Under this rule of practice, if a witness gives evidence that is inconsistent with what the opposing party wants to lead in evidence, the opposing party should raise the contention with that witness during cross-examination. In general terms, the rule prevents a party from putting forward a case without first giving opposing witnesses the opportunity of responding to it. Though where a party alleges that a witness ought to be disbelieved due to multiple inconsistencies in their evidence, unless a party advances a discrete basis for disbelieving that witness, it may not be required to put each inconsistency to the witness to address: Fairfax Media Publications Pty Ltd v Gayle (2019) 100 NSWLR 155 at [117]–[128]. See Odgers, Uniform Evidence Law, 21st edn at [EA.46.60].

The rule is essentially one of professional practice based on the notion of procedural fairness. It will be satisfied, however, where the opposing party (and his witnesses) plainly know (eg, through notice having been given) the nature of the opposition case to be met: Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1 at 16. The rule in Browne v Dunn is directed to ensuring procedural fairness in litigation: Locke v HC Loneragan & Co Pty Ltd [2025] NSWCA 166 at [37]. Ultimately, where Browne v Dunn is relied upon, the question is whether, having regard to the conduct of the case as a whole, the relevant party has been put on notice that the adverse inference may be drawn: Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (Cth) [1983] 1 NSWLR 1 at 16; Scott v Scott at [65]–[67]; Smith v Blanch (2025) 118 NSWLR 70 at [95].

The rule in Browne v Dunn was emphasised by the NSW Court of Appeal in State of NSW v Hunt (2014) 86 NSWLR 226. The trial judge, in an action for malicious arrest, assault and battery, and misfeasance in public office, found for the plaintiff. The defendant was vicariously liable for the conduct of its employee, a police officer. The officer, according to the trial judge, had completely fabricated his evidence in a number of material particulars. However, this had not been put to the officer when he gave his evidence. The Court of Appeal emphasised, at [32], that two conditions needed to be satisfied before such a finding could be made: first, reasons must be given for concluding that the truth has not been told; secondly, the witness (or party) must have been given an opportunity to answer the criticism. See also Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361 at [67]. The rule does not require a cross-examiner to put to the witness every construction of the witness’s conduct that would be legally adverse to the case of the party who called the witness: Locke v HC Loneragan & Co Pty Ltd at [56]–[62]. In Smith v Blanch, the inference the primary judge drew as to the applicant’s intention when making a social media post was an imputation against her conduct such that the rule in Browne v Dunn might apply, but the primary judge’s inference that the applicant intended harassment by that post was not sufficiently different as a matter of substance from the matters raised during the hearing, such that it had to be specifically put to the applicant or her representative before the primary judge could fairly make such a finding.

There is a continuing and fundamental obligation on a judge in the exercise of judicial power to ensure a fair trial which includes ensuring that an imputation is put to a witness. Therefore, the rule in Browne v Dunn is a condition which not only applies as between the parties to litigation, but also conditions the findings which a trial judge may make: see Bale v Mills [2011] NSWCA 226 at [63]; Kuhl v Zurich Financial Services Australia Ltd at [69]–[73], [75]; MWJ v The Queen [2005] HCA 74 at [38]–[39]; Smith v Blanch (2025) 118 NSWLR 70 at [94].

The Court of Appeal’s decision in SAMM Property Holdings Pty Ltd v Shaye Properties Pty Ltd [2017] NSWCA 132 is a timely reminder that the parties to litigation cannot by agreement (even though the court may have acquiesced) authorise a course which denies elementary procedural fairness to a witness.

The precise issue in the proceedings concerned the events at a property auction. The dispute related to whether the purchase price included GST. The “decisive evidence” according to the primary judge was the evidence of the auctioneer. Counsel for the unsuccessful appellant failed to cross-examine the auctioneer, relying on an agreement between the parties that rendered it unnecessary for this course to be taken. The Court of Appeal were by no means satisfied as to the content of this asserted agreement. However, it was satisfied that there had been an obligation placed on counsel to put to the witness “the nature of the case upon which it was proposed to rely”: SAMM at [136]. The court emphasised that the rule in Browne v Dunn was not only concerned with procedural fairness. In addition, it facilitated the court’s ability to assess reliability and credibility of the witness.

In Oneflare Pty Ltd v Chernih [2017] NSWCA 195 the primary judge had rejected the truthfulness of the evidence given by the appellant’s directors, and held for the respondent. The appellants argued that they had been denied procedural fairness. The Court of Appeal rejected this submission, emphasising that the crux of the rule in Browne v Dunn is that the witness must have been given “full notice beforehand that it is intended to impeach the credibility of the story he is telling”: at [41], quoting Browne v Dunn at 71. In the instant case, the affidavit evidence exchanged before the hearing, the parties’ opening statements and the cross-examination of each of the directors made plain that the truthfulness of their evidence was under challenge.

In Lardis v Lakis [2018] NSWCA 113 the central issue was whether a transfer of property was a voidable alienation of property with intent to defraud creditors. The primary judge held it was, thus rejecting the evidence of the appellant’s solicitor as to the date when instructions had been received to effect the transfer. The primary judge said: “taking the most generous view of [the solicitor’s] evidence, I am satisfied he was mistaken about the times when he said … he received instructions”. Counsel for the respondent had cross-examined the solicitor at trial but had not specifically suggested his evidence was a fabrication. Rather it was suggested that he had been mistaken on the timing issue. This led to a submission on appeal that the primary judge had erred by making an adverse credibility finding absent cross-examination directed to the credibility of witnesses evidence. Meagher JA (with whom Macfarlan JA agreed) held that the rule in Browne v Dunn had not been infringed. Without trespassing into the realm of credibility, there was ample evidence justifying the primary judge’s rejection of the solicitor’s evidence. White JA agreed that there was ample evidence to justify finding that the solicitor was mistaken. He thought, however, that “further findings that cast doubt on the [solicitor’s] veracity … were not open … having regard to the limited scope of cross-examination”: at [77]. This conclusion did not affect the fate of the appeal.

The rule applies in criminal proceedings with modifications. As a general rule, defence counsel should put to witnesses for the Crown’s comment “any matter of significance which is inconsistent with or contradicts the witness’s account and which will be relied upon by the defence”: Hofer v The Queen (2021) 274 CLR 351 at [28].

The circumstances in which the rule may be breached by the defence are narrower than in civil proceedings because the prosecution carries the burden of proof: MWJ v The Queen at [41]. In judge-alone trials, Odgers at [EA.46.150] explains that procedural fairness requires that the possibility of an adverse inference being drawn ought also to be brought to the defendant’s attention during cross-examination.

The Evidence Act 1995, s 46 overlaps with the rule. It permits a witness to be recalled where there has been a failure to cross-examine on a contested matter: see, MWJ v The Queen.

Evidence Act, s 192 may also be relevant as to whether re-examination of a witness should occur.

This rule operates where there is an unexplained failure by a party to give evidence, to call witneses or to tender documents or other evidence. In appropriate circumstances, this may lead to an inference that the uncalled evidence would not have assisted the party. However, the rule is complex and unless the appropriate circumstances are present, the court will not be bound to draw the adverse inference. Although it may be appropriate to conclude that evidence already adduced by an opponent may be readily accepted in circumstances where there is no evidence to the contrary (such as uncalled evidence which may have challenged the opponent’s evidence), where the inference is drawn, the rule cannot be used to fill gaps in the evidence or to convert conjecture into suspicion: “[t]he failure [to call a witness] cannot fill gaps in the evidence, as distinct from enabling an available inference to be drawn more comfortably”: Jagatramka v Wollongong Coal Ltd [2021] NSWCA 61 at [49]; Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361 at [64]. See Odgers at [EA.55.180]; J D Heydon AC, Cross on Evidence, 12th edn, 2019, LexisNexis, Sydney at [1215]. (Though it may be that such an absence of evidence bares significance as to whether the onus of proof has been discharged: see SSABR Pty Ltd v AMA Group Ltd [2024] NSWCA 175 at [166]–[174].)

The rule has application to criminal proceedings but is very restricted in operation: see Dyers v The Queen (2002) 210 CLR 285 at [9]–[10], [15], [19] per Gaudron and Hayne JJ (Kirby J at [52] and Callinan J at [121] agreeing, McHugh J dissenting).

In Mamo v Surace (2014) 86 NSWLR 275, the NSW Court of Appeal considered once again the scope of duty of care imposed on the driver of a motor vehicle. In the instant case, the passenger in a car was injured when the vehicle collided with a cow owned by the defendant. The animal had wandered onto the road at night. The defendant was not called at the hearing, raising the argument on appeal that a Jones v Dunkel inference should have been raised, namely that his evidence would not have assisted his case. The Court of Appeal firmly rejected this argument. The defendant’s statement had been in evidence and was substantially consistent with the plaintiff’s evidence. There was, in fact, no other evidence that called for an answer on the defendant’s part. There had been sufficient evidence at trial to enable the court below to determine the primary issue. The appeal was dismissed.

By contrast, a decision where the Jones v Dunkel inference assumed significance is the Court of Appeal decision in RHG Mortgage Ltd v Ianni [2015] NSWCA 56. At trial, the Iannis’ essential case had been that they were misled by their son Joseph Ianni when they entered into a loan agreement and mortgage with the appellant. Their case was that he had told them their liability would not exceed $100,000. The advance, which was not for their benefit, was for an amount in excess of $900,000. The critical point in the appeal was that neither party had called Joseph to give evidence. The trial judge regarded this as essentially neutral in the circumstances and failed to draw an adverse inference.

The NSW Court of Appeal reiterated that the circumstances for drawing a Jones v Dunkel inference are found where an uncalled witness is a person presumably able to put the true complexion on the facts relied on by a party as the ground for any inference favourable to that party. The three conditions to be applied are: first, whether the uncalled witness would be expected to be called by one party rather than the other; secondly, whether his or her evidence would elucidate the matter; thirdly, whether his or her absence is unexplained.

The court held that, even though the respondent’s case was that the Iannis had been misled by Joseph, the better view was that Joseph was the obvious witness who could have corroborated their evidence. He was a person who could reasonably be expected they would call. There was no satisfactory evidence as to his absence as a witness. A retrial was ordered.

In BK v State of NSW [2026] NSWCA 6, a police battery case, the Court of Appeal held that the primary judge failed to take into account the unexplained failure of the respondent to call any of the uniformed officers who committed or witnessed the alleged battery. The Court concluded the primary judge erred in failing to address the appellant’s submission on the respondent’s failure to call any uniformed officers, and in failing to draw a Jones v Dunkel inference against the respondent. This infected the fact-finding process, since it deprived the appellant of the benefit of the inference and did not take account of the forensic environment in which the respondent can be taken to have decided not to call those officers: at [223].

The onus of establishing unavailability of a witness is on the party against whom Jones v Dunkel operates: BK v State of NSW at [217]; Australian Securities and Investments Commission v Rich [2009] NSWSC 1229 at [457]. In BK v State of NSW, it was a matter for the respondent to prove it could not identify any of the uniformed officers who were present: at [216]–[217]; Blatch v Archer (1774) 1 Cowp 63 at 65.

In Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389, the NSW Court of Appeal extended by analogy the Jones v Dunkel rule to the situation where a party fails to ask questions of a witness in chief. In particular, Handley JA suggested that a court should not draw inferences favourable to a party where questions were not asked in chief.

In Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361, the High Court gave a limited degree of approval to Handley JA’s proposition. See also Nominal Defendant v Rooskov [2012] NSWCA 43 which emphasised that the rule does not require that an inference be drawn. It is simply available where the appropriate circumstances exist.