Every litigant must know the rule in Browne and Dunn. In Goruk v. Greater Barrie Chamber of Commerce, 2021 ONSC 4046, the Tribunal considered the principles of this rule. The rule can be best described in Hunt J.A.`s judgment in Allied Pastoral Holdings Pty Ltd v. Commissioner of Taxation, who stated that compliance with the rule in Browne v. Dunn is often referred to as “putting”. It is the duty of the parties to “ask” a witness any question that could be used to suggest that their evidence is false, unreliable or contrary to their testimony. “The rule is one of fairness and is not absolute. Defence counsel should not necessarily be required to review a witness` main testimony and inform them of all the details they do not accept.
A pragmatic approach to the rule is best suited. In other words, if the witnesses` testimony is called into question, they must have a fair chance to deal with the allegations. This case resulted in a rule known as the “Browne v. Dunn Rule”. This rule essentially implies that cross-examination cannot be based on evidence that contradicts the witness` testimony if the witness has not been authorized to justify the objection. As a general rule, courts do not require a strict point-by-point presentation of counter-notification. Browne vs Dunn is not a firm and quick rule in all cases where credibility is at stake. The cross-examination lawyer does not have to go through all the points of the witness`s testimony from his main testimony and present to him all the details that the defense does not accept in order to put the impeachment proceedings in order. But the lawyer must cite the essential parts of the contradictory evidence on which he later wants to charge a witness. Browne v Dunn (1893) 6 R. 67, H.L.
is a famous decision of the British House of Lords on the rules of cross-examination. This case gave rise to the common law rule, known as the “Browne Rule v. Dunn” or “rule in Browne v. Dunn”. The rule in Browne v. Dunn essentially states that a counter-examiner cannot rely on evidence that contradicts the witness`s testimony without presenting it to the witness so that he or she can attempt to justify the objection. Therefore, if a witness makes a statement that is inconsistent with what the other party wishes to cite as evidence, this rule requires the other party to present the dispute with that witness during cross-examination. This rule can be considered an anti-ambush rule because it prevents a party from presenting a case without first giving opposing witnesses the opportunity to respond.
If this has not been done, that party cannot subsequently provide evidence that contradicts the witness`s testimony.  Among other things, the rule is intended to avoid the “ambush” of a witness: R. v. Verney (1993), 87 C.C.C. (3d) 363 to 376 (Ont. C.A.). A number of authorities make it clear that surprise remains a key element in determining when the rule could be invoked: Quansah in paragraph 86; Drydgen in Article 18; R. v. Ali, 2009 BCCA 464, paragraph 39; Trillium Motor World Ltd. v. Cassels Brock & Blackwell LLP, 2017 ONCA 544 at paragraph 317, leave to appeal ref. (2018),  S.C.C.A.
No. 366; Liedtke-Thompson v. Gignac, 2014 YKCA 2, at paragraph 43.  If the rule in Browne v. Dunn is a legal issue, verifiable according to a standard of accuracy: Drydgen in paragraph 22. But the respect is due to the findings of fact underlying the trial judge`s conclusion as to whether or not the rule is applied: R. v. Lyttle, 2004 SCC 5, at paragraph 65; Quansah in Article 90; R.
v Giroux (2006), 207 C.C.C. (3d) 512 at para. 49 (Ont. C.A.), leave to appeal  S.C.C.A. No. 211.  In addition, counsel for the complainant did not object to Sergeant Kirkman`s statements in a timely manner. He did not seek redress to resolve the issue, including by recalling the complainant to refute the statements recorded by Sergeant Kirkman. Rather, it waited until the submissions were completed to raise the issue, effectively ruling out the use of other potentially effective remedies. The failure to file a timely objection in this case only underscores my conclusion that the complainant was not surprised when ICBC attempted to prove, based on Sergeant Kirkman`s notes, that the complainant was unable to properly inspect his motor vehicle on the morning in question.
In my view, the rule in Browne v. Dunn was not raped in this case, and the trial was not found unfair in the circumstances described. I do not agree with that. In Australia, the rule in Browne v. Dunn overlaps with section 46 of the Evidence Act 1995 (NSW) and the Evidence Act 1995 (Cth). In New Zealand, it has been codified as section 92 of the Evidence Act 2006. The rule in Browne and Dunn requires a cross-examination lawyer to confront a witness with factual issues for which counsel wants to cite conflicting evidence. Overall, the rule in Browne and Dunn deals with the proper functioning of the adversarial process. A judge may refuse to admit evidence presented in violation of the rule in Browne v. Dunn if the probative value of the evidence is outweighed by the likelihood of unjust harm. Browne v Dunn is one of the most important rules to remember when preparing a case for a controversial hearing. Failure to comply with the rule can compromise a person`s defense.
It can also lead to long delays in finalizing the case, requiring a jury to be fired and the process to be restarted. A good, well-prepared lawyer can help you avoid these problems. The rule should apply to substantive issues and not to minor details. The rule established by Browne v. Dunn is that if a witness testifies and you intend to provide evidence that contradicts them, you must present the content of that contradictory testimony to the witness during cross-examination and give them an opportunity to comment on it. According to the rule in Browne v. Dunn, the Crown attorney has no obligation to Browne and Dunn, the defendant during cross-examination. The defendants will have already known the entire Crown case when they testify. It is the responsibility of defence counsel to ensure that Crown witnesses were given a fair opportunity to explain their position on any counter-narratives of events.
If Browne and Dunn break the rule, the most common recourse is to have the witness whose credibility is accused recalled. It is very rare for the court to prohibit the defense lawyer from presenting contradictory evidence, as this would undermine the truth-seeking function of the trial. The rule in Browne v. Dunn, also known as the confrontational rule, is based on concerns about fairness in court. The rule states that if a party, usually the defense in criminal cases, advocates a theory that contradicts the testimony of the witness being questioned, it must draw the witness` attention to conflicting evidence. The rule is intended to prevent a witness from being challenged in court. A trial judge has a wide margin of appreciation to determine an appropriate remedy for a breach of the rule in Browne and Dunn. The rule should not be applied rigidly. The rule is based on the principle that it is unfair to deny a witness the opportunity to explain a point that will then be used to provoke criticism or disbelief in his or her testimony. It is also in the interests of justice to present evidence to the contrary to a witness so that a possible explanation of the opposition can be presented to the court.