Every trial lawyer knows of the rule in Browne v Dunn; many fewer understand it.1
The Rule in Browne v Dunn in Cross Examination: A Singapore Perspective
Introduction
The rule in Browne v Dunn(the “Rule”) has long featured prominently in the Singapore legal landscape, and though it finds its genesis in civil proceedings, has since “been pressed into criminal service [in Singapore] with little modification”.2 In gist, the Rule sets forth the following principle:3
If the cross-examiner has adduced, or intends to adduce, evidence which in any respect contradicts the evidence of the witness being cross-examined, he should put the contradictory facts to the witness so that the evidence of the witness is put into contention (officially challenged), and the latter is given the opportunity to respond. If the cross-examiner fails to put his case to the witness, the court is free to regard the witness’ evidence as undisputed regardless of the nature of the cross-examiner’s case.
At its irreducible core, the Rule operates on the intuitively unobjectionable proposition that an individual should be confronted with any contradictory evidence that is being relied upon (and intended to be adduced) by the cross-examiner. The motivation for the existence of the Rule is simple: a witness should be granted the opportunity to explain and clarify his/her position and/or version of facts before any contradictory version be put forth to the Court as one of fact and before any imputation is made that the story that the witness has proffered lacks credit. The Rule is aligned to instinctive notions of fair play, transparency and proper ethical practice – in the absence of such a Rule to regulate conduct in litigation, parties may very well be tempted to keep their evidential cards very close to their chest until the final stages of the litigation so as to deprive an opposing party the opportunity to respond. Such a state of affairs, needless to say, perverts the legal process, for it renders the litigation process a purely strategic battle, as opposed to one intended to arrive at, and discern, the truth.
It might, therefore, be unsurprising to observe that the Rule possesses an ethical principle analogue in the form of r 60(g) of Legal Profession (Professional Conduct) Rules (Cap 161, r 1). Rule 60(g) provides that an advocate “shall not by assertion in a speech make an allegation against a witness whom he had an opportunity to cross-examine unless in cross-examination he has given the witness an opportunity to answer the allegation”.
Although the principle is sufficiently easy to understand, its application can sometimes be problematic. Indeed, notwithstanding its logical and practical raison d’etre, the Rule is seen in many quarters as being one of the most misunderstood (yet, oft-cited) rules in the realm of criminal advocacy practice and procedure. There is, at least, a grain of truth to such contentions – indeed, as will be seen from the ensuing discussion, the Courts have, on occasion, expressed divergent opinions as to the effect of the application of the Rule to specific factual matrixes.4
This article does not claim to be able to fully resolve these difficult issues, or provide a panacea for the difficulties commonly associated with the Rule. Its aspiration is considerably more modest, namely to provide an insight into the domestic jurisprudence vis-à-visthe application of the principle so as to broadly delineate the basic principles that surround the operation of the principle and to discuss, albeit briefly, the practical problems and implications arising out of the Rule. In doing so, significant reliance will be placed on domestic criminaljurisprudence, as opposed to cases in the civil realm in light of the fact that the principles surrounding the proper application of the Rule are generally more pronounced in criminal jurisprudence, if only because the possibility of a last-minute “surprise” that the Rule clearly deprecates is considerably moderated in the civil realm by the requirement for parties to file affidavits and pleadings.5
To “Put” or Not To “Put” – That is the (Wrong) Question
Before entering into the discussion proper, it might be useful at the outset to disabuse a sufficiently common, though erroneous notion, about the Rule. The case law in this area is replete with comments on adverse inferences being drawn (or evidence not being given weight), because a matter “was not put”6 to a witness, or because of a “failure to put”.7 In light of that, those unfamiliar with the frequent employment of such a convenient shorthand by the Courts when discussing the effects of the failure of observance of the Rule in any particular case might, quite understandably, misapprehend that the Rule is largely about “putting” to the witness one’s case or evidence in the most literal of senses. Simply put, one might foster an impression, when perusing the case law, that the failure to utilise the word “put” when confronting an individual with a particular version of events might prove to be fatal.
The Rule is, in fact, agnostic to the nomenclature or language employed by the cross-examiner – indeed, a close reading of the case of Browne v Dunn (1893) 6 R 67 (the case from which the Rule derives its name) (“Browne v Dunn”) would illustrate that the lodestar of whether the Rule had been adhered to is whethera party has been given notice that the cross-examiner is going to advance a particular state of affairs and given the opportunity to rebut the same. Substance, not form, is the primary focus of the Rule. That this must be so is particularly clear from the seminal observations of Lord Herschell in Browne v Dunn in which he observed as follows:
… I cannot help saying that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses …
It must, therefore, be clear that the Rule was never intended to be a formalistic procedural rule that ought to be applied in a mechanistic and unthinking fashion; on the contrary, Lord Herschell’s pronouncement was really intended to make the point that a cross-examiner should not be allowed to surreptitiously rely on evidence or a version of facts for which the other party has had no opportunity to be confronted with or to explain away. Nothing in the decision of Browne v Dunnsuggests that the Rule is intended to lay out the mechanics of how and when this might be done, or even the sort of language that ought to be employed to achieve this aim. Indeed, as Lord Morris rightly cautioned in Browne v Dunn (at 79), there can be no “hard-and-fast rule as regards cross-examining a witness as a necessary preliminary to impeaching his credit”. This is a position adopted in Singapore as well – as Judicial Commissioner Sundaresh Menon (as he then was) perceptively observed in Hong Leong Singapore Finance Ltd v United Overseas Bank Ltd [2007] 1 SLR(R) 292, at [42], the Rule is not “necessarily satisfied by a formulaic recitation of a party’s case to a witness, with an invitation merely to agree or disagree.”
The Difficulties That Remain at the Penumbra of the Principle
It is, therefore, clear beyond peradventure that the doctrine is intended to be of flexible application. In the words of the Chief Justice Yong Pung How (“Yong CJ”), “the rule in Browne v Dunnis a flexible ruleof practice intended to ensure procedural fairness in litigation”: seeLiza bte Ismail v PP [1997] 1 SLR(R) 555 (“Liza bte Ismail”), at [68]. For that reason, the failure to explicitly challenge a version of events does not, ipso facto, necessitate the conclusion that it amounted to “an admission of what the [witness] said was true”: seeAwtar Singh s/o Margar Singh v PP [2000] 2 SLR(R) 435 (“Awtar Singh”), at [43]. Instead, as the underlying purpose of the Rule is to afford procedural fairness to the parties concerned, any inference to be drawn will largely depend on the extent to which the failure to confront the witness with any such evidence or contention would prejudice the other party insofar as it deprives the latter of the opportunity of calling corroborative evidence, or explaining or qualifying his evidence in light of the new information: seeAllied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1, at 23. In the same vein, as the prejudice occasioned in such circumstances may not always be attributable to a matter under the control of the cross-examiner, the Courts will be slow to place any reliance on the Rule in situations where the cross-examination ends up being incomplete or inadequate for reasons beyond the control of the cross-examiner: seethe comments of the Malaysian Federal Court in Dr Shanmuganathan v Periasamy s/o Sithambaram Pillai [1997] 3 MLJ 61.
The Courts have similarly, generally not extended the need to comply with the Rule in instances where the evidence in dispute is irrelevant to the proceedings: seeTeoh Kai Lin v PP[1994] 3 SLR(R) 859. Put differently, the Rule does not require that every single detail or aspect of a witness’ case be challenged. On the contrary, the Courts have taken pains to emphasise that the Rule “does not mean that every point should be put to a witness” and that only issues “at the very heart of the matter” must be put to the witness if one intends to canvass a contrary state of affairs: seeLo Sook Ling Adela v Au Mei Yin Christina and Anor[2002] 1 SLR(R) 326, at [40]. The reason that the Courts take this approach is obvious: the cross-examining party need not be overly fastidious about adherence to the Rule in attempting to dispute facts of no moment in the litigation for the simple reason that such testimony or evidence will possess little, if any, significance to the matter being adjudicated. In that sense, for the purposes of the subject matter under adjudication before that particular Court, adherence to the Rule (or non-adherence, for that matter) becomes a moot point.
Once one fully appreciates the underlying motivations of the Rule, it should come as no surprise that there have been relatively well-defined exceptions to the principle. Two exceptions, in particular, have gained currency domestically. The first exception relates to a situation where the witness has been given full notice as to the intention on the part of the cross-examiner to impeach (or challenge) his version of events. In such cases, the witness need not, strictly speaking, be confronted in relation to the cross-examiner’s position on the matter. The High Court decision of Awtar Singh is illustrative of this point.
In Awtar Singh, the appellant had been convicted of eight charges of abetment through intentionally aiding another individual to harbour eight immigration offenders. The said immigration offenders had given testimony, inter alia, that, they had seen the appellant in the premises in question on a number of occasions and that some of them even knew him as the owner of the said premises. The appellant’s position was that he did not see the immigration offenders during his visits to the premises. The appellant was convicted, and one of the grounds of appeal was that the Rule had been contravened because the accused was not confronted on the prosecution’s contention that he must have seen the immigration offenders during his visit to the premises. Rejecting such a contention on the premise that the appellant must surely have been put on notice that the Prosecution’s case was that the appellant must have seen the immigration offenders during such visits, the Court opined (at [44]) as follows:
… I did not find it strictly necessary for the Prosecution to put to the appellant that he saw the immigration offenders during his visits. It was apparent to the appellant what the Prosecution’s case was and it was that the immigration offenders saw him at the premises collecting rent and performing various other tasks pertaining to the upkeep of the premises. His defence was a complete denial that he had ever seen these immigration offenders. That being the case, in my view, it could not be said that the failure to put the question to the appellant resulted in any procedural unfairness to him, in the sense that he had been deprived of an opportunity to explain his evidence which would amount to nothing more than another denial that he had not seen them before… (Emphasis added).
The second exception relates to situations where a witness gives such a bad account of the facts during the course of his or her testimony or where the testimony is so bereft of logic, or otherwise so incredible or unbelievable that the “most effective cross-examination would be to ask him to leave the [witness] box”. In such circumstances, no opportunity to clarify need be given because the account that had been given is so fanciful or unbelievable that it must necessarily be dismissed and given no weight. A quintessential example of this can be found in the High Court decision of Liza bte Ismail. In that case, the appellant had appealed against her conviction on numerous grounds – one of the grounds of appeal related to a particular charge for which it was alleged that the Deputy Public Prosecutor, during the trial in the Court below, had failed to cross-examine the accused on. On appeal, the accused canvassed the argument that the Rule had been infringed and that the failure to cross-examine (and put questions to) her on matters pertaining to that particular charge constituted the Prosecution’s acceptance of her evidence on that particular charge. Rejecting such a contention and expressly adopting the view that the second exception to the Ruleapplied insofar as her defence had been a fanciful one that did not require cross-examination or the putting of the prosecution’s case, Yong CJ observed as follows:8
The appellant’s story in relation to [the charge in question] was obviously fanciful. It was wholly unsupported by the documentary evidence. As such, the Prosecution’s failure to cross-examine her, while undertaken at some peril to its own case, was not productive of any adverse consequence. (Emphasis added).
The comments of the High Court in Liza bte Ismail warrant closer examination for they provide considerable illumination of the interplay between the Ruleandits putative exceptions. Conventionally, one would envision exceptionsto a rule as encapsulating situations where the rule possesses no room for application. Accordingly, it could be argued, with some conviction, that, if indeed, the Court in Liza bte Ismail took the view that an exceptionto the Rule applied, then, as a matter of logic, the Prosecution in that case would have been acting wholly reasonably in not cross-examining and putting its case to the accused. It is, therefore, interesting to note that the High Court in Liza bte Ismaildespite noting the applicability of the exception on the facts nonetheless took pains to impress the point that the Prosecution’s failure to cross-examine on that point was “undertaken at some peril to its own case.” This seemingly suggests one of two things: either the boundaries of the Rule are so undefined that a cross-examiner should not unthinkingly assume that his understanding of the particular factual matrix as falling under the confines of the exception rather than the rule is one that must be shared by the Court, or, perhaps more likely, that the term “exception” is, in fact a misnomer, since the “exceptions”, even when they are engaged, are merely grounds to mitigate the harshness of the operation of the Rule when deciding whether to accept the unchallenged evidence – it does not change the fact that the cross-examiner should have ideally cross-examined the witness on the point.
Whichever the case may be, it would, therefore, appear that even if a subject matter falls under an “exception”, the failure to cross-examine or raise the matter explicitly with the witness might very well be seen by the Courts as representing a departure from good practice. In PP v Okonkwo [1993] 2 SLR(R) 256, for example, the High Court took the view that the failure of the Prosecution to confront the accused with its version of events would not be fatal to its case if it had been plain from the onset that the Prosecution would be premised on a wholly different factual matrix than that suggested by a witness or accused person. In that case, it was suggested by the accused that the Prosecution’s case was prejudiced by its failure to put its case to a witness testifying to a contrary state of affairs (ie,the argument is that, by extension, the Prosecution is taken to accept the veracity of such testimony). The High Court rejected the accused’s argument that the Prosecution is barred from disputing the witness’ evidence on the back of Browne v Dunn, noting as follows:9
Applying the restatement of the rule in Browne v Dunn to the case at hand, it is true that the assisting DPP did not put the Prosecution’s case to Adiele during his cross-examination. While such an omission should not be encouraged, that lapsedid not in my view mislead nor lull the Defence into a realm of ambivalence that the Prosecution accepted Adiele’s evidence as respects Uche and his proverbial bag. It was manifest from the outset that the Prosecution’s case proceeded on the basis that the bag containing the drugs was delivered to Plummer in pursuance of a meeting between Gabriel and Plummer on 9 December 1990. In the circumstances the omission, if any, by the Prosecution to put its case to Adiele did not in my view create any element of surprise which the rule in Browne v Dunnso clearly deprecates. (Emphasis added).
As discussed earlier, on a conceptual level, if the exceptionto the rule in Browne v Dunnmeans that the Rule itself possesses no scope for application, then it must follow that the Prosecution’s actions in not putting the case to the witness in that instance would have been proper practice. Nonetheless, as is evident from a close reading of the extract above, the Court took pains to highlight that the practice on the part of the Prosecution in that case was one that “should not be encouraged” and that the failure to put its case had been a “lapse”, albeit not a fatal one. If nothing else, the case is indicative of the Courts’ tendency to advocate that, save for plainly otiose or irrelevant matters, cross-examiners should err on the side of caution (and completeness) when it comes to being exhaustive in questioning witnesses during the cross-examination process and in putting its case to the accused or witnesses.
The reticence on the part of prosecutors and counsel, if at all, to be conservative and to err on the side of comprehensiveness is further buttressed by the fact that the Courts have, from time to time, used such failure to cross-examine on certain matters as one of the grounds to acquit or convict an accused person. The Court of Appeal’s decision of PP v Abdul Naser bin Amer Hamsah [1996] 3 SLR(R) 268 (“Abdul Naser”), for example, encapsulates this point. In that case, the accused had been charged with the murder of a Japanese tourist, with the Prosecution’s case being that the accused had intentionally stamped on the said tourist’s face during an assault and that this proved to be the fatal blow. The accused had contended that he had stepped on her accidentally and that, accordingly, he had no intention to cause her death. The High Court Judge, at first instance, acquitted the accused of the murder charge but convicted him of robbery with hurt. The Prosecution appealed. The Court of Appeal, by a 2-to-1 majority, dismissed the Prosecution’s appeal. On appeal, the Prosecution had contended (as it did before the High Court) that the stamping had been intentional. In rejecting such a contention, the Court, in particular, took issue with the fact that the Prosecution did not putto the accused that his defence (of accident) was plainly inconsistent with his own testimony relating to the direction in which he purported to have accidentally fallen, even though the Court took the view that the Prosecution’s case theory was “plain common sense” given how the incident had transpired. The failure to confront the accused on this according to the majority of the Court of Appeal in that case was fatal. As the majority notes (at [33]):
… what we find surprising is that the respondent was not cross-examined on what we think is a very significant aspect of this case … we find it inconceivable, if he did what he says he did to break his fall or stumble that he would have been thrust forward into the corner. This is plain common sense and we do not need expert opinion to make this deduction. This then could lead to an inference that he more likely stamped on Ms Isae’s face deliberately. If it was an accidental stamping, as he says it was, then it was, in our view, a most unlikely accidental stamping. It would then have rested on the respondent to give a credible explanation … But this was not put to the respondent. It was never suggested to him that if he did what he says he did, the thrust of his body would have been away from the wall and the corner and not into the corner which it would have to be to cause an accidental stepping with the force that caused the fractures. Instead the case put to the respondent was that to avoid being identified by Ms Isae the respondent had deliberately stamped on her face. (Emphasis added).
The dissenting Judge, Justice of Appeal LP Thean (“Thean JA”), disagreed with the view of the majority, pointing out that even though the Prosecution had erroneouslyfailed to put the matter to the accused, the contention of the accused was nonetheless an incredible one that beggars belief (and that, accordingly, need not require the prosecution to “put” its case to the accused as such):
Like [the judges in the majority], I find it inconceivable that if the respondent did what he said he did to break his fall he would have thrust forward into a corner. I also agree with the criticism of [the majority judges] that the Prosecution had failed to cross-examine the respondent on this aspect of his evidence. Clearly the Prosecution could, by adroitly questioning the respondent, have demonstrated to the trial judge how highly improbable, if not impossible, it was for the respondent to have thrust forward and stepped on the deceased’s face, thus showing that his evidence could not possibly be true. Nonetheless, notwithstanding the absence of the cross-examination, the respondent’s evidence of how he stepped on the deceased’s face was to my mind quite incredible. (Emphasis added).
It is interesting to note that notwithstanding Thean JA’s view that the version proffered by the accused was “quite incredible”, and accordingly, the Prosecution should not be prejudiced by the failure to cross-examine the accused on that point (ie,Thean JA opined that one of the two exceptions applied), the dissenting Judge nonetheless took pains to impress the fact that the accused should have beencross-examined on the point. Again, therefore, it would appear that the exceptionis not an exception as such, as much as amounting to a non-fatalistic departure from best practice.
The divergence of opinions in the Court of Appeal in Abdul Naser is emblematic of the real tensions faced by both prosecutors and practitioners as to how best to apply the Rule. The very fact that the Court of Appeal can proffer discordant views and arrive at distinct conclusions as to whether certain questions need to be askedand certain mattersneed to be putis no doubt a function of the inherent flexibility of the Rule. Nonetheless, it is this very flexibility that renders it wholly understandable and indeed, to be expected, that practitioners or prosecutors who find themselves having to choose between the Scylla of potentially prejudicing the case by being conservative in cross-examination and the Charybdis of being more comprehensive (at the risk of raising the ire of the Judge) may elect to err on the side of comprehensiveness than brevity.
This might be particularly so with criminal law, where the need for an expeditious and efficient trial must be balanced with the knowledge that any perceived non-adherence to the Rule in Browne v Dunnmay prove to be fatal since it “affects the level of proof [and that] its non-observance may destroy the case for the party concerned”.10 Given the weight of the issues that are necessarily before the Court in criminal proceedings, it could be argued with considerable force that strategic considerations and attempts at obtaining a tactical advantage must necessarily take a back seat to attempts to discern the truth. To that end, if it is true that in light of the conspicuous absence of pleadings and affidavits that provide an in-depth insight into the respective positions of parties (in civil proceedings) in the criminal context,11 perceived failure to adhere to the Rule in a criminal setting “may not always [result in the yielding of] a fair inference”,12 then practitioners and prosecutors alike might note that there is considerable wisdom in Lord Halsbury’s observation in Browne v Dunnthat where faced with a difficult and subjective choice, comprehensiveness ought to be elected over brevity:
… [s]ometimes reflections have been made upon excessive cross-examination of witnesses, and it has been complained of as undue; but it seems to me that a cross-examination of a witness which errs in the direction of excess may be more fair to him than to leave him without cross-examination and afterwards to suggest that he is not a witness of truth … (Emphasis added).
Conclusion
Any reservations to the Rule on the part of practitioners or prosecutors lie not in any quarrel that one might have vis-à-vis the propriety of the principle itself but in its problematic and subjective applicationto particular factual matrixes, particularly in the context of criminal practice. The lament is that due to the nebulous nature of the doctrine, there is little, by way of principles that can be elicited to guide an advocate’s conduct of cross-examination.
There is some truth to this. While the pith of the Rule is easily discernible and is unlikely to be of much dispute in most cases, in particularly difficult cases, the precise outer boundaries of the Rule remain largely hazy and undefined and can appear, at times, to be nothing more than a matter of personal predilections. The inherent flexibility of the Rule has been recognised time and again in the jurisprudence emanating from the Singapore Courts, which have hitherto declined to scope the principle with any precision. The reality, however, is that its flexibility serves as both its strength and its weakness, for it can also occasionally result in a cross-examiner failing to cross-examine with sufficient depth and direction, inadvertently prejudicing his own case (whether with a view to attaining a legitimate tactical advantage or through sheer inadvertence). Nonetheless, we can take some (albeit limited) comfort in the fact that the difficulties that they perceive in distilling the precise essence of the Rule (and its application to specific factual matrixes) are not unique or exclusive to our jurisdiction – as Justice Gilles Renaud (from the Ontario High Court) lamented (in relation to the Canadian experience) extra-judicially:13
In almost each case, counsel for both sides will refer to the Rule in Browne v Dunnleading me to ask the question, is there a more misunderstood [rule] of evidence/procedure/trial tactics than this Rule?Is there a judgment that is more obscure and yet cited more often?
There are, and will continue to be, very difficult cases where reasonable people might fairly differ on whether the Rule has been properly adhered to in the course of the proceedings.14 Nonetheless, one should be slow to overstate the problem, for it is in a relatively minute proportion of cases that such differences in opinion would emerge. As long as practitioners keep in mind the basic raison d’etre of the Rule, many of the principles that apply are clear and discernible and the answer to the question of whether the Rule had been properly adhered to on a particular set of facts would likely be self-evident. In particular, at the risk of over-simplification or over-generalisation, it would be apposite to remain sensitive to the following considerations:
1. It is crucial to ensure that the other party is provided the opportunity to rebut your case before the conclusion of your cross-examination – nonetheless, do not be wedded to the idea that the matter can only be raised at the conclusion of the cross-examination or that it must be a rehearsal of the evidence at the conclusion of cross-examination. The Courts are less concerned about when precisely notice is given during the course of cross-examination, as they are concerned about whether sufficient notice had been given of the cross-examiner’s case and the challenge to the witness’ testimony;
2. The precise relationship between the Rule and its exceptions remains largely unexplored. It does nonetheless appear from the criminal law jurisprudence hitherto that even if an exception to the Rule might, more likely than not, apply, the Court may nonetheless deem it good practice to err on the side of comprehensiveness though it is unlikely to fault the cross-examiner for erring on the side of brevity if the mistake is inadvertent and does not prejudice the witness; and
3. The corollary of the preceding principle is the fact that there will invariably be very difficult cases during the course of one’s legal career where two reasonable people might take different views on whether, on a particular set of facts, the Rule requires that a cross-examiner err on the side of comprehensiveness as opposed to brevity. One, therefore, can hardly be faulted for being cautious and over-inclusive even if it might potentially mean sacrificing an otherwise legitimate tactical advantage.
Though by no means exhaustive, keeping in mind the above principles during the course of cross-examination would probably hold a cross-examiner in good stead to ensure that one does not inadvertently breach the Rule, and that he/she has been sufficiently comprehensive in cross-examination not to be barred from advancing the necessary submissions about the lack of integrity of the witness’ testimony at the conclusion of the proceedings.
Mohamed Faizal Mohamed Abdul Kadir*
Deputy Public Prosecutor & Deputy Senior State Counsel
Attorney-General’s Chambers
E-mail: [email protected]
* LL.B. (Hons) (NUS); LL.M. (Harvard). The author would like to thank Ms Foo Yuet Min and Mr Amrin Amin for their comments on a previous draft. All the conclusions, observations and views reflected in this article are the author’s personal views and may not be reflective of the views of the Attorney-General’s Chambers.
Notes
1 SeeJustice PLG Brereton RFD, “Aspects of Advocacy: The Effective Presentation of Evidence”, Speech given at the College of Law for the Advanced Family Law Weekend (12 – 13 August 2006), available at: http://www.lawlink.nsw.gov.au/lawlink/Supreme_Court/ll_sc.nsf/pages/SCO_brereton120806 (date accessed: 15 May 2011).
2 Tan Yock Lin, Criminal Procedure, Vol II (LexisNexis: 2009), Chapter XV (“Tan Yock Lin”), at [2054.3], p 367.
3 As stated in Pinsler, Evidence, Advocacy and the Litigation Process(LexisNexis: 2010) (“Pinsler”), at [20.98].
4 See for example, PP v Abdul Naser bin Amer Hamsah [1996] 3 SLR(R) 268, discussed below.
5 As one academic treatise correctly points out, the Rule cannot and should not circumvent the rule that a party ought to plead a material allegation in his pleading: see Pinslerat [20.105]. Put another way, parties in civil proceedings have to be concerned about the interplay between two largely-overlapping doctrines: the rule in Browne v Dunn and the pleading rules as found in the Rules of Court.
6 Seefor example, PP v Azman bin Ismail & 2 Ors[2002] SGHC 178, at [34], [39], [42], [45], [55], [64], [65].
7 Seefor example, Arts Niche Cyber Distribution Pte Ltd v PP [1999] 2 SLR(R) 936, at [51].
8 Liza bte Ismail v PP[1997] 1 SLR(R) 555, at [76].
9 PP v Okonkwo [1993] 2 SLR(R) 256, at [113]. It should be noted that on appeal the Court of Appeal took the view that the submission based on Browne v Dunn was misplaced since there was, based on the Prosecution’s case, nothing to put to the witness in question. SeeOkonkwo Gabriel & Anor v PP[1994] 1 SLR(R) 78, at [35] – [36].
10 Tan Yock Lin & Jeffrey Pinsler (eds), Halsbury’s Laws of Singapore, Vol 10 (Butterworths Asia: 2008), p 378.
11 If this represents a fair observation, it is a problem not exclusive to the Rule, with the difficulty of juxtaposing doctrines that originate in civil proceedings into the criminal realm having been considered elsewhere. See for example, the comments of the Court of Appeal in Mohammad Zam bin Abdul Rashid v PP [2007] 2 SLR(R) 410, at [6] to [7], on the desirability of importing the three-stage Ladd v Marshall test into the criminal context. The Court indicated that although the three prongs of the test remained vital considerations, the parties ought to be mindful of the divergence in the level of proof required in criminal cases compared with that of civil matters.
12 See Tan Yock Lin, at [2054.3].
13 SeeGilles Renaud, “The Rule in Browne v Dunn: Should it be Undone?” 6 Gonzaga Journal of International Law(2002-2003), available at http://www.gonzagajil.org/pdf/volume6/Renaud/ (date accessed: 14 May 2011).
14 In any event, such a divergence of viewpoints is not a phenomenon unique to the application of the Rule, with another area of law where even Judges may differ quite considerably on is that of sentencing. As VK Rajah JA candidly observed in ADF v PP [2010] 1 SLR 874, at [169], “… sentencing is not a science. I would add to this by observing that views on sentencing can, and sometimes do in difficult cases widely diverge … this case is a good illustration of this point as [the dissenting Judge] has taken a decidedly different view from [the majority]”.