(c)    The Rule in Brown v Dunne

Brown v Dunne (1894)
•    Held: The rule from this case stipulates that where the cross-examining party intends to later contradict a witness by calling further evidence, or by suggesting that a witness’ evidence can be otherwise explained, the witness should be given opportunity in cross-examination to comment upon the contradictory version.
•    This is particularly important because the burden of proof is on the prosecution in Criminal cases.

•    At common law, a breach of this rule will prevent a party from leading the evidence.
•    This is a rule of practice, based on fairness, which gives:
1.    the witness the chance to respond to the allegations, explain contradictions, and respond to attack, and;
2.    gives other party the chance to call corroborative evidence, or otherwise contradict the inference.

Leave to recall witnesses s46
(1) Court may give leave to a party to recall a witness to give evidence about a matter raised by evidence adduced by another party, being a matter on which the witness was not cross-examined, if the evidence concerned has been admitted and:
(a) It contradicts evidence about the matter given by the witness in examination in chief; or (b) the witness could have given evidence about the matter in examination-in-chief.
(2) A reference in this section to a matter raised by evidence adduced by another party includes a reference to an inference drawn from, or that the party intends to draw from, that evidence.

•    S46 is essentially a statutory incarnation of the rule in Brown v Dunne, designed to promote fairness in court proceedings.

R v Birks (1990) (Criminal Case  failure of defence counsel to cross examine complainant, and put to her new evidence.)
Facts: Birks was not cross-examined by his defence counsel on his denial of sexual assault in relation to anal sex against the complainant, and on how the complainant received facial injuries  this led to a vigorous attack by the prosecution who suggested he had made up his story
•    The Crown then asked the Trial Judge for a direction to jury for adverse inferences  there was no objection  then the defence counsel claimed he’s made a mistake, but by then it was too-late to re-open the case (jury had retired).
•    He was indicted for 18 counts of sexual assault, including vaginal, oral and anal sex.
•    Birks maintained that he had instructed his lawyers that no anal intercourse took place  what was required for fairness was to put to the complainant that there was never any anal intercourse and that she was hit in the head with a torch.
Held:
1.    It is accepted as a rule of professional practice in New South Wales that there is a general requirement that a cross-examiner put to an opponent’s witness the matters in respect of which it is intended to contradict the witness' evidence. Defence Counsel should have done this to the complainant.  
2.    The rule has different practical content in a criminal trial. While it is a rule of fairness, fairness has different emphasis in a criminal trial, especially when accused is unrepresented.
3.    The consequences of the failure to observe the rule will vary depending on the circumstances of the case but will be related to the central object of the rule, which is to secure fairness  incompetence will not of itself attract appellate intervention.
•    The appeal court considered that the defence counsel's errors led to a miscarriage of justice  said the direction to the jury shouldn’t have been given, as the complainant was not given the opportunity to answer these new statements and should have been recalled.
•    Sometimes the interests of justice will be served by recalling a witness or stating that counsel may not call evidence  new trial on all charges ordered.
Payless Superbarn (1990) (Judge’s discretion to exclude evidence entirely, based on the Rule)
Facts: Mrs O’Gara suing payless supermarket for personal injury she endured by slipping on a grapes and injured her back  the plaintiff’s evidence was that she slipped on grapes.
•    Husband also  gave evidence that his wife fell on grapes that kids threw on the ground, and there was an incident form written by the store manager  he put in report that there was a foreign substance on the floor.
•    The plaintiff was not cross-examined on the presence of grapes, and neither was husband  there was no challenge to presence of grapes on floor
•    However the Store Manager gave oral evidence that there was nothing on the floor (after P’s case closed)
Held: Trial Judge said there was a breach of the rule in Brown because the Defendant hadn’t cross-examined the Plaintiff about presence of grapes on the floor.
•    As a consequence of breach of the Brown v Dunne rule, the Judge directed the jury to disregard evidence of the Store Manager.
•    Court of Appeal determined whether this was appropriate consequence/remedy ruled by trial
judge  it regarded the step of excluding evidence otherwise relevant and admissible as an extreme consequence of the breach, but with no evidence that the judge had taken irrelevant matters into consideration, it could not be shown that discretion had been inappropriately exercised.
•    There are no set consequences for a breach of this rule, and thus a judge must exercise discretion in the interests of justice.

2.6 Re-examination (Re-opening and rebuttal)
•    Civil and criminal trials apply the same principles in relation to reopening  however, where a party seeks to reopen in a civil case, the `interests of justice' are understandably party-neutral.

Limits on re-examination s39
On re-examination: (a) a witness may be questioned about matters arising out of evidence given by the witness in cross-examination; and (b) other questions may not be put to the witness unless the court gives leave.

•    s39(b) does allow for an application for leave of the court matters which should have been entered in examination in chief  this however is a discretionary power.

Drabsch v Switzerland General Insurance [1999](Misleading statement in cross-examination.)
Facts:  In cross-examination a witness admitted that an answer he gave in evidence-in-chief was false  in re-examination questions going to the witnesses state of mind when he made that admission were allowed.

Held: Re-examiner is not solely limited to eliciting clarifications or giving explanations where there is an ambiguity.
•    Re-examination is allowed whenever an answer in a cross-examination would, unless explained, leave the court with an impression of the facts which could be construed unfavourably towards the party calling the witness, or which presents an incomplete or distorted account of the facts.

-    Test in Criminal Cases
•    There must be:
1.  Exceptional circumstances - such as serious breach of the rule in Brown v Dunn:  R v Birks
2.  The prosecution could not reasonably have foreseen the exceptional circumstances: R v Chin

R v Chin (1985)  (Fairness to the accused requires prosecution to present all evidence – re-examination only in exceptional circumstances.)
Facts: Choo and Chin had been charged with being knowingly concerned in the importation of heroin  part of their defence was that they did not know each other prior to their arrest.
Issue: Whether the Crown could reopen to tender evidence showing that Choo’s visa application used the phone number of Chin’s father’s business, after the defence had closed its case  no attempt was made to prove this evidence in the Crown's case in chief.

Held: Dawson J: The guiding principle is that the prosecution ought not to be permitted to split its case.
•    The prosecution must call all the evidence available to it in support of its case during the presentation of that case  if it fails to do so, it ought not to be allowed to remedy the situation by calling evidence in reply except in exceptional circumstances.
•    A case will not be exceptional where the situation ought to reasonably have been forseen by the prosecution. The relevant principle is essentially one of fairness  the prosecution must offer all its proofs during the progress of the prosecution case.
•    Although the prosecution could not have called Chin in the case against him, nor could they have called Choo, they could have called a witness from the Department of immigration to tender the application  the phone number could quite easily have been introduced during the prosecution’s case
•    Therefore the situation was not an exceptional one meaning the trial was miscarried.

-    Test in Civil Cases

Consider the interests of justice - are they better served by re-opening?  Trial Judge has a discretion: Consider:

Urban Transport Authority v Nweiser (1992)  (Inadvertance on Counsel’s part  re-examination test.)  
Facts: Nweiser’s Counsel rested case, then realised they had stuffed up and still had 2 more witnesses to call - had only just rested (very little time gap.)  
•    Trial Judge had refused to allow them to re-open on ground that failure was deliberate,  although mistaken, and even though there was certainly no tactical gain  Nweiser made application to reopen
Held: Clarke JA: motivation in re-opening was not "impure"  if it was a tactical decision it would have been refused.
•    The exercise of the discretion to allow an application to re-open depends essentially upon the judge’s view as to whether the interests of justice are better served by granting than refusing the application'  here all that occurred was that some time had passed between the closing of the defendant's case and the application by the defendant to call a witness.

•    Consider the following:
1.  Timing (how late is it?  The longer after closing statements, the less likely the application will succeed.) – here it was immediately after closing statement
2.  Detriment (is there surprise, detriment, other prejudice) - was none in letting 2 additional witnesses testify - they were expected throughout to testify and were not called simply by inadvertence; there was no extra cost since there was sufficient time to hear them
3.  Motive  (if you fail to prove an element of your case, is it through ignorance (in which case you will probably get leave to re-open), or is there a tactical reason (much more likely to fail) - was not sandbagging (holding out the good stuff until after it cannot be answered)