4.10.3 – Failure to Challenge Evidence (Browne v Dunn)[1]

4.10.3.1 – Bench Notes

Scope of these Notes

  1. These Notes address the directions which may be given when a party fails to confront a witness with a proposed challenge to his or her evidence.
  2. Similar issues are addressed in the following Bench Notes:
  3. Prosecution Failure to Call or Question Witnesses#;
  4. Defence Failure to Call Witness#.

The Rule in Browne v Dunn

  1. The rule in Browne v Dunnordinarily requires counsel to:

i)Put any matters concerning his or her own case that are inconsistent with a witness’ evidence to that witness; and

ii)Put any allegations or imputations that he or she intends to make against a witness to that witness (Browne v Dunn (1893) 6 R 67; MWJ v R (2005) 222 ALR 436; R v Thompson (2008) 21 VR 135; R v Coswello [2009] VSCA 300; KC v R [2011] VSCA 82).

  1. This is a rule of fairness designed to allow witnesses to confront any proposed challenges to their evidence, and to enable the jury to see and assess the reactions of witnesses to those challenges (MWJ v R (2005) 222 ALR 436; Bulstrode v Trimble [1970] VR 840; R v Thompson (2008) 21 VR 135; R v Morrow(2009) 26 VR 526).
  2. The rule applies both where a party intends to call evidence that directly contradicts a witness’s account, and where a party intends to suggest that the jury draw an inference adverse to the witness from the evidence in the case. In the latter case, the suggested inference should ordinarily be put to the witness in cross-examination (R v Birks (1990) 19 NSWLR 677. See also Evidence Act 2008 s46(2)).
  3. While the rule in Browne v Dunn applies in criminal trials, the content of the rule is narrower than in civil proceedings. This is due to the accusatorial nature of criminal trials, the obligation on the prosecution to present its whole case and the burden of proof (MWJ v R (2005) 222 ALR 436). These matters should be taken into account when considering the scope of the rule and the remedies for its breach (see below).
  4. The rule does not require counsel to iron out inconsistencies that emerge in the other party’s case. It only obliges counsel to give witnesses the chance to respond to evidence or submissions that form part of counsel’s own case (MWJ v R (2005) 222 ALR 436; R v MG [2006] VSCA 264).
  5. These obligations are not fulfilled simply because the accused challenged the witness’s evidence in his or her record of interview. Counsel must put the version of events from the record of interview to any relevant witnesses (R v Baran [2007] VSCA 66).
  6. The rule in Browne v Dunn admits of some flexibility. While it requires proposed challenges to a witness’s evidence to normally be put to that witness, there are some circumstances in which this need not be done (see below) (Bugeja v R [2010] VSCA 321).

Effect of theEvidence Act 2008

  1. The rule in Browne v Dunn“remains alive and well” under the Uniform Evidence Acts (Heaton v Luczka[1998] NSWCA 104. See also Jardein Pty Ltd v Stathakis [2007] FCAFC 148).
  2. The scope of the rule has been slightly expanded due to Evidence Act 2008 s38, which provides a party with a greater opportunity to challenge the evidence of its own witnesses (see below).

Effect of the Jury Directions Act 2015

  1. The Jury Directions Act 2015does not specify the content of any directions required in relation to the rule in Browne v Dunn.
  2. While Jury Directions Act 2015 section 43 applies to a prosecution failure to question a witness about a topic, this is likely limited to a failure to question prosecution witnesses. There is no indication in the Act that section 43 is intended to apply to a failure by the prosecution to put their case to defence witnesses.
  3. However, the general provisions in Part 3 of the Act regarding requests for directions and the consequences of failing to request a direction apply.
  4. The significance of a prosecution failure to comply with the rule in Browne v Dunn means that judges will often need to consider whether a direction is required, even if one is not requested(see Cavanagh and Rekhviashvili v R[2016] VSCA 305 at [103]).

Scope of the Rule

  1. While the obligations in Browne v Dunn previously only applied to defence counsel (see, e.g., R v Macfie (No 2) (2004) 11 VR 215; R v Nicholas [2000] VSCA 49), this is no longer the case.
  2. The prosecution may now be required to cross-examine the accused about why certain matters were not put to prosecution witnesses. This notifies the accused that the prosecution is planning to invite the jury to infer that the accused’s case is a recent invention, and provides the accused with an opportunity to explain:
  3. Why defence counsel failed to cross-examine the relevant witnesses; or
  4. How the accused came to give evidence of matters that had not previously been explored with those witnesses (R v Thompson (2008) 21 VR 135; R v Scott [2004] NSWCCA 254).
  5. A party may also have a duty to cross-examine one of their own witnesses, if they intend to introduce evidence that contradicts a part of that witness’s account, or to criticise a part of that witness’s evidence in their closing address (see, e.g., R v McCormack (No.3) [2003] NSWSC 645; Kanaan v R [2006] NSWCCA 109). In such cases, the party must apply for leave to cross-examine the witness under Evidence Act 2008 s38.
  6. The obligations in Browne v Dunn do not apply to committal hearings. No inference may be drawn from a failure to cross-examine a witness at an earlier committal hearing (R v Birks (1990) 19 NSWLR 677).

When is the Rule Breached?

  1. The rule in Browne v Dunn places different obligations on the defenceand the prosecution. This section looks at each party’s obligations in turn.

Defence Obligations

  1. The extent of the obligationsthat arise under the rule in Browne v Dunn in a particular case will be informed by the nature of the case to be presented by the defenceand the forensic context of the trial (R v Coswello [2009] VSCA 300; R v Morrow(2009) 26 VR 526;Bugeja v R [2010] VSCA 321; R v MG [2006] VSCA 264;R v Foley [2000] 1 Qd R 290).
  2. Defence counsel must not only disclose that the evidence of the witness is to be challenged, but also how it is to be challenged (R v Morrow(2009) 26 VR 526;Allied Pastoral Holdings Pty Ltd v FCT [1983] 1 NSWLR 1).
  3. If the defence case involves no more than a denial of the witness’s evidence, without positive evidence or hypothesis of an alternative version of events, it may be sufficient to put that case to the witness in general terms (R v Coswello [2009] VSCA 300; R v Morrow (2009) 26 VR 526; Bellemore v Tasmania (2006) 170 A Crim R 1).
  4. If defence counsel has made clear from the manner in which the defence case is conducted that the witness’s evidence will be contested, or if the witness’s evidence is clearly implausible, there may not be a need for any specific matters to be put in cross-examination (R v Coswello [2009] VSCA 300; KC v R [2011] VSCA 82; R v MG [2006] VSCA 264; Browne v Dunn (1893) 6 R 67).
  5. By contrast, if a positive case is to be subsequently advanced, the essential elements of the eventual case must normally be put to any witness who may cast doubt on them (R v Morrow (2009) 26 VR 526; R v Foley [2000] 1 Qd R 290).
  6. Witnesses must be given the opportunity to respond notonly to any allegation which is to be made, but to its essential features – whichmay include the time, place and circumstances of the alleged occurrence (R v Morrow (2009) 26 VR 526).
  7. Where defence counsel intends to adduce evidence of specific matters contrary to the witness’ evidence, he or she must put those matters in such a way that the witness has an adequate opportunity to respond (R v Morrow (2009) 26 VR 526).
  8. In determining whether the rule has been breached, the judge should not solely focus on what questions were or were not asked. It is necessary to examine whether, in the subsequent conduct of the defence, facts or propositions were advanced that had not been “fully or fairly” put to the relevant witnesses(KC v R [2011] VSCA 82).
  9. It will often be a matter of impression and interpretation as to whether the cross-examination sufficiently conveys the substance of the contrary evidence (R v Morrow (2009) 26 VR 526).

Prosecution Obligations

  1. Little guidance has been given about the extent of the obligations the rule in Browne v Dunn places on the prosecution.
  2. Where the prosecution wants to argue that the defence has breached the rule in Browne v Dunn by not raising certain matters with the prosecution witnesses, and the accused gives evidence, the prosecution must cross-examine him or her about why those matters were not raised (R v Thompson (2008) 21 VR 135; R v Scott [2004] NSWCCA 254).
  3. However, the prosecution does not need to cross-examine the accused about a matter mentioned in a contested confession, which the prosecution relies upon to say that the confession was true (R v Arnott (2009) 26 VR 490).
  4. It is likely that the prosecution must also comply with the other obligations outlined in “Defence Breaches of the Rule” above. However, care must be taken when adapting those obligations to the prosecutorial context. In particular, judges should consider the accusatorial nature of criminal trials, the obligation on the prosecution to present its case and the burden of proof.In light of such matters, judges may more readily find that the prosecution has breached the rule in Browne v Dunn.

Remedies for Breaching the Rule

  1. Where counsel does not comply with the rule in Browne v Dunn, the trial judge has a discretion about how to best remedy the unfairness so that the trial does not miscarry (Archer v Richard Crookes Construction Pty Ltd NSW CA 22/10/97; Heaton v Luczka[1998] NSWCA 104; Scalise v Bezzina [2003] NSWCA 362).
  2. What is necessary in any given case to ensure fairness will depend on the circumstances (R v Ferguson [2009]VSCA 198; R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546).
  3. The rule in Browne v Dunn must be applied with considerable care and circumspection due to the accusatorial nature of criminal trials. The rule does not apply in the same way or with the same consequences as it does in civil proceedings (R v Coswello [2009] VSCA 300; R v Morrow(2009) 26 VR 526; MWJ v R (2005) 222 ALR 436; R v Demiri [2006] VSCA 64; R v Birks (1990) 19 NSWLR 677).
  4. In determining what remedy is appropriate, the judge should consider whether it was the prosecution or the defence who breached the rule, and the obligations placed upon each party.
  5. Great care must be taken where it is the prosecution which has suffered the unfairness. The trial judge must avoid adopting a remedy for unfairness to the prosecution which might itself work unfairness against the accused (R v Ferguson[2009]VSCA 198).

Take Steps to Avoid the Need for Jury Directions

  1. Where possible, steps should be taken in the running of the case to avoid having to direct the jury about the breach of the rule (R v Coswello [2009] VSCA 300; R v Morrow(2009) 26 VR 526; R v Foley [2000] 1 Qd R 290).
  2. For example, depending on the nature of the case, the trial judge may be able to avoid the need to give a Browne v Dunn direction by:
  3. Drawing the attention of counsel to the need to put matters to the witness during the course of cross-examination (R v Ferguson[2009]VSCA 198; R v Coswello [2009] VSCA 300);
  4. Permitting a witness to be recalledso that the relevant matters may be put to him or her (MWJ v R (2005) 222 ALR 436; R v Ferguson [2009]VSCA 198; R v Coswello [2009] VSCA 300; R v Thompson (2008) 21 VR 135; R v MG [2006] VSCA 264). Leave to recall a witness may be given under Evidence Act 2008 s46.
  5. Allowing a party to reopen its case[2] to lead evidence to rebut the contradictory evidence or corroborate the relevant witness’s evidence.[3]

Excluding Evidence and Preventing Arguments

  1. The judge mayrefuse to admit evidence in breach of the rule in Browne v Dunn if its probative value is outweighed by the danger of unfair prejudice (Evidence Act 2008 ss135, 137. See also R v McCormack (No.3) [2003] NSWSC 645; R v Schneidas (No 2) (1981) 4 A Crim R 101; R v Body NSW CCA 24/8/94).
  2. However, a judge is not entitled, by reason of non-compliance with the rule in Browne v Dunn, to withdraw an issue of fact from the jury, nor to treat an ingredient of the charge as proved (R v Rajakaruna (No 2) (2006) 15 VR 592; R v Costi (1987) 48 SASR 269).
  3. In a criminal proceeding that relates (wholly or partly) to a charge for a sexual offence or a family violence offence, an unrepresented accused must not adduce evidence in relation to a fact in issue in order to contradict the evidence of a protected witness,[4] unless the evidence on which the accused intends to rely has been put to the protected witness during cross-examination (Criminal Procedure Act 2009 s357).
  4. In some cases, it may follow from the conduct of the trial that it is not fairly open to counsel to make a particular suggestion in their closing address (R v Foley [2000] 1 Qd R 290; R v Thompson (2008) 21 VR 135). This remedy may be more appropriate for prosecution breaches of the rule than defence breaches.

When to Give a Jury Direction

  1. While steps should be taken to avoid having to direct the jury about the breach of the rule in Browne v Dunn (see above), in some cases a direction may be appropriate (R v Coswello [2009] VSCA 300; R v Morrow(2009) 26 VR 526).
  2. The need for a direction depends on whether a direction is sought and whether, despite the absence of any request, there are substantial and compelling reasons for giving the direction despite the absence of a request (Jury Directions Act 2015ss12, 14, 15, 16). See Bench Notes: Directions Under Jury Directions Act 2015 for information on when directions are required.
  3. Even if a direction is sought, great care should be taken when deciding whether to give a Browne v Dunn direction, as giving a direction when it is not warranted may cause a substantial miscarriage of justice(R v MG [2006] VSCA 264. See also R v Smart [2010] VSCA 33; KC v R [2011] VSCA 82).
  4. Prior to giving a Browne v Dunn direction, the judge should alert counsel to the failure to sufficiently put the matter to the witness, and provide an opportunity for recalling and cross-examining that witness. A direction should only be given if:
  5. The party who called the witness refuses to recall them;
  6. The party who failed to properly cross-examine the witness refuses the opportunity of further cross-examination; or
  7. The circumstances render the possibility of further cross-examination impracticable (R v Coswello [2009] VSCA 300 per Nettle JA. See also R v MG [2006] VSCA 264).
  8. Where there is a strong possibility that counsel’s case was invented after the witness gave evidence, recalling the witness may not fully address the problem. In such cases, the judge may comment on the failure to comply with the rule, even though the witness has been recalled and properly cross-examined (R v Novak [2003] VSCA 46).
  9. In deciding whether or not to give a direction, the judge should consider whether the failure was material in the context of the case (R v McDowell [1997] 1 VR 473; R v MG [2006] VSCA 264).
  10. The judge should also consider the accusatorial nature of criminal trials, and the different obligations placed upon the prosecution and the defence. A direction may be given more readily where it is the prosecution that has breached the rule.
  11. The judge should also take into account the extent of the breach. Where it is relatively minor, a direction should generally not be given (KC v R [2011] VSCA 82).
  12. The judge will usually have good reasons for not giving a direction on a party’s failure to comply with the rule where:
  13. The breach was due to a party’s inability to cross-examine its own witness, as it was refused leave under Evidence Act 2008 s38;
  14. The party made it clear to the court that they wanted to cross-examine the witness, but were effectively prevented from doing so by the other party (Bugeja v R [2010] VSCA 321);[5]or
  15. The disadvantaged party did not offer or seek to recall the witness (in order to correct the problem) (MWJ v R (2005) 222 ALR 436; R v MG [2006] VSCA 264).

Unrepresented Accused

  1. As the rule in Browne v Dunn is a rule of professional practice and procedure, it may not be appropriate to give a direction if the accused is unrepresented (R v Birks (1990) 19 NSWLR 677; c.f. McInnisv R (1979) 143 CLR 575).
  2. If a judge is going to make a comment about an unrepresented accused’s breach of the rule in Browne v Dunn, fairness demands that he or she should first advise the accused of the existence of that rule and of the options available. If the judge fails to do so, he or she should not comment on the breach (R v Zorad(1990) 19 NSWLR 91).

Discharging the Jury

  1. If nothing can be done to prevent a miscarriage of justice arising from the breach the jury may need to be discharged (see, e.g., R v SWC (2007) 175 A Crim R 71).

Content of the Direction

  1. The charge given in relation to a breach of the rule in Browne v Dunnis properly seen as a “direction” rather than a “comment”. The judge is instructing the jury that, as a matter of law, they may use counsel’s failure to cross-examine a witness in a particular manner (R v McDowell [1997] 1 VR 473).
  2. This section addresses the following directions in turn:
  3. Defence breaches of the rule in Browne v Dunn;
  4. Prosecution breaches of the rule in Browne v Dunn;
  5. Other directions that may be required instead of a standard Browne v Dunn direction.

Defence Breaches of the Rule in Browne v Dunn

Overview of Directions

  1. In most cases where a direction is necessary (see above), the judge should only direct the jury that the breach can be taken into account when assessing the weight of the contradictory evidence or the inferences that flow from that evidence (R v Morrow(2009) 26 VR 526; R v Coswello [2009] VSCA 300; KC v R [2011] VSCA 82).
  2. Only in exceptional cases should the judge consider directing the jury that an adverse inference as to credibility may be drawn against the accused due to the breach. This will generally not be appropriate (R v Morrow(2009) 26 VR 526).
  3. Where a Browne v Dunn direction is given, the judge should usually explain that there may be good reasons why a party failed to comply with the rule (R v MG [2006] VSCA 264; R v Manunta (1989) 54 SASR 17; R v Thompson (2008) 21 VR 135).
  4. Each of these directions is discussed in more detail below.

Using the Breach to Assess Weight

  1. Where defence counsel fails to comply with the rule in Browne v Dunn, the judge may direct the jury about the effect that failure may have on their assessment of the contradictory evidence (R v Morrow(2009) 26 VR 526; R v Coswello [2009] VSCA 300).
  2. Where such a direction is required, the judge should:
  3. Outline the rule in Browne v Dunn and its purpose;
  4. Tell the jury that, under the rule, the witness should have been challenged about the relevant matters, so that he or she had an opportunity to deal with the challenge;
  5. Tell the jury that the witness was not challenged, and thus was denied the opportunity to respond to the challenge; and
  6. Tell the jury that they have therefore been deprived of the opportunity of hearing his or her evidence in response (R v Coswello [2009] VSCA 300 per Nettle JA; R v Foley [2000] 1 Qd R 290. See also R v Birks (1990) 19 NSWLR 677; R v Manunta (1989) 54 SASR 17; R v Senese [2004] VSCA 136; R v MG [2006] VSCA 264; R v Thompson (2008) 21 VR 135).
  7. The judge may also tell the jury that the failure by defence counsel to put these matters to the witness can be taken into account when assessing the weight to be given to the allegation of fact that was not pursued with the relevant witness, or the argumentswhich rest upon that fact (R v Morrow(2009) 26 VR 526. See also R v Nicholas (2000) 1 VR 356; R v Rajakaruna (No 2) (2006) 15 VR 592).
  8. Failure to comply with the rule in Browne v Dunn does not prove that the imputations against the witness are false. It only affects the weight the jury may attach to those imputations (R v Laz [1998] 1 VR 453; Bulstrode v Trimble [1970] VR 840).
  9. Great care must be taken when directing the jury about any unfairness suffered by the prosecution. In such cases it may not be appropriate to comment strongly upon the failure to comply with the rule (see, e.g., R v Ferguson[2009]VSCA 198).
  10. These directions only concern the jury’s assessment of the weight of the evidence. Failure to put matters to a witness cannot constitute supporting evidence or consciousness of guilt (See, e.g., R v MG[2006] VSCA 264).

Using the Breach to Draw Adverse Inferences