Rule in Browne v Dunn - Structure or Answer PDF

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Rule in Browne v Dunn – Structure of Answer...

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Nick Dowse

Rule in Browne v Dunn

Rule in Browne v Dunn – Structure of Answer 1. The fundamental objectives in cross-examination are to: a. Obtain evidence in support of own case; b. Quality, weaken or destroy evidence given in chief; and c. Attack the credit of the witness 2. If you plan to contradict a witness’s examination in chief, you must put the contradictory statement to the witness to give them an opportunity to respond (Browne v Dunn). a. “When cross-examining [witness], did [counsel] comply with the rule in Browne v Dunn?” b. Must put the alternative case to each and every one of the other side’s witnesses. c. Usually starts with “I put it to you that…” d. Applies in both civil and criminal cases (Smith v Advanced Electrics). 3. Rationale for rule: a. Based on fairness b. A failure to adhere results in a denial of the witness’s opportunity to: (Allied Pastoral Holdings) i. Demonstrate mettle under attack; ii. Explain or qualify the contradicting evidence; and iii. Call corroborative/contradicting evidence (as the case may be). 4. How rule is breached a. By not cross-examining at all; or b. Not putting those parts of the case which contradict or challenge the witness; then c. Calling other evidence which contradicts them; or d. Inviting of fact to either reject the witnesses’ evidence or draw inferences contrary to their evidence. i. Eg: if going to call a later witness to contradict the first evidence, you need to put to the current witness the scenarios the other witness is going to talk about. 5. Effect of breach of rule a. opponent allowed to call rebuttal evidence b. implied acceptance of the evidence-in-chief c. Recall of witness not warned of refutation d. Denial of offending party right to challenge witness in addresses (Allied Pastoral Holdings) e. Abortion of trial f. Strong warnings by judge to the jury about consequences of breach g. Denial of opportunity to call contradicting evidence (Payless Supabarn) h. Findings can be overturned on appeal (Smith v Advanced Electronics)

Allied Pastoral Holdings v FCT  Tax case involving s 26(a) of the 1936 Act – income arising from the sale of a property acquired for the purpose of making a profit by sale  There was a seven year gap between the time purchased and the date that the property was sold  The commissioner asserted that the reason that the property was not sold before that date was that it was kept ‘under wraps’ until there was a suitable ‘staged development’ – therefore the section applied  Counsel for the Commissioner failed to put the ‘staged development theory’ to any of the defence’s witnesses in cross-examination  Held: There are many reasons why it should be made clear, prior to final addresses and by way of crossexamination or otherwise, not only that the evidence of the witness is to be challenged but also how it is to be challenged.  Firstly, it gives the witness the opportunity to deny the challenge on oath, to show his mettle under attack  Secondly, it gives the party calling the witness the opportunity to call corroborative evidence which in the absence of such a challenge is unlikely to have been called.  Thirdly, it gives the witness the opportunity both to explain or to qualify his own evidence in the light of the contradiction of which warning has been given and also, if he can, to explain or to qualify the other

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Nick Dowse

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Rule in Browne v Dunn

evidence upon which the challenge is to be based. “You bought this because you wanted to make money?” YES – OK the rule in Browne v Dunn is satisfied

R v Nicholls  N was charged with murder  The Crown called a witness who gave evidence about the issues which implicated N  The witness was then cross-examination  Allegation is that he has told a lie about the involvement of the accused, the police got him and he agreed to testify to get a benefit  Defence counsel had a witness who was prepared to get into the witness box and swear that the Crown witness had said all of those things to him at a particular time and place – would therefore be giving evidence about a PIS  Remember the rule in Browne v Dunn – have to warn a witness when going to refute or contradict his evidence  Held: Defence counsel had not complied sufficiently with the rule in Browne v Dunn – there was no indication given of a PIS to any other person  Must give the actual circumstances of how the alleged PIS was made to the witness

Smith v Advanced Electronics  Electrician trying to join employer as defendant and get around Limitation of Actions Act  Injured by explosion of switchboard but claimed for PTSD and claimed that the limitation period did not start to run until he suffered the PTSD  During trial, psychiatrist who examined the electrician formed the opinion that he did have PTSD  Defendant stated earlier that he didn’t need psychiatrist for cross-examination  Counsel for defendant then advanced arguments in closing about why the psychiatrist’s evidence should not be accepted by the jury  Pointed at other evidence that suggested the electrician did not have PTSD  Trial judge held that period was running against the plaintiff and employer couldn’t be joined  Held: Counsel had breached the rule in Browne v Dunn  Court had to decide on a remedy – discussed ordering a retrial so that psychiatrist could be cross-examined but instead overturned finding of trial judge and joined employer (bad result for defence counsel)

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