The Applicant was convicted of drug-trafficking at the High Court and appealed his conviction on the basis that the Judge had misdirected the jury by inviting them to conclude a lack of credibility in the Applicant as certain matters had not been put to a material witness and/or had not been raised in the Applicant’s examination in chief (sometimes known as “a lack of puttage”). The Court of Appeal examined the scope of the rule in Browne v Dunn (originally a civil case) which ensures that a witness has the opportunity to explain a matter of substance if the opposing party intends to later contradict or discredit the witness in relation to it.
In giving the Judgement of the Court, Zervos JA examined the rule’s application in criminal cases. There are two aspects to the rule:
- That it is a rule of practice or procedure designed to achieve fairness to witnesses and a fair trial between the parties; and
- That it is a rule relating to weight or cogency of evidence.
Citing a number of Australian authorities, Zervos JA derived the following summary of the relevant principles:
- The rule in Browne v Dunn is a rule of professional practice and of fairness designed to allow witnesses to confront and respond to any proposed challenges to their evidence.
- The rule does not apply to criminal proceedings in the same way or with the same consequences as it does in civil proceedings, due to the accusatorial nature of criminal trials and the different obligations placed on the prosecution and defence.
- The rule admits to flexibility and requires considerable care and circumspection in it application.
- The extent of the obligations that arise under the rule in a particular case will be informed by the nature of the defence case and the forensic context of the trial. A cross-examiner must not only disclose that the evidence of the witness is to be challenged, but also how it is to be challenged.
- Where counsel does not comply with the rule, the trial judge has a discretion as to how to remedy any unfairness that may result and the actions he takes will depend on the circumstances of the case.
- Measures should be employed to avoid having to direct the jury about a breach of the rule, such as, drawing the attention of counsel to the need to put matters to the witness, and permitting a witness to be recalled to be cross-examined and questioned on the matters omitted. Other measures may also be available depending upon the nature of the breach of the rule and the circumstances of the case.
- Where an apparent failure to comply with the rule is followed by judicial comment to the jury, it is important to consider the substance of the comment, the purpose of which may differ depending on the circumstances.
- Where the trial judge considers that it is necessary to direct the jury about the effect that failure to comply with the rule may have on their assessment of the contradictory evidence, the judge should:
i. outline the rule in Browne v Dunn and its purpose;
ii. tell the jury that, under the rule, the witness should have been challenged about the relevant matters, so that he or she had an opportunity to deal with the challenge;
iii. tell the jury that the witness was not challenged, and thus was denied the opportunity to respond to the challenge; and
iv. tell the jury that they have therefore been deprived of the opportunity of hearing his or her evidence in response.
- Only in exceptional cases should the trial judge consider directing the jury that an adverse inference as to credibility may be drawn against the accused in consequence of a breach. It is one thing to remark upon the fact that a witness or a party appears to have been treated unfairly, but it is another thing all together to comment that the evidence of a person should be disbelieved, perhaps as a recent invention, because it raises matters that were not put in cross-examination to other witnesses by that person’s counsel. Such a direction will only be appropriate where the circumstances surrounding the failure to put the allegation to the witness raise a “prominent hypothesis” that the contradictory evidence is a recent invention or is otherwise a fabrication.
- Such a direction is fraught with difficulty and should only be given with considerable care and circumspection and must be accompanied with an explanation that other inferences may be drawn on why a party failed to comply with the rule with examples of those inferences.
In applying these principles to the present case, the trial Judge had invited the jury to take into account the lack of puttage in order to determine his overall credibility and directed that the matter coulf have been a recent invention and fabrication. These directions exceeded proper bounds and constituted a material irregularity which created a real possibility of the jury engaging in impermissible reasoning which rendered the conviction unsafe. The appeal was allowed and a re-trial ordered.
The Court emphasised that there are remedial measures available to minimise any unfairness that may arise from a lack of puttage. Enquiry can be made as to the reason for the lack of puttage and if it arises from the fault of counsel, not the accused, then this can be pointed out to the jury. Witnesses can also be recalled for further cross-examination about the contradictory evidence. Discussion between the Bar and the Bench on the appropriate directions to be given can take place. The rule in Browne v Dunn requires flexibility in its application and care and circumspection in the measures employed to address any breach.
– Morley Chow Seto