New & Notable: The Dangers of Not Confronting a Witness in Cross-Ex: The "Rule" in Browne v Dunn Applied

Paul and Michelle Frost were married at one time. They were partners in life and according to the Crown’s case, partners in various sexual assaults against three young girls who lived in their home from time to time.

Some of the charges involved Mr. Frost alone, some involved Mrs. Frost alone and some involved both. They were tried together before a judge alone and were convicted of most of the offences. They both appealed both the convictions and the sentences: 2012 ONCA 807.

During the course of the trial Paul Frost testified. He denied the allegations of one of the complainants stating that there was no sexual activity. In relation to the allegations of the second complainant, he explained that the touching was inadvertent. In response to the third complainant he testified that not only was the sexual activity consensual but that some of it had been initiated by the complainant.

Incredibly, Mr. Frost testified that he had the third complainant sign documents consenting to sexual activity with him and that he had done so because he had been accused of sexual assaults in the past.  Problematically, when the complainant testified and was cross-examined at length, it was never suggested to her that she had ever signed such a document.  In light of this failure, the trial judge applied the "rule" in Browne v Dunn, [1893] 6 R67 HL (Eng) and drew an adverse inference against the credibility of Paul Frost.

Simply put, the so-called rule requires counsel to put to an opposing witness significant facts that counsel intends to later contradict through his or her own witness in the trial. It is a rule that is premised on fairness to both witnesses and litigants. Failure to do comply with the “rule” entitles the trial judge to draw the adverse inference described above.

On appeal, Mr. Frost complained that, in the circumstances of this case, it was unfair for the trial judge to have drawn a negative inference against him because the defence counsel at trial were denied the opportunity to put the contested evidence to the complainant at trial and because the Crown counsel never objected to Mr. Frost’s testimony about the consent documents. The appellate panel rejected the first ground of appeal holding there was no support for it on the record before them.

The second ground of appeal about the failure of the Crown to object was also rejected:

It is unclear to us that the Crown had any grounds to object to Paul Frost’s evidence about the consents. In any event, the Crown may have viewed the evidence as ultimately favourable to the Crown because it was so patently unbelievable. However, whatever the Crown may have thought of the evidence has no relevance to the inference, if any, that the trial judge, as the trier of fact, should draw from the failure to put the consents to A.P. when she was testifying. [Para 15]

Interestingly, the decision also rejects the suggestion of Mr. Frost’s appellate counsel that the trial judge placed the burden of the trial counsel’s tactical error on the accused:

We also do not accept counsel’s characterization of the trial judge’s ruling as effectively placing the burden of a lawyer’s tactical error on the appellants. There is nothing in the record to suggest that counsel made any error in judgment in not cross-examining A.P. about the consents referred to in Paul Frost’s evidence, or in not asking the trial judge to recall A.P. for the purpose of putting Paul Frost’s evidence about the consents to her. The adverse inference drawn by the trial judge had nothing to do with an assessment of the wisdom of any tactical choices. The inference was drawn in the course of the trial judge’s weighing of the evidence that had been placed before him. He was fact finding, not assigning blame for the manner in which the defence was conducted [para 16]; [emphasis added].

It is interesting to note that the so-called rule in Browne v Dunn is not about assigning blame regarding tactical choices; it is a function of weighing available evidence.