Criminal appeal decision zeroes in on Browne v. Dunn

Law360 Canada (July 5, 2024, 11:27 AM EDT) --

John L. Hill

Criminal litigation usually refers to criminal cases and ignores cases reported in civil actions. One important exception is that criminal trial counsel must abide by the “rule in Browne v. Dunn.”

Browne v. Dunn, (1893) 6 R. 67(H.L.), is a famous British House of Lords decision in a civil case. The rule prevented a cross-examiner from relying on evidence in chief that contradicts a previous witness’s testimony without having put the contested facts to the earlier witness.

The trier of fact can weigh an actual contradiction in evidence, but it is improper to decide on speculation. A supposed violation of the rule became a central element in Alexander Lambert’s appeal of his second-degree murder conviction, where he argued that the trial judge erred in her charge to the jury by misapplying the Browne v. Dunn rule (R. v. Lambert, 2024 ONCA 391).

Lambert spent an evening in a London, Ont., basement smoking crack cocaine with James McGillivray and David Hole. Sometime during the evening, an argument ensued between Lambert and Hole. When Hole attempted to leave, Lambert placed Hole in a chokehold to the point of unconsciousness. Lambert went upstairs for a cigarette. When he returned, he saw McGillivray with Hole’s fanny pack or a mallet and learned Hole was dead. During the trial, Lambert stated that he had seen McGillivray standing over Hole’s body with a hammer. Although he never saw McGillivray use the hammer, he was able to recount occasions when McGillivray had talked about robbing and killing Hole. The defence implied it was McGillvray, not Lambert, who killed Hole.

The two survivors agreed to take Hole’s cash and the remaining crack. They then hid the deceased’s body in a closet and later loaded it into Hole’s car, which was abandoned in a parking lot and left undiscovered for weeks.

The theory of the defence was likely that Lambert had rendered Hole unconscious without killing him but that McGillivray had the motive and opportunity to carry out the deed. McGillivray testified for the Crown and placed sole responsibility for the killing on Lambert.

McGillivray was asked on cross-examination whether he had struck Hole with a mallet, and he was asked about his suggestion to rob and kill the victim. Nonetheless, the trial judge charged the jury that the rule in Browne v. Dunn demanded that in considering whether to believe McGillivray or Lambert in whole or in part, fairness dictated that Lambert’s speculation as to how the death came required that the means of Hole’s death should have been put to McGillivray directly when he was on the stand. When Lambert later testified in his defence, his position should have been addressed directly by asking the details of McGillivray when he was on the stand.

The Court of Appeal found no fault in the jury’s having been instructed on the rule in Browne v. Dunn. The rule has been a part of our common law to ensure trial fairness. The trial judge should be afforded considerable deference in its application (R. v. Foreshaw, 2024 ONCA 177; R. v. Quansah, 2015 ONCA 237) leave to appeal refused (R. v. Quansah, [2016] S.C.C.A. No. 203).

When this argument faltered, appellant counsel suggested that the trial judge should have instructed the jury that the blame for not confronting McGillvray directly should not fall upon the accused. Instead, the trial judge should have told the jury that Lambert should not be prejudiced for the mistakes of his lawyer (R. v. McNeill, (2000) 48 O.R. (3d) 212 (C.A.)). However, the Court of Appeal said the McNeill case was not applicable. In that case, the Crown had cross-examined an accused about his lawyer’s failure to cross-examine a witness. Fairness required the judge in that case to instruct the jury that an accused should not be held responsible for his counsel's conduct. Here, the judge properly exercised her discretion, and there was no basis for appellate intervention.

A second ground for appeal was based on the defence contention that the judge’s charge was misleading in describing the accused state of mind to conclude he intended death or was careless in ensuring death did not occur. The Court of Appeal held that the instructions in the charge clearly defined that a conviction would follow if proven beyond a reasonable doubt that there was either the intention to kill Hole or that in applying the chokehold, Lambert understood that the force could kill the man and yet proceeded anyway. Even though Lambert’s motive was to calm Hole, his motive was irrelevant. What must be proven was his reckless act of applying excessive force (R. v. Chartrand [1994] 2 S.C.R. 864).

The appeal on conviction was dismissed. The sentence of life imprisonment without parole eligibility for 15 years was not demonstrably unfit and deserved deference (R. v. Hamade, [2015] O.J. No. 6057).

Failure to abide by an evidentiary rule developed in a civil case can upset a criminal defence.

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books). Contact him at johnlornehill@hotmail.com.

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