THE RULE IN BROWNE AND DUNN – THE CONFRONTATION RULE

The rule in Browne v. Dunn, also known as the confrontation rule, is rooted in concerns about trial fairness. The rule states that where a party, in criminal cases usually the defence, is advancing a theory that contradicts the evidence of the witness being questioned they should direct the attention of the witness to contradictory evidence. The rule is intended to prevent a witness from being ambushed at trial.

The cross-examiner, usually defence counsel, to avoid breaching Browne v. Dunn should fairly put the counter-version to the witness in cross examination. The witness should have a fair opportunity to address or explain the contradictory evidence or counter-version of events. Moreover, this is important when the trier of fact will be asked to make a credibility finding based on the contradictory evidence.

The rule in Browne v. Dunn also allows for fairness to the trial judge. The trier of fact will be asked to assess the witnesses credibility based on the contested or contradictory evidence. However, the rule is not inflexible.

The failure to cross examine a witness on contest issue must be on a matter of substance and not just on an issue of little significance.

The rule should apply to matters of substance and not minor details.

The Courts usually do not require a strict point-by-point presentation of the counter version. Browne v. Dunn is not a hard and fast rule with every case involving credibility. Counsel conducting the cross-examination does not need to walk through every point of the witness’s testimony from their evidence-in-chief and present them with every detail that defence does not accept in order in impeach. But counsel must put the significant portions of the contradictory evidence that they intend to later impeach a witness upon.

“The rule is one of fairness and is not absolute … Counsel should not necessarily be obliged to plod through a witness’ evidence in-chief, putting him or her on notice of every detail that they do not accept … A pragmatic approach to the rule is most appropriate.”

FAILURE TO BROWNE AND DUNN

The failure to adequately confront a witness with the contradictory evidence, counter theory or counter-version can result in the following:

• That the trier of fact may not be able to assess the credibility of the witnesses on a particular point of evidence
• The Crown will be given the option to recall their witnesses to address the contradictory evidence
• An adverse finding on that particular portion of the contradictory evidence

Generally, when the cross-examiner has failed to confront relevant Crown witnesses with the defence theory during cross-examination the opposing party, the Crown Prosecutor during a criminal trial, will have the option of recalling their witnesses to address the conflicting evidence. However, the genuine problem with failing to put the contradictory theory or evidence to the witness is that it deprives the judge the ability to assess credibility.

Whether there was a breach of the rule in Browne v. Dunn is entirely at the discretion of the trial judge after considering the circumstances of the case and the significance of the failure. There are number of factors are to be considered:

• The seriousness of the breach
• The context of the breach
• When the objection was raised by the Crown of the breach
• If there was a request to recall a witness
• If there was a request to reopen the case
• Availability of the witness to be recalled
• Availability of other remedies – jury correction or instruction

CROWN HAS NO ONUS TO BROWNE V. DUNN

Under the rule in Browne v. Dunn there is no obligation for the Crown Prosecutor to Browne and Dunn the accused during cross examination. The accused will have already been aware of the Crown’s entire case by the time they are testifying. The onus is on the criminal defence counsel to ensure that the Crown’s witnesses have had a fair opportunity to explain their positions on any counter version of events.

RULE BREACHING REMEDIES

In summary, the remedy for failing to put contradictory evidence or the counter theory to a witness during cross examination, will depend on when the objection is made, can include:

• Recalling the witnesses
• Adverse finding
• Jury instruction or correction

The Court of Appeal has stated that the trial judge should address the remedy for any breach of the rule, but there is much flexibility on the Judge’s discretion.

Browne v. Dunn Related Case law

1.     Browne v. Dunn (1893), 6 R. 67 (H.L.) (UK) 1893CanLII 65

2.      R. v. Sawatzky, 2017ABCA 179 (CanLII)

3.      R. v. Johnson, 2010ONCA 646 (CanLII), [2010] OJ No 4153 – A court of appeal decision

4.      R. v. Dexter, 2013 ONCA 744 (CanLII),313 OAC 226 – A court of appear decision

5.      R. v. Quansah, 2015ONCA 237 (CanLII), 323 CCC (3d) 191 – A court of appeal decision

6.      R. v. Lyttle, 2004 SCC 5 (CanLII),[2004] 1 SCR 193

7.    R. v. McNeill, 2000 CanLII 4897