Browne v Dunn

The case of Browne v Dunn (1893) 6 R. 67 (H.L.) is perhaps the most commonly quoted authority that most people have never read.

The case of Browne v Dunn (1893) 6 R. 67 (H.L.) is perhaps the most commonly quoted authority that most people have never read.

It is not difficult to understand the importance of the rule. It is logical that, if it is later to be suggested that a person is lying, or mistaken, that they should be confronted with that allegation and given the opportunity to respond. The court is not assisted in reaching conclusions about evidence by later witnesses giving evidence that earlier witnesses have not had the opportunity to comment on.

Accepting that it is good practice that advocates adopt the approach, there remains the question of how breaches of the rule addressed. Specifically, at times judges have instructed the jury to regard a breach of the rule as being a mark against the Defendant’s credit, on the (flawed) assumption that the only explanation for the failure to put the evidence is recent invention by the witness. The same criticism can be made of not allowing the defendant to give the evidence.

In particular, and as was observed in MWJ v R [2005] HCA 74, in most cases the witness in question can simply be recalled to have the question put and answered. As the High Court said in Hofer v the Queen [2021] HCA 36, an accused person should not be subjected to questioning about why matters were not raised in the cross examination of Crown witnesses

Browne v Dunn

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

“Now, my Lords, I cannot help saying that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in crossexamination showing that that imputation is intended to be made”