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Scope and extent of Browne v. Dunn rule

A chief and significant rule relating to evidence (in regard to the matter of cross-examination) can be said to be the rule that was forwarded in Browne v. Dunn (1893) 6 R. 67, H.L.[1] This particular rule is appliable in the civil as well as the criminal proceedings. Fundamentally, the Browne v Dunn rule can be said to be a rule relating to professional practice prefaced upon fairness. It should be noted that the rule is actually grounded upon the principle or standard that it would be unfair to reject any witness the scope or opportunity to explain any particular point that shall be utilized afterwards for inviting disbelief or criticism in their specific evidence. The rule that has been forwarded in the Browne v Dunn case, mandates the counsel to (i) put any matter regarding his or her own specific case (that might be inconsistent with the evidence of a witness) to that specific witness, and (ii) and to put any imputations or allegations (that is actually intended to counter against any witness) to that specific witness. This essay shall forward a discussion in relation to the scope and extent of the specific rule that has been forwarded in Browne v. Dunn (1893) 6 R. 67, H.L.[2] as well as what application (if any) the rule actually has in connection to any trial where ‘evidence-in-chief’ is provided with the help of affidavit.

In the case of MWJ v R (2005) 222 ALR 436[3] as well as in the case of Bulstrode v Trimble [1970] VR 840[4], it has been mentioned that the Browne v Dunn rule is actually a rule relating to fairness, which has been intended and structures to permit the witnesses to confront any projected challenges in relation to their specific evidence, as well as to facilitate the jury to observe and evaluate the reactions and responses of the witnesses in relation to such challenges. As stated in the case of R v Birks (1990) 19 NSWLR 677[5], the Browne v Dunn rule shall be applicable in an instance where any party has the intention to call the evidence that actually contradicts the account of a witness, as well as in an instance where any party has the intention to propose that the particular jury draw an interpretation contrary to the specific witness from the particular evidence in the given case. In the second case, the proposed interpretation should normally be ‘put’ to the specific witness in the cross-examination[6].

According to John H. Langbein, the history in relation to the development or progression of the specific law relating to evidence is highlighted by a sequence of long running discussions or debates[7]. On one hand, it had been argued by Bentham that every binding rule relating to evidence must be abolished. On the other hand, the argument is forwarded that the law relating to evidence actually symbolizes and expresses the amassed wisdom of eras of real-world experience as well as few fundamental concepts regarding the procedural fairness, particularly, in relation to protection of the individuals who have been accused of offence. The latter encompasses the conceptions like the right to silence, the presumption of the innocence, the privilege against the self-incrimination and certainly the ‘hearsay’ rule itself[8]. These discussions and debates have not been limited to United Kingdom, but have transpired in every common law jurisdiction, which includes the nations like Australia and Canada.

Principle of fair advocacy and its integration into the Evidence Act

In the case cited to be Browne v. Dunn (1893), 6 R. 67 (H. L.)[9], it has been explained by Lord Chancellor Herschel that any party that wishes to impeach or indict the credibility of any witness, should put the contradictory or opposing evidence in respect of the specific witness in order to give an opportunity or chance for the specific witness to actually respond as well as clarify the in consistency or contradiction. The principle relating to the fair advocacy, which had been forwarded in the Browne v. Dunn case, is presently integrated into section 20 and section 21 of Evidence Act (R.S.O. 1990, c. E. 23)[10]. It must be noted that the message, spirit and essence of the Brown v Dunn rule can be said to be an exploration for the fact or truth in the most reasonable and fairest way possible, thereby stopping surprise and unjust trial strategy. Even though the particular rule most often ascends in the criminal framework, the functional knowledge regarding the rule is vital for the civil litigators as sidestepping the responsibilities to adhere to the specific rule could be costly. For example, from a strategic viewpoint, the Browne v Dunn rule could pose a quandary or predicament in respect of the trial lawyer, as it shall be possible to gain a specific advantage by not putting the contradictory or opposing evidence to ant adverse or opposing witness in the course of the cross-examination. However, if one is not successful in doing so, then, numerous options shall be open for the trial judge, from decrease the weight or importance in relation to the evidence, to permitting witness recall (or calling for new evidence). Furthermore, it had been specified in the cases of Iannarella v. Corbett (2015 ONCA 110)[11] and O’Brien v. Shantz (113 O.A.C 346)[12] that a lawyer professed to be conducting the trial by insnare or ambuscade, shall not be received in good terms by the judiciary[13].

More than a century later from the time when Lord Chancellor Herschel initially formed the Browne v Dunn rule, the Court of Appeal of Ontario, in the case of R. v. Quansah (2015 ONCA 237)[14], delivered a brilliant summary of the governing principles of the above said rule. One the basis of the Quansah case, 4 indispensable points are present that the litigators are required to know in connection to the specific rule. First is that the source of the specific rule is grounded upon fairness. Second is that the Rule is applicable in relation to the matters of substance. Third is that the timing in connection to any Browne v. Dunn objection is vital. Fourth is that if the specific rule is violated, then, considerable discretion is given to trial judge in regard to the appropriate remedy. As stated in the cases of R v McCormack (No.3) [2003] NSWSC 645[15] and R v Schneidas (No 2) [1981] 2 NSWLR 713[16], the judge might decline to admit the evidence, which is in violation of the Browne v Dunn rule if the probative value of the evidence is actually outweighed and overshadowed by the peril relating to the unfair prejudice. Such instances have also been established in sections 135 and 137 of the Evidence Act of 2008. However, as mentioned in the cases of R v Rajakaruna (No 2) (2006) 15 VR 592[17] and R v Costi (1987) 48 SASR 269[18] any judge shall not have the entitlement, by the motive of defense of non-adherence to the Browne v Dunn rule, to withdraw any particular issue of fact from jury. It was also specified that the judge shall not have the entitlement to treat any specific ingredient of the particular charge as proved[19].

Consequences of non-adherence to the Browne v. Dunn rule

All the trial lawyers have knowledge regarding the particular rule concerning cross-examination that has been forwarded in the case of Browne v. Dunn (1893) 6 R. 67, H.L.[20], however, very few actually understand the rule. It should be noted that the specific rule consists of 2 facets. First is that a rule relating to fairness, in accordance to which, a specific party shall have the entitlement to put it in the opposing or contrary case, so that the answer can be given in relation to it. The other facet is actually concerned with the weight, that is, if the specific evidence of any witness is not challenged, then the weight of such evidence is normally the greater. In this regard, the case of Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1[21] can be considered to be a pertinent case, where it had been stated that in the first instance, a specific rule relating to practice or procedure exists (grounded upon the general principles relating to fairness), which is intended and structures to attain fairness in relation to the witnesses as well as a fair trial amidst the parties, and in the second instance, a rule exists in connection to the weight or the strength of the evidence[22].

Where the proceedings are actually conducted on the basis of affidavit, the 1st facet of the Browne v Dunn rule, shall normally not be valid or applicable. Each specific party shall have knowledge regarding the case (with the help of notice) that the other involved party pursues to make. There shall be no obligation or responsibility to raise such specific matters in the cross-examination in the situations where it is unambiguous and very much clear that the specific witness has received complete notice that an intent exists to impeach or indict the reliability and integrity of the specific story that is being told by him or her. Normally, it shall be the 2nd facet of the Browne v Dunn rule that would be pertinent in case of affidavits in the Family Court. In this regard, the outcome would be that, normally, the evidence, which is not at all challenged, must be accepted except when it is integrally incredible[23]. The 2nd facet of the specific Browne v Dunn rule actually means nothing more than the fact that if a cross-examination is not done to any witness concerning a specific matter in connection to which evidence has been provided by him, then, such situation shall usually be a very strong and good reason for the acceptance of the specific evidence of that particular witness regarding that matter. However, no requirement or necessity actually exists in law the that the specific tribunal of the fact should accept such evidence, and also, no basis or foundation exists in the law on which the other involved party would be prohibited from leading the evidence in opposing or contradiction to it. The previous rigors regarding the rule have been lessened or alleviated, and based upon that leave or consent, presently, it may be granted in respect of any party to actually recall any witness in order to provide evidence regarding a matter that may have been raised by any other party upon which the particular witness had not been cross-examined[24].

The Evidence (National Uniform Legislation) Act of 2011[25] states (in regard to affidavit) that it shall not be reasonably practicable or feasible for the specific evidence to be provided by an individual who had, during such time, a status of responsibility regarding the particular document. The specific Act also specified that after taking into consideration the situations, it should be determined as to whether undue expense might be instigated by calling such an individual in the role of a witness. Therefore, in this regard also, it could be stated that the 2nd facet of the Browne v Dunn rule would be pertinent in case of affidavits in the Family Court, and the outcome would be that, normally, the evidence, which is not at all challenged, must be accepted, except when it is integrally not credible[26].

Conclusion

Therefore, in the conclusion, it can be said that the rule that has been forwarded in the Browne v Dunn case, mandates the counsel to (i) put any matter regarding his or her own specific case (that might be inconsistent with the evidence of a witness) to that specific witness, and (ii) and to put any imputations or allegations (that is actually intended to counter against any witness) to that specific witness. This essay has actually forwarded a critical discussion in relation to the scope and extent of the specific rule that has been forwarded in Browne v. Dunn (1893) 6 R. 67, H.L.[27] It has been discussed that where the particular ‘evidence-in-chief’ is provided with the help of an affidavit, the 2nd facet of the Browne v Dunn rule would be applicable in the case of such affidavits.

Browne v. Dunn (1893) 6 R. 67, H.L.

Bulstrode v Trimble [1970] VR 840.

Evidence (National Uniform Legislation) Act, 2011.

Evidence Act (R.S.O. 1990, c. E. 23).

Gotocourt.com.au. "The Brown V Dunn Rule". Go To Court, 2022, https://www.gotocourt.com.au/criminal-law/brown-v-dunn-rule/.

Iannarella v. Corbett (2015 ONCA 110).

Luttrell, Sam, and Peter Harris. "Confronting the Incredible: Revisiting the Applicability of the Rule in Browne v. Dunn in International Arbitration." Arbitration: The International Journal of Arbitration, Mediation and Dispute Management 86.3 (2020).

McElwee, Brian. "The ambitions of consequentialism." J. Ethics & Soc. Phil. 17 (2020): 198.

MWJ v R (2005) 222 ALR 436.

O’Brien v. Shantz (113 O.A.C 346).

O’GRADY, Sarah REYNOLDS, and Patricia Ugalde REVILLA. "ARBITRATION REVIEWS & JOURNALS." ASA BULLETIN 1 (2021): 247.

Porter, Charlotte. "The Rule In Browne V. Dunn: Getting The Evidence In And Staying Out Of Trouble". Canlii.Org, 2015, https://www.canlii.org/en/commentary/doc/2015CanLIIDocs5028#!fragment/zoupio-_Toc3Page2/BQCwhgziBcwMYgK4DsDWszIQewE4BUBTADwBdoAvbRABwEtsBaAfX2zgGYAFMAc0IBMASgA0ybKUIQAiokK4AntADkykREJhcCWfKWr1m7SADKeUgCElAJQCiAGVsA1AIIA5AMK2RpMACNoUnYhISA.

R v Birks (1990) 19 NSWLR 677.

R v Costi (1987) 48 SASR 269.

R v McCormack (No.3) [2003] NSWSC 645.

R v Rajakaruna (No 2) (2006) 15 VR 592.

R v Schneidas (No 2) [1981] 2 NSWLR 713. Quansah (2015 ONCA 237).

Talarico, Andrea. "Labour Arbitration in Canada, By Morton Mitchnick and Brian Etherington (2018), Toronto: Lancaster House, 730 pages. ISBN: 978-0-920450-66-6." Relations industrielles/Industrial Relations 73.4 (2018): 878-879.

Tuch, Andrew F. "Reassessing Self-Dealing: Between No Conflict and Fairness." Fordham L. Rev. 88 (2019): 939.

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