Browne v Dunn-Bar Review-April2006

8/12/2019 Browne v Dunn-Bar Review-April2006

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PUTTING THE CASE AGAINST THE RULE INBROWNE V. DUNN

The duty to cross-examine or to put ones case (in cross-examination), is also known as the

Rule inBrowne v. Dunn1. Put briely, it re!uires a cross-examinin" party to #put to$ a witness thesubstance o e%idence oered or to be oered by the cross-examinin" party, or the substance o a

planned submission to the court, when such e%idence or submission will contradict that witness&stestimony, so that the witness may ha%e an opportunity to respond to the contradiction. ' will reersimply to the #Rule$ throu"hout the rest o this article

oth the rationales and ori"ins o the Rule are suspect and open to criticism, yet the Rule appears tobe ollowed un!uestionin"ly in 'rish courts and in other common law countries. The conse!uenceso a breach o the Rule can be se%ere, and are re!uently o more si"niicance in a trial than any othe actual e%idence that may be a%ailable to the court.

lthou"h the Rule has its place in trial procedure, the choice o whether to put the case in cross-examination should be a tactical one or proessional counsel, and should not be a duty imposed bya Rule. *ounsel would then run the risk o ha%in" unchallen"ed witness e%idence belie%ed by thecourt, but would beneit rom re"ainin" control o the cross-examination process and rom theopportunity to use court time eiciently and to best eect.

Some rationales for the Rule

(i)Fundamental fairness

't is axiomatic that air play and air dealin" must be obser%ed in the runnin" o trials. +any say

that the Rule is ustiied under this headin", as a means o ensurin" that witnesses recei%e airtreatment, are not ambushed by contradictory e%idence rom the other party ater they ha%e "i%entheir testimony, and that they ha%e e%ery opportunity to "i%e their e%idence and to respond directlyto any challen"es that the other party intends to put to their e%idence. Thus, the Rule can berationalised as comin" under the air procedures principles laid down in cases such as In Re

Haughe!.

(ii)"ra#ti#al #onsiderations

nother rationale or the Rule is that it expedites the hearin" o e%idence and the eicient runnin"o trials, as well as sa%in" on costs and witness expenses. ' ad%ocates are strictly re!uired to put

their case while cross-examinin" witnesses the irst time round, without the saety net o bein" ableto recall witnesses later i needed, then the trial o actions runs much more smoothly, withoutrepetition or conusion. 't is a waste o time and money to allow the recall o witnesses, perhapsmultiple times, to remedy the ailure o counsel to put the case properly to the witness in cross-examination the irst time, "oes the lo"ic.

urthermore, strict adherence to the Rule a%oids the situation where, i a party is allowed to recall awitness ater they breached the Rule, that witness mi"ht be una%ailable andor unwillin" to "i%ee%idence a second or e%en subse!uent time. nd why should the party not in breach o the Rule be

put to the eort and expense o relocatin" and resummonin" #their$ witness, in ease o the partywho breached the Rule/

(iii) $ustomar %ra#ti#e

1As it is commonly known in New Zealand, Australia and Canada. Browne v Dunn(1893) 6 R. 6!In Re Haughey (191) "R !1

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The Rule would appear to be a lon"-standin" practice in 'reland, as it is in most o the othercommon law urisdictions s indicated by Roberts0, the Rule has become in"rained in ustralia2 in*anada the Rule is ollowed32similarly in 4ew 5ealand the Rule there has been described as#sacred$6. 7owe%er, curiously the Rule has no place in merican law or practice and is unknownthere8,althou"h many merican writers discuss at len"th the tactical decision o how ar to press

the witness in cross-examination, or indeed the wisdom or otherwise o askin" any !uestions at all.

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The 'rish le"al system is built on custom and precedent, on what went beore. :i%en that the Rule isexercised in 'rish court rooms nearly e%ery day o the year, it could be said that the Rule is simply

part o the le"al landscape and practice o 'reland, and as such has achie%ed an unassailable positionas bein" ust the way thin"s are, like the weather.

7ow then did the Rule come to be a central part o the way trials are conducted in 'reland, as wellas in other countries/

Origin of the Rule

The 7ouse o ;ords decision in the case oBrowne v. Dunn&would appear to be the irst reportedud"ment in any urisdiction that pronounces a duty to put ones case in cross-examination. s such,it is useul to consider the "enesis o the Rule, comin" as it did in a ci%il case only recorded in anobscure reportin" ser%ice.

lthou"h it mi"ht be harsh to say that the ;aw ;ords inBrowneashioned the Rule simply out othin air (and there is no si"n in the lan"ua"e o the ud"ment itsel that they belie%ed they werestatin" anythin" new) nonetheless commentators1


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in the #ourse of the #ase that his stor is not a##e%ted.2 33

To hi"hli"ht the %ery se%ere conse!uences o the Rule so created, the 7ouse o ;ords in Browneconcluded that counsel&s ailure to attack witnesses durin" cross-examination meant that he shouldnot ha%e been permitted e%en to argue to the ury that the witnesses had testiied alsely.

7owe%er the three separate ud"ments inBrownemay ha%e ended up at the same conclusion, eacho the three ;aw ;ords in the case employed dierent rationales to arri%e at the Rule.

;ord 7erschell ;*1>asks whether the witness not cross-examined is thus #unworthy o credit$2 but;ord 7alsbury10worries about the #accuracy o acts$2 ;ord 7erschell ;*1thou"ht it best practicethat #the circumstances$ indicatin" that the witness was not worthy o credit be put to the witness2

but ;ord +orris13says it is not necessary to #take him throu"h the story he had told$2 and then thereis the re!uently-cited ca%eat o ;ord +orris,16warnin" a"ainst any #hard-and-ast rule$ re!uirin"cross-examination, especially when the witness tells an #incredible and romancin" story$ durin" hisexamination-in-chie.

eyond the somewhat conusin" and muddled dicta contained in theBrowneud"ment itsel,+ahoney18describes how e%en more than the three ;aw;ords in that case, the most inluential rolein the "enesis o the Rulewas played by lake ?d"ers @*, counsel or the unsuccessulappellantinBrowne (that is, the party who had not suicientlycross-examined), and author o a leadin"textbook at the time on practice and procedure19. +ahoney explains that the irst two editions o?d"erss work, published in 19A> and 19A (thelatter bein" the year aterBrownewas reported)make no mention whatsoe%er oany such Rule. 7owe%er, ?d"ers dutiully be"ansettin" out theRule as laid down by the ;aw ;ords in later editions o his book published aterBrowne.

Bhortly ater this (at times takin" express "uidancerom ?d"erss texts4, other texts and ud"mentsbe"an to "i%e un!uestionin" alle"ianceto the duty to cross-examine C a situation that has continued,with ew exceptions, to the present day1A.

'n Dn"land and Eales, the Rule has been made part o the %ery abric o practice beore the courts,by bein" enshrined in the *ode o *onduct o the ar *ouncil o Dn"land and Eales= # barristerwhen conductin" proceedin"s in *ourtFmust not by assertion in a speech impu"n a witness whomhe has had an opportunity to cross-examine unless in cross-examination he has "i%en the witness anopportunity to answer the alle"ationF$>2 or as not applyin" to lay ma"istrates or to summary trials 00. Eell, which is it, and why/ ?newill search lon" and ruitlessly in the caselaw and textbooks or answers as to the scope and ran"eo the Rule in %arious types o liti"ation.

urther uncertainties also exist as to the application o the Rule=

Ioes the Rule arise only when counsel later submits that the witness is lyin", or is it enou"h that thesu""estion is made that the witness, althou"h tellin" the truth, is simply mistaken/ 's it suicient toask some "eneral !uestions in cross-examination to comply with the Rule, or must the !uestionin""o urther and put to the witness e%ery detail o his or her e%idence that will be challen"ed/

Ehat is to happen with a %ulnerable witness, where one party decides not to be too rou"h in cross-examination, or to ore"o cross-examination alto"ether, but is then potentially %ulnerablethemsel%es to bein" accused by the other party o breachin" the Rule, and barred rom puttin" theirown case subse!uently/

(%i) /%e#ifi# diffi#ulties in #riminal #onte,t

' the Rule does apply in criminal trials, and it would appear that it does in 'reland 0, no "eneral dutyre!uirin" the deence to disclose e%idence beore the prosecution has completed its case in chie isreco"nised by the 'rish courts. 4e%ertheless, how else can the operation o the Rule in a criminaltrial context be characterised, but as re!uirin" such disclosure/ Ehate%er may be the re!uiredamount o detail to be put by the cross-examiner, the eect o the Rule i enorced by the court is anobli"ation to "i%e ad%ance notice o deence e%idence and intended submissions on behal o theaccused.

Ehen considered in the criminal context, it also becomes apparent that the Rule touches on theaccuseds ri"ht to silence, a central part o which is the accused&s ri"ht to remain silent at trial.Burely the accused is, or should be, entitled to remain silent as to the nature o his or her deence

until ater the prosecution has introduced all the e%idence they intend to rely on in outlinin" the caseto be met, and not be orced by the Rule to show its hand prematurely/

31+erney v$ The ueenK1993L 6 D.A.C. !9, !88 1993 Dnt. C. A. #2M"& 3!/.0>R v Fenon(198) 1 Cr A'' R 3 "-. v The ueenK!L FCA /.33/0Conne v$ Ada*s193 Crim #.R. 113, as cited in cErat*, i%id$3/"0 a 'rosecution witness -i+es e+idence in t*e course o0 e7aminationBinBc*ie0 w*ic* t*e de0ence 'ro'osesto c*allen-e $y callin- e+idence in re$uttal, t*e de0ence must $e care0ul in 'uttin- t*eir +ersion to t*e'rosecution witness in crossBe7amination so as to -i+e *im or *er an o''ortunity to res'ond. als*,Cri*ina Procedure(!!), *omson Round Fall% :u$lin, '. 93."t is su$mitted t*at $y t*e end o0 crossBe7amination t*e ad+erse 'arty is entitled to know w*at case is $ein-made as to material 0act $y t*e 'arty crossBe7aminin-. *e crossBe7aminer is entitled to reasona$le latitudeas to t*e a''roac* to t*e task, $ut is $ound to 'ut to a witness w*ate+er 'ositi+e case is $ein- set u' $y t*e'arty to t*e trial. C*arleton et a, Cri*ina 1aw(1999), 5utterwort*s% :u$lin, '. 186.

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The position in Bcotland in relation to the operation o the Rule in criminal trials may be somewhatdierent, as appears rom the case o (#"herson v $o%eland9:, where the court stated=

'But #riminal %ro#eedings differ vitall from #ivil. In #riminal %ro#eedings nothing is ta-enfor granted the +urden of %roof is on the $rown throughout and that +urden is to esta+lishthe #ase against the a##used +eond reasona+le dou+t. Ordinaril there is no +urden on the

a##used and he is entitled to sit +a#- and leave the $rown to it. Of #ourse* if he sits +a#- toofar and too long* he ma #ome to grief +ut that is his own affair. He #an leave the $rowneviden#e severel alone in the ho%e that it does not rea#h the standard of reasona+le#ertaint or he #an intervene at %oints where he is ho%eful of raising a reasona+le dou+t. It

follows that the %ro#urator for the a##used #an +e assele#tive as he #hooses in the #ross0e,amination.206

' would submit that such a sensible approach would be a wise one or the 'rish criminal courts toollow.

(%ii)"otential to indu#e a +rea#h of %rivilege

Reliance on the Rule by an a""rie%ed party at trial may result in a breach o the solicitor-clientpri%ile"e o the other party, in the ollowin" scenario=

The accused is pressed in cross-examination to explain why his counsel did not put to a prosecutionwitness some detail about the case that is now bein" testiied to by the accused. Ehat is bein"su""ested by such !uestionin" is that the accused has ust made up the detail in the witness box.This is to su""est that the only possible explanation o deence counsel&s earlier ailure to complywith the Rule, with the dut to cross-examine, is the lack o any instructions rom the accusedmentionin" the detail now in !uestion. ll this may be !uite conusin" or the accused, who issuddenly called upon to explain his or her lawyer&s handlin" o an earlier cross-examination. 't isalso improper, because the thrust o the prosecution&s !uestionin" depends on what the accused did

or did not say to his counsel in preparin" or the trial, a pri%ile"ed matter.

The operation o the Rule in such ashion may also attach the not-inconsiderable sti"ma to counselthat they are somehow bein" proessionally ne"li"ent C possibly lowerin" them, unnecessarily, inthe eyes o their clients, collea"ues and the court.

(%) Where a witness is a fantasist

The Rule doesnt take into account the situation where it may be abundantly clear that a witness iscompletely and utterly disbelie%ed by a party, which party thus declines to cross-examine thewitness either in part or at all.

'nBrowneitsel, ;ord +orris, thou"h statin" that he went alon" with the ud"ment o the ;ord*hancellor, contributed his own "loss to the Rule=

'there is another %oint u%on whi#h I would wish to guard mself* namel* with res%e#t tolaing down an hard0and0fast rule as regards #ross0e,amining a witness as a ne#essar

%reliminar to im%ea#hing his #redit;.I #an 8uite understand a #ase in whi#h a stor told+ a witness ma have +een of so in#redi+le and roman#ing a #hara#ter that the mosteffe#tive #ross0e,amination would +e to as- him to leave the +o,;.I therefore wish it to +e

3K1961L &cots #aw imes 3306"n R v Bir2s (199) 19 NR 6, 688 (CA) Eleeson C? said t*at It*ere are some o$+ious di00icultiesconcernin- t*e o'eration o0 t*e rule in criminal trials>>. Eleeson C? cited "cPherson 0or t*e 'ro'osition t*att*e Rule *as no a''lication in criminal trials in &cotland.

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understood that I would not #on#ur in ruling that it was ne#essar* in order to im%ea#h awitness


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Ho" to reform and#or aolish the rule

Ehat are the possible remedies or breachin" the Rule and not puttin" ones case in cross-examination/ The existin" remedies, in declinin" order o se%erity, are=

i) prohibition on the party in breach o the Rule rom e%en ar"uin" that the witness not cross-

examined should not be belie%ed or that the witnesss testimony is alse (as occurred in Browneitsel).0A

ii) prohibition on the party in breach o the Rule rom puttin" their own case, insoar as itcontradicts the e%idence o any witnesses not cross-examined pre%iously. This appears to be themost common remedy in the 'rish courts and elsewhere today.

iii) Ehere a party breaches the Rule by not cross-examinin" one witness, that party mi"ht beprohibited rom subse!uently cross-examinin" another witness on the same issue


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trial disclosure or example. The issue o the breach o the Rule could be raised in the absence othe ury, i any.

%ii) est remedy or breach o the Rule

inally, ' su""est that the best option is to allow the remedy or a supposed breach o the Rule to

come durin" the determination o the court at the end o trial. t this sta"e, a party not ha%in" putits case in cross-examination would run the tactical risk that unchallen"ed witnesses mi"ht bebelie%ed by the court due to the lack o cross-examination. Ehene%er counsel has limited the extento a cross-examination, the court should ask itsel whether any concei%able beneit could ha%e beenobtained by urther cross-examination, such beneit in%ol%in" somethin" more than the witnesssimply either reairmin" what was ust said in examination in chie or attemptin" to explain away aalsehood, and whether what occurred actually resulted rom a breach o a proessional duty bycounsel rather than rom an understandable tactical choice. Burely this would be remedy enou"h, inact the airest remedy in all the circumstances/

Con!lusion

oth the rationales and ori"ins o the Rule are suspect and open to criticism, yet the Rule isollowed un!uestionin"ly in 'rish courts and textbooks. The conse!uences or a party in breach othe Rule can be se%ere, and are re!uently o more si"niicance than any o the actual e%idence thatmay be a%ailable to the court.

lthou"h the Rule has its place in trial procedure, the choice o whether to put the case in cross-examination should be a tactical one or proessional counsel, and should not be a duty imposed bya Rule. *ounsel would then run the risk o ha%in" unchallen"ed testimony belie%ed by the court, butcould beneit rom re"ainin" control o the cross-examination process and rom usin" court timeeiciently.

There is a ull ran"e o possible directions or reorm o the operation o the Rule, as e%idenced bythe ustralian attempt to abro"ate the rule>and the 4ew 5ealand ;aw *ommission&s proposal tocodiy the current position in that country0.

The Rule should be allowed to operate as a tactical choice or proessional counsel, rather than arote useless exercise o tedious cross-examination and incredulous denials by the witness o bein" a

perurer.

Dntrenched as the Rule seems to ha%e become in 'reland, it is hoped that this article will at leaststimulate thou"ht and debate on the rationale or and application o the Rule.

Buch an approach will ree us rom the shackles imposed by the 7ouse o ;ords o%er 1

Browne v Dunn-Bar Review-April2006

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