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4.10.

3 – Failure to Challenge Evidence


(Browne v Dunn)1
4.10.3.1 – Bench Notes
Scope of these Notes
1. These Notes address the directions which may be given when a party
fails to confront a witness with a proposed challenge to his or her
evidence.

2. Similar issues are addressed in the following Bench Notes:

 Prosecution Failure to Call or Question Witnesses;

 Defence Failure to Call Witness.

The Rule in Browne v Dunn


3. The rule in Browne v Dunn ordinarily requires counsel to:

i) Put any matters concerning his or her own case that are
inconsistent with a witness’ evidence to that witness; and

ii) Put any allegations or imputations that he or she intends to


make against a witness to that witness (Browne v Dunn (1893)
6 R 67; MWJ v R (2005) 222 ALR 436; R v Thompson (2008) 21
VR 135; R v Coswello [2009] VSCA 300; KC v R [2011] VSCA
82).

4. This is a rule of fairness designed to allow witnesses to confront any


proposed challenges to their evidence, and to enable the jury to see
and assess the reactions of witnesses to those challenges (MWJ v R
(2005) 222 ALR 436; Bulstrode v Trimble [1970] VR 840; R v
Thompson (2008) 21 VR 135; R v Morrow (2009) 26 VR 526).

5. The rule applies both where a party intends to call evidence that
directly contradicts a witness’s account, and where a party intends to
suggest that the jury draw an inference adverse to the witness from
the evidence in the case. In the latter case, the suggested inference
should ordinarily be put to the witness in cross-examination (R v
Birks (1990) 19 NSWLR 677. See also Evidence Act 2008 s46(2)).

6. While the rule in Browne v Dunn applies in criminal trials, the content
of the rule is narrower than in civil proceedings. This is due to the
accusatorial nature of criminal trials, the obligation on the
prosecution to present its whole case and the burden of proof (MWJ
v R (2005) 222 ALR 436). These matters should be taken into
account when considering the scope of the rule and the remedies for
1
This document was last updated on 16 February 2017.
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its breach (see below).

7. The rule does not require counsel to iron out inconsistencies that
emerge in the other party’s case. It only obliges counsel to give
witnesses the chance to respond to evidence or submissions that
form part of counsel’s own case (MWJ v R (2005) 222 ALR 436; R v
MG [2006] VSCA 264).

8. These obligations are not fulfilled simply because the accused


challenged the witness’s evidence in his or her record of interview.
Counsel must put the version of events from the record of interview
to any relevant witnesses (R v Baran [2007] VSCA 66).

9. The rule in Browne v Dunn admits of some flexibility. While it


requires proposed challenges to a witness’s evidence to normally be
put to that witness, there are some circumstances in which this need
not be done (see below) (Bugeja v R [2010] VSCA 321).

Effect of the Evidence Act 2008


10. The rule in Browne v Dunn “remains alive and well” under the
Uniform Evidence Acts (Heaton v Luczka [1998] NSWCA 104. See
also Jardein Pty Ltd v Stathakis [2007] FCAFC 148).

11. The scope of the rule has been slightly expanded due to Evidence Act
2008 s38, which provides a party with a greater opportunity to
challenge the evidence of its own witnesses (see below).

Effect of the Jury Directions Act 2015


12. The Jury Directions Act 2015 does not specify the content of any
directions required in relation to the rule in Browne v Dunn.

13. While Jury Directions Act 2015 section 43 applies to a prosecution


failure to question a witness about a topic, this is likely limited to a
failure to question prosecution witnesses. There is no indication in
the Act that section 43 is intended to apply to a failure by the
prosecution to put their case to defence witnesses.

14. However, the general provisions in Part 3 of the Act regarding


requests for directions and the consequences of failing to request a
direction apply.

15. The significance of a prosecution failure to comply with the rule in


Browne v Dunn means that judges will often need to consider
whether a direction is required, even if one is not requested (see
Cavanagh and Rekhviashvili v R [2016] VSCA 305 at [103]).

Scope of the Rule


16. While the obligations in Browne v Dunn previously only applied to
defence counsel (see, e.g., R v Macfie (No 2) (2004) 11 VR 215; R v

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Nicholas [2000] VSCA 49), this is no longer the case.

17. The prosecution may now be required to cross-examine the accused


about why certain matters were not put to prosecution witnesses.
This notifies the accused that the prosecution is planning to invite the
jury to infer that the accused’s case is a recent invention, and
provides the accused with an opportunity to explain:

 Why defence counsel failed to cross-examine the relevant


witnesses; or

 How the accused came to give evidence of matters that had not
previously been explored with those witnesses (R v Thompson
(2008) 21 VR 135; R v Scott [2004] NSWCCA 254).

18. A party may also have a duty to cross-examine one of their own
witnesses, if they intend to introduce evidence that contradicts a part
of that witness’s account, or to criticise a part of that witness’s
evidence in their closing address (see, e.g., R v McCormack (No.3)
[2003] NSWSC 645; Kanaan v R [2006] NSWCCA 109). In such
cases, the party must apply for leave to cross-examine the witness
under Evidence Act 2008 s38.

19. The obligations in Browne v Dunn do not apply to committal


hearings. No inference may be drawn from a failure to cross-examine
a witness at an earlier committal hearing (R v Birks (1990) 19
NSWLR 677).

When is the Rule Breached?


20. The rule in Browne v Dunn places different obligations on the defence
and the prosecution. This section looks at each party’s obligations in
turn.

Defence Obligations

21. The extent of the obligations that arise under the rule in Browne v
Dunn in a particular case will be informed by the nature of the case
to be presented by the defence and the forensic context of the trial
(R v Coswello [2009] VSCA 300; R v Morrow (2009) 26 VR 526;
Bugeja v R [2010] VSCA 321; R v MG [2006] VSCA 264; R v Foley
[2000] 1 Qd R 290).

22. Defence counsel must not only disclose that the evidence of the
witness is to be challenged, but also how it is to be challenged (R v
Morrow (2009) 26 VR 526; Allied Pastoral Holdings Pty Ltd v FCT
[1983] 1 NSWLR 1).

23. If the defence case involves no more than a denial of the witness’s
evidence, without positive evidence or hypothesis of an alternative
version of events, it may be sufficient to put that case to the witness
in general terms (R v Coswello [2009] VSCA 300; R v Morrow (2009)

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26 VR 526; Bellemore v Tasmania (2006) 170 A Crim R 1).

24. If defence counsel has made clear from the manner in which the
defence case is conducted that the witness’s evidence will be
contested, or if the witness’s evidence is clearly implausible, there
may not be a need for any specific matters to be put in cross-
examination (R v Coswello [2009] VSCA 300; KC v R [2011] VSCA
82; R v MG [2006] VSCA 264; Browne v Dunn (1893) 6 R 67).

25. By contrast, if a positive case is to be subsequently advanced, the


essential elements of the eventual case must normally be put to any
witness who may cast doubt on them (R v Morrow (2009) 26 VR
526; R v Foley [2000] 1 Qd R 290).

26. Witnesses must be given the opportunity to respond not only to any
allegation which is to be made, but to its essential features – which
may include the time, place and circumstances of the alleged
occurrence (R v Morrow (2009) 26 VR 526).

27. Where defence counsel intends to adduce evidence of specific


matters contrary to the witness’ evidence, he or she must put those
matters in such a way that the witness has an adequate opportunity
to respond (R v Morrow (2009) 26 VR 526).

28. In determining whether the rule has been breached, the judge should
not solely focus on what questions were or were not asked. It is
necessary to examine whether, in the subsequent conduct of the
defence, facts or propositions were advanced that had not been “fully
or fairly” put to the relevant witnesses (KC v R [2011] VSCA 82).

29. It will often be a matter of impression and interpretation as to


whether the cross-examination sufficiently conveys the substance of
the contrary evidence (R v Morrow (2009) 26 VR 526).

Prosecution Obligations

30. Little guidance has been given about the extent of the obligations the
rule in Browne v Dunn places on the prosecution.

31. Where the prosecution wants to argue that the defence has breached
the rule in Browne v Dunn by not raising certain matters with the
prosecution witnesses, and the accused gives evidence, the
prosecution must cross-examine him or her about why those matters
were not raised (R v Thompson (2008) 21 VR 135; R v Scott [2004]
NSWCCA 254).

32. However, the prosecution does not need to cross-examine the


accused about a matter mentioned in a contested confession, which
the prosecution relies upon to say that the confession was true (R v
Arnott (2009) 26 VR 490).

33. It is likely that the prosecution must also comply with the other

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obligations outlined in “Defence Breaches of the Rule” above.
However, care must be taken when adapting those obligations to the
prosecutorial context. In particular, judges should consider the
accusatorial nature of criminal trials, the obligation on the
prosecution to present its case and the burden of proof. In light of
such matters, judges may more readily find that the prosecution has
breached the rule in Browne v Dunn.

Remedies for Breaching the Rule


34. Where counsel does not comply with the rule in Browne v Dunn, the
trial judge has a discretion about how to best remedy the unfairness
so that the trial does not miscarry (Archer v Richard Crookes
Construction Pty Ltd NSW CA 22/10/97; Heaton v Luczka [1998]
NSWCA 104; Scalise v Bezzina [2003] NSWCA 362).

35. What is necessary in any given case to ensure fairness will depend
on the circumstances (R v Ferguson [2009] VSCA 198; R v
Commonwealth Conciliation and Arbitration Commission; Ex parte
Angliss Group (1969) 122 CLR 546).

36. The rule in Browne v Dunn must be applied with considerable care
and circumspection due to the accusatorial nature of criminal trials.
The rule does not apply in the same way or with the same
consequences as it does in civil proceedings (R v Coswello [2009]
VSCA 300; R v Morrow (2009) 26 VR 526; MWJ v R (2005) 222 ALR
436; R v Demiri [2006] VSCA 64; R v Birks (1990) 19 NSWLR 677).

37. In determining what remedy is appropriate, the judge should


consider whether it was the prosecution or the defence who breached
the rule, and the obligations placed upon each party.

38. Great care must be taken where it is the prosecution which has
suffered the unfairness. The trial judge must avoid adopting a
remedy for unfairness to the prosecution which might itself work
unfairness against the accused (R v Ferguson [2009] VSCA 198).

Take Steps to Avoid the Need for Jury Directions

39. Where possible, steps should be taken in the running of the case to
avoid having to direct the jury about the breach of the rule (R v
Coswello [2009] VSCA 300; R v Morrow (2009) 26 VR 526; R v Foley
[2000] 1 Qd R 290).

40. For example, depending on the nature of the case, the trial judge
may be able to avoid the need to give a Browne v Dunn direction by:

 Drawing the attention of counsel to the need to put matters to


the witness during the course of cross-examination (R v
Ferguson [2009] VSCA 198; R v Coswello [2009] VSCA 300);

 Permitting a witness to be recalled so that the relevant matters

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may be put to him or her (MWJ v R (2005) 222 ALR 436; R v
Ferguson [2009] VSCA 198; R v Coswello [2009] VSCA 300; R
v Thompson (2008) 21 VR 135; R v MG [2006] VSCA 264).
Leave to recall a witness may be given under Evidence Act 2008
s46.

 Allowing a party to reopen its case2 to lead evidence to rebut


the contradictory evidence or corroborate the relevant witness’s
evidence.3

Excluding Evidence and Preventing Arguments

41. The judge may refuse to admit evidence in breach of the rule in
Browne v Dunn if its probative value is outweighed by the danger of
unfair prejudice (Evidence Act 2008 ss135, 137. See also R v
McCormack (No.3) [2003] NSWSC 645; R v Schneidas (No 2) (1981)
4 A Crim R 101; R v Body NSW CCA 24/8/94).

42. However, a judge is not entitled, by reason of non-compliance with


the rule in Browne v Dunn, to withdraw an issue of fact from the
jury, nor to treat an ingredient of the charge as proved (R v
Rajakaruna (No 2) (2006) 15 VR 592; R v Costi (1987) 48 SASR
269).

43. In a criminal proceeding that relates (wholly or partly) to a charge


for a sexual offence or a family violence offence, an unrepresented
accused must not adduce evidence in relation to a fact in issue in
order to contradict the evidence of a protected witness, 4 unless the
evidence on which the accused intends to rely has been put to the
protected witness during cross-examination (Criminal Procedure Act
2009 s357).

44. In some cases, it may follow from the conduct of the trial that it is
not fairly open to counsel to make a particular suggestion in their
closing address (R v Foley [2000] 1 Qd R 290; R v Thompson (2008)
21 VR 135). This remedy may be more appropriate for prosecution
breaches of the rule than defence breaches.

When to Give a Jury Direction

45. While steps should be taken to avoid having to direct the jury about
2
Criminal Procedure Act 2009 s233 allows the prosecution to reopen its case with
leave of the trial judge when the accused gives evidence that could not
reasonably have been foreseen by the prosecution, based on the defence
response to the summary of the prosecution opening, and the defence response
to the notice of pre-trial admissions.
3
This remedy may not be appropriate if it would breach the prosecution’s
obligation not to split its case (R v MG [2006] VSCA 264; R v Chin (1985) 157
CLR 671; Killick v R (1981) 147 CLR 565).
4
The following people are “protected witnesses”: the complainant; a family
member of the complainant; a family member of the accused; and any other
witness who the court declares under s355 to be a protected witness (Criminal
Procedure Act 2009 s354).
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the breach of the rule in Browne v Dunn (see above), in some cases
a direction may be appropriate (R v Coswello [2009] VSCA 300; R v
Morrow (2009) 26 VR 526).

46. The need for a direction depends on whether a direction is sought


and whether, despite the absence of any request, there are
substantial and compelling reasons for giving the direction despite
the absence of a request (Jury Directions Act 2015 ss12, 14, 15, 16).
See Bench Notes: Directions Under Jury Directions Act 2015 for
information on when directions are required.

47. Even if a direction is sought, great care should be taken when


deciding whether to give a Browne v Dunn direction, as giving a
direction when it is not warranted may cause a substantial
miscarriage of justice (R v MG [2006] VSCA 264. See also R v Smart
[2010] VSCA 33; KC v R [2011] VSCA 82).

48. Prior to giving a Browne v Dunn direction, the judge should alert
counsel to the failure to sufficiently put the matter to the witness,
and provide an opportunity for recalling and cross-examining that
witness. A direction should only be given if:

 The party who called the witness refuses to recall them;

 The party who failed to properly cross-examine the witness


refuses the opportunity of further cross-examination; or

 The circumstances render the possibility of further cross-


examination impracticable (R v Coswello [2009] VSCA 300 per
Nettle JA. See also R v MG [2006] VSCA 264).

49. Where there is a strong possibility that counsel’s case was invented
after the witness gave evidence, recalling the witness may not fully
address the problem. In such cases, the judge may comment on the
failure to comply with the rule, even though the witness has been
recalled and properly cross-examined (R v Novak [2003] VSCA 46).

50. In deciding whether or not to give a direction, the judge should


consider whether the failure was material in the context of the case
(R v McDowell [1997] 1 VR 473; R v MG [2006] VSCA 264).

51. The judge should also consider the accusatorial nature of criminal
trials, and the different obligations placed upon the prosecution and
the defence. A direction may be given more readily where it is the
prosecution that has breached the rule.

52. The judge should also take into account the extent of the breach.
Where it is relatively minor, a direction should generally not be given
(KC v R [2011] VSCA 82).

53. The judge will usually have good reasons for not giving a direction on
a party’s failure to comply with the rule where:

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 The breach was due to a party’s inability to cross-examine its
own witness, as it was refused leave under Evidence Act 2008
s38;

 The party made it clear to the court that they wanted to cross-
examine the witness, but were effectively prevented from doing
so by the other party (Bugeja v R [2010] VSCA 321);5 or

 The disadvantaged party did not offer or seek to recall the


witness (in order to correct the problem) (MWJ v R (2005) 222
ALR 436; R v MG [2006] VSCA 264).

Unrepresented Accused

54. As the rule in Browne v Dunn is a rule of professional practice and


procedure, it may not be appropriate to give a direction if the
accused is unrepresented (R v Birks (1990) 19 NSWLR 677; c.f.
McInnis v R (1979) 143 CLR 575).

55. If a judge is going to make a comment about an unrepresented


accused’s breach of the rule in Browne v Dunn, fairness demands
that he or she should first advise the accused of the existence of that
rule and of the options available. If the judge fails to do so, he or she
should not comment on the breach (R v Zorad (1990) 19 NSWLR
91).

Discharging the Jury

56. If nothing can be done to prevent a miscarriage of justice arising


from the breach the jury may need to be discharged (see, e.g., R v
SWC (2007) 175 A Crim R 71).

Content of the Direction


57. The charge given in relation to a breach of the rule in Browne v Dunn
is properly seen as a “direction” rather than a “comment”. The judge
is instructing the jury that, as a matter of law, they may use
counsel’s failure to cross-examine a witness in a particular manner
(R v McDowell [1997] 1 VR 473).

58. This section addresses the following directions in turn:

 Defence breaches of the rule in Browne v Dunn;

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E.g., In Bugeja v R [2010] VSCA 321, the prosecution advised defence counsel
that if they cross-examined a certain witness about a particular matter, they
would re-examine that witness in such a way that one of the co-accused’s prior
convictions would be revealed to the jury. While defence counsel could
theoretically have proceeded with the desired cross-examination, that would have
been highly prejudicial to the accused’s defence. It was thus seen as
understandable that defence counsel would choose not to do so, and unfair of the
prosecution to rely on the rule in Browne v Dunn in such circumstances.
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 Prosecution breaches of the rule in Browne v Dunn;

 Other directions that may be required instead of a standard


Browne v Dunn direction.

Defence Breaches of the Rule in Browne v Dunn

Overview of Directions

59. In most cases where a direction is necessary (see above), the judge
should only direct the jury that the breach can be taken into account
when assessing the weight of the contradictory evidence or the
inferences that flow from that evidence (R v Morrow (2009) 26 VR
526; R v Coswello [2009] VSCA 300; KC v R [2011] VSCA 82).

60. Only in exceptional cases should the judge consider directing the jury
that an adverse inference as to credibility may be drawn against the
accused due to the breach. This will generally not be appropriate (R
v Morrow (2009) 26 VR 526).

61. Where a Browne v Dunn direction is given, the judge should usually
explain that there may be good reasons why a party failed to comply
with the rule (R v MG [2006] VSCA 264; R v Manunta (1989) 54
SASR 17; R v Thompson (2008) 21 VR 135).

62. Each of these directions is discussed in more detail below.

Using the Breach to Assess Weight

63. Where defence counsel fails to comply with the rule in Browne v
Dunn, the judge may direct the jury about the effect that failure may
have on their assessment of the contradictory evidence (R v Morrow
(2009) 26 VR 526; R v Coswello [2009] VSCA 300).

64. Where such a direction is required, the judge should:

 Outline the rule in Browne v Dunn and its purpose;

 Tell the jury that, under the rule, the witness should have been
challenged about the relevant matters, so that he or she had an
opportunity to deal with the challenge;

 Tell the jury that the witness was not challenged, and thus was
denied the opportunity to respond to the challenge; and

 Tell the jury that they have therefore been deprived of the
opportunity of hearing his or her evidence in response (R v
Coswello [2009] VSCA 300 per Nettle JA; R v Foley [2000] 1 Qd
R 290. See also R v Birks (1990) 19 NSWLR 677; R v Manunta
(1989) 54 SASR 17; R v Senese [2004] VSCA 136; R v MG
[2006] VSCA 264; R v Thompson (2008) 21 VR 135).

65. The judge may also tell the jury that the failure by defence counsel
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to put these matters to the witness can be taken into account when
assessing the weight to be given to the allegation of fact that was
not pursued with the relevant witness, or the arguments which rest
upon that fact (R v Morrow (2009) 26 VR 526. See also R v Nicholas
(2000) 1 VR 356; R v Rajakaruna (No 2) (2006) 15 VR 592).

66. Failure to comply with the rule in Browne v Dunn does not prove that
the imputations against the witness are false. It only affects the
weight the jury may attach to those imputations (R v Laz [1998] 1
VR 453; Bulstrode v Trimble [1970] VR 840).

67. Great care must be taken when directing the jury about any
unfairness suffered by the prosecution. In such cases it may not be
appropriate to comment strongly upon the failure to comply with the
rule (see, e.g., R v Ferguson [2009] VSCA 198).

68. These directions only concern the jury’s assessment of the weight of
the evidence. Failure to put matters to a witness cannot constitute
supporting evidence or consciousness of guilt (See, e.g., R v MG
[2006] VSCA 264).

Using the Breach to Draw Adverse Inferences

69. Directions about the possibility of adverse inferences have recently


been given too readily in criminal trials. The rule in Browne v Dunn
does not apply to criminal proceedings in the same way, or with the
same consequences, as it does in civil proceedings. Consequently, its
application requires considerable care and circumspection (R v
Morrow (2009) 26 VR 526 per Nettle JA; KC v R [2011] VSCA 82).

70. However, in exceptional cases the judge may direct the jury that an
adverse inference as to credibility may be drawn against the accused
due to the breach (R v Morrow (2009) 26 VR 526).

71. The circumstances in which such a direction will be necessary are


rare. It is one thing to remark upon the fact that a witness or a party
appears to have been treated unfairly, but it is another thing
altogether to comment that the evidence of a person should be
disbelieved, perhaps as a recent invention, because it raises matters
that were not put in cross-examination to other witnesses by that
person’s counsel (R v Morrow (2009) 26 VR 526; R v Foley [2000] 1
Qd R 290; R v Birks (1990) 19 NSWLR 677).

72. An adverse inference as to credibility can only arise where the


circumstances surrounding the failure to put the allegation to the
witness raise a “prominent hypothesis” that the contradictory
evidence is a recent invention or is otherwise a fabrication (R v
Morrow (2009) 26 VR 526).

73. In such cases, the jury may be directed that they may infer from the
failure to cross-examine the witness that any evidence which
conflicts with that given by the impugned witness was invented after

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he or she gave evidence, and should not be believed (R v Birks
(1990) 19 NSWLR 677; R v Novak [2003] VSCA 46; R v Manunta
(1989) 54 SASR 17; R v Senese [2004] VSCA 136; R v MG [2006]
VSCA 264; R v Thompson (2008) 21 VR 135).

74. The process of reasoning suggested by this direction is dangerous


and should only be used with caution (R v Manunta (1989) 54 SASR
17; R v Laz [1998] 1 VR 453; R v Thompson (2008) 21 VR 135; R v
Birks (1990) 19 NSWLR 677; R v Demiri [2006] VSCA 64). It will
often be appropriate to direct the jury to proceed with care.

75. An adverse inference direction is unlikely to be appropriate where the


prosecution has not cross-examined the accused to suggest that the
breach of the rule in Browne v Dunn demonstrates that his or her
evidence was a recent invention, and has not argued to that effect in
closing arguments (see, e.g., R v Morrow (2009) 26 VR 526; R v
Thompson (2008) 21 VR 135).

76. The judge must not direct the jury on the possibility of recent
invention if there is evidence which excludes this possibility. Such
evidence may arise from the record of interview (R v Baran [2007]
VSCA 66; KC v R [2011] VSCA 82).

77. It is open to a party to give or call evidence to negate the inference


of recent invention. For example:

 When being cross-examined, the accused can provide reasons


for counsel’s failure to cross-examine the relevant witness (see
“Reasons for Failure to Comply with the Rule” below);

 The accused’s solicitor may be called to give evidence that his


or her instructions had always been the same (see, e.g.,
Oldfield v R (2006) 163 A Crim R 242);

 Counsel may tender evidence of a prior statement made by the


accused presenting the same account as was presented in court
(see, e.g., R v Foley [2000] 1 Qd R 290 and Evidence Act 2008
s108).

Reasons for Failure to Comply With the Rule

78. Where a Browne v Dunn direction is given, the judge should usually:

 Explain to the jury that there may be good reasons why defence
counsel failed to comply with the rule in Browne v Dunn; and

 Provide relevant examples of possible reasons for counsel’s


failure in the circumstances of the case (see, e.g., R v Morrow
(2009) 26 VR 526; R v MG [2006] VSCA 264; R v Manunta
(1989) 54 SASR 17; R v Birks (1990) 19 NSWLR 677; Oldfield v
R (2006) 163 A Crim R 242; R v Thompson (2008) 21 VR 135).

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79. This is especially important where the prosecution invites the jury to
infer that the accused’s evidence is a recent invention. In such cases,
it must be made clear that before drawing an adverse inference
against the accused, the jury must be satisfied that there is no
reasonable explanation for the omission which does not reflect
adversely upon the accused’s credibility (R v Morrow (2009) 26 VR
526; R v Thompson (2008) 21 VR 135; R v MG [2006] VSCA 264; R
v Manunta (1989) 54 SASR 17; R v Birks (1990) 19 NSWLR 677; R v
McLachlan [1999] 2 VR 553; Oldfield v R (2006) 163 A Crim R 242).

80. The jury must be given sufficient directions to enable them to assess
all other possible explanations (R v Morrow (2009) 26 VR 526).

81. This may require the judge to explain the course that trials may
take, and the wide discretion available to counsel in their conduct (R
v Morrow (2009) 26 VR 526; R v Foley [2000] 1 Qd R 290).

82. The judge may need to explain to the jury that counsel is not simply
a “mouthpiece” for the client, conducting the case in close conformity
with the client’s directions (R v Manunta (1989) 54 SASR 17; R v
Coswello [2009] VSCA 300).

83. Possible reasons for failing to comply with the rule in Browne v Dunn
include:

 Counsel may have considered the evidence unimportant in the


context of the case;

 Counsel may have overlooked the matter during cross-


examination;

 Counsel may have misunderstood his or her instructions;

 The witness may not have been co-operative in providing a


statement;

 Forensic pressures may have resulted in looseness or


inexactitude in the framing of questions;

 The other evidence given by the witness may have made it clear
that he or she would deny the challenge;

 The witness’ evidence may have been so fanciful that there was
no need for any cross-examination (R v MG [2006] VSCA 264;
R v Manunta (1989) 54 SASR 17; R v Birks (1990) 19 NSWLR
677; R v McLachlan [1999] 2 VR 553; R v Laz [1998] 1 VR 453;
R v Thompson (2008) 21 VR 135; R v Foley [2000] 1 Qd R
290).

84. The judge must limit the reasons he or she provides to the jury to
those that are realistic in the context of the trial (R v SWC [2007]
VSCA 201).

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85. The judge only needs to include reasons that the jury may otherwise
overlook. This will depend on the issues in the context of the trial (R
v Manunta (1989) 54 SASR 17; R v Birks (1990) 19 NSWLR 677; R v
ZW [2006] VSCA 256).

86. While counsel cannot advance a specific explanation from the bar
table as being “the explanation” for the breach, he or she may
challenge the argument that recent invention should be inferred by
raising a number of possible explanations with the jury inconsistent
with that inference. For example, he or she can submit that the
omission might be explained by oversight or error on his or her part,
or by other forensic pressures (R v Thompson (2008) 21 VR 135).

87. Any explanations raised by defence counsel about why he or she


failed to comply with the rule should be told to the jury (R v Morrow
(2009) 26 VR 526).

88. It may not be appropriate to provide a possible explanation for


counsel’s failure to fully cross-examine a witness where the effect of
doing so would be to emphasise the significance of counsel’s
omission, rather than to explain it (R v SWC [2007] VSCA 201; R v
Smart [2010] VSCA 33).

89. Where it is clear that there is a good forensic reason for the party’s
failure to cross-examine the witness,6 a Browne v Dunn direction
should not be given. To give a direction in such circumstances would
be to invite the jury to come to a conclusion about a matter based on
a premise that everyone, apart from the jury, understands to be
false (Bugeja v R [2010] VSCA 321).

Prosecution Breaches of the Rule

90. Where the prosecution has breached the rule by failing to cross-
examine a defence witness (including the accused), a direction
should inform the jury of the prosecutor’s failure to raise the matters
in question with the witness and that the jury can take that into
account in considering the weight they give to the prosecutor’s
arguments about that witness’ evidence (Cavanagh and Rekhviashvili
v R [2016] VSCA 305 at [103]; Smith v R [2012] VSCA 187 at [53]).

91. As part of this direction, it may be appropriate to provide the jury


with possible answers the witness might have given, which would
blunt a line of argument advanced by the prosecution, as a way of
showing why the failure may be relevant to assessing the
prosecutor’s arguments (see, e.g., R v Thompson (2008) 21 VR 135
at [68], [123]).

92. Directions on the prosecution breach may not, however, be


necessary if the prosecution acknowledges the breach to the jury and
6
E.g., Where the prosecution has made it clear that one of the co-accused’s prior
convictions will be revealed to the jury if defence counsel cross-examines the
witness (Bugeja v R [2010] VSCA 321).
13
withdraws any arguments which should not have been made due to
the breach (see Cavanagh and Rekhviashvili v R [2016] VSCA 305 at
[103]).

93. Where the prosecution fails to cross-examine one of its own


witnesses:

 It would ordinarily be appropriate to tell the jury that the


defence had been denied the opportunity to support that
witness’s evidence (either in cross-examination or by calling
independent evidence); and

 In some cases it may be appropriate to direct the jury to ignore


the prosecution’s suggestion that the witness’s evidence be
rejected. This will depend on factors such as whether other
contradictory evidence has been given, and the circumstances
of the breach (Kanaan v R [2006] NSWCCA 109).

94. It may also be appropriate to give suitably modified versions of the


directions outlined in “Using the Breach to Assess Weight” above.
However, due to the different obligations placed on the prosecution,
it may be necessary to give stronger directions than in relation to a
defence breach. For example, in some circumstances it may be
appropriate to tell the jury that the prosecution’s failure to comply
with the rule may affect the jury’s assessment of the prosecution
case as a whole, as well as affecting the weight to be given to the
prosecution’s criticisms of the relevant witness.

95. It will generally not be appropriate to tell the jury that they may
draw an adverse inference against the prosecution due to breaching
the rule in Browne v Dunn, as prosecution breaches are unlikely to
provide an opportunity for recent invention (see “Using the Breach to
Draw Adverse Inferences” above). However, in some cases it may be
appropriate to tell the jury that, due to the breach, they may more
readily reject certain inferences sought by the prosecution.

96. While in some cases it may be appropriate to direct the jury that
there may be good reasons why the prosecution failed to comply
with the rule in Browne v Dunn (see “Reasons for Failure to Comply
With the Rule” above), judges should be careful when doing so. Such
a direction risks undermining the obligations placed on the
prosecution to present all relevant material to the jury. In addition,
the reasons why the prosecution failed to comply with the rule may
not be relevant to the jury’s consideration of the consequences of the
breach.

Other Directions

97. In some circumstances, the judge may need to give one or more of
the following directions instead of a standard Browne v Dunn
direction:

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 That the breach reflects only on defence counsel (R v Foley
[2000] 1 Qd R 290; R v Morrow (2009) 26 VR 526);

 That because of the breach it was not open to counsel to


advance a particular submission (R v Ferguson [2009] VSCA
198); or

 That the jury must not make an adverse finding against the
accused as a result of a suggested failure to challenge a witness
(R v Coswello [2009] VSCA 300; Bellemore v Tasmania (2006)
170 A Crim R 1).

98. These directions are addressed in turn below.

Breach Solely Reflects on Counsel

99. Where it is clear that the omission reflects only on the accused’s
counsel (or solicitor), and not on the accused him or herself, instead
of giving a standard Browne v Dunn direction, the jury should be told
that:

 The witness or the prosecution’s case has been potentially


disadvantaged by the omission; and

 This was not the fault of the accused but rather of counsel (or
the solicitor) (R v Foley [2000] 1 Qd R 290; R v Morrow (2009)
26 VR 526 per Nettle JA).

100. A direction of this nature should not be given where it is clear that
the omission reflects only on the prosecution. Incompetence by the
prosecution will not excuse a breach of the rule in Browne v Dunn. In
such cases, the judge should continue to give a standard Browne v
Dunn direction (see above).

Counsel Was Prevented From Advancing a Submission

101. Where, due to a breach of the rule in Browne v Dunn, it was not
open to counsel to advance a particular submission in the course of
his or her final address, a judge may need to direct the jury of that
fact in strong terms (R v Ferguson [2009] VSCA 198).

102. Whether or not such a direction is appropriate will depend on the


nature of the breach. For example, where the prosecution has
breached the rule by failing to cross-examine one of its own
witnesses who gives evidence inconsistent with other prosecution
witnesses, it will often be inappropriate to direct the jury to ignore
the prosecution’s submission that the witness’s evidence was
untruthful (Kanaan v R [2006] NSWCCA 109; compare Cavanagh
and Rekhviashvili v R [2016] VSCA 305 at [92]-[98]).

103. In directing the jury about this matter, the judge must be careful not
to withdraw any issues of fact from the jury (R v Ferguson [2009]

15
VSCA 198).

104. An alternative solution to preventing an argument is to warn the jury


in strong terms of the danger of adopting or accepting that
argument, given the party’s failure to cross-examine relevant
witnesses (CMG v R [2013] VSCA 243).

Warning Against Improper Browne v Dunn Reasoning

105. In some cases the prosecution may improperly suggest that there
has been a breach of the rule in Browne v Dunn. For example, in
cases where defence counsel has no obligation to put a matter to a
particular witness, the prosecution may nevertheless cross-examine
the accused about counsel’s failure to do so, or argue that the jury
should draw an adverse inference from that failure (see, e.g., R v
Coswello [2009] VSCA 300; Bellemore v Tasmania (2006) 170 A
Crim R 1; Bugeja v R [2010] VSCA 321).

106. In such circumstances, the judge may:

 Direct the jury that defence counsel was not obliged to put that
matter to the witness; and

 Warn the jury not to make an adverse finding against the


accused as a result of the suggested failure to challenge that
witness (R v Coswello [2009] VSCA 300; Bellemore v Tasmania
(2006) 170 A Crim R 1; Bugeja v R [2010] VSCA 321).

107. At common law, it was mandatory for the judge to give these
directions. Under the Jury Directions Act 2015, defence counsel may
request these directions, or the judge may consider that there are
substantial and compelling reasons for giving the directions in the
absence of a request (Jury Directions Act 2015 ss15, 16).

108. In addition, the judge should warn the jury not to take the breach
into account when assessing the weight of the contradictory
evidence.

Role of the Jury

109. A Browne v Dunn direction only describes a permissible mode of


reasoning. The jury is free to disregard the inferences that are open
from the failure to properly cross-examine a relevant witness (R v
Nicholas [2000] VSCA 49; Bulstrode v Trimble [1970] VR 840; MWJ
v R (2005) 222 ALR 436; R v Rajakaruna (No 2) (2006) 15 VR 592;
Bugeja v R [2010] VSCA 321).

110. A judge should only give a Browne v Dunn direction if he or she is


satisfied that a breach has, or has arguably occurred, and that it
cannot be remedied by a different means (see e.g. R v Ferguson
[2009] VSCA 198; R v Morrow (2009) 26 VR 526). For more
information see Remedies for Breaching the Rule and When to Give A

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Direction above.

111. If it is open to argue that counsel has not complied with the rule in
Browne v Dunn, it is for the jury to determine whether the witness
was given a fair opportunity to address the assertion being made by
the cross examining party (R v Nicholas [2000] VSCA 49; Beattie v
Ball [1999] 3 VR 1; R v Manunta (1989) 54 SASR 17; R v Ferguson
[2009] VSCA 198).

112. When determining whether or not the rule has been breached, the
tribunal must consider whether the differences between the witness’s
evidence and the other party’s case were sufficiently material that
the witness should have been challenged in cross-examination (R v
Nicholas [2000] VSCA 49; Beattie v Ball [1999] 3 VR 1; R v Manunta
(1989) 54 SASR 17).

Explaining Exchanges with Counsel

113. Where counsel has asked the judge during cross-examination if he or


she has complied with the rule in Browne v Dunn, the judge may
explain this exchange to the jury (R v Demiri [2006] VSCA 64).

114. The judge should describe the obligation to put certain matters to a
witness as a “rule of professional practice” rather than an “ethical
obligation”, as the latter may suggest that counsel is merely “going
through the motions”, and does not think that the matters he or she
is putting to the witness are true (R v Demiri [2006] VSCA 64).

Do Not Comment on Other Unchallenged Evidence

115. Unless the rule in Browne v Dunn applies, judges should be careful
about commenting on the fact that certain prosecution evidence was
unchallenged or uncontradicted. Such a comment may unfairly imply
that it was open to defence counsel to have challenged or
contradicted the evidence, when in many cases (e.g., in relation to
complaint evidence) they will not have had scope to do so (Jiang v R
[2010] NSWCCA 277).

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