Federal Court - Christian Aboriginal Infrastructure Developments ...

Page: 321
[1202] In closing argument, the Defendant challenged aspects of Mr. Van Leeuwen’s evidence,
upon which she had not cross-examined. The failure to cross-examine him is problematic and raises
two issues.
[1203] First is the issue of fairness to Mr. Van Leeuwen. The House of Lords in Browne v. Dunn
(1893), 6 R. 67, at 70 (H.L.) stated:
2010 FC 495 (CanLII)
My Lords, I have always understood that if you intend to impeach a
witness you are bound, whilst he is in the box, to give him an
opportunity of making any explanation which is open to him; and, as
it seems to me, that is not only a rule of professional practice in the
conduct of a case, but is essential to fair play and fair dealing with
witnesses.
[1204] The rule in Browne v. Dunn applies both to contradictory evidence and to closing argument.
[1205] The rule is not absolute, but, in my opinion, it applies in this case. Mr. Van Leeuwen is an
expert in his field and his qualifications and capabilities were challenged by the Defendant in
closing argument, although she did not challenge his credentials when he was introduced as an
expert witness. His reputation, if not his credibility, was put in question. In that situation, Mr. Van
Leeuwen should have been given the opportunity to explain his report and his testimony.
[1206] Second, the failure to cross-examine Mr. Van Leeuwen on these matters denied the Court
the benefit of his evidence. It must be remembered that an expert witness is presented to assist the
Court.