The rule in Browne v Dunn: not to be forgotten in Bermuda

I have always been interested in two important forensic ‘rules’, the first known as ‘the rule in Browne v Dunn’, and the other known (in Australia at least) as ‘the rule in Jones v Dunkel’. The leading English case on this latter rule is Wisniewski v Central Manchester Health Authority [1998] PIQR P324), but that is a little bit harder to pronounce …

Although not mentioned directly by its name, the rule in Browne v Dunn has recently been the subject of consideration by Bermuda’s Court of Appeal in its decision in the case of Sharell Phillips v Patricia Hill [2017] CA Bda 7 Civ. The Court of Appeal summarily dismissed an appeal against Chief Justice Kawaley’s judgment at first instance, in the context of a paternity dispute.

In determining the paternity dispute, both the Chief Justice and the Court of Appeal were heavily influenced (unsurprisingly) by the DNA test results put in evidence through the medium of an independent expert in DNA testing.

Strangely (and either in ignorance or defiance of the rule in Browne v Dunn), the Appellant’s Counsel had sought to persuade the Chief Justice, and the Court of Appeal, that the DNA expert’s evidence should be rejected as incredible and mistaken, without actually putting such matters to the expert during his cross-examination at trial!

There is a suggestion in the judgments that Counsel’s decision not to cross-examine the expert on these matters was ‘deliberate’ – although that rather begs the question what is meant by the use of the word ‘deliberate’ in this context.

In any event, the Appellant’s Counsel’s failure to follow the rule in Browne v Dunn appears to have been compounded, on appeal, by an apparent failure to follow certain other forensic rules, including:

(a) the rules for the Court of Appeal regarding the drafting of Grounds of Appeal;

(b) the rules regarding late adjournment applications;

(c) the rules regarding the admission of fresh evidence on appeal; and

(d) the rules requiring advocates only to pursue appeals that are genuinely arguable. Indeed, in this case, the Court of Appeal described the entire appeal as being “doomed to fail” (so much so that the Court did not call upon the Respondent’s counsel to make oral submissions in response).

It may be worth noting that the rule in Browne v Dunn admits of certain exceptions, and that there are a variety of potential solutions available to an advocate, in the event of its inadvertent breach. Indeed, there is a considerable amount of case law and literature on the topic (and it is also worth noting that a slightly different approach is taken in US jurisdictions in the context of their jury trial system).







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