Browne V Dunn/

The Rule in Browne v Dunn

The High Court has emphasised the need for care on the part of a trial judge in directing a jury to attribute significance to the failure of counsel to put an aspect of his client’s case to a witness on the other side, especially where it is otherwise apparent that the proposition which is not put is in issue.

1

The defendant gave evidence that [the complainant’s injury was the result of a fall rather than having been inflicted by him]. That proposition was not put to the complainant. In other words, she was not asked to comment on whether that was the case. The result is that she has not had the opportunity to respond to the suggestion [she injured herself in a fall], and you do not have the benefit of the evidence she might have given had she been asked.

Where further direction warranted.^2:

It is a rule of practice in both civil and criminal trials that if one party is going to assert a different version of events from the other, witnesses for the opposing party who are in a position to comment on that version should be given, by the cross-examiner, the opportunity to do so. That has not occurred. The failure to ask the complainant questions about [the fall] which the defendant says occurred may be used by you to draw an inference that he did not give that account of events to his counsel. That in turn may have a bearing on whether you accept what the defendant said on the point. However, before you draw such an

1

MJW v The Queen (2005) 80 ALR 329; R v MAP [2006] QCA 220.

2

Foley [2000] 1 Qd R 290 suggests that the basic direction as to the absence of evidence, and the direction as to inferences, are to be given only in exceptional cases: Peter John Burns (1999) 107 A Crim R 330, a recent application of Foley. Benchbook – 32 – Rule in Browne v Dunn No 32.2

inference you should consider other possible explanations for the failure of counsel to put questions about [a fall] to the complainant.

3

Browne v Dunn (1893) 6 R 67, 70, 76. See also Cross, On Evidence, Aust ed. [17435] ff.

4

Birks (1990) 19 NSWLR 677; Manunta (1990) 54 SASR 17 .Caution should also be exercised in deciding whether to give a direction where the party who called the witness who was not cross-examined does not complain: McDowell [1997] 1 VR 473.

5

Walter Berkley Hart (1932) 23 Cr App R 202 shows the prosecution stands to be embarrassed by the rule in Browne v Dunn as much as the defendant. At 206, the Court of Appeal commented on a "remarkable feature of the case", that three defence alibi witnesses were not cross-examined.

6 In particular, the witness treated unfairly may be recalled and given the opportunity to make appropriate comment. In

Payless Super Barn (NSW) Pty Ltd v Ogara (1990) 19 NSWLR 551, 556 Clarke JA said that the trial judge "may, for example, require the relevant witness to be recalled for further cross-examination before allowing the contradictory evidence to be given or he may decline to allow the party in default to address upon a particular subject upon which the opposing party was not cross-examined."

In preparation for trial, usually counsel would be given his client’s instructions: that is, what his client has to say about the matter in written form taken by his solicitor, or in oral form by what his client says when they meet, or both. Counsel then uses that information from his client to ask questions of the opposing side’s witnesses. However, communication between individuals is seldom perfect; misunderstandings may occur. The solicitor or the barrister may miss something of what their client is telling them. In the pressures of a trial, counsel may simply forget to put questions on an important matter. You should consider whether there are other reasonable explanations for the failure to ask the complainant [whether there was such a fall]. You should not draw any inference adverse to the defendant’s credibility unless there is no other reasonable explanation for that failure.

The rule concerns the failure of a cross-examiner to challenge the evidence of a witness on some point, followed by the attempted making of assertions or calling of evidence to show that the witness should not be believed.
3 Considerable caution is required in applying it in criminal trials, since there may be any number of reasons for oversight, including counsel’s error.4 The rule applies against the prosecution.5 Rebuttal evidence may be permitted.6