Evidence · Cross-examination
The rule in Browne v Dunn
If you intend to ask the tribunal to disbelieve a witness, or to accept a version of events the witness has not addressed, fairness requires you to put that to the witness in cross-examination. That is the rule in Browne v Dunn (1893) 6 R 67.
Last updated 9 November 2026
In short
- Put to a witness, in cross-examination, any matter on which you will later invite the court to reject or contradict their evidence.
- The rule is about fairness to the witness and the other party, and about giving the tribunal the witness’s answer.
- Breach does not usually make evidence inadmissible. The usual responses are recalling the witness or a comment on weight.
- In criminal trials the consequences for an accused are applied with particular caution: MWJ v The Queen.
The rule
Browne v Dunn (1893) 6 R 67 is a House of Lords decision that Australian courts have applied for well over a century. The classic Australian statement is Hunt J’s in Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1: a party who intends to suggest that a witness is not telling the truth on a particular point must direct the witness’s attention to that point in cross-examination, so the witness has the chance to explain.
It applies equally where a party will lead contradicting evidence of its own. The witness should be told, in substance, what the contrary version is.
Consequences of a breach
- The witness may be recalled to deal with the matter. Under the uniform evidence law, s 46 of the Evidence Act allows the court to give leave to recall a witness in these circumstances.
- The tribunal may give less weight to the contradicting evidence, or decline to accept a submission that was never put.
- In civil proceedings a court may, rarely, refuse to admit the contradicting evidence. That response is very unusual in criminal proceedings.
Criminal trials
In MWJ v The Queen [2005] HCA 74 the High Court cautioned against treating a failure by defence counsel to put a matter as a reason to reject the accused’s evidence. Counsel’s omissions may have many explanations, and the onus remains on the prosecution. Directions about breach should be given cautiously, if at all.
In practice
- Before cross-examining, list every point on which your case contradicts the witness.
- Put each point plainly. A general suggestion that the witness is lying is not enough.
- If you realise a point was missed, apply to recall the witness rather than relying on the omission later.
Frequently asked questions
What is the rule in Browne v Dunn?
A rule of fairness in the conduct of trials: if you intend to contradict or discredit a witness on a point, you must put that point to the witness in cross-examination so they can respond.
Is Browne v Dunn part of the Evidence Act?
No. It is a common law rule of practice. The Evidence Act deals with some consequences, such as s 46 on recalling a witness.
Sources
General information, not legal advice. See our editorial policy for how this page is sourced and reviewed, and how to report an error.
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