The rule in Browne v Dunn - essential or anachronistic?

This discussion will consider the rule in Browne v Dunn, largely in a civil law context, although the rule has clear application in the criminal and administrative law contexts. The rule in Browne v Dunn states that if counsel intends to rely on a version of events contradictory to a witness’s testimony, then counsel must put that version of events to the witness on cross-examination.

Justice Sackar lays out the background to the rule, the exceptions that have subsequently been carved out, and the results of non-compliance. He also discusses the difficulties that trial judges face when determining whether the rule should be applied or not. He finds that the rule has been universally accepted and more or less uniformly applied (with some distinctions) in England, Canada, and Australia. Finally, he discusses the effect that statutory innovations in each country have had on the rule.

Justice John Sackar was appointed to the Supreme Court of New South Wales on 1 February 2011. He is a trial judge who sits in the Equity Commercial Division of that Court. Prior to being appointed, His Honour practised as a barrister at the New South Wales Bar for approximately 35 years, including 24 years as Queen’s Counsel. His practice involved large commercial litigation, in areas such as banking, insurance and trade practices. He also practised extensively in the area of libel. He appeared frequently in all trial and appellate courts in Australia and regularly before the Privy Council in appeals from South East Asia.

His Honour was a member of 4/5 Grays Inn Chambers in London and was admitted to the English Bar, and called to Middle Temple in 2006.