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i) Put any matters concerning his or her own case that are
inconsistent with a witness’ evidence to that witness; and
5. 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)).
6. 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
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This document was last updated on 16 February 2017.
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its breach (see below).
7. 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).
11. 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).
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Nicholas [2000] VSCA 49), this is no longer the case.
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).
18. 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.
Defence Obligations
21. The extent of the obligations that 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 defence and 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).
22. 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).
23. 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)
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26 VR 526; Bellemore v Tasmania (2006) 170 A Crim R 1).
24. 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).
26. Witnesses must be given the opportunity to respond not only to any
allegation which is to be made, but to its essential features – which
may include the time, place and circumstances of the alleged
occurrence (R v Morrow (2009) 26 VR 526).
28. 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).
Prosecution Obligations
30. Little guidance has been given about the extent of the obligations the
rule in Browne v Dunn places on the prosecution.
31. 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).
33. It is likely that the prosecution must also comply with the other
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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.
35. 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).
36. 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).
38. 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).
39. 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).
40. 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:
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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.
41. The judge may refuse 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).
44. 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.
45. While steps should be taken to avoid having to direct the jury about
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Criminal Procedure Act 2009 s233 allows the prosecution to reopen its case with
leave of the trial judge when the accused gives evidence that could not
reasonably have been foreseen by the prosecution, based on the defence
response to the summary of the prosecution opening, and the defence response
to the notice of pre-trial admissions.
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This remedy may not be appropriate if it would breach the prosecution’s
obligation not to split its case (R v MG [2006] VSCA 264; R v Chin (1985) 157
CLR 671; Killick v R (1981) 147 CLR 565).
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The following people are “protected witnesses”: the complainant; a family
member of the complainant; a family member of the accused; and any other
witness who the court declares under s355 to be a protected witness (Criminal
Procedure Act 2009 s354).
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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).
48. 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:
49. 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).
51. 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.
52. 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).
53. The judge will usually have good reasons for not giving a direction on
a party’s failure to comply with the rule where:
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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;
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
Unrepresented Accused
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E.g., In Bugeja v R [2010] VSCA 321, the prosecution advised defence counsel
that if they cross-examined a certain witness about a particular matter, they
would re-examine that witness in such a way that one of the co-accused’s prior
convictions would be revealed to the jury. While defence counsel could
theoretically have proceeded with the desired cross-examination, that would have
been highly prejudicial to the accused’s defence. It was thus seen as
understandable that defence counsel would choose not to do so, and unfair of the
prosecution to rely on the rule in Browne v Dunn in such circumstances.
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Prosecution breaches of the rule in Browne v Dunn;
Overview of Directions
59. 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).
60. 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).
61. 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).
63. 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).
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;
Tell the jury that the witness was not challenged, and thus was
denied the opportunity to respond to the challenge; and
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).
65. The judge may also tell the jury that the failure by defence counsel
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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 arguments which 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).
66. 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).
67. 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).
68. 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).
70. However, in exceptional cases the judge may direct the jury that an
adverse inference as to credibility may be drawn against the accused
due to the breach (R v Morrow (2009) 26 VR 526).
73. In such cases, the jury may be directed that they may infer from the
failure to cross-examine the witness that any evidence which
conflicts with that given by the impugned witness was invented after
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he or she gave evidence, and should not be believed (R v Birks
(1990) 19 NSWLR 677; R v Novak [2003] VSCA 46; 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).
76. The judge must not direct the jury on the possibility of recent
invention if there is evidence which excludes this possibility. Such
evidence may arise from the record of interview (R v Baran [2007]
VSCA 66; KC v R [2011] VSCA 82).
78. Where a Browne v Dunn direction is given, the judge should usually:
Explain to the jury that there may be good reasons why defence
counsel failed to comply with the rule in Browne v Dunn; and
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79. This is especially important where the prosecution invites the jury to
infer that the accused’s evidence is a recent invention. In such cases,
it must be made clear that before drawing an adverse inference
against the accused, the jury must be satisfied that there is no
reasonable explanation for the omission which does not reflect
adversely upon the accused’s credibility (R v Morrow (2009) 26 VR
526; R v Thompson (2008) 21 VR 135; R v MG [2006] VSCA 264; R
v Manunta (1989) 54 SASR 17; R v Birks (1990) 19 NSWLR 677; R v
McLachlan [1999] 2 VR 553; Oldfield v R (2006) 163 A Crim R 242).
80. The jury must be given sufficient directions to enable them to assess
all other possible explanations (R v Morrow (2009) 26 VR 526).
81. This may require the judge to explain the course that trials may
take, and the wide discretion available to counsel in their conduct (R
v Morrow (2009) 26 VR 526; R v Foley [2000] 1 Qd R 290).
82. The judge may need to explain to the jury that counsel is not simply
a “mouthpiece” for the client, conducting the case in close conformity
with the client’s directions (R v Manunta (1989) 54 SASR 17; R v
Coswello [2009] VSCA 300).
83. Possible reasons for failing to comply with the rule in Browne v Dunn
include:
The other evidence given by the witness may have made it clear
that he or she would deny the challenge;
The witness’ evidence may have been so fanciful that there was
no need for any cross-examination (R v MG [2006] VSCA 264;
R v Manunta (1989) 54 SASR 17; R v Birks (1990) 19 NSWLR
677; R v McLachlan [1999] 2 VR 553; R v Laz [1998] 1 VR 453;
R v Thompson (2008) 21 VR 135; R v Foley [2000] 1 Qd R
290).
84. The judge must limit the reasons he or she provides to the jury to
those that are realistic in the context of the trial (R v SWC [2007]
VSCA 201).
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85. The judge only needs to include reasons that the jury may otherwise
overlook. This will depend on the issues in the context of the trial (R
v Manunta (1989) 54 SASR 17; R v Birks (1990) 19 NSWLR 677; R v
ZW [2006] VSCA 256).
86. While counsel cannot advance a specific explanation from the bar
table as being “the explanation” for the breach, he or she may
challenge the argument that recent invention should be inferred by
raising a number of possible explanations with the jury inconsistent
with that inference. For example, he or she can submit that the
omission might be explained by oversight or error on his or her part,
or by other forensic pressures (R v Thompson (2008) 21 VR 135).
89. Where it is clear that there is a good forensic reason for the party’s
failure to cross-examine the witness,6 a Browne v Dunn direction
should not be given. To give a direction in such circumstances would
be to invite the jury to come to a conclusion about a matter based on
a premise that everyone, apart from the jury, understands to be
false (Bugeja v R [2010] VSCA 321).
90. Where the prosecution has breached the rule by failing to cross-
examine a defence witness (including the accused), a direction
should inform the jury of the prosecutor’s failure to raise the matters
in question with the witness and that the jury can take that into
account in considering the weight they give to the prosecutor’s
arguments about that witness’ evidence (Cavanagh and Rekhviashvili
v R [2016] VSCA 305 at [103]; Smith v R [2012] VSCA 187 at [53]).
95. It will generally not be appropriate to tell the jury that they may
draw an adverse inference against the prosecution due to breaching
the rule in Browne v Dunn, as prosecution breaches are unlikely to
provide an opportunity for recent invention (see “Using the Breach to
Draw Adverse Inferences” above). However, in some cases it may be
appropriate to tell the jury that, due to the breach, they may more
readily reject certain inferences sought by the prosecution.
96. While in some cases it may be appropriate to direct the jury that
there may be good reasons why the prosecution failed to comply
with the rule in Browne v Dunn (see “Reasons for Failure to Comply
With the Rule” above), judges should be careful when doing so. Such
a direction risks undermining the obligations placed on the
prosecution to present all relevant material to the jury. In addition,
the reasons why the prosecution failed to comply with the rule may
not be relevant to the jury’s consideration of the consequences of the
breach.
Other Directions
97. In some circumstances, the judge may need to give one or more of
the following directions instead of a standard Browne v Dunn
direction:
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That the breach reflects only on defence counsel (R v Foley
[2000] 1 Qd R 290; R v Morrow (2009) 26 VR 526);
That the jury must not make an adverse finding against the
accused as a result of a suggested failure to challenge a witness
(R v Coswello [2009] VSCA 300; Bellemore v Tasmania (2006)
170 A Crim R 1).
99. Where it is clear that the omission reflects only on the accused’s
counsel (or solicitor), and not on the accused him or herself, instead
of giving a standard Browne v Dunn direction, the jury should be told
that:
This was not the fault of the accused but rather of counsel (or
the solicitor) (R v Foley [2000] 1 Qd R 290; R v Morrow (2009)
26 VR 526 per Nettle JA).
100. A direction of this nature should not be given where it is clear that
the omission reflects only on the prosecution. Incompetence by the
prosecution will not excuse a breach of the rule in Browne v Dunn. In
such cases, the judge should continue to give a standard Browne v
Dunn direction (see above).
101. Where, due to a breach of the rule in Browne v Dunn, it was not
open to counsel to advance a particular submission in the course of
his or her final address, a judge may need to direct the jury of that
fact in strong terms (R v Ferguson [2009] VSCA 198).
103. In directing the jury about this matter, the judge must be careful not
to withdraw any issues of fact from the jury (R v Ferguson [2009]
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VSCA 198).
105. In some cases the prosecution may improperly suggest that there
has been a breach of the rule in Browne v Dunn. For example, in
cases where defence counsel has no obligation to put a matter to a
particular witness, the prosecution may nevertheless cross-examine
the accused about counsel’s failure to do so, or argue that the jury
should draw an adverse inference from that failure (see, e.g., R v
Coswello [2009] VSCA 300; Bellemore v Tasmania (2006) 170 A
Crim R 1; Bugeja v R [2010] VSCA 321).
Direct the jury that defence counsel was not obliged to put that
matter to the witness; and
107. At common law, it was mandatory for the judge to give these
directions. Under the Jury Directions Act 2015, defence counsel may
request these directions, or the judge may consider that there are
substantial and compelling reasons for giving the directions in the
absence of a request (Jury Directions Act 2015 ss15, 16).
108. In addition, the judge should warn the jury not to take the breach
into account when assessing the weight of the contradictory
evidence.
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Direction above.
111. If it is open to argue that counsel has not complied with the rule in
Browne v Dunn, it is for the jury to determine whether the witness
was given a fair opportunity to address the assertion being made by
the cross examining party (R v Nicholas [2000] VSCA 49; Beattie v
Ball [1999] 3 VR 1; R v Manunta (1989) 54 SASR 17; R v Ferguson
[2009] VSCA 198).
112. When determining whether or not the rule has been breached, the
tribunal must consider whether the differences between the witness’s
evidence and the other party’s case were sufficiently material that
the witness should have been challenged in cross-examination (R v
Nicholas [2000] VSCA 49; Beattie v Ball [1999] 3 VR 1; R v Manunta
(1989) 54 SASR 17).
114. The judge should describe the obligation to put certain matters to a
witness as a “rule of professional practice” rather than an “ethical
obligation”, as the latter may suggest that counsel is merely “going
through the motions”, and does not think that the matters he or she
is putting to the witness are true (R v Demiri [2006] VSCA 64).
115. Unless the rule in Browne v Dunn applies, judges should be careful
about commenting on the fact that certain prosecution evidence was
unchallenged or uncontradicted. Such a comment may unfairly imply
that it was open to defence counsel to have challenged or
contradicted the evidence, when in many cases (e.g., in relation to
complaint evidence) they will not have had scope to do so (Jiang v R
[2010] NSWCCA 277).
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