The Rule in Browne v Dunn

(1894) 6 R 67

Where a party intends to lead evidence which will contradict the evidence given by one of their opponent’s witnesses, or call for an explanation from such a witness, the rule in Browne v Dunn requires that the contradiction be put to the witness in cross-examination.

The rule is essentially that a party is obliged to give appropriate notice to the other party, and any of that person’s witnesses, of any imputation that the former intends to make against wither of the latter about his or her conduct relevant to the case, or a party’s or a witness’s credit (MWJ v The Queen [2005] HCA 74,  [38] (Gummow, Kirby and Callinan JJ))

The rule in Browne v Dunn is supplemented by s46 of the Uniform Evidence legislation, if the rule in Browne v Dunn is breached possible remedies are:

• the court may order the recall of the witness so that the matters that should have been put to the witness in cross-examination can be put now (Reid v Kerr (1974) 9 SASR 367); the power to make such orders is specifically confirmed by s46;
• the court may allow a party to re-open its case so as to lead evidence to rebut the contradictory evidence, or to corroborate the evidence of the witness to whom the contradictory evidence should have been put;
• the court may make comments adverse to the party in breach while directing the jury on the evidence; or
• the tribunal of fact may more readily accept the testimony of a witness to whom the contradictory evidence was not put.

Caution needs to be exercised in criminal trial where the burden of proof rests on prosecution.