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.
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:
Lord Herschell originally explained it as:
The practical necessity is obvious, as Wells J noted in Reid v Kerr:[2]
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.
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.