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Evidence - Browne v Dunn (2). R. v. McDonald
In R. v. McDonald (Ont CA, 2025) the Ontario Court of Appeal allowed a criminal murder appeal, here brought against a jury decision that "found the appellant guilty of second- degree murder".
Here the court considered the Browne v Dunn principle, making a useful related interpretive point [at para 70]:1. The Governing Principles
[55] Although more than a century old now, the rule in Browne v. Dunn “remains a sound principle of general application” rooted in considerations of fairness: R. v. Lyttle, 2004 SCC 5, [2004] 1 S.C.R. 193, at para. 65.
[56] The fact is that too much ink has been spilled on Browne v. Dunn, and too many cases have found themselves in difficulty because of perceived breaches and overreach in terms of the need for perceived remedies.
[57] Broadly speaking, the rule requires the cross-examiner to confront the witness on matters of true substance upon which the cross-examiner intends to impeach the witness’s credibility so that the witness is afforded an opportunity to explain: R. v. Quansah, 2015 ONCA 237, 125 O.R. (3d) 81, at para. 81, leave to appeal refused, [2016] S.C.C.A. No. 203; R. v. Vorobiov, 2018 ONCA 448, at para. 43, leave to appeal refused, [2019] S.C.C.A. No. 440. This is a “confrontation principle in the context of cross-examination of a witness for a party opposed in interest on disputed factual issues”: Quansah, at para. 76. The rule applies when counsel intends to challenge the witness’s credibility either by calling contradictory evidence or making submissions to the trier of fact that tease out contradictions: Quansah, at para. 79; R. v. McCarroll, 2008 ONCA 715, 238 C.C.C. (3d) 404, at paras. 107-9.
[58] At its core, Browne v. Dunn comes down to a reminder that cross-examinations must be conducted fairly. Where the cross-examining party wants to challenge a witness’s credibility on a core point, the witness should be given the opportunity to comment. Not only is this fair to the witness, it is also fair to the opposing party who can respond as appropriate while time still permits, and it is fair to the trier of fact who is ultimately charged with the responsibility of making the credibility assessment.
[59] Yet flexibility, not rigidity, informs the proper approach to this rule, meaning that only matters of true substance come within its reach: Quansah, at para. 81; R. v. Mohamed, 2025 ONCA 611, at para. 217. And when it comes to those matters of substance, even then, specific confrontation may be unnecessary if it is apparent from the tenor of counsel’s cross-examination that they do not accept the witness’s version of events, the confrontation is general and known to the witness, and the witness’s view on the contradictory matter is apparent: Mohamed, at para. 217; Quansah, at para. 82; and Vorobiov, at para. 43. Quite simply, common sense demands that where the witness’s view of the alleged contradiction is clear, then a specific attempt to put the contradiction to the witness is unnecessary: Mohamed, at para. 217.
[60] As for remedying those situations where there was a failure to confront in circumstances where it was required, there is no universal approach. The remedy called for will depend upon many factors, such as the seriousness of the breach, the context in which it occurred, the timing of the objection, the position of the offending party, any request to permit recall of the witness and their availability, and the adequacy of any corrective jury instruction: Quansah, at para. 117; R. v. Dexter, 2013 ONCA 744, 313 O.A.C. 226, at para. 20. If a corrective instruction is required, no specific formula is mandated, but “the jury should be told that in assessing the weight to be given to the uncontradicted evidence, they may properly take into account the fact that the opposing witness was not questioned about it”: R. v. McNeill (2000), 2000 CanLII 4897 (ON CA), 48 O.R. (3d) 212 (C.A.), at para. 49; see also Quansah, at paras. 121, 128; R. v. Cameron, 2017 ONCA 150, at paras. 8-9; and McCarroll, at para. 111.
[61] On appeal, a trial judge’s decision about whether the rule in Browne v. Dunn was breached and the remedy required are entitled to deference.
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[70] I would simply add the following. Unfortunately, this case is not unique. There are far too many occasions where purported breaches of the rule in Browne v. Dunn have led to cases going awry. This case is one of them. To require the cross-examiner to suggest to the witness that they are fabricating, just to have the witness respond that they are not, does nothing to advance the fairness of the case. To avoid these problems in the future, it is helpful to keep clearly focussed on the animating principle underlying the rule: fairness. An assertion that a witness is lying is not aimed at a contradiction in their evidence, but a conclusion to be drawn from their evidence. Provided that it is clear, as it was in this case, that the credibility of the witness is being challenged, it is open to the opposing party to encourage the trier of fact to come to that conclusion. . R. v. Y.Y.
In R. v. Y.Y. (Ont CA, 2025) the Ontario Court of Appeal dismissed a defendant's criminal appeal.
The court considered a Browne v Dunn issue, here in a self-representing criminal defendant context where the court noted "that the appellant was provided, before trial, with a “Trial Information for Self-Represented Accused” booklet":(iii) The trial judge did not make a Browne v. Dunn error
[19] The Crown raised an objection during the defence case that evidence was being led on issues that had not been put to M.Y when she was cross-examined. The appellant continued to lead evidence that elicited further objections of this nature. By the time the case was going to the jury the Crown had raised numerous areas where, in the Crown’s view, the rule in Browne v. Dunn (1893), 1893 CanLII 65 (FOREP), 6 R. 67 (H.L.) had been breached. The Crown’s position was that the remedy for this should be an instruction to the jury as it was not practical to recall M.Y.
[20] The trial judge agreed that it was impractical and unfair to recall M.Y. He decided to address the Browne v. Dunn issue in his charge to the jury. He instructed the jury on the rule, describing it as one of fairness. He then listed some “topics or areas of the evidence” where M.Y. was not given an opportunity to present her position. The trial judge told the jury that “there may or may not be other instances like this that you will think of” or that they may disagree with the instances the trial judge described. He went on to tell the jury that if they were of the view that evidence was led on issues that should have been, but were not, put to M.Y., then:[I]n such circumstances, when assessing the credibility and reliability of the witnesses and the extent to which you are prepared to rely on their testimony, you should keep this rule of fairness [the rule in Browne v. Dunn] in mind. It is for you to decide whether and to what extent the failure to put to [M.Y.] the contradictory evidence called later impacts the extent to which you are prepared to accept and rely upon the evidence of the witnesses. [21] The appellant submits that the trial judge erred in suggesting to the jury that there had been breaches of Browne v. Dunn. He submits that the areas identified were peripheral, and that in substance M.Y.’s position on them was made known in her evidence. He underscores the context of the appellant having been a self-represented litigant at trial.
[22] We disagree.
[23] On the issue of fairness to a self-represented litigant, we note that the appellant was provided, before trial, with a “Trial Information for Self-Represented Accused” booklet which explained trial procedure including the substance of the rule in Browne v. Dunn and the potential consequence of a violation. It stated:[I]f you are going to challenge a witness’ recollection of events or statements, you should cross-examine that witness on your version of events. If you fail to do so, it may make your suggested version of the events less compelling because the witness was not given a chance to provide his or her explanation of the events. [24] As well, cross-examination of M.Y. was conducted by s. 486.3 counsel, and it would be expected that he was briefed by the appellant on what evidence he planned to lead so that the cross-examination of M.Y. could be appropriately tailored to avoid Browne v. Dunn concerns.
[25] On the issue of whether there were violations of the Browne v. Dunn rule, as well as the remedy chosen, the trial judge’s determinations are entitled to deference on appeal: R. v. Quansah, 2015 ONCA 237, 125 O.R. (3d) 81, at paras. 118, 121, leave to appeal refused, [2016] S.C.C.A. No. 203.
[26] We see no reversible error in the trial judge’s determinations that the rule appeared to have been violated in the instances that the trial judge identified.
[27] As for remedy, a trial judge is entitled to refuse to require a witness to be recalled to cure the other party’s violation of the rule, especially where, as here, the witness has already testified at length about sexual matters: R. v. M.F.1 & P.F., 2010 ONSC 4018, at para. 29, aff’d 2012 ONCA 807. An instruction, such as the one the trial judge gave, that advises the jury that they may take the violation into account in assessing credibility, while leaving it to the jury to decide whether to do so and the weight to assign to that factor, is a proper remedy in such circumstances: R. v. Paris (2000), 2000 CanLII 17031 (ON CA), 138 O.A.C. 287 (C.A.), at para. 27, leave to appeal refused, [2001] S.C.C.A. No. 124.
[28] We therefore reject this ground of appeal. . R. v. Marshall
In R. v. Marshall (Ont CA, 2025) the Ontario Court of Appeal dismissed a defendant's appeal, this after he "was convicted of one count of second-degree murder after a trial by jury".
The court considers the rule in Browne v Dunn:[145] The rule in Browne v. Dunn is a rule of trial fairness that “applies where a cross-examiner intends to impeach a witness with contradictory evidence on a matter of substance”, to ensure that the witness is “given a fair opportunity to challenge contradictory evidence that the witness might have been able to explain away”: R. v. Powell, 2021 ONCA 271, at para.76. Compliance with the rule in Browne v. Dunn does not require that all evidence on which a party desires to contradict the witness for the opposite party be put to that witness in cross-examination but only matters of substance on which the party seeks to impeach the witness's credibility and on which the witness has not had an opportunity of giving an explanation because there has been no suggestion whatever that the witness's story is not accepted: Browne v. Dunn , at pp. 70-71.
[146] Where the confrontation is general, known to the witness and the witness's view on the contradictory matter is apparent, there is no need for confrontation and no unfairness to the witness in any failure to do so: R. v. Quansah, 2015 ONCA 237, 125 O.R. (3d) 81, at paras. 81-82, leave to appeal refused, [2016] S.C.C.A. No. 203.
[147] The rule in Browne v. Dunn has no application in this context as the Crown’s position was known, the inferences were based on evidence the appellant had ample opportunity to challenge at trial, or were not material to the sole issue of whether the appellant intended to kill Ms. Tetsos. . Taylor v. Zents
In Taylor v. Zents (Ont CA, 2025) the Ontario Court of Appeal dismissed a defendant's appeal, here from a judge-only (the jury having been struck) MVA civil trial which "awarded the respondents a combined total of more than a million dollars in damages."
Here the court considered Browne v Dunn evidentiary doctrine:(1) Did the Trial Judge Err in Finding a Browne v. Dunn Violation?
(a) Governing Legal Principles
[41] The rule in Browne v. Dunn is a confrontation principle that governs the impeachment of witnesses and it is a rule that is rooted in trial fairness. If one party wants to impeach another’s witness, they must put the impeaching material to that witness in cross-examination to give them a chance to explain any contradiction: Browne v. Dunn, at pp. 70-71. The rule protects the witness whose credibility is attacked by alerting them that the other party intends to impeach their evidence. It protects the party whose witness is impeached by, among other things, giving them an opportunity to decide what—if any—evidence to lead in support of their witness’s testimony. And it protects the truth-seeking function of the trial by ensuring that the trier of fact has the benefit of any explanation the impeached witness can offer: R. v. Quansah, 2015 ONCA 237, 125 O.R. (3d) 81, at para. 77, leave to appeal refused, [2016] S.C.C.A. No. 203.
[42] Browne v. Dunn does not require that every possible shred of impeachment material be put to a witness. Counsel need only cross-examine the witness on matters of substance that the witness has not yet had a chance to explain. Counsel need only confront the witness with the nature of the impeachment evidence and its significant aspects, not its granular details: Quansah, at para. 81. The impeacher “need not descend into the muck of minutiae to demonstrate compliance with the rule”: Quansah, at para. 86.
[43] The rule in Browne v. Dunn is not hard and fast. It is flexible, and its application in any given proceeding is firmly “within the discretion of the trial judge after taking into account all the circumstances of the case”: R. v. Lyttle, 2004 SCC 5, [2004] 1 S.C.R. 193, at para. 65. The trial judge is in the best position to “take the temperature” of the trial and to assess whether a failure to cross-examine has resulted in unfairness to the other party: Quansah, at para. 90. A trial judge’s decision about whether the rule has been breached is therefore entitled to significant appellate deference. . R. v. Mohamed
In R. v. Mohamed (Ont CA, 2025) the Ontario Court of Appeal allowed criminal appeals, here from convictions for first-degree murder for three defendants regarding the same victim.
Here the court considers a Browne v Dunn evidentiary issue:[217] Much ink has been spilled over the rule in Browne v. Dunn. At its core, this rule really comes down to one of fairness, one that requires a party who intends to contradict an opposing witness to put the alleged contradiction to them. This does not mean that every piece of contradictory evidence must be slogged through during cross-examination. A healthy dose of common sense must be brought to bear in determining what fairness demands. Where the witness’s view of the contradictory matter is clear, there is no unfairness in failing to confront the witness with the alleged contradiction, only to have the witness state what has already been made obvious. That is what this case comes down to. . R. v. B.B.
In R. v. B.B. (Ont CA, 2024) the Ontario Court of Appeal dismissed an appeal, here where it considered a Browne v Dunn issue and when the rule applied:[8] We agree that the trial judge erred in applying the rule in Browne v. Dunn when there was no unfairness or prejudice to F.B. or the trial process by the appellant not explicitly putting to F.B. the various points outlined by the trial judge. Ordinarily, the trial judge’s decision about whether the rule has been offended and unfairness has resulted is entitled to considerable deference on appeal: R. v. Quansah, 2015 ONCA 237, 125 O.R. (3d) 81, at para. 90, leave to appeal refused, [2016] S.C.C.A. No. 203. However, in in the circumstances of this case, where F.B. had a full opportunity to provide her version of events and the appellant’s denial of those events was clear, the trial judge’s finding that the rule was breached and her jury instruction that was prejudicial to the appellant amount to a reversible error that displaces appellate deference.
[9] The rule in Browne v. Dunn is rooted in considerations of fairness. As a matter of fairness, proposed contradictory evidence should be put to a witness so that the witness has an opportunity to explain and respond. However, it is not an inflexible or 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”: R. v. Verney, 1993 CanLII 14688 (ON CA), at p. 376. As this court further explained in Quansah, at para. 81:Compliance with the rule in Browne v. Dunn does not require that every scrap of evidence on which a party desires to contradict the witness for the opposite party be put to that witness in cross-examination. The cross-examination should confront the witness with matters of substance on which the party seeks to impeach the witness' credibility and on which the witness has not had an opportunity of giving an explanation because there has been no suggestion whatever that the witness' story is not accepted. It is only the nature of the proposed contradictory evidence and its significant aspects that need to be put to the witness. [Citations omitted; italics in original, underline added] [10] Moreover, as Quansah instructs, at para. 82:In some cases, it may be apparent from the tenor of counsel’s cross-examination of a witness that the cross-examining party does not accept the witness’ version of events. Where the confrontation is general, known to the witness and the witness’ view on the contradictory matter is apparent, there is no need for confrontation and no unfairness to the witness in any failure to do so. . R. v. Reimer
In R. v. Reimer (Ont CA, 2024) the Ontario Court of Appeal allowed a criminal s.276 ['Evidence of complainant’s sexual activity'] appeal.
Here the court considers the use of photos as evidence, and whether that use invokes Browne v Dunn:[99] With respect to the injury photos not being shown to Mr. Reimer, I am not persuaded that this undermined the fairness of the trial or compromised the trial judge’s assessment of Mr. Reimer’s credibility. The failure of the Crown to confront Mr. Reimer with these photos was not a violation of the rule in Browne v. Dunn (1893), 1893 CanLII 65 (FOREP), 6 R. 67 (H.L.). The rule in Browne v. Dunn is meant to prevent evidence from being used to contradict answers provided by a witness in their testimony where it would be unfair to do so without giving that witness a chance to explain the apparent contradiction. Mr. Reimer did not testify about whether the complainant was injured. Therefore, the photos were not being used to contradict any answers he had given. They were being offered instead as circumstantial evidence supporting the Crown case. . R. v. Lambert
In R. v. Lambert (Ont CA, 2024) the Ontario Court of Appeal dismissed an appeal from a second degree murder conviction, here focussing on Browne v Dunn:[17] Designed to ensure trial fairness, the rule in Browne v. Dunn is not fixed or subject to a pre-determined formula. The extent of its application lies within the discretion of the trial judge who should be accorded considerable deference in its application: R. v. Foreshaw, 2024 ONCA 177, at para. 54. Such deference is appropriate since “[a] trial judge has a reserved seat at trial. We have a printed record”: R. v. Quansah, 2015 ONCA 237, 323 C.C.C. (3d) 191, at para. 101, leave to appeal refused, [2016] S.C.C.A. No. 203. . Bertrand v. Academic Medical Organization of Southwestern Ontario
In Bertrand v. Academic Medical Organization of Southwestern Ontario (Ont CA, 2024) the Ontario Court of Appeal considered an application by individual medical educators against the cessation of academic funding under the 'AHSC AFP Template Funding Agreement' made between various academic and medical bodies and the Minister of Health and Long-Term Care.
Here the court considers the rule in Browne v Dunn:[9] The rule in Browne v. Dunn was described by this court in Yan v. Nadarahaj, 2017 ONCA 196, 82 R.P.R. (5th) 175, at para. 15, as follows:The application of that rule is generally restricted to situations where a party cross-examining a witness called by the opposite side is planning on adducing contradictory evidence to impeach the witness’s credibility. The cross-examiner must “put” the contradictory evidence to the witness to allow the witness to provide an explanation for it. The rule reflects fairness to the witness whose credibility is attacked and to the party whose witness is impeached. It “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”. [Citations omitted.] [10] This common law rule requires counsel to confront a witness they are cross-examining with any conflicting evidence they intend to call later on in the proceeding. The purpose is to alert the witness to the fact that counsel intends to impeach his or her evidence and to ensure that they are given an opportunity to respond.
[11] The appellants argue that because there was nothing to contradict their evidence that the intent of the Agreement was to benefit them individually, and because they were not cross-examined on this aspect of their evidence, the application judge had no choice but to accept it and find that they were entitled to the benefit of the Agreement. The appellants’ argument that they were “entitled to the benefit” of the Agreement rests largely on a declaration they signed, per Article 5.1(d) of the Agreement, acknowledging that they had read, understood, and agreed to be “bound by the terms and conditions of the [Agreement].”
[12] However, the respondents did not argue that the appellants did not sign the declaration. This was acknowledged. The dispute was over the legal effect of the declaration. In the end, the application judge rejected the appellants’ argument that the declaration entitled them to the benefit of the Agreement’s provisions; he interpreted it simply as an acknowledgment by each appellant that the physician organization represented their interests and could bind them contractually. In circumstances like these the rule in Browne v. Dunn has no application. . Shahin v. Intact Insurance Company
In Shahin v. Intact Insurance Company (Div Court, 2024) the Divisional Court allowed a LAT SABS appeal, here where the appellant applied for 'catastrophic impairment' accident benefits which were denied by the insurer.
Here the court found procedural unfairness where the tribunal applied documentary evidence not considered by the parties in examination, an issue that the court characterized as one of documentary 'Browne v Dunn' status:Did the Tribunal breach procedural fairness by relying on documents neither party referred to and that Ms. Shahin was not given an opportunity to address?
[25] Ms. Shahin submits the Tribunal’s repeated reliance on documents neither party referred to also breached procedural fairness. I agree.
[26] The adjudicators had voluminous documents before them. At the outset of the hearing, they advised the parties that “any document not referred to by pinpoint reference during oral arguments will not be reviewed.”
[27] The Tribunal then relied in its decision on numerous documents neither party had referred to. The parties agree that, although found in their hearing briefs, these documents were never admitted into evidence.
[28] This violated procedural fairness. The Court of Appeal has described the rule in Browne v. Dunn[2] as preventing the “ambush” of a witness by not giving the witness an opportunity to state their position on later evidence that contradicts them on an essential matter: R. v. Verney, 1993 CanLII 14688 (Ont. C.A.), at p. 376; R. v. Quansah, 2015 ONCA 237, 125 O.R. (3d) 81, at paras. 75-86. Here, the Tribunal made negative findings about credibility and impeached Ms. Shahin’s testimony using excerpts from medical records she was never questioned on.
[29] For example, at para. 61 of their decision, when discussing Ms. Shahin’s level of impairment, the adjudicators noted that in her testimony, Ms. Shahin stated that she had lost interest in spousal intimate relations because of the car accident. The adjudicators disbelieved her on this point, relying on medical records indicating that she suffered from uterine issues. These records and her uterine issues, including any impact on intimacy, were not put to Ms. Shahin. She had no opportunity to provide an explanation or response.
[30] At para. 73 of their decision, the adjudicators concluded that Ms. Shahin had not suffered a “substantial inability to perform the essential tasks of her pre-accident employment.” It relied on a job site analysis that found she did not have an issue with these tasks. But the job site analysis was not in evidence. The reference to the job site analysis was found in a report by an occupational therapist. Ms. Shahin alleges the OT’s report summarized a 70-page report in two paragraphs. Neither party referred to nor relied on this summary.
[31] Intact submits this reliance was not prejudicial because Ms. Shahin was cross-examined on her inability to work. But the cross-examination focused on 2018, not the 2015 period relied on by the adjudicators.
[32] The Tribunal relied on other evidence as well to conclude Ms. Shahin’s impairment was not catastrophic. Its assessment was highly fact dependent. But it is impossible to conclude the information she was not questioned on was of little significance. This information formed part of the Tribunal’s justification for its conclusion on Ms. Shahin’s level of impairment. It was an error to rely on this information, which was not in evidence, was not drawn to the parties’ attention, and which Ms. Shahin was not questioned on, in support of the Tribunal’s conclusion on this central issue. . R. v. Foreshaw
In R. v. Foreshaw (Ont CA, 2024) the Court of Appeal considered the important litigation principle from Browne v Dunn, here in an appeal regarding jury instruction:(b) Legal Principles
[53] Underlying the rule in Browne v. Dunn is the principle of fairness. It was developed to respond to a situation where a witness is contradicted by other testimony, but where opposing counsel have not put the alternate version of events to the witness in cross-examination.
[54] The rule as it is presently understood was most comprehensively described by Watt J.A. in R. v. Quansah, 2015 ONCA 237, 125 O.R. (3d) 81. The following points from his analysis are relevant to this appeal:. It is not a fixed rule, and the extent of its application lies within the sound discretion of the trial judge and depends on the circumstances of each case.
. Compliance with the rule does not require that every scrap of evidence on which a party desires to contradict the witness for the opposite party be put to that witness in cross-examination. Instead, the cross-examination need only confront the witness with matters of substance on which the party seeks to impeach the witness' credibility and on which the witness has not had an opportunity of giving an explanation because there has been no suggestion whatever that the witness' story is not accepted.
. It may be apparent from the tenor of counsel's cross-examination that the cross-examining party does not accept the witness' version of events. Where the confrontation is general, known to the witness and the witness' view on the contradictory matter is apparent, there is no need for confrontation and no unfairness to the witness in any failure to do so.
. The requirement of cross-examination does not extend to matters beyond the observation and knowledge of the witness or to subjects upon which the witness cannot give admissible evidence.
. Appellate courts must accord substantial deference to the discretion exercised by a trial judge in deciding what remedy is appropriate for breach of the rule. ....
[60] In summary, I see no basis for appellate interference in the highly discretionary decision of the trial judge to provide a Browne v. Dunn instruction. Accordingly, I would dismiss this ground of appeal. . Manafa v. Tannous
In Manafa v. Tannous (Div Court, 2023) the Divisional Court considers the rule in Browne v Dunne, here as a procedural fairness issue (here in small claims court):Preventing the Appellant from Relying on Documentation
[76] I understood that the Appellant had abandoned this argument during the hearing. However, I will briefly address the argument. The argument is described in paragraph 113 of the Appellant’s factum:113. The second violation of procedural fairness is the prevention of the Appellant from using materials in the documentary record properly before the Court and marked as exhibit [sic] and which supports her case, on the ground that it was not ‘put to the Respondent’ in cross-examination and therefore she should not rely on it and that the Appellant cannot give evidence about a version of facts that was not put to the Respondent when he was cross-examined. [Citations omitted] [77] I have reviewed the relevant excerpt from the transcript. The Deputy Judge correctly identified a violation of the rule in Browne v. Dunn (1893), 1893 CanLII 65 (FOREP), 6 R. 67 (H.L.). This rule was recently explained by the Court of Appeal in R. v. Quansah, 2015 ONCA 237, (2015) 125 O.R. (3d) 81. The Court stated (at para. 76):[76] The rule in Browne v. Dunn, as it has come to be known, reflects a confrontation principle in the context of cross-examination of a witness for a party opposed in interest on disputed factual issues. In some jurisdictions, for example, in Australia, practitioners describe it as a "puttage" rule because it requires a cross-examiner to "put" to the opposing witness in cross-examination the substance of contradictory evidence to be adduced through the cross-examiner's own witness or witnesses. [78] The Court goes on to explain that the rule in Browne v. Dunn is a fairness rule. In this case, the Deputy Judge determined that the Appellant had failed to cross-examine the Respondent about a different version of events when he was testifying. As a result, the Appellant could not, as a matter of trial fairness, rely on that version of events. There was no error in this conclusion.
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