Published by Geoff Harrison | 25 October 2023
The common law rule in Browne v Dunn (1893) 6 R 67 is a rule of fairness to witnesses; in that a witness should be given the opportunity to comment upon potential inconsistencies (including inferences to be drawn) between their version of events and the version to be put forward by the opposing party. Given that it is an adversarial system, both parties will present their respective cases however, the essence of the rule is that the cases must cross ie. evidence should be challenged that is not consistent with the party or cross examiner's case.
Issues of fairness arise when this rule is breached by a party, as it is preferable that a party's case not be split by a witness having to be recalled to comply with this rule. There are a number of reasons why a version may not be put to a witness, such as:
a recent invention by a witness
oversight by counsel
a forensic decision by counsel
The remedies available to deal with breaches include:
recalling the relevant witness for cross-examination as per s46 of the Evidence Act 1995.
not admitting the unchallenged evidence or allowing a party to address in regards to the unchallenged evidence
trial directions regarding the breach
The rule has significant weight and consequences when a party seeks to attack the credibility of witnesses by pointing to unchallenged evidence or inconsistency between an accused's instructions ie. what was suggested to witnesses, and the accused's version of events. However, as a general proposition, given the different and varied reasons for a breach of this rule, judges should abstain from making adverse findings about parties and witnesses in respect of whom there has been non-compliance with the rule: see MWJ at [39}. In general, the breach is cured by the recalling of the relevant witness and putting the opposing or different version to the witness.
EVIDENCE ACT 1995 - SECT 46
Leave to recall witnesses
(1) The court may give leave to a party to recall a witness to give evidence about a matter raised by evidence adduced by another party, being a matter on which the witness was not cross-examined, if the evidence concerned has been admitted and--
(a) it contradicts evidence about the matter given by the witness in examination in chief, or
(b) the witness could have given evidence about the matter in examination in chief.
(2) A reference in this section to a matter raised by evidence adduced by another party includes a reference to an inference drawn from, or that the party intends to draw from, that evidence.