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Cross examination - Browne & Dunn Rule

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

64                              The trial judge also made reference to the case of Browne v. Dunn (1893), 6 R. 67 (H.L.), as support for the proposition that an evidentiary foundation is required for questions put in cross-examination.  He was mistaken.  The rule in Browne v. Dunn requires counsel to give notice to those witnesses whom the cross-examiner intends later to impeach.  The rationale for the rule was explained by Lord Herschell, at pp. 70-71:

Now, 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.  Sometimes reflections have been made upon excessive cross-examination of witnesses, and it has been complained of as undue; but it seems to me that a cross-examination of a witness which errs in the direction of excess may be far more fair to him than to leave him without cross-examination, and afterwards to suggest that he is not a witness of truth, I mean upon a point on which it is not otherwise perfectly clear that he has had full notice beforehand that there is an intention to impeach the credibility of the story which he is telling.

65                              The rule, although designed to provide fairness to witnesses and the parties, is not fixed.  The extent of its application is within the discretion of the trial judge after taking into account all the circumstances of the case.  See Palmer v. The Queen, 1979 CanLII 8 (S.C.C.), [1980] 1 S.C.R. 759, at pp. 781-82; J. Sopinka, S. N. Lederman and A. W. Bryant, The Law of Evidence in Canada (2nd ed. 1999), at pp. 954-57.  In any event, the foregoing rule in Browne v. Dunn remains a sound principle of general application, though irrelevant to the issue before the trial judge in this case.

Jim O'Neil, LL.B.

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