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4.12 - Failure to Challenge Evidence (Browne v Dunn)

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Scope

  1. This topic addresses 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 topics:

    The Rule in Browne v Dunn

  3. The rule in Browne v Dunn requires counsel to:
    1. Put any matters concerning his or her own case that are inconsistent with a witness’ evidence to that witness; and
    2. 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) 32 VR 61).
  4. 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).
  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 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).
  8. 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).
  9. 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) 30 VR 493)

    Effect of the Evidence Act 2008

  10. 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).
  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).

    Effect of the Jury Directions Act 2015

  12. The Jury Directions Act 2015 does not specify the content of any directions required in relation to the rule in Browne v Dunn.
  13. 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.
  14. However, the general provisions in Part 3 of the Act regarding requests for directions and the consequences of failing to request a direction apply.
  15. 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 Rekviashvili v R [2016] VSCA 305 at [103]).

    Scope of the Rule

  16. 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) 1 VR 356), this is no longer the case.
  17. 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:
  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.
  19. 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?

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

    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) 30 VR 493; 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) 26 VR 526; Bellemore v Tasmania (2006) 16 Tas R 364).
  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) 32 VR 61; R v MG [2006] VSCA 264; Browne v Dunn (1893) 6 R 67).
  25. By contrast, if a positive case is to be subsequently advanced, the essential elements of the eventual case must 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).
  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).
  27. 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).
  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) 32 VR 61).
  29. 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

  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).
  32. 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).
  33. 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

  34. 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).
  35. What is necessary in any given case to ensure fairness will depend on the circumstances (R v Ferguson (2009) 24 VR 531; 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).
  37. 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.
  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) 24 VR 531).

    Take Steps to Avoid the Need for Jury Directions

  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:

    Excluding Evidence and Preventing Arguments

  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] 2 NSWLR 713; R v Body NSW CCA 24/8/94).
  42. 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).
  43. 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,[3] 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).
  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.

    When to Give a Jury Direction

  45. 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).
  46. 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 2015 ss12, 14, 15, 16). See Directions Under Jury Directions Act 2015 for information on when directions are required.
  47. 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) 32 VR 61).
  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).
  50. 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).
  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) 32 VR 61).
  53. The judge will usually have good reasons for not giving a direction on a party’s failure to comply with the rule where:

    Unrepresented Accused

  54. 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. McInnis v R (1979) 143 CLR 575).
  55. 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

  56. 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

  57. The charge given in relation to a breach of the rule in Browne v Dunn is 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).
  58. This section addresses the following directions in turn:

    Defence 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) 32 VR 61).
  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).
  62. Each of these directions is discussed in more detail below.

    Using the Breach to Assess Weight

  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).
  64. Where such a direction is required, the judge should:
  65. 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 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) 24 VR 531).
  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).

    Using the Breach to Draw Adverse Inferences

  69. Directions about the possibility of adverse inferences have recently been given too readily in criminal trials. The rule in Browne v Dunn does not apply to criminal proceedings in the same way, or with the same consequences, as it does in civil proceedings. Consequently, its application requires considerable care and circumspection (R v Morrow (2009) 26 VR 526 per Nettle JA; KC v R (2011) 32 VR 61).
  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).
  71. The circumstances in which such a direction will be necessary are rare. It is one thing to remark upon the fact that a witness or a party appears to have been treated unfairly, but it is another thing altogether to comment that the evidence of a person should be disbelieved, perhaps as a recent invention, because it raises matters that were not put in cross-examination to other witnesses by that person’s counsel (R v Morrow (2009) 26 VR 526; R v Foley [2000] 1 Qd R 290; R v Birks (1990) 19 NSWLR 677).
  72. An adverse inference as to credibility can only arise where the circumstances surrounding the failure to put the allegation to the witness raise a "prominent hypothesis" that the contradictory evidence is a recent invention or is otherwise a fabrication (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 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).
  74. The process of reasoning suggested by this direction is dangerous and should only be used with caution (R v Manunta (1989) 54 SASR 17; R v Laz [1998] 1 VR 453; R v Thompson (2008) 21 VR 135; R v Birks (1990) 19 NSWLR 677; R v Demiri [2006] VSCA 64). It will often be appropriate to direct the jury to proceed with care.
  75. An adverse inference direction is unlikely to be appropriate where the prosecution has not cross-examined the accused to suggest that the breach of the rule in Browne v Dunn demonstrates that his or her evidence was a recent invention, and has not argued to that effect in closing arguments (see, e.g., R v Morrow (2009) 26 VR 526; 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) 32 VR 61).
  77. It is open to a party to give or call evidence to negate the inference of recent invention. For example:

    Reasons for Failure to Comply With the Rule

  78. Where a Browne v Dunn direction is given, the judge should usually:
  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:
  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).
  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).
  87. Any explanations raised by defence counsel about why he or she failed to comply with the rule should be told to the jury (R v Morrow (2009) 26 VR 526).
  88. It may not be appropriate to provide a possible explanation for counsel’s failure to fully cross-examine a witness where the effect of doing so would be to emphasise the significance of counsel’s omission, rather than to explain it (R v SWC [2007] VSCA 201; R v Smart [2010] VSCA 33).
  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) 30 VR 493).

    Prosecution Breaches of the Rule

  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]).
  91. In some cases, it may be appropriate to also inform the jury of answers the witness might have given, which would blunt a line of argument advanced by the prosecution, as a way of showing why the failure may be relevant to assessing the prosecutor’s arguments (see, e.g., R v Thompson (2008) 21 VR 135 at [68], [123]).
  92. Directions on the prosecution breach may not, however, be necessary if the prosecution acknowledges the breach to the jury and withdraws any arguments which should not have been made due to the breach (see Cavanagh and Rekhviashvili v R [2016] VSCA 305 at [103]).
  93. In one of the few cases to specifically address this issue, it was held that where the prosecution has breached the rule by failing to cross-examine one of its own witnesses:
  94. It may also be appropriate to give suitably modified versions of the directions outlined in "Using the Breach to Assess Weight" above. However, due to the different obligations placed on the prosecution, it may be necessary to give stronger directions than in relation to a defence breach. For example, in some circumstances it may be appropriate to tell the jury that the prosecution’s failure to comply with the rule may affect the jury’s assessment of the prosecution case as a whole, as well as affecting the weight to be given to the prosecution’s criticisms of the relevant witness.
  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:
  98. These directions are addressed in turn below.

    Breach Solely Reflects on Counsel

  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:
  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).

    Counsel Was Prevented From Advancing a Submission

  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) 24 VR 531).
  102. Whether or not such a direction is appropriate will depend on the nature of the breach. For example, where the prosecution has breached the rule by failing to cross-examine one of its own witnesses who gives evidence inconsistent with other prosecution witnesses, it will often be inappropriate to direct the jury to ignore the prosecution’s submission that the witness’s evidence was untruthful (Kanaan v R [2006] NSWCCA 109; compare Cavanagh and Rekhviashvili v R [2016] VSCA 305 at [92]-[98]).
  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) 24 VR 531).
  104. An alternative solution to preventing an argument is to warn the jury in strong terms of the danger of adopting or accepting that argument, given the party's failure to cross-examine relevant witnesses (CMG v R (2013) 46 VR 728).

    Warning Against Improper Browne v Dunn Reasoning

  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) 16 Tas R 364; Bugeja v R (2010) 30 VR 493).
  106. In such circumstances, the judge must:
  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.

    Role of the Jury

  109. A Browne v Dunn direction only describes a permissible mode of reasoning. The jury is free to disregard the inferences that are open from the failure to properly cross-examine a relevant witness (R v Nicholas (2000) 1 VR 356; Bulstrode v Trimble [1970] VR 840; MWJ v R (2005) 222 ALR 436; R v Rajakaruna (No 2) (2006) 15 VR 592; Bugeja v R (2010) 30 VR 493).
  110. A judge should only give a Browne v Dunn direction if he or she is satisfied that a breach has, or has arguably occurred, and that it cannot be remedied by a different means (see e.g. R v Ferguson (2009) 24 VR 531; R v Morrow (2009) 26 VR 526). For more information see Remedies for Breaching the Rule and When to Give A 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) 1 VR 356; Beattie v Ball [1999] 3 VR 1; R v Manunta (1989) 54 SASR 17; R v Ferguson (2009) 24 VR 531).
  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) 1 VR 356; Beattie v Ball [1999] 3 VR 1; R v Manunta (1989) 54 SASR 17).

    Explaining Exchanges with Counsel

  113. Where counsel has asked the judge during cross-examination if he or she has complied with the rule in Browne v Dunn, the judge may explain this exchange to the jury (R v Demiri [2006] VSCA 64).
  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).

     Do Not Comment on Other Unchallenged Evidence

  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).

    Notes

[1] 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.

[2] 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).

[3] 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).

[4] E.g., In Bugeja v R (2010) 30 VR 493, 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.

[5] E.g., Where the prosecution has made it clear that one of the co-accused’s prior convictions will be revealed to the jury if defence counsel cross-examines the witness (Bugeja v R (2010) 30 VR 493).

Last updated: 16 February 2017

In This Section

4.12.1 - Charge: Breach of the Rule in Browne v Dunn

4.12.2 - Charge: Warning Against Improper Browne v Dunn Reasoning

See Also

Victorian Criminal Charge Book

Part 1: Preliminary Direction

1.1 – Introductory Remarks

1.2 – Jury Empanelment

1.3 – Selecting a Foreperson

1.4 – The Role of Judge and Jury

1.5 – Decide Solely on the Evidence

1.6 – Assessing Witnesses

1.7 – Onus and Standard of Proof

1.8 - Separate Consideration

1.9 - Alternative verdicts

1.10 – Trial Procedure

1.11 - Consolidated preliminary directions

Part 2: Directions in Running

2.1 - Views

2.2 - Providing Documents to the Jury

2.3 – Other Procedures for Taking Evidence

2.4 – Unavailable witnesses

2.5 – Witness invoking Evidence Act 2008 s128

Part 3: Final Directions

3.1 - Directions Under Jury Directions Act 2015

3.2 - Overview of Final Directions

3.3 - Review of the Role of the Judge and Jury

3.4 - Review of the Requirement to Decide Solely on the Evidence

3.5 - Review of the Assessment of Witnesses

3.6 - Circumstantial Evidence and Inferences

3.7 - Review of the Onus and Standard of Proof

3.8 - Review of Separate Consideration

3.9 - Judge’s Summing Up on Issues and Evidence

3.10 - Alternative Verdicts

3.11 - Unanimous Verdicts and Extended Jury Unanimity

3.12 - Taking Verdicts

3.13 - Perseverance and Majority Verdict Directions

3.14 - Intermediaries and ground rules explained

3.15 - Concluding Remarks

3.16 - Consolidated final directions

Part 4: Evidentiary Directions

4.1 - The Accused as a Witness

4.2 - Child Witnesses

4.3 - Character Evidence

4.4 - Prosecution Witness's Motive to Lie

4.5 - Confessions and Admissions

4.6 - Incriminating Conduct (Post Offence Lies and Conduct)

4.7 - Corroboration (General Principles)

4.8 - Delayed Complaint

4.9 - Distress

4.10 - Prosecution Failure to Call or Question Witnesses

4.11 - Defence Failure to Call Witnesses

4.13 - Identification Evidence

4.14 - Opinion Evidence

4.15 - Previous Representations (Hearsay, Recent Complaint and Prior Statements)

4.16 - Silence in Response to People in Authority

4.17 - Silence in Response to Equal Parties

4.18 - Tendency Evidence

4.19 - Coincidence Evidence

4.20 - Other forms of other misconduct evidence

4.21 - Unfavourable Witnesses

4.22 - Unreliable Evidence Warning

4.23 - Criminally Concerned Witness Warnings

4.24 - Prison Informer Warnings

4.25 - Word Against Word Cases

4.26 - Differences in a Complainant’s Account

4.27 - Alibi

Part 5: Complicity

5.1 - Overview

5.2 - Statutory Complicity (From 1/11/14)

5.3 - Joint Criminal Enterprise (Pre-1/11/14)

5.4 - Extended Common Purpose (Pre-1/11/14)

5.5 - Aiding, Abetting, Counselling or Procuring (Pre-1/11/14)

5.6 - Assist Offender

5.7 – Commonwealth Complicity (s 11.2)

5.8 – Commonwealth Joint Commission (s 11.2A)

5.9 - Innocent Agent (Victorian Offences)

5.10 - Commission by Proxy (Commonwealth offences)

Part 6: Conspiracy, Incitement and Attempts

6.1 - Conspiracy to Commit an Offence (Victoria)

6.2 - Conspiracy (Commonwealth)

6.3 - Incitement (Victoria)

6.4 - Attempt (Victoria)

Part 7: Victorian Offences

7.1 - General Directions

7.2 - Homicide

7.3 - Sexual Offences

7.4 - Other Offences Against the Person

7.5 - Dishonesty and Property Offences

7.6 - Drug Offences

7.7 – Occupational Health and Safety

7.8 - Offences against justice

Part 8: Victorian Defences

8.1 - Statutory Self-Defence (From 1/11/14)

8.2 - Statutory Self-Defence (Pre - 1/11/14) and Defensive Homicide

8.3 - Common Law Self-Defence

8.4 - Mental Impairment

8.5 - Statutory Intoxication (From 1/11/14)

8.6 - Statutory Intoxication (23/11/05 - 31/10/14)

8.7 - Common Law Intoxication

8.8 - Automatism

8.9 - Statutory Duress (From 1/11/14)

8.10 - Statutory Duress (23/11/05 - 31/10/14)

8.11 - Common Law Duress

8.12 - Provocation

8.13 - Suicide Pact

8.14 - Powers of arrest

8.15 - Police search and seizure powers without a warrant

Part 9: Commonwealth Offences

9.1 - Commonwealth Drug Offences

9.2 - People Smuggling (Basic Offence)

9.3 - People Smuggling (5 or More People)

9.4 - Use of carriage service for child pornography material

Part 10: Unfitness to Stand Trial

10.1 – Investigations into Unfitness to Stand Trial

10.2 – Special Hearings