remedies