Browne v. Dunn

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Browne v. Dunn (1893) 6 R. 67, H.L. is a famous House of Lords decision on the rules of cross examination. From this case came the rule known as the "Browne v Dunn rule" which says 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.

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 BROWN during his cross examination. During thehearing 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.

Lord Herschell explained it as this:

My Lords, I cannot help saying that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses.

The rule has since been adopted in most common law countries and it remains one of the primary rules of consideration during cross-examination.