| Browne v Dunn | |
|---|---|
 | |
| Court | House of Lords |
| Full case name | Browne v Dunn |
| Decided | 28 November 1893 |
| Citation(s) | (1893) 6 R. 67 (H.L.) http://www.brownevdunn.com |
Browne v. Dunn (1893) 6 R. 67, H.L. is a famous British House of Lords decision on the rules of cross examination. From this case came the common law rule known as the "Browne v Dunn rule" or "The rule in Browne v Dunn". The rule in Browne v Dunn basically entails that a cross examiner cannot rely on evidence that is contradictory to the testimony of the witness without putting the evidence to the witness in order to allow them to attempt to justify the contradiction.
The United Kingdom, officially the United Kingdom of Great Britain and Northern Ireland but more commonly known as the UK or Britain, is a sovereign country lying off the north-western coast of the European mainland. The United Kingdom includes the island of Great Britain, the north-eastern part of the island of Ireland and many smaller islands. Northern Ireland is the only part of the United Kingdom that shares a land border with another sovereign state—the Republic of Ireland. Apart from this land border, the United Kingdom is surrounded by the Atlantic Ocean, with the North Sea to the east, the English Channel to the south and the Celtic Sea to the south-west, giving it the 12th-longest coastline in the world. The Irish Sea lies between Great Britain and Ireland. With an area of 242,500 square kilometres (93,600 sq mi), the United Kingdom is the 78th-largest sovereign state in the world. It is also the 22nd-most populous country, with an estimated 66.0 million inhabitants in 2017.
The House of Lords, also known as the House of Peers, is the upper house of the Parliament of the United Kingdom. Membership is granted respectively ruled by appointment, heredity or official function. Like the House of Commons, it meets in the Palace of Westminster. Officially, the full name of the house is the Right Honourable the Lords Spiritual and Temporal of the United Kingdom of Great Britain and Northern Ireland in Parliament assembled.
In law, common law is that body of law derived from judicial decisions of courts and similar tribunals. The defining characteristic of “common law” is that it arises as precedent. In cases where the parties disagree on what the law is, a common law court looks to past precedential decisions of relevant courts, and synthesizes the principles of those past cases as applicable to the current facts. If a similar dispute has been resolved in the past, the court is usually bound to follow the reasoning used in the prior decision. If, however, the court finds that the current dispute is fundamentally distinct from all previous cases, and legislative statutes are either silent or ambiguous on the question, judges have the authority and duty to resolve the issue. The court states an opinion that gives reasons for the decision, and those reasons agglomerate with past decisions as precedent to bind future judges and litigants. Common law, as the body of law made by judges, stands in contrast to and on equal footing with statutes which are adopted through the legislative process, and regulations which are promulgated by the executive branch. Stare decisis, the principle that cases should be decided according to consistent principled rules so that similar facts will yield similar results, lies at the heart of all common law systems.
Therefore, under this rule if a witness gives testimony that is inconsistent with what the opposing party wants to lead as evidence, the opposing party must raise the contention with that witness during cross-examination. This rule can be seen as an anti-ambush rule because it prevents a party from putting forward a case without first affording opposing witnesses the opportunity of responding to it. This not having been done, that party cannot later bring evidence to contradict the testimony of the witness.
The decision arose out of a civil case involving the parties James Loxham Browne and Cecil W. Dunn (solicitor). The case stemmed from a document issued by Dunn on behalf of others addressed to Browne. The document indicated that the signatories, all residents of The Vale, Hampstead, requested Dunn apply for an order against Browne to keep the peace.
At a subsequent Breach of the Peace hearing, Browne became aware of the document and commenced libel proceedings against all parties. During that hearing the document was never shown to any of the signatories by Browne during his cross examination. During the hearing Browne produced the document citing it "a sham". The jury eventually found in favour of Browne and ordered damages of 20 shillings. Dunn appealed to the Court of Criminal Appeal and the verdict was set aside. Browne then appealed to the House of Lords. During that appeal it was discovered that a number of the signatories were present at the original trial and none of them was asked if the document was anything but genuine.
The rule is best described in the judgment of Hunt J in Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation , who observed:
- It has in my experience always been a rule of professional practice that, unless notice has already clearly been given of the cross-examiner's intention to rely upon such matter, it is necessary to put to an opponent's witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings. Such a rule of practice is necessary both to give the witness the opportunity to deal with that other evidence, or the inferences to be drawn from it, and to allow the other party the inference sought to be drawn. [1]
Lord Herschell originally explained it as:
- ... 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 cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses.
The practical necessity is obvious, as Wells J noted in Reid v Kerr : [2]
- ... a judge (or a jury) is entitled to have presented to him (or them) issues of facts that are well and truly joined on the evidence; there is nothing more frustrating to a tribunal of fact than to be presented with two important bodies of evidence which are inherently opposed in substance but which, because Browne v Dunn has not been observed, have not been brought into direct opposition, and serenely pass one another like two trains in the night.
The rule has been adopted in most common law countries, including South Africa, Australia and Fiji, and it remains one of the primary rules of consideration during cross-examination.
Although one of the most cited cases in common law history, the original decision in Browne v Dunn is found only in an obscure series of reports. It now has its own website, where a scanned copy can be found. [3]
In Australia the rule in Browne v Dunn overlaps with section 46 of the Evidence Act 1995 (NSW) and Evidence Act 1995 (Cth). In New Zealand it has been codified as section 92 of the Evidence Act 2006.