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Cite as:  Gilles Renaud, The Rule in Browne v. Dunn: Should it be Undone?, 6 Gonz. J. Int’l L. (2002-03), available at http://www.gonzagajil.org.

The Rule in Browne v. Dunn: Should It Be Undone?

Gilles Renaud[1]

Introduction

How often do you note a comment in a judgment along the lines of “this testimony was not challenged” or, “there was no cross-examination on this point?”  For example, Rose v. The Queen stated:

[f]orensic evidence was called by both the appellant and the Crown.  The experts agreed that Ms. Rose's death was probably caused by soft asphyxia, which would be consistent with either gentle hanging or soft ligature strangulation.  Thus, in light of the medical evidence and Ms. Rose's history of attempted suicides, suicide was a viable defence.[2]

[d]r. Jaffe, the last witness called by the defence, testified that a ligature around the neck causes a blue pallor above the ligature.  Neither counsel had questioned the appellant about the colour of his mother’s skin above the ligature.  When Dr. Jaffe was asked by the Crown during cross-examination whether the blue pallor would be noticeable at the time the person was discovered, he responded that it would be apparent to a "reasonably skilled observer."  He was not asked and did not explain what training or skill would be required in order to meet this standard.  Counsel for the appellant then addressed the jury, making no reference to Dr. Jaffe's evidence concerning skin colour.  Subsequently, counsel for the Crown addressed the jury and twice asked the jury to draw negative inferences with regard to the appellant's credibility based on his failure to notice that his mother's face was blue.  Following the judge's charge to the jury, defence counsel stated that he had not anticipated that the colour of the deceased's skin was a live issue and thus had not mentioned it in his address.  Defence counsel requested that the trial judge review the evidence on this issue with the jury but he refused to do so.[3]

It goes without saying that the failure of the accused to notice something as important as that might have troubled the jury.  On the other hand, did the prosecution not fail to afford Dr. Jaffe a fair opportunity to assist the jury when it failed to ask him to qualify the degree of skill required, and did not ask him to relate this objective skill to the type of situation in which an innocent man discovers the body of his murdered mother?  Was this an affront to the search for the truth?

Many, many other examples can be cited in this respect.  In almost each case, counsel for both sides will refer to the Rule in Browne v. Dunn leading me to ask the question, is there a more misunderstood of evidence/procedure/trial tactics than this Rule?[4]  Is there a judgment that is more obscure and yet cited more often?  And, more importantly, what instruction does this Rule attempt to provide to criminal defence counsel?  In the final analysis, is the benefit not far outweighed by the burden?

Discussion

1) The Expression of the Rule

As a general proposition, it is suggested that: “the cross-examining party should put as much of her own case as concerns to witness to her.  Thus, if the cross-examining party intends to adduce evidence which contradicts evidence given by the witness, she should put her version to the witness, so that the witness may have the opportunity of explaining the contradiction.”[5]

The Browne Rule has also been expressed in the following terms: "any matter upon which it is proposed to contradict the evidence-in-chief given by the witness must normally be put to him so that he may have an opportunity of explaining the contradiction."[6]  This duty to give notice of the proposed challenge to the testimony is described as "Warning of Refutation."[7]  W.A.R. Wells has described the spirit of the rule in these terms: “a witness's evidence should not be impeached behind his [or her] back.”[8]  In this respect, note that the text Seminars on Evidence sets out this instruction: “[i]t is Counsel’s duty and it is the law that if you are going to suggest that a witness has recently invented something you must put it to him in fairly clear terms.”[9]

2) A much-misunderstood judgment

As a further general proposition, it is suggested that rule is much misunderstood.  By way of justification for this broad statement, note the following: “reliance upon the rules said to be enshrined in that case seems to be attended more with ignorance than with understanding."[10]  The factual background to the decision of the House of Lords in Browne may be stated briefly.  An action in defamation was brought against a solicitor and was based upon a document which the defendant had drawn whereby he was to be retained by a number of local residents to have the plaintiff bound over to keep the peace.  Of the nine signatories, six gave evidence on behalf of the defendant that they had genuinely retained him as their solicitor.  Further, they testified that the document was actually intended to serve as a retainer.  In cross-examination, no suggestion was made to any of these witnesses that this was not the case.  So far as the conduct of the defendant's case was concerned, the genuineness of the document was accepted.[11]

However, notwithstanding the want of challenge on this essential element, the plaintiff argued in his submission to the jury that the defence of qualified privilege relied upon by the solicitor was a sham.  In response to this tactic, Lord Herschell, L.C., enunciated the classic statement now associated with the Browne decision:

[n]ow, my Lords, 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.[12]

Lord Herschell continued to remark that counsel should err on the side of undue cross-examination lest the witness believed himself hard done by in the absence of cross-examination on a material point, later challenged by means of contradictory evidence. [13]  Of note, compliance with this rule was thought to be unnecessary in cases where the gauntlet had plainly been dropped, so to speak, such that the witness could not ignore the intended course of action of counsel for the adverse party.[14]  Lord Halsbury commented at p. 75 that he was "entirely of the same opinion".[15]  His Lordship added: "To my mind nothing would be more absolutely unjust than not to cross-examine witnesses upon evidence which they have given, so as to give them notice, and to give them an opportunity of explanation, and an opportunity very often to defend their own character, and, not having given them such an opportunity, to ask the jury afterwards to disbelieve what they have said."[16]

Lord Morris, though stating that he entirely concurred with the opinions of the Lord Chancellor, added a gloss that has led to the vagaries of the case law: "there is another point upon which I would wish to guard myself, namely, with respect to laying down any hard-and-fast rule as regards cross-examining a witness as a necessary preliminary to impeaching his credit."[17]  His Lordship then qualified his remarks with a further proviso, wholly immaterial to the record of appeal: "I can quite understand a case in which a story told by a witness may have been of so incredible and romancing a character that the most effective cross-examination would be to ask him to leave the box."[18]  He concluded: “I therefore wish it to be understood that I would not concur in ruling that it was necessary, in order to impeach a witness's credit, that you should take him through the story which he had told, giving him notice by the questions that you impeached his credit".[19]

3) Is there a Rule

4) Is there any authority for the Browne Rule

5) Browne v. Dunn and the Supreme Court of Canada

Our highest Court has considered Browne fully on two occasions.  In the first case, Peters v. Perras, Browne was applied to buttress the allowance of an appeal from a judgment that had rejected the uncontradicted testimony of a witness examined abroad under commission: “[when] no opportunity was afforded to the witness of explaining or qualifying the facts or conduct on which the attack upon his veracity or honesty was based.”[26]

In the second and more important judgment, Palmer v. The Queen, objection was taken to the failure of the prosecution to cross-examine fully the appellant as to his defence prior to impeaching it.[27]  The defence was a flat denial by Palmer of any involvement with drugs and with Ford, the main Crown witness.  It was asserted that Ford’s evidence was completely fabricated with respect to various meetings he would have had with the accused.  The trial judge found that Palmer was not a credible witness and indicated that he was not willing to accept his testimony on important matters.  Mr. Palmer’s counsel objected to this on the basis that Palmer’s version of what occurred on these occasions stands uncontroverted particularly in view of the Crown’s failure to examine Ford upon these matters.[28]  Finally, in dealing with this argument in the Court of Appeal, McFarlane J.A. held:

[t]hat Palmer’s evidence was not shaken in cross examination and it is suggested he was not specifically questioned about one or two of them.  Reference was made to Browne v. Dunn (1894) The Reports 67, and to R. V. hart (1932), 23 Cr. App. R. 202.  I respectfully agree wit the observation of Lord Morris in the former case at p: 79: I wish it to be understood that I would not concur in urling that it was necessary I  order to impeach a witness’ credit, that you should take him through the story which he told, giving him notice by questions that you impeached his credit.[29]

6) The General Principle of Fairness: Not So General

As noted by Finlayson, J.A., in Verney v. The Queen, the House of Lords considered this issue to be of fundamental importance.[30] "[To challenge in cross-examination] 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."[31]

A number of foreign authorities justify the Rule on the simple footing that the witness is entitled to be dealt with fairly.  For example, Newton, J. in the Bulstrode decision commented that: "[t]he rule was one of practice or procedure, based upon general principles of fairness, which is designed to achieve fairness to witnesses.[32]  Note as well that: "[i]f in a crucial part of the case, the prosecution intend to ask the jury to disbelieve the evidence of a witness for the defence it is right and proper that the witness should be challenged when in the witness-box or, at any rate, that it should be made plain while the witness is in the box that his evidence is not accepted."[33]

Furthermore, the Irish courts do not appear to apply the Rule to criminal proceedings and no duty is cast upon counsel to be fair to a witness; the only duty is to be successful.[34]  The first reported judgment known to the writer to have considered the matter is the Irish decision in Flanagan.[35]  The judgment serves to underscore in the most evident manner how the general rule is reversed in Ireland; indeed, the prudent advocate is the one who guards against the possibility of providing a witness with an opportunity of explaining an inconsistency or discrepancy that will later be challenged.[36]  A witness, Ryan, was not invited to respond to the contention that the opposite party proposed to put forward to answer the claim.[37]  On appeal, Lord Justice Ronan held:  "[t]he entire evidence of Ryan was impeached as being an absolute fabrication and invention.  If there was no cross-examination he would have had no opportunity of explaining and showing that it was not.  The practice here on the part of skillful counsel has been not to ask any questions which would give the witness an opportunity of explaining, or of stating facts or giving reasons in support of his evidence, unless counsel supposed he could obtain an answer favorable to his case."[38]

In Scotland, the practice in civil matters appears governed by the dictum of Lord Justice Cooper in which merely restates Browne without reference to the judgment in the Mckenzie decesion.[39]  However, this principle of fair play to a witness does not seem to be triggered in criminal prosecutions and even less so in the case of the accused who elects to testify.  David Field judges that: "[t]he position is dominated by the fact that the burden of proof is on the Crown to prove the accused guilty beyond reasonable doubt.”[40]  The defense may conduct itself as it best sees fit, and in particular may choose not to cross-examine ... the Crown witnesses.  The risk which it runs in doing so, of course, is that those witnesses will be believed."[41]

[i]t is, in my opinion, elementary and standard practice for a party to put to each opposing witness so much of his own case or defense as concerns that witness and if need be to inform him, if he has not been give n notice thereof, that other witnesses will contradict him, so as to give him fair warning and an opportunity of explaining the contradiction and defending his own character. It is grossly unfair and improper to let a witness's evidence go unchallenged in cross-examination and afterwards argue that he must be disbelieved.[43]

7) Fairness to the Witness: Does it Extend to the Rejection of Testimony

The question may be submitted in other words: May the party guilty of breaching the Browne Rule is prohibited from submitting testimony?  There is some suggestion that a trier of fact may discount testimony that was advanced in breach of the Rule.  For example, Finlayson J.A. observed in the Verney decision, a trial judges may err in applying the Browne Rule in certain fact situations.[49]  Hence, trial judges may err in instructing the jury that the weight of the accused's evidence might be discounted by reason of counsel's supposed failure to cross-examine.[50]  The Court stated that it is not permissible to instruct the jury that they could discount the weight of the evidence.

In a very recent judgment, Rosenberg, Moldaver and Goudge, that: “[o]n several occasions, Crown counsel interrupted the examination-in-chief of the appellant to complain that the appellant was giving evidence in violation of the so-called rule in Browne v. Dunn (1893), 6 R. 67 (H.L.). Crown counsel argued that defence counsel had failed to cross-examine the complainant upon points that the appellant intended to contradict her.”[51]  The Court of Appeal then pointed out that: “[t]he trial judge originally ruled that counsel could not elicit the evidence. He then, properly, resiled from that holding and in the end merely gave the jury an instruction about the effect of failure to cross-examine.”[52]

[w]hile some of them were relatively trivial, it is also apparent that certain of the objections were well founded in the sense that the appellant was providing additional material information that had not been put to the complainant.  While I think Crown counsel might have been well advised to exercise greater restraint, I cannot say that his interventions prevented the appellant from making full answer and defense.  The charge to the jury on this issue was relatively restrained.[53]

Of note, Rosenberg J.A. concluded his brief remarks by stating: “[s]hould a similar issue arise on the new trial, the judge and the parties will have the benefit of this court's decision in R. v. McNeill (2000), 144 C.C.C. (3d) 551.”[54]

The difficulty is that Robinsons seems to suggest that it is possible to object to testimony elicited in circumstances that infringe the duty of fairness to the witness that animates the Browne Rule.  Should the Court not have held that the prosecution was correct to interject to require a limiting instruction to announce that there may be a problem with the testimony and setting out that the weight to be assigned to it may vary, in accordance with instructions to follow?  In few words, one can only object to testimony if it may be ruled inadmissible, not if it may be judged to be of little, or even of no weight.

8) The modern view: It is not an absolute rule and the dictates of fairness are paramount

The comments advanced to date permit the conclusion that the fairness to the witness is of paramount importance but that fairness may be achieved by means other than the rejection of testimony.  In fact, I suggest that this is the emerging trend.

Note firstly the Verney judgment of the Court of Appeal for Ontario.[55]  The facts in Verney require little exposition.  Briefly stated, the accused underwent three trials for a series of offences.  He testified during each of these proceedings and always denied his involvement, in conformity with an alibi defence he advanced.[56]  The Browne issue arose initially when the prosecution objected to portions of the examination-in-chief of the accused.  It was submitted that certain of the evidence which Mr. Verney was giving was inconsistent with the testimony of the principal Crown witness, Williams, who testified that he and Verney had jointly committed certain robberies.  Accordingly, the Crown argued, the defense had a duty to put this scenario to Mr. Williams during cross-examination.[57]  Counsel for Mr. Verney responded that he had put the essence of the defense position to the witness who had denied it.  Further, that it would be a "totally ludicrous waste of time" for counsel to put to Williams the entire anticipated defense evidence as he would merely continue to deny it.  The trial judge upheld the Crown's objection, in the main, and instructed the jury that defense counsel should have put to Williams in cross-examination, all aspects of any proposed defense evidence, where it would conflict with Williams' evidence, and that counsel's failure to do so could be considered by them in assessing the weight to be attached to the appellant's evidence.[58]

In allowing the accused’s appeal, Finlayson J.A. underscored how it was apparent from the cross-examination by defense counsel that the appellant took the position that Mr. Williams had fabricated the appellant's involvement in these robberies because of incidents that occurred when the two of them were in prison.[59]  Further, that the duty to cross-examine that was put forth was based on a civil case and was predicated on a rule of fairness that prevents the "ambush" of a witness by not giving him an opportunity to state his position with respect to later evidence, which contradicts him on an essential matter.  Finlayson, J.A., went on to stress that: "[i]t is not, however, an absolute rule and counsel must not feel obliged to slog through a witness's evidence-in-chief putting him on notice of every detail that the defence does not accept.  Defence counsel must be free to use his own judgment about how to cross-examine a hostile witness.  Having the witness repeat in cross-examination, everything he said in chief, is rarely the tactic of choice."[60]  Since this was the third trial, Mr. Williams and the prosecution could not have been taken by surprise by what the defense alleged.

The Newfoundland Court of Appeal has also provided guidance in this respect.[61]  The Court noted that the accused had given a 164 page letter to his counsel setting out his version of the events.[62]  No mention was made of it during the evidence of any of the witnesses.  Subsequently, the prosecutor suggested to the jury that the testimony of Mr. Dalton was a recent fabrication, tailored to fit the disclosure and the evidence.[63]  Had the letter been the subject of comment at trial, it would have gone a long way to show that the accused’s version at trial conformed to his earlier instructions to counsel, advanced prior to having any understanding of the Crown’s case.[64]  The Court of Appeal was troubled by the lack of direct challenge when the accused was in the witness box.[65]  In the result, the letter was received as credible fresh evidence.  Although the Court refrained from making a direct finding that Browne was engaged, partly I suspect due to the possible failure of his counsel to react by re-examining on the existence of the letter to demonstrate prior consistent evidence, it did suggested that the accused should have been questioned to show that he had never advanced any such version prior to testifying before the jury.[66]

[i]n his examination-in-chief of the appellant, defence counsel asked whether the appellant had spoken to Bonello after the Cudney incident. The appellant answered in the affirmative and the following series of questions and answers ensued, without objection from Crown counsel: Q. And what did Mr. Bonello say about it? A.I was, I was probably a little aggressive with him at first, and he became aggressive right back saying that you know I told him that Bob Cudney you did this for me; and he said: No, no, no, no. This was done for 'killer'. It had nothing to do with you. Q. For who? A. 'Killer'. I know that sounds a little bit cliché, but ... as you heard other people testify this is actually somebody's name. Q. Did you force the issue with Bonello? A. I wouldn't force any issue with Bonello. He just told me that it was Cud or 'killer's' beef and it had nothing to do with me.[68]

[h]e was obliged to do so under s. 11 of the Canada Evidence Act, R.S.C. 1985, c. C-5, if it was his intention to lead evidence of a prior statement inconsistent with Bonello's testimony. Had Crown counsel raised the appropriate objection, it would have been for the trial judge to decide whether the appellant should be permitted to testify about the purported conversation.[69]

[t]o the extent she felt the matter was worth pursuing…the proper procedure would have been to raise the issue with the trial judge in the absence of the jury.  That way, the trial judge could have determined whether her concern was valid and if so, what steps should be taken to remedy the situation.[71]

Unfortunately, the Court held, Crown counsel did not pursue this course.  Instead, she chose to confront the appellant with the fact that defence counsel had not questioned Bonello about the purported conversation either at the preliminary hearing or at trial.[72]

Again, notwithstanding concerns as to brevity, it is necessary to set out at length the relevant exchanges between counsel and the witness, taken from para. 41:

[q]. The gentlemen that you named that you said Bonello named as having been the whole cause of the Cudney incident;  you said his name was 'killer'? A. He said it was 'killer's gig', that he was involved with Cudney over, not me; 'killer's gig'. Q. You were present at the preliminary hearing as well as at the trial of this matter, isn't that true? A. Absolutely.Q. You never heard Mr. Bonello asked if it was 'killer's gig' did you?A. I never heard him ...? Q. Anybody ask Bonello anything about 'killer's gig', or if he said that to you? A. No. I believe 'killer' was mentioned somewhere in this. I think by Bob Cudney.  I don't believe Bonello ever used his name.  He may have but I don't recall off the top of my head. Q. That was my point sir.  You're telling us about a conversation that you had with Mr. Bonello, but no one ever suggested to Bonello that that conversation occurred, correct?[73]

9) The relationship between the Rule and Section Eleven of the Canadian Evidence Acts

The interplay between the Browne Rule and s. 11 of the Canada Evidence Act (CEA) is often discussed by appellate tribunals.  For example, the Court remarked, in the Nissan opinion, that the CEA: “embodies the notion of fairness which underlies the wider principle in Browne v. Dunn (1893), 6 R. 67 (H.L.).”[76]  To understand these remarks, it is necessary to refer to the facts briefly.  In a case involving allegations of sexual assault, the defense argued that the activity was consensual.  Of interest, both parties met with a cleric after the end of whatever relationship existed.[77]  During her examination-in-chief, the complainant was asked what happened at the meeting and she responded that the priest did not ask her anything and she did not say anything.[78]  In cross-examination, however, counsel for the accused left this issue alone and did not suggest to her that she had said anything at the meeting, particularly about her relationship with Mr. Nissan.[79]  Counsel then called the cleric as a defence witness and sought to elicit from him statements that the complainant had allegedly made at the meeting.[80]

No outline of the proposed evidence was tendered.  This led the Court to remark: “[m]oreover, the defense did not even indicate the nature of the proposed evidence, thus leaving the trial judge and this court to speculate about its relevance and probative value.”[81]  In the result, “[t]he trial judge refused to allow the defence to lead this evidence, not only from Father Bouza but also from the appellant.”[82]  One reason for this decision was because the defence did not comply with the CEA.[83]  The Court of Appeal went on to hold: “[h]ad the trial judge considered the issue from the perspective of Browne v. Dunn he might well have permitted the defense to lead the evidence of what the complainant said at the meeting. He could have insisted that the complainant first be recalled and questioned on her alleged statements or he could have permitted the Crown to question her in reply.”[84]  The trial judge’s ruling could not be found to be in error, particularly in light of the lack of foundation for the proposed evidence and the requirements of section eleven of CEA.  A new trial was ordered on other grounds, leaving it to the defense to renew its efforts to impeach the evidence of the complainant by means of any prior inconsistent statement she may have made.[85]

10) The right of the ‘aggrieved party’ to reply

11) Re-calling the witness prior to permitting impeachment

12) The calling of reply evidence as a mark of unfairness

[w]e can see no merit in the submission of the appellant that Crown counsel was obliged to confront the appellant in cross-examination and "put the Crown's case to him" before the trial judge could comment unfavourably on the appellant's credibility.  This was not a Browne v. Dunn (1893), 6 R. 67 (H.L.), situation, such as discussed by this court in R. v. Verney (1993), 67 O.A.C. 279; 87 C.C.C.(3d) 363 (C.A.), at p. 376 C.C.C.  There was no ambush of the appellant.  He knew the full case against him when he went into the witness box.  There was no evidence called by the Crown in reply.[90]

13) Protecting the witness from an ambush

14) Knowing the case to be met

15) The Bootle principle

[a] specimen of cross-examination might run this way.  Counsel reading from his brief would ask the witness who has denied everything in counsel's brief, 'Did you meet the defendant in Bootle on the first of April?'  'I never was in Bootle in my life and on the first of April I was in France'.  Did you say to him, "How are you Michael?"  Did he say to you, "I am pretty well, Jack.  I was over in Lowtown and I thought I would run across and talk to you about this case?"  Did you say, "Oh, I am sorry that we have had any disagreement about this matter and I think we can settle it up?"  'I have told you already that I never saw him any time about the first of April anywhere and I have not seen him or spoken to him since February'.  Counsel continues, 'Did you then go to the bar of the hotel and have a drink'. 'No', etc., etc., etc., until the whole case of the defendant has been read out to the plaintiff in spite of the fact that that plaintiff has rejected every word of it, and according to the practice it was necessary, because, if the defendant being sworn proceeded to depose to an interview at Bootle on the first of April were it not for this shocking waste of time counsel for the plaintiff would object to the evidence on the ground that it had not been ‘put to the plaintiff'.  I absolutely refused to fall in with this practice.[94]  I directed cross-examination to the points on which there was some prospect of breaking down the adverse evidence.  If this cannot be done in 20 minutes, it cannot be done in 20 days.[95]

16) What if testimony is unchallenged

[d]uring the course of the Hughes Inquiry, as well as in his statement of claim in a civil action against the appellant, E. claimed that group beatings of the Mount Cashel children took place whenever a teacher sent a note to the Christian Brothers to inform them that the children had misbehaved.  According to Mr. E., the notes and subsequent beatings took place on a daily basis, and were a part of the regular routine at Mount Cashel.  At trial, however, E.'s teacher gave evidence that notes concerning the boys' behavior had only been sent to the Christian Brothers on one or two occasions.  This evidence was unchallenged, clearly proving that the allegedly "daily" beatings that were described by Mr. E. had occurred, if at all, on no more than two occasions.  When faced with this contradictory evidence at trial, E. retreated from his earlier claims and admitted that he could no longer allege that beatings had occurred on a daily basis.[99]

In this respect, reference may usefully be had to the observations of Anderson J.: “[o]n general principles, where uncontradicted evidence, which is inherently reasonable, probable and conclusive of the matter, has been given, the court is bound to accept it.”[100]  On the other hand, note the ruling, in Meyer, respecting unchallenged affidavit evidence: “[t]he evidence of the applicant would normally, in the absence of any contradictory evidence, be accepted as being prima facie true.  It does not however follow that because evidence is uncontradicted it is true.  The evidence may be so improbable in the light of all the evidence that it cannot be accepted …there seems to be no reason why the same principle should not apply to evidence on affidavit.  Indeed, where evidence falls in the above category of improbability without the witness having even been cross-examined, the principle ought a fortiori to apply.”[101]

Only one illustration is required to demonstrate that the lack of challenge may be appropriate or not depends entirely on the nature of the testimony in question.  Bowie Kuhn, a prominent New York based lawyer, and the former Commissioner of Major League Baseball, recalls the following anecdote: When accused of having caused a hotel room fire by careless smoking in bed, a "big league" player responded: "That bed was on fire when l got into it!"[102]  Obviously, no cross-examination was required.

17) An exception for vulnerable witnesses

Leaving aside the fanciful exception illustrated in the Bootle case, and the “Bed on Fire” folly, which serves to make plain that the Rule is one of common sense, there is room for controversy in the case of vulnerable witnesses, notably children.  A number of contemporary commentators have acknowledged a sub-category of the rule: "... where, in concern for the witness, by agreement counsel forbears to cross-examine a child witness, or the victim of a sexual attack or a witness whose evidence has been hysterical or who has broken down, he will not be debarred from adducing evidence to contradict their testimony.”[103]  This issue was not discussed by the House of Lords.

The difficulty with this exception is that it appears to render a disservice to both the witness and the administration of justice.  In reality, to neglect to cross-examine the victim of a sexual assault by reason of modesty or good taste in light of a bout of hysteria is to "seek to wound but not to attack".  The better view, it is submitted, is to allow the witness sufficient time to recover her or his composure.  Further, if "by agreement by counsel" a course of action is pursued, it may well serve to give the notice described in Browne.  In so doing, however, the interests of the witness may be waylaid; this affords further proof, it is submitted, that the rights of a witness count for naught in the evaluation of admissible evidence.  Again, the determination of what is a matter of delicacy may be elusive and counsel for the prosecution should seek a ruling whether counsel is seeking to trigger this exception in any case where it appears obvious that evidence which should be challenged is not.

Conclusion