Explaining The Scope And Application Of Browne V Dunn In A Trial With Evidence-In-Chief Given By Affidavit

In Rittman & Rittman [2012] FamCAFC 151 at [122], the Full Court of the Family Court of Australia rejected the appellant’s submission that the trial judge had erred when stating that, “[t]he rule of Browne v [Dunn] hardly applies in an age where we have trial by affidavit”. The Full Court held at [127] that the “trial Judge’s analysis of the rule [in Browne v Dunn] as it applies in a trial where evidence is given by affidavit is, in our view, entirely apt”. Not all legal practitioners accept that this view is correct. 

With reference to the rule in Browne v Dunn (1893) 6 R 67,2 the Evidence (National Uniform Legislation) Act (NT), the common law and other relevant authorities, explain the scope of the rule in Browne v Dunn and discuss what application, if any, the rule has in a trial where the evidence-in-chief is given by affidavit.

Browne v. Dunn has been regarded as a well-known British Case law, the verdict of which was based on the rules of cross-examination. The grounds of precedence are the root cause for Christianization of the case as “Browne v Dunn Rule”. The ruling provided in this case was usually observed to require that the cross examiner could not depend on proof that was paradoxical to the authentication of the witness. Authentication in this case lacked the imposition of putting the proof or evidence to the witness. This was executed in order to permit them to justify the undertaken contradiction. 

As per the propositions of this ruling, the witness is granted the authentication that contradicts the desires of the individual. Leading, as a proof or evidence under law, the contrasting individual must raise the disputation with the witness at the time of cross- examination. This ruling could be observed as an anti- ambush rule, because it prevents an individual from putting forward a matter without providing the witness with the opportunity to voice out his opinions on the case.

It was also stated that the rule, which was established in the present case, has a long attributed feature outstandingly in the Singapore lawful system. Although it finds its origin in civil suits, it has “been pushed into criminal service in the state with some minor adjustments” since its origin. In collaboration, it was founded that the Rule, which was recognized in this case outlines some principles such as:  

If the CE has been forced, or determined to be forced, proofs opposes the proof of the spectator who was being cross-examined. In such cases, he should put the opposing details to the witness so that the proof of the witness can be transformed into an argument, and the latter would then be granted the chance to answer. If the cross-examiner emerges unsuccessful to put his matter before the witness, the tribunal would then be free to gaze at the witness’ proof as undeniable apart from the life of the CE matter.

At its irreducible centre, the Rule works on the instinctively inoffensive proposition, that a person should be faced with any opposing proof that was being dependent upon (and proposed to be forced) by the cross-examiner. The inspiration for the continuation of the Rule was regarded to be simple, as a witness should be approved with the chance to elucidate and explain his /her place and/or description of details before any opposing descriptions. These issues must be put forth to the tribunals as one of detail and before any accusation was made that, the story that the witness has stated, lacks recognition.

Explanation of Browne v Dunn rule

 The ruling was regarded to be associated to natural ideas of fair play, clearness and appropriate principled performances in the deficiency of such a Rule to adjust act in litigation. In these cases, the individual specifications may very well be excited to uphold their proof cards very close to their heart until the final steps of the proceeding to withdraw the conflicts regarding the opportunities to answer. Such a state of mind, unnecessary to be stated, distorts the lawful procedure. This cause considers the litigation procedure a merely calculated war, as opposed to propositions of distinguishable reality.

It might, as a result, be regarded to be predictable to scrutinize, that the Rule have an principled ruling mentioned in the form of r 60(g) of Legal Profession (Professional Conduct) Rules (Cap 161, r 1). Rule 60(g) which states that a lawyer “shall not by claim in a speech make an accusation against a witness whom he had a chance to CE unless in CE he has granted the witness a chance to reply to the accusation”.

 Although the standard was adequately easy to appreciate, its request could sometimes be difficult. Certainly, in spite of its rational and sensible raison d’être, the ruling was observed in many ways as being one of the most misinterpreted yet mostly applied rules in the monarchy of criminal advocacy act and process. There was, at least, a granule of certainty to such disagreements – indeed, as would be observed from the resulting deliberations, although the tribunals have, on instance, articulated conflicting beliefs as to the impact of the request of the ruling to definite realistic atmosphere.

 The aspiration of such a ruling was significantly more self-effacing on the grounds of requesting an insight into the domestic ruling. The principle of this ruling broadly defines the basic rules, which enclose the operation of the standards. Putting it on a brief note, the practical issues and implications, which takes place because of the Rule, aligns with the basic principles. 

In doing so, important dependence have been placed on familial criminal jurisprudence. This takes a contrasting perspective to matters in the civil land in light of the ruling details. As   a matter of specification, appropriateness in the request of the ruling was usually marked in criminal case. This specifically considered the prospect of a last-minute “astonish” that the ruling was clearly condemn was noticeably restrained in the civil land by the necessity for individuals to file affidavits and proceedings.

Principles established by ruling in Browne v Dunn

As per the verdict, it was stated that, prior to the verdicts, it was essential to have meticulous regard to the rule of practice, which contradicted the dependency of the crossexaminer on proofs, that was conflicting to the witness and the spectator. Absence of imposition of proofs to the spectator aligned with the order to provide permits for rationalizing the challenges.  

The rule was basically defined in the verdict of the case of Allied Pastoral holdings Pty Ltd v The Commissioner of Taxation. Here, it was stated that unless note has already been provided of the CE meaning. To depend upon such cases, it was essential to put to an opponent’s witness in CE, the personality of the matter upon which it was projected to depend in disagreement of his proofs. Here, the prime matter depends upon conclusions to be made from other proof in the suits.

 Such a rule of practice was regarded as essential both in granting the witness with a chance to deal with that other proofs, or the conclusions to be made from it for permitting the other individual for the conclusion sought to be made. However, in this matter, the focus of the common law was on the rule of fairness. Such a rule guarantees that the spectators are provided with the chance to tell if the other individual has an intention to later oppose them. Presently in the state, certain doubts has been observed as to whether the rule was seen to be applicable in the criminal proceedings or not. Though it was present in the case of MWJ v R along with the ruling conclusions, important qualifications, have been observed to be applicable to the criminal matters.

Perhaps the most significant credentials were that the tribunal must reflect on the nature and course of suit in assessing the outcomes of a breakdown to CE on a point on which the individual depends. Along with this, the request of the ruling must not relocate the load of evidence on prosecution party. So, the interpretation of the court of the present case in MWJ v R has been discussed in this essay and certain logic behind the uncertainty as to the rule’s request were also provided.

From the above deliberations, it has been clearly observed that this case was based upon a significant rule of proficient practice. It needs that unless note has been specifically provided till then ‘it would be essential to put to an opponent’s eyewitness in CE. Therefore, in light of the rule against matter opening, it was unjust to the observer and the individual who was calling the observer, to disagree with a chance for enlightenment if the conflicting party, at a proposed stage, aims to request distrust or condemn the witness.

Application of Browne v Dunn in criminal and civil cases

Similarly, it could be found out that the recognized position in the state was that this case pertains to both civil and criminal cases, though the application may vary in criminal matters. There were certain doubt as to exactly when the rule was violated and the punishments that would pertain to an individual in contravention.

Presently, certain disbeliefs have been hoisted as to whether this case was appropriate to criminal cases at all or not. The subsequent matter assesses MWJ v R and other pertinent case law to elucidate the essential problem of the rule’s request under criminal law. MWJ v R was currently pursued by the tribunal in R v MAP that was stated upon specific facets of the ruling of the present case, which was expressed in MWJ v R.

While the judges did not particularly referred to the rule provided in the present case then also the request of this case in criminal matters turn out to be one of the originating opinions of the appellate court. The claimant stated that the appellate court made a mistake in the request of this case and that the discrepancy of a preceding declaration which cancelled the assurances.

 The High Court established that the past allegations were accurate, although the final was not. The plea was also dismissed; however, the two basis of appeal were connected to the following subsequent centers, which were put on the request of the case of Browne v Dunn. In spite of such confusions, it was confirmed in the case of MWJ v R that the matter of Browne v Dunn was applicable to criminal cases in the state. In addition, it was confirmed that ‘the need was established and was useful daily in criminal matters.  

Although, the High Court expressed a number of principles in connection to the request of the rule, which was established in the matter of Browne v Dunn such as:

 Such rule must be applicable carefully when considering the behavior of the defense at a criminal proceeding. As for explaining the need for caution, it was suggested by the judges to consider the cases like R v Birks (Birks) and R v Manunta.

In Birks, it was confirmed that usually, it would be improper to wait for an unrepresented respondent to abide by the rule, additionally it was affirmed that it might pertain to CE of one co-accused by other. Although, some judges followed R v Manunta wherein it was concluded that where an evident non-compliance with the present case was pursued by legal remark to the adjudicators, it would be significant to think the material of the commentary.

Qualifications and interpretations of Browne v Dunn rule

It was against this milieu that the judges affirmed in  MWJ v R that the outcomes of a failure to CE require to be measured ‘in beam of the character and route of the hearings. There could be a number of details for a failure to CE, which do not imitate on a trustworthiness of the observer. Usually a contravention of the present case takes place where ‘the cross examining individual looks for taking care of opposing proofs in its own matter without having initially uplifted the case in CE.’ However, a failure to CE may not make up a contravention of the ruling.

Therefore, after relating this way of thinking, it was concluded by the court that there was no duty on the defense advocate to question the plaintiff on the irregularity or to have the plaintiff recalled for that object. The breakdown to CE was a forensic case and as a result for the defense advocate to choose. Accordingly, the criticisms given by the judges and the courts in relation to this point were a misinterpretation of the present case was made. Although, the other judges decided to agree that the failure to CE was a case to be measured in evaluating the load of the proof.

Therefore, the ruling in this case must be functional mindful of the ‘inescapable load of evidence approved by the tribunal in an unlawful case. This deliberation considers the sight of the tribunal of the claimant’s need of duty to CE the plaintiff on the problem of discrepancy.

It was then in a case of Porter v Oamps, wherein it was founded by the court that Browne v Dunn could not prevail because the individuals were conscious of the problems by the time of the trial and was aware about the replies that each witness would grant to the proposals put to them.

Although, in the state there has been a bill which was introduced in the year 2011 i.e. The Evidence (National Uniform Legislation) Bill 2011. It specifically grants for an innovative statutory law of evidence that would substitute the present common law and statute law.

However, this act and bill has a specific relation in the present case as under section 46 of the uniform Evidence Acts deals with the similar ground as part of the rule, which were provided in the present case, but does not substitute it. It specifically states that the tribunal may grant leave to a individual in order to remember a observer to grant proof about a case uplifted by proof which was forced by other individual, being a case on which the observer who was not CE, if the proof apprehensive has been acknowledged  as:

• It disagree with the proof about the case granted by the spectator in assessment in chief; or
• The spectator could have granted proof about the case in assessment in chief.

Importance of fairness in the legal process

It was this Act which overlaps the rule of justice in the matter of Brown v Dunn (1893) 6 R 67 although it may not expand as far as the common law ruling. The rule was broader in criminal cases than in civil cases but to certain extent, still it was seen to be applicable. Therefore if a respondent has a chance to cross-examine on an supposed discrepancy but does not, that failure may avert a dependence on the supposed discrepancy to challenge the trustworthiness of the observer later on, without that breakdown to cross-examination being taken into consideration ‘in evaluating the load to be provided the inadequacies.

The section was intended to ease the reminder of an observer in these circumstances, along with the leave of the tribunal, and its authenticity.

It was in Rittman & Rittman, wherein the tribunal has discarded the claimant’s acquiescence by stating that the judges had made a mistake while stating that, “the rule of this case barely was applicable in an age where people have trial by way of affidavit”. It was stated in the present case that the “a study of the rule which was made in the present case should be done as it applies in a proceeding where proof was granted by affidavit was, in their view, completely appropriate”. Not all lawful practitioners accept that this view was accurate.

The variance of views in the case of Abdul Nasser was regarded as symbolic of the actual stress faced by both advocates and solicitors as to how best to relate the ruling in a case. The very detail that the tribunal could offer dissonant outlooks and conclude at different outcomes as to whether some questions require to be taken into consideration and certain cases require being puts no disbeliefs a role of the inbuilt elasticity of the Rule.

This may be specifically related with illegal acts, where the requirement for quick and well-organized hearings must be fair with the information that any professed non-abidance to the ruling of this case which may establish to be deadly since it “impact upon the level of evidence wherein it was stated that non-appearance may obliterate the matter for the individual”.

Therefore, it was concluded that it was correct that in beam of the obvious nonappearance of proceedings and official declaration that grant a deep imminence into the personal positions of individuals in the criminal cases have professed failure to stick on to the Rule in a criminal case “may not for all time conclude in a fair presumption.”

The practitioners and advocates mutually might state that there was substantial wisdom in the observation, which was made in this case, by stating that where a person faces a hard and prejudiced alternative, comprehensiveness ought to be chosen over conciseness.

Also, it was stated that considering the breadth of the situations hoists the rulings of the present case, in which the substance of the remark made is the outcome of a violation. Replication holds particular significance to the behavior of the examination and the way in which this case communicates with other rules of law and lawful practice.

It was the matter of MWJ v R, which concludes this case in relation to the unlawful cases with significant credentials. The request of the ruling must be measured on a matter-by-matter basis, having observance for the necessary harsh character of unlawful events.

So, it was affirmed that the worries which were mentioned in connection to the request of the present case in criminal cases which would centre on the security of an accuser’s privilege to be quiet and the avoidance of a disarticulation of the examiner’s burden of evidence.

 Therefore, this case signifies that the request of the ruling, in unlawful events, was essentially unsuited with these main beliefs.

Allied Pastoral holdings Pty Ltd v The Commissioner of Taxation [1983] 1NSWLR 1 at 16.

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

MWJ v R [2005] HCA 74

Porter v Oamps (2004) 207ALR 635.

 R v Birks (Birks) (1990) 19 NSWLR 67  

 R v Manunta (1989) 54 SASR 17.

 R v MAP [2006] QCA 220.

Rittman & Rittman [2012] FamCAFC 151 at [122].

Legal Profession (Professional Conduct) Rules (Cap 161, r 1), Rule 60(g).

The Evidence (National Uniform Legislation) Bill 2011.

Mcewan, Alexandra., ‘The Rule in Browne v Dunn in Australian Criminal Law: MWJ v R and R v MAP’ (2006) 13 James Cook University Law Review 155.

Australasian Legal Information Institute, Aspects Of Advocacy: The Effective Presentation Of Evidence, (13 August 2006) < https://www.austlii.edu.au/au/journals/NSWJSchol/2006/10.pdf>

Australasian Legal Information Institute, Evidence (National Uniform Legislation) Bill 2011 (2017) < https://www.austlii.edu.au/au/legis/nt/bill_es/eulb2011369/es.html>.

Paul Morrison and Christopher A. Wayland, Browne v. Dunn and Similar Fact Evidence, (2017) < https://www.mccarthy.ca/pubs/Browne_v_Dunn_and_Similar_Fact_Evidence.pdf>

Mohamed Faizal  Mohamed Abdul Kadir, ‘The Rule in Browne v Dunn in Cross Examination: A Singapore Perspective’ (2017) < https://www.lawgazette.com.sg/2011-07/155.htm>

 Municipal Court, Wayne County Municipal Court Wayne County, Ohio Local Rules, (1 Januray 2012) < file:///C:/Users/win/Downloads/muni_court_rules_2012.pdf>