# The rule in *Browne v Dunn*
URL: https://www.barristerai.com.au/principles/browne-v-dunn
Last updated: 2026-11-09
Publisher: Barrister AI

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.

## 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

- MWJ v The Queen [2005] HCA 74: https://www.barristerai.com.au/case/2005/hca/74

General information, not legal advice. Editorial policy: https://www.barristerai.com.au/editorial-policy