Both sides of any legal dispute, civil and criminal, must comply with the rule in Browne v Dunn (1894) 6 R 67 at hearing.
But few legal minds agree precisely on the level of detail that proper puttage must go to, or even how to go about it. And, of course, with the infinite number of circumstances that the rule can be applied to, what is found to be compliant in one case may be inadequate in another case that bears a strong likeness.
Obeying the rule does not, as some advocates think, require the laborious and tiresome putting of every shred of their case to every witness, usually hoping that their position will acquire some strength by repetition that it lacks on its own. Neither the tribunal of fact, nor the party’s prospects of success, are assisted by that. But nor is a scant, “I put it to you my client acted in self defence,” (or similar generality) likely to satisfy counsel’s obligations.
I like to apply the “What?” test. If matters have been properly put to witnesses, the evidence of your witnesses (or your submissions) should not cause anyone’s head to whip around and their lips to mouth the word, “What?”. If your actions prompt that level of surprise in the courtroom, chances are good that there will shortly be a submission that the rule in Browne v Dunn has been breached.
Because of the burden of proof in criminal cases and the order in which evidence is called, the rule is more often transgressed by defence advocates than by prosecutors. In leading the prosecution case, by their opening (if there was one) and by the evidence-in-chief of its witnesses, the case for the prosecution should be clear before the first defence witness is called.
But it can still happen that a prosecutor breaches the rule. Where the breach occurs in a closing address (particularly in front of a jury), such a breach can be costly to all concerned. In Smith v The Queen [2012] VSCA 187, after a 33 day conspiracy to defraud trial in the County Court, the conviction was quashed on appeal because (amongst other things), the prosecutor relied upon inferences of consciousness of guilt which had not properly been put to the accused.
Where an accused gives evidence and is cross-examined, a failure by the prosecutor to put the allegation in detail squarely to the accused will not automatically be taken to be acceptance of the accuracy of their evidence. There are a couple of reasons for this. The information or indictment already places the accused on notice as to what the prosecution allege to have occurred. The accused is present for the evidence of prosecution witnesses. And, quite often, their own counsel will have put the allegation to them (sometimes directly, sometimes indirectly, sometimes both). In these circumstances, the obligation to put everyone on notice about the issues in dispute (referred to by Hunt J in Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 [at 22 and 23]) has already been discharged before the prosecutor opens their mouth.
A good demonstration of this can be found in Vo v The Queen [2013] NTCCA 4. Though the appellant’s conviction was quashed for other reasons, the NT Court of Criminal Appeal rejected the ground that asserted the failure by the prosecutor to cross-examine the accused on important points implied an acceptance by the prosecution of the accuracy of her account.
Mildren ACJ, Kelly and Blokland JJ [at 25]:
Counsel for the appellant submitted, however, that in deciding whether the jury was right to reject the appellant’s unchallenged evidence as to the nature of her belief, the jury was entitled to take into account that the prosecutor had failed to comply with the well-known rule in Browne v Dunn. We were referred to a number of authorities which discuss the rule in Browne v Dunn. It is not necessary to refer to them all. It is sufficient to refer to the well-known judgment of Hunt J in Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation, where his Honour referred to the fact that Lord Herschell LC conceded that there was no obligation to raise a matter in cross-examination in circumstances where it is perfectly clear that the witness has had full notice beforehand that there is an intention to impeach the credibility of the story which the witness is telling.
At pages 22 to 23, his Honour went on to say:
“A challenge made to the evidence of a witness in the course of a final address may take place in various ways. The opposing party may ask the tribunal of fact simply to disbelieve that evidence; if he has led evidence in direct contradiction of the evidence of that witness, he may then ask the tribunal of fact to accept the evidence of his own witnesses in preference to that of the witness in question; or he may point to other evidence in the case, led by either party, which tends either to contradict the evidence of that witness or to destroy his credit. There are many reasons why it should be made clear, prior to final addresses and by way of cross-examination 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 (so to speak), although this may often be of little value. Secondly, and far more significantly, 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 evidence upon which the challenge is to be based.”
In this case, it was perfectly obvious right from the start that the Crown intended to rely upon the presumption contained in the Criminal Code. Although there was no direct challenge to the appellant’s evidence concerning her state of knowledge, she was thoroughly cross-examined about the circumstances under which she became to be in possession of the drugs prior to the time that they were seized at Darwin airport, as well as her behaviour at the airport when she was spoken to by customs officers. The effect of the cross-examination was to undermine her credit as a witness. We think that, in these circumstances, the prosecutor did not breach the rule in Browne v Dunn and that she did all that was required of her.
The reference to Lord Herschell LC concerns Browne v Dunn itself. (It’s a case that almost all lawyers have heard of, but only a few have read. Unfortunately, while it’s available by all of the usual subscription services, I don’t have a free copy to link to). In it, the Lord Chancellor said,
I can quite understand a case in which a story told by a witness may have been of so incredible and romancing a character that the most effective cross-examination would be to ask him to leave the witness box.
While this may be true, it would probably be far more prudent to ask a few questions first.