Supreme Court of South AustraliaIn Banco

R v Manunta

Criminal — Procedure — Failure of defence counsel to cross-examine prosecution witnesses as to matters deposed to by accused and/or defence witness — ‘Rule in Browne v Dunn’

Three police officers raided a workshop which was leased by the appellant and in which he operated a motor mechanical business. They testified that as they drove the police car into a driveway leading to the workshop they observed the appellant who was then standing just outside the open roller door entrance to look at the police car and then run into the workshop. The first two police officers out of the car stated that they saw the appellant coming back into the workshop through a “personnel door” which led to a rubbish dump area outside of the workshop. The last police officer out of the car stated that he saw the appellant walking back towards the front of the workshop but did not see where he came from. A plastic bag in the rubbish area was found to contain amphetamine and other drugs were found inside the workshop. The lining of the left pocket of the jeans of the appellant was seen to be inside out and hanging out of the jeans. The appellant denied all knowledge of the drugs and gave evidence that a man named Wally (whose information to the police led to the raid) had had access to the workshop earlier in the week when the appellant was not present and may have planted the drugs and informed the police to curry favour and obtain leniency with respect to drug offences in which he was involved. The appellant denied that he had run when he saw the police car and said that he had been in conversation with one Aldous at the roller door entrance when the phone rang and had gone to the workshop to answer it after which he had walked back towards the roller door and only then saw the police officers for the first time.

During the cross-examination of the appellant he was asked whether he had been given the opportunity to read and sign the notes of police officer Davies and he then said that he thought that the notes which Davies had made on the day were made in a note pad or small book rather than in the form produced to him in the witness box. This suggestion had not been put to the police in cross-examination or by the appellant in examination-in-chief.

The effect of the evidence of Aldous who was called by the appellant was that he had indicated to the police officers when they approached him that the appellant had just gone in the direction of the telephone. This was directly contrary to the police evidence that the appellant emerged from the “personnel door” but this contradiction had not been put to the police during cross-examination.

Aldous also stated that at the time of the arrival of the police officers he and the appellant were together in conversation at the roller door and this too had not been put to the police in cross-examination.

The learned trial judge directed the jury that the above matters were three aspects of the evidence of the appellant and the witness Aldous that may have some bearing on the jury’s consideration of the case. His Honour directed the jury as to a rule of practice and the inferences that were open to the jury in the present case in the terms that appear in the judgment of King CJ and it was argued on appeal that the trial judge had erred in giving those directions.

Held: (per King CJ, Legoe and Bollen JJ concurring) The argument put by the Crown that the items of evidence referred to were untruths or embellishments put forward to serve the appellant’s interests was legitimately open for the consideration of the jury.

The cogency of the point in the present case may be questioned since although it is legitimate to draw appropriate conclusions from counsel’s failure to cross-examine on matters to which his client or his witnesses subsequently deposed, it is a process of reasoning which is fraught with peril and should therefore be used only with much caution and circumspection. There may be many explanations of the omission which do not reflect upon the credibility of the witnesses which may include counsel misunderstanding his instructions, witnesses not having been fully co-operative in providing statements, forensic pressures having resulted in looseness or inexactitude in the framing of questions or the simple overlooking of the matter. Consequently where such an argument is to be left to the jury then there should generally be directions as to these sorts of factors. However, in the present case such matters were explained to the jury and the appellant had not demonstrated appealable error.

The appeal against the sentence of imprisonment for two years and nine months for possession of amphetamine for sale and three years and six months for possession of cocaine for sale to be served concurrently with a non-parole period of two years and six months would be dismissed. The sentences and non-parole period were moderate and the complaint that the judge had refused to suspend the sentences could not be sustained in view of the fact that present offences were by no means venial examples of possession for sale, the kind of offence in relation to which punishment and deterrence must be the dominant considerations.

Appeal to the court of criminal appeal

Cur adv vult

28 July 1989

The appellant was found guilty by a jury in the Supreme Court of the crimes of possessing amphetamine for sale and of possessing cocaine for sale. He has appealed to this Court against the convictions.

On 29 May 1987, the police raided a workshop situated at Grange Road, Flinders Park, which was leased by the appellant and in which he operated a motor mechanical business. Three police officers were involved in the raid and each gave evidence. Their evidence was that as they drove the police car into a driveway leading to the workshop, they observed the appellant, who was standing just outside the open roller door entrance to the workshop, to look at the police car and then run into the workshop. The police car pulled up in front of the roller door entrance. The first two police officers to get out of the car gave evidence that they saw the appellant coming back into the workshop through a “personnel door” which leads to a rubbish dump area on the southern side of the workshop. The other police officer, who was the last out of the police car, saw the appellant walking back towards the front of the workshop but did not see where he came from. The police officers saw another man in the vicinity. He was undoubtedly a man by the name of Aldous who was called as a witness for the defence. The police officers gave evidence that when they saw the appellant in the workshop the lining of the left pocket of his jeans was inside-out and hanging out of the jeans. The police found a plastic bag in the rubbish area near the back fence and that bag was found to contain 27.5g of white powder of which 1.754g was pure amphetamine. The police found in a brake fluid container in the workshop seven plastic bags and a plastic bullet all containing white powder to a total of 26g of which 4.982g was pure cocaine with a small amount of amphetamine powder. A plastic bag was found in a radiator hose in the workshop and it contained about 10g of powder of which .699g was pure amphetamine. The appellant denied all knowledge of the drugs.

The appellant gave evidence in his own defence. He repeated the denial which he had made to the police of any knowledge of the drugs. He gave evidence that a man named Wally, whose information to the police led to the raid, had had access to the workshop earlier in the week at a time when the appellant was not present. The theory advanced by the defence was that Wally had planted the drugs and informed the police, probably motivated by the desire to curry favour and obtain leniency with respect to drug offences in which he was involved. The appellant denied that he ran when he saw the police car. He said that he had been in conversation with Aldous at the roller door entrance when the phone rang. He had gone into the workshop to answer the phone and at that time had not seen the police. He said that after he had finished on the phone he walked back towards the roller door and then saw the police officers for the first time. Aldous gave evidence confirming that while he was in conversation with the appellant at the roller door entrance, the telephone rang and the appellant went to answer it. Aldous said that the police arrived while the appellant was on the telephone. In the examination-in-chief the following two questions and answers occurred:

“Q. What did you see him do? A. He went over and picked up the phone and then I was looking at the people coming down the driveway and they got out of the car in a bit of a hurry and I looked back and he was just hanging up on the telephone and they came running inside and the first thing they said to me, ‘where did he go, where did he go’ and I pointed them in the direction of the telephone. …

Q. What happened from there? Tell us not what was said but who did what. A. The police came in and sort of they went to all sections of the workshop and they were asking me exactly where did he go. I said ‘he just went over by the telephone, that’s where he was’.”

The sole point taken on the appeal is that the learned judge erred in directions which he gave to jury as to inferences which might be drawn from the failure of counsel for the defence to cross-examine the police witnesses as to certain matters. I quote in full a passage in the summing up in which his Honour dealt with these matters:

“Ladies and gentlemen, there are three aspects of the evidence of Mr Manunta and his witness, Mr Aldous that may have some bearing on your consideration of the case for the Crown and your assessment of the case for the defence. First, there is the allegation by Mr Manunta that the notes used by Mr Davies during the trial and adopted by Eckert and Van Meeteren, such notes made by Davies on 29 May 1987, were not in fact the notes made by Davies on that day. The defendant said before you that the notes made by Davies were made in a notebook or a smaller written page. Secondly, there is the evidence of Mr Aldous that one of the police officers said to him, ‘Where did he go, where did he go?’ and that Aldous’ reply was ‘He went over there to the phone’. The third matter is somewhat more involved, and I will return to it shortly. The suggestion by Mr Manunta that the police officers have used notes to refresh their memory that were different to the notes made on the day of the arrest is very serious. It is open to the inference that he is saying that the officers gave false evidence.

Mr Aldous’ evidence is also very important. At all times Mr Manunta has maintained his innocence. Among other things he told you, when giving evidence, that he disputed the police evidence that he ran when he saw them, that he disputed the police evidence that he had gone through the door in the southern wall — he told you that he told the police that he had gone to answer the phone and his witness, Mr Aldous, not only supports that statement in his evidence, but he also says that he, Mr Aldous, stated that fact to the police when one of them said to him ‘Where did he go, where did he go?’

There is a rule, ladies and gentlemen, and it is, no more than a rule of practice, that it is necessary to put to an opponent’s witnesses (in this case, the three police officers) in the course of their cross-examination, the nature of the case upon which it is proposed to rely in contradiction of the police evidence. The rule serves the purpose of giving the police officers the opportunity to respond to the proposed contradictory evidence, and the opportunity to deal with any inference to be drawn from it. It also gives the other party, in this case the Crown, the opportunity to lead further evidence in respect of the evidence given by one or other of the witnesses. You may be satisfied that it is clear that neither of these two matters were put to any of the three police officers, and the matter for you to determine, ladies and gentlemen, for it is for you to decide, is the consequence, if any of that flows from the defendant’s failure to cross-examine the three police officers on those two issues, and perhaps the third issue which I am yet to identify. A failure to comply with the rule cannot compel a jury to a conclusion on an issue of fact. It cannot compel you to find a crime proved. It does not relieve the Crown of its obligation to prove the ingredients of the charge. Questions of fact still remain to be decided within the province of the jury irrespective of compliance or non-compliance of any rule of practice; but failure to comply with the rule may have a marked effect upon the view which the jury takes of the evidence. Whether that is the case here, ladies and gentlemen, it is for you to determine but you are entitled to consider what might have been the answers of the three police officers if [ [sic] ] it had been put to them in cross-examination that they were refreshing their memory from a set of notes which was not the set compiled on the day of the arrest, that they had been told by Mr Aldous almost immediately on their arrival that Mr Manunta went ‘over there to the phone’. You are entitled, for example, to ask yourselves, ladies and gentlemen, could these be matters of recent invention concocted by the defendant and his witness in an attempt to cast doubts on the evidence of the police officers without giving to the police officers the opportunity to contradict those propositions?

I turn now to the third issue, which as I said is a little more complex. The case for the defence is that Mr Manunta and Mr Aldous were together at the roller door. The phone rang and Mr Manunta answered the phone. The police car then arrived. Was it ever put to the police officers that Manunta and Aldous were talking either side by side or facing each other, either at the roller door or at the driveway or out in the driveway, when the police car arrived?

To consider this issue I need to briefly refer to the evidence and then the cross-examination of each of the three police officers. First, the evidence of Detective Davies at p 5. He said,

‘As I pulled in or turned into the driveway at 208 Grange Road I saw Mr Manunta standing in the area directly outside the roller door of his workshop.

When the cross-examination on that particular aspect of his evidence at pp 31 and 32, the question was,

‘When you got to the scene the accused was standing pretty well in the roller door area, wasn’t he? A. No, my recollection of it was he was more towards the centre of the driveway than in the roller door area.

Mr Eckert’s evidence in chief is a p 59. He said,

‘As we drove from Grange Road I saw the accused standing just outside the entrance to his premises and this person quickly shot back inside of the premises.

He was cross-examined at pp 74 and 75. The question was,

‘When you got to the scene first the accused was really in the area of the roller door, wasn’t he? If you brought the roller door down, you might have brought it down on him. That’s what I am suggesting. A. From what I was suggesting he was a little way out of the roller door, perhaps a couple of paces, so it is probably around the mark. He was in that area close proximity to the roller door.

Q. There was with him another civilian wasn’t there? A. Yes.

Q. Did he eventually appear to be associated with the white American car that was there? A. Yes.

Q. Did you see that chap drive away later in that car? A. I didn’t personally see him drive away, no.

Q. But you saw he was gone and the car was gone? A. Yes.

Lastly, there is the evidence in chief of Mr Van Meeteren at pp 83 and 84.

‘As we drove into the driveway he was standing out the front of the garage.

When he was asked, how was he physically positioned, Mr Van Meeteren said,

‘I’m not sure. I think I remember him turning around and looking at us as we drove along the driveway and then he ran into the garage from there.

His cross-examination is at pp 99 and 100.

‘Q. When you turned up at the workshop, Mr Manunta didn’t run inside the shop, did he? A. Yes.

Q. Did you see where he went? A. After he ran into the workshop, that’s where I lost sight of him. I saw him a short time later as to where he was in the workshop and where he was walking to.

Q. You later discovered two phones in that workshop, didn’t you? A. I remember one phone.

Q. There is one in the office, wasn’t there? A. Yes.

Q. Also one near the shelves near the personal [ [sic] ] door? A. I’m sorry; I don’t remember that.

Q. You took the particulars of the man who was there with the accused when you arrived? A. Yes, I spoke to him. I asked for his driver’s licence.

Q. Did you discover that he came from Angas Engineering? A. I’m not sure. I can’t remember. I think he told us that he was a customer there and the accused was looking at his car or something similar.

Ladies and gentlemen, they are the passages in the evidence in chief and in cross-examination respectively of the three police officers to which I direct your attention because it is for you to determine, ladies and gentlemen, whether these passages of cross-examination put the nature of the defence case sufficiently to each of the three police officers.

Just the same, it is for you to determine what if any consequences adverse or otherwise might flow against the accused if you decide that it was not put to the police officers correctly.”

As to the first matter mentioned by his Honour, it is not in dispute that counsel for the defence did not put to any of the police officers in cross-examination that the notes made by Detective Davies, to which all three police officers referred, were not in fact the notes made by Davies on the day in question. Neither was that topic dealt with in the examination-in-chief of the appellant. The prosecuting counsel cross-examined the appellant as to whether he had been given the opportunity to read and sign Davies’ notes. For that purpose the actual notes to which Davies referred in evidence were placed in the appellant’s hands in the witness box. He then said that he thought that the notes which Davies made on the day were made in a notepad or small book and not on paper like those produced to him. After some questions and answers he committed himself to the proposition that the notes which Davies made were definitely not those produced to him and that he was positive about that. It seems to me that the failure of counsel to cross-examine the police officers on the topic left open the inference that the challenge to the notes was an afterthought on the part of the appellant and was simply a lie told in cross-examination because he though it would serve his interests. The cogency of such an inference might be open to question. It is possible that the idea that the police were referring to notes other than those made at the time might not have occurred either to the appellant or to his legal advisers. The appellant may have realised it only when the notes were placed in his hands during cross-examination. No such explanation, however, was elicited in re-examination. I think that the point was open for the consideration of the jury; its weight was for them to determine.

As to the second matter, the defence counsel did ask the police officers about the whereabouts of Aldous; he did not put to them, however, that in response to a question as to where the appellant had gone Aldous had pointed in the direction of the telephone or that he had said, “He just went over by the telephone”. It is perhaps a pity that in his comment to the jury the learned judge focussed on the words used rather than on the gesture. Counsel for the defence intimated to the judge in the absence of the jury that he had deliberately refrained from cross-examination as to the words used because of his belief that such questions would be inadmissible as being directed to elicit hearsay. That this was counsel’s view is confirmed by the passage which I have quoted above from the examination-in-chief of Aldous in which counsel admonished the witness not to state anything that was said. But the substance of the point was nevertheless open to the jury, because the real thrust of Aldous’ evidence was that he had indicated to the police the appellant’s position at the telephone. This was directly contrary to the police evidence as to the appellant emerging from the “personnel door”. It was open to the jury to draw the conclusion that that piece of evidence by Aldous was an embellishment put forward to serve the appellant’s interests. Once again I think that there is a serious question as to how much weight should be attached to the omission to put the precise position to the police officers. Nevertheless the point was legitimately open for the consideration of the jury.

The third matter raised by his Honour was in substance whether the failure of counsel for the defence to put to the police officers in cross-examination that the appellant and Aldous were together in conversation at the roller door on their arrival should lead to an inference that the evidence of the appellant and Aldous to that effect was an untrue embellishment designed to assist the appellant. This matter is obviously closely linked to the second matter. It is, I suppose, a matter of impression and interpretation as to whether what counsel put to the police officers sufficiently conveyed the substance of the evidence subsequently given by the appellant and Aldous. The learned judge read the relevant passages to the jury and left it to their judgment. I cannot see much substance in the point but it was a matter for the jurors who heard the evidence and the cross-examination. I do not think that the learned judge can be criticised for leaving it for their consideration.

I have been concerned about the prominence which the learned judge gave to these matters in the course of the summing up. It is legitimate, of course, to draw appropriate conclusions from counsel’s failure to put in cross-examination some matter to which his client or his witnesses subsequently depose. It is a process of reasoning, however, which is fraught with peril and should therefore be used only with much caution and circumspection. There may be many explanations of the omission which do not reflect upon the credibility of the witnesses. Counsel may have misunderstood his instructions. The witnesses may not have been fully co-operative in providing statements. Forensic pressures may have resulted in looseness or inexactitude in the framing of questions. The matter might simply have been overlooked. I think that where the possibility of drawing an adverse inference is left to the jury, the jury should be assisted, generally speaking, by some reference to the sort of factors which I have mentioned. Jurors are not familiar with the course of trial or preparation for trial and such considerations may not enter spontaneously into their minds. Whether such matters should be brought to the attention of the jury and the manner in which that should be done are matters for decision by the trial judge in the atmosphere of the trial. I must say that the points raised with the jury based upon the failure to cross-examine do not seem to me to possess much weight. They were explained to the jury, however, quite fairly and their weight was a matter for the jury. I do not think that any error has been demonstrated.

In my opinion the point raised on the appeal cannot succeed and I would dismiss the appeal.

There is also an appeal against sentence. The sentences imposed were imprisonment for two years and nine months for possession of amphetamine for sale and three years and six months for possession of cocaine for sale, the sentences to be served concurrently. A non-parole period of two years and six months was fixed. The sentences and non-parole period are moderate and there was no complaint about them. It was contended, however, that the judge was wrong in refusing to suspend the sentences.

The appellant is a man aged 29 years and has had a good work history. At the time of the offences he was self-employed as a motor mechanic. He came into conflict with the law as a juvenile. His convictions as an adult have been minor except for a conviction for larceny in 1978 in respect of which he was released on a bond. They include a conviction for possession of Indian hemp. I agree with the judge’s comment that the record is not that of a hardened criminal but the appellant nevertheless is not a first offender.

Mr Tilmouth relied upon s 11(1) of the Criminal Law (Sentencing) Act 1988. His reliance was misplaced. This defendant has been previously convicted of offences punishable by imprisonment, namely larceny and escaping from lawful custody, vide s 11(1)(c). Apart from that, the Court in determining pursuant to par (d) whether any sentence other than imprisonment would be inappropriate having regard to the gravity or circumstances of the offence, is required, in my opinion, to give the usual weight to the traditional purposes of sentencing, namely the observation of a just proportion between the seriousness of the offending and the punishment, general deterrence, personal deterrence and rehabilitation.

The maximum sentence provided in the statute indicates Parliament’s view of the gravity of the offence. The present offences are by no means venial examples of possession for sale. Punishment and deterrence must be the dominant considerations in offences of this kind. The learned judge was correct, in my opinion, in refusing to suspend.

A jury convicted the appellant of (1) possession of amphetamine for sale, and (2) possessing cocaine for sale. The convictions are challenged on the ground that the learned trial judge, in his summing up, should not have directed the jury

“by making (i) any reference at all to the failure of defence counsel to put matters to the Crown witnesses Eckert and Van Meeteren (ii) the references he did make to the failure of defence counsel to put matters to the Crown witnesses Eckert and Van Meeteren.”

There were three matters which the learned trial judge referred to in his summing up. They were, inter alia:In the reasons of the learned Chief Justice, these three matters are more elaborately explained and discussed. I need not refer further to the details of the three separate issues.

• (i)that the notes used by the Crown witness, Davies, during the trial, and adopted by Eckert and Van Meeteren and their evidence as to the notes made by Davies on that day (29 May 1987) were not, in fact, the notes made by Davies on that day;
• (ii)evidence by the defence witness, Mr Aldous, that one of the police officers said to him, “where did he go, where did he go” and that Aldous replied, “he went over there to the ‘phone’”; and
• (iii)the position that the appellant and his witness, Mr Aldous, were at the time the police car arrived, namely, were they talking together either side by side facing each other at the roller door of the premises or out in the driveway?

In the reasons of the learned Chief Justice, these three matters are more elaborately explained and discussed. I need not refer further to the details of the three separate issues.

The fact of the matter is that, in the absence of the jury, the learned trial judge put to both counsel the text of what he proposed to put to the jury as part of his summing up in relation to these three matters. After his Honour had outlined the text that he proposed to put, and did eventually put to the jury as set out in the reasons of the learned Chief Justice, counsel for the accused submitted that, “To put any of that would be to distort the case presented to the jury.” The transcript then contains a detailed discussion between the learned trial judge and counsel as to the particular passages in the evidence of the police officers where certain matters were put and where some of these matters were not put in cross-examination to any or either of the three police officers concerned. At the end of that discussion, counsel for the accused, maintained that not only should that not be put as “a Browne v Dunn direction” but the more that was put in relation to the three matters, the worse it would become. Counsel submitted that it would distort the focus of the trial for the jury. As counsel pointed out, the focus of the trial is to direct their attention to the disputes between the accused’s evidence and that of his witnesses on the one hand, and the police officers’ evidence on the other. Counsel for the accused further submitted that he had paid little attention to these matters in his final address to the jury. Furthermore, counsel took the view that the statement in Mr Aldous’ evidence relating to what had been said when the police officer called out, “Where is he?”, was hearsay material and that, as counsel for the accused, he had deliberately omitted any reference to that oral statement which may have been out of the earshot of the accused at that particular time in the course of his cross-examination of the police officers. However, counsel for the Crown had addressed on each of these matters in his final address to the jury. The learned judge ruled that it was proper for him to give a direction in the terms that he had read out in relation to the references to the passages of the evidence which he had drawn attention to in the course of discussion. At the conclusion of the summing up and after the direction had been given, including the passage which is set out in full in the reasons for judgment of the learned Chief Justice, counsel for the accused objected to that part in the summing up which he described as the Browne v Dunn (1894) 6 R 67 directions. However, counsel for the accused did not ask the learned trial judge to alter or amend the wording of that direction. His objection was to the whole passage or part of the summing up which related to these three matters and applied, in effect, for the whole passage to be withdrawn from the jury with the appropriate corrections by way of a redirection.

As to the first of the three matters, there was some discussion between the judge and counsel which indicated that on its own the question of whether the notes were the same notes as had been transcribed at the time of the conversation was a relatively minor matter and on its own would not have warranted any attention in the summing up. What the accused had said in his evidence was to the effect that he thought the notes were different. The learned trial judge indicated that he had included this matter because it was “one of two certain and three probable matters”.

It is clear from the evidence and from a reading of the transcript combined with the summing up, that this is not a case where it could be suggested nor has it ever been suggested that the learned trial judge misstated the position in directing the jury in relation to the facts concerning the cross-examination or lack of cross-examination. The issue, so far as the opposed portion of the summing up was concerned, was confined to the question as to whether the learned trial judge should say anything on these matters at all. The Crown prosecutor, having addressed on these points as part of his summing up, left the issues before the jury without any real mention or certainly without any detailed submissions from the defence. What was the judge to do in these circumstances? Say nothing? No, that would be a misdirection by omission and leaving the jury with the impression that the submissions of the Crown prosecutor were the only guidance for them to follow. Was the learned trial judge merely to refer to the remarks made by counsel for the Crown in his final address and say nothing about the defence? No, that would be worse, as it would leave an even greater emphasis on the submissions made by the Crown prosecutor. What the learned trial judge did was to give a full and detailed explanation as to the rule of practice and the issues that arose in the case out of the three particular matters which he had isolated by topic. In my judgment, the learned trial judge did not misstate any fact. He accurately put the matters upon which there had been cross-examination of the police officers, and those upon which there had been no cross-examination. In that he emphasised certain aspects and indicated the importance of those matters so far as the jury’s deliberations were concerned, was to do no more than assist the jury in their essential task of assessing the evidence and how to fit those matters into the jury’s fact-finding function.

For these reasons, the test stated in R v Leggatt [1971] VR 705 at 708 is not applicable to the complaints made in this case about the directions. There is no misstatement, “as to the effect of the evidence”. In any event, according to the test approved in that case:

“The appellant has the burden of showing that the misstatement probably affected the verdict, whereas in the case of an error of law the appeal will be allowed unless the Crown shows that the error did not affect the verdict.”

See Simic v The Queen (1980) 144 CLR 319 at 327 and Cleland v The Queen (1982) 151 CLR 1 at 10-12, per Gibbs CJ.

In the present case the so-called rule in Browne v Dunn first articulated by Lord Herschell LC in 1894 and only reported in the sixth volume of a limited series of reports known as “The Reports”, has been the subject of much discussion by academics and judges, particularly in recent times. The points which have emerged from these discussions and comments include the following:

• 1.It is a rule of practice which is of importance to the fair and orderly conduct of trials, both civil and criminal: see R v Costi (1987) 48 SASR 269 at 270, per King CJ.
• 2.It applies to the conduct of the case and is particularly relevant to the manner in which issues emerge at the hearing.
• 3.In civil proceedings, those issues arise in the pleadings and thus notice may be given to the parties of the facts upon which a party will rely. In criminal proceedings the Crown leads evidence by way of allegations to set up the particular facts and the defence cross-examine those witnesses for the purpose of giving such notice in respect of contested facts or different versions of those facts.
• 4.There are two limbs or aspects to the rule:
  • (a)When cross-examining, counsel are required to put to a witness so much of the case for that particular party as concerns that particular witness.
  • (b)Where an allegation is to be made against a witness or where a point is to be made which reflects on the conduct of that witness, then the party, through counsel, is required to bring to the witness’s attention the allegation or particular point, fairly and distinctly so that the witness may have an opportunity of admitting or denying or otherwise qualifying the allegation or point in evidence. See R v Costi (supra).
• 5.In considering the application of the rule, it often becomes crucial for the court to determine whether a witness or a number of witnesses has or have been cross-examined at all in relation to allegations or particular points or, in the alternative, whether some cross-examination has been directed to the allegation or issue and it cannot therefore be said that there has been no challenge at all to the evidence given by the other party: see Thomas v Van Den Yssel (1976) 14 SASR 205 at 207, per Bray CJ.
• 6.The two matters referred to in 5 (above) frequently overlap when considering the rule. The court must often determine first whether a challenge has been mounted to the truth of the evidence given by a witness or is the challenge made by contradicting some particular fact or qualifying some particular fact from which an inference may be drawn: see Thomas v Van Den Yssel (supra); and Reid v Kerr (1974) 9 SASR 367.
• 7.The rationale of the rule was explained by Lord Herschell LC when, at 71 of Browne v Dunn, his Lordship said that there was no obligation to raise such a matter in cross-examination in circumstances where it is “perfectly clear that (the witness) has had full notice beforehand that there is an intention to impeach the credibility of the story which he is telling” and concluded by saying, “All I am saying is that it will not do to impeach the credibility of a witness upon a matter in which he has not had an opportunity of giving an explanation by reason of there having been no suggestion whatever in the course of the case that his story is not accepted”. Lord Halsbury and Lord Morris expressed concurring opinions in their two speeches, per Lord Halsbury (at 76-77) and per Lord Morris (at 78-79).
• 8.The various so-called rules which emerge from the decision in Browne v Dunn have been variously stated by text book writers, for example, Byrne & Heydon, Cross on Evidence (2nd Aust ed, 1981), par 10.50 and Buzzard, May and Howard, Phipson on Evidence (12th ed, 1976), par 15.93. Attempts to formulate these rules have been discussed in Bulstrode v Trimble [1970] VR 840, particularly per Newton J (at 846, 848) and Unsted v Unsted (1947) 47 SR (NSW) 495 at 500 and the South Australian cases which I have mentioned above, of Reid v Kerr (supra) and Thomas v Van Den Yssel and R v Costi. Newton J, in Bulstrode v Trimble (supra) at 846, suggested that the rule of practice or procedure is first based upon general principles of fairness designed to achieve fairness to a witness and a fair trial between the parties and, secondly, the rule relates to the weight or cogency of the evidence.
• 9.In Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (Cth) [1983] 1 NSWLR 1, Hunt J discussed many of these cases and pointed out in relation to the application of the rule, that it may have particular significance where the case relies upon inferences to be drawn from other evidence in the proceedings: see at 16.