The "rule" in Browne v Dunn

Can the rules of evidence, that have been designed to ensure fairness, be ignored if the judge feels that it would be more fair to ignore them? Certainly not, says the High Court of Australia in MWJ v R [2005] HCA 74 (7 December 2005).

In MWJ an inconsistency emerged with evidence that had been given by the complainant, when a subsequent witness gave evidence. Could the accused rely on the apparent inconsistency to undermine the complainant’s evidence? The inconsistency was "apparent" because the complainant was not re-called for questioning on the topic to see if the inconsistency was maintained.

This raised what is referred to in general terms as the rule in Browne v Dunn (1893) 6 R 67, which is that fairness usually requires that if a witness’s testimony is to be disputed, the grounds for that dispute should be put to that witness. The High Court noted that this rule has been applied in criminal law in many jurisdictions, including New Zealand, citing Gutierrez v R [1977] 1 NZLR 192, (1996) 14 CRNZ 108 (CA). In that case, the New Zealand Court of Appeal held

" … the rule is simply one of fairness. Has a reasonable opportunity been given to enable the evidence in question to be properly assessed? It is the responsibility of prosecuting counsel or a prosecutor who proposes to attack the credibility of defence witnesses, including the defendant, to cross-examine in a way which makes it plain that the relevant evidence is challenged and gives the witness a fair opportunity to answer the challenge. Such cross-examination however may not be necessary if from what has gone before or from the circumstances of the case it is fairly made plain that the truthfulness of particular facts given in evidence is not accepted, and an adequate opportunity to meet the challenge has otherwise been afforded.

"If evidence relevant to credibility is not so tested when it ought to be, it is likely to be unreasonable for the trier of fact to make an adverse finding in respect of credibility."

The High Court of Australia was unanimous in MWJ that in the circumstances of the case there was no miscarriage of justice and the appeal against conviction was dismissed. Two judgments were delivered, and they differ slightly on the point of when it is appropriate to give weight to the apparent inconsistency in the evidence.

Gleeson CJ and Heydon J held (para 19):

"In the present case, there was no obligation on trial counsel for the appellant to question the complainant about whether there had been more than one incident of sexual abuse at Sutcliffe Street, and there was no obligation to seek to have the complainant recalled for that purpose. Why would counsel for the appellant want to run the risk of eliciting further evidence of uncharged criminal acts by her client? That, no doubt, left the trial judge in a difficult position when he came to evaluate a criticism (in final address) of the complainant's credibility based on the supposed (although, in truth, non-existent) inconsistencies. It did not mean that counsel could not put her argument to the judge. As Doyle CJ said, it was a matter to be taken into account in assessing the weight to be given to the supposed inconsistencies. In the event, it was the fact that counsel chose (with reason) to leave the evidence in a state of uncertainty that undermined her submission about inconsistency. That was a forensic choice for counsel to make."

The penultimate sentence of this extract has difficulties. It was not for counsel for the accused to ask for re-call of the complainant; it was for counsel for the prosecution to offer (or, more accurately, to apply for) re-call of the witness. If counsel for the defence opposed that, less weight might have attached to subsequent reliance on inconsistencies. This is how the other Judges in MWJ, Gummow, Kirby and Callinan JJ, saw it (para 41):

"…As soon as the inconsistency emerged, and the trial judge rejected the appellant's objection to the evidence intended to be adduced from the complainant's mother [whose evidence had appeared to be inconsistent with that of her daughter, the complainant], it was open for the prosecution to offer to tender the complainant for further cross-examination. Had that happened it would then, and only then have been for the appellant, to decide whether to embrace the offer or not. If he had not, then and only then would the criticism that the Court of Criminal Appeal made of his conduct have been valid."

This seems to be the better view, but one might still wonder whether it is really accurate. If it would be unfair to permit recall of the complainant in view of, for example, the obligation on the prosecution not to split its case, then it would be unfair to ignore the apparent inconsistency. Each case will turn on its own facts, but fairness is the all-pervasive consideration.

What, then, if the rules of evidence appear to operate unfairly? This point was addressed in the three-judge joint judgment, para 37:

"Something should first be said of the trial judge's criticism of the appellant's failure, in effect, to give the complainant an opportunity of explaining away the inconsistency arising out of her mother's evidence. The criticism is ill-founded for these reasons. The complainant had already given her evidence when the mother gave her evidence. It was not for the appellant to know and anticipate, by cross-examining the complainant, what the mother would say about the complainant's assertions of complaints of multiple offences at Sutcliffe Street. It was not for the appellant to iron out inconsistencies in the case for the prosecution. Secondly, his Honour erred in holding that if there were competition between the avoidance of unfairness to the complainant and a "technical view of the rules of evidence" … (whatever that in the circumstances means), the former must prevail. It is not for a judge to depart from the rules of evidence on such a basis. The rules are designed to ensure fairness to all, certainly not least, to an accused in a criminal trial."

The difficulty in this apparent contrast between rules and fairness, is that the so-called rule in question is itself more of a principle than a rule. It is, as the New Zealand Court of Appeal said in Gutierrez, above, one of fairness. While it is usually called the "rule" in Browne v Dunn, that is simply shorthand non-technical language.