Chandroo c. R., 2018 QCCA 1429
A party cannot lead testimony in chief from its witness that contradicts or impeaches the evidence of the opponent’s witness in a material particular without having cross-examined that witness on the same matter
[12] The first ground of appeal concerns the principle in Browne v. Dunn: a party cannot lead testimony in chief from its witness that contradicts or impeaches the evidence of the opponent’s witness in a material particular without having cross-examined that witness on the same matter.[7] This principle is designed to enhance the fairness of an adversarial trial by minimising the risk of impeachment by ambush.[8]
[13] The principle in Browne v. Dunn is typically, but misleadingly, described as a rule. It is misleading because the principle is not absolute and, where a breach is found, invites the exercise of judicial discretion in its application.[9] The application of the principle requires attention to two questions. The first is a question of law that is reviewed on a standard of correctness while the second, which concerns the exercise of judicial discretion, requires considerable deference on appellate review:[10]
- a) Is a party leading evidence in chief that would contradict or impeach the evidence of the opposing party’s witness on a significant matter without having first cross-examined the opponent’s witness on the same matter?
- b) If yes, what can be done about it to ensure the fairness of the trial?
[14] The first question requires the judge to identify whether the evidence being led is properly characterised as falling within the principle. This includes an assessment of the relative significance of the evidence being led in chief to the evidence previously led by the opposing party and not challenged in cross-examination. If that evidence is relatively insignificant, the judge may decide not to invoke the principle in Browne v. Dunn.[11]
[15] A breach of that principle might occur either because counsel chose to do it deliberately or inadvertently through ignorance of its content and purpose. In either case, if the judge does invoke the principle, the second question affords various answers to address the breach. These lie within the discretion of the judge and should be the subject of representations by counsel. One possibility is to recall the witness for cross-examination (or further cross-examination). The judge has no obligation to suggest this remedy, or to recall the witness, although such a suggestion is commonly made.[12] A second is to admit some or all of the evidence tendered in breach and thereafter ensure that the trier of fact is specifically instructed that in assessing the whole of the evidence careful consideration should be given to the probative value of any testimony on both sides that is concerned with the breach.[13] A third option is to enforce the principle in Browne v. Dunn by disallowing the party in breach to lead contradictory evidence.
[16] The first two options are remedial measures to rectify a breach. The third forecloses such a remedy and may be fully justified, to ensure the fairness of the trial, by refusing to afford an opportunity to a party in breach to correct a self-inflicted error or to profit from impeachment by surprise. But this drastic third option cannot be applied in a manner that would deprive the accused in a criminal trial of the right to make full answer and defence.[14] Obviously, the discretion of the trial judge in responding to a breach of the principle in Browne v. Dunn will be governed chiefly by the relative importance of the evidence in question in the outcome of the case.
[17] There is no question in the present case that the trial judge properly understood and applied the principle in Browne v. Dunn. During the appellant’s testimony, the principle was invoked specifically upon objections by the prosecution. In response to the first objection the trial judge refused to allow the defence to lead evidence on relevant questions that had not been put to a prosecution witness in cross-examination. In response to the second objection, which concerned a different witness for the prosecution, the judge allowed the witness to be recalled for further cross-examination. The appellant submits in this Court that the judge’s response to the first objection was wrong because it denied the appellant’s right to make full answer and defence.
[18] It will be recalled that the appellant represented to the victims that he expected shortly to inherit a substantial amount of money in the settlement of his grandfather’s will. It will also be recalled that the uncontradicted prosecution evidence, notably the testimony of the appellant’s uncle, was to the effect that the estate had been liquidated some years before and that the appellant had received his due share. The prosecution theory therefore was that the appellant’s representation that he expected an inheritance of unliquidated assets was a false pretence to induce the victims to lend him money.
[19] In his defence the appellant testified that he believed he would inherit unliquidated assets and began to say that this belief was founded on various postal communications that he had allegedly received from his uncle. The uncle had testified for the prosecution by video-conference but was not examined or cross-examined on these alleged communications. The prosecution objected to the admissibility of testimony by the appellant concerning such communications. The objection was not contested by the defence and it was sustained by the judge without further discussion of alternative remedies for the breach of Browne v. Dunn. The effect was thus to prevent the appellant from tendering evidence to support his claim that he expected to inherit unliquidated assets from his grandfather’s estate.
[20] The judge’s decision on this objection substantially impaired the ability of the defence to advance a central claim in its theory of the case. This ground of appeal must be allowed and there must be a new trial in the two files. Even if counsel for the appellant made no representations in response to the prosecution’s objection, and now makes no suggestion of incompetence, the appellant was barred from presenting his theory of the defence. There is no indication whether his counsel acted deliberately or by inadvertence in this regard, and in such circumstances the appellant cannot be forced to bear the consequences of his lawyer’s failure to make representations concerning the breach of the principle in Browne v. Dunn.[15] He was entitled to make full answer and defence.
Moreover, the complainant Andrews testified that the appellant affirmed to him that a part of the estate had been liquidated but that there remained assets to be liquidated. Whether the theory of the defence might have any merit is an entirely distinct question, but the judge’s response to the breach of Browne v. Dunn plainly infringed his right to present his theory of the case. This Court’s duty of deference does not run to this extent.
While an appropriate remedy for a breach of the principle in Browne v. Dunn lies within the discretion of the trial judge, the most preferable remedy is one that will cause the least prejudice to the parties
[21] While an appropriate remedy for a breach of the principle in Browne v. Dunn lies within the discretion of the trial judge, the most preferable remedy is one that will cause the least prejudice to the parties. There can be no fixed rule in this respect but some general observations can be made. First, trial judges should raise with the parties any apprehended breach of the principle even if no formal objection is raised by the opposing party. Second, if a breach is found, the trial judge should discuss the issue and possible remedies with the parties and, obviously, in a trial by jury this discussion should take place in the absence of the jury. Third, the most appropriate remedy will be the one that best corrects the effect of the omission by the party in breach. In most instances that remedy will likely be to recall the witness who was not confronted in cross-examination. Otherwise the judge would be prudent to allow the party in breach to proceed but with a strong caution that the trier of fact will be instructed to consider the breach in the assessment of the evidence. Only in exceptional cases should the party in breach be prohibited from the presentation of its case, as occurred in this case. Such a drastic remedy as was applied might well be appropriate in cases where the party in breach has deliberately evaded compliance with the principle in Browne v. Dunn but there is no indication that this was the case here. The rationale for this approach is that the principle is one of fairness at trial and no party can expect to escape sanction by deliberately causing prejudice to the opponent.
