Rule in Browne v Dunn

Human Rights: Evidence: Browne v Dunn

The rule of Browne v Dunn requires the cross-examiner to put to the complainant’s witness an anticipated contradictory statement to allow the witness the opportunity to affirm, deny or otherwise qualify her evidence on this issue.

For example, where the witness in chief, as part of the complainant’s case, testifies that Mr. Smith spoke to her aggressively and insisted she accompany him on a company trip to New York, and the respondent expected a defence witness to testify that the complainant told him a completely contrary story and in fact she was quite eagerly and voluntarily enchanted to travel with her boss, this contrary statement must be put to the witness in cross-examination.

As stated by the Court of Appeal, the rule in Browne v Dunn is a rule of fairness: 1

The rule in Browne v. Dunn is a rule of fairness: if counsel is going to challenge the credibility of a witness by calling contradictory evidence, the witness must be given an opportunity to address the contradictory evidence. It may be that counsel is not required to put every contradictory detail to a witness. However, the two matters in issue were hardly mere details.

Frequently the ruling on such issue is to allow the question and then consider the weight to be given to the response. 2Alternatively, the Tribunal may allow the defence evidence where the rule has been violated and allow the complainant to give reply evidence on the issue. 3

The rule should be used in a human rights hearing as a “last resort” and only where “any other remedy would be unduly prejudicial to the other party”. 4

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Footnotes

  1. R. v. Hall, OCA 2010
  2. Murchie v JB’s Mongolian Grill (Hendriks).
  3. DeFreitas v CUPE (Hart) and also Modi v Paradise Foods (Mullan)
  4. Audmax Inc. v. Ontario Human Rights Tribunal