R V BIRKS

continued to work as she had sworn that she proposed to do. Gibbs J
(at 370-371) pointed out that the plaintiff had not been cross-examined
upon her evidence in that regard and that therefore it would not have
been open to the jury to reject that part of her case. It would have been
'unreasonable' for them to have taken a contrary view, and his Honour
concluded that it was not open to the respondent to support its case
upon the basis that it had."
The above passage indicates the variety of circumstances in which a failure
to observe the rule can manifest itself, and the ways in which a significant
unfairness may be avoided.
However, as in the present case, it is often suggested that the practical
effect of the rule goes a good deal further. It is one thing to say that the
interests of fairness to a witness or a party require observance of the rule,
and that some interests of fairness may well produce various consequences if
the rule is not observed. However, the rule is often invoked for the purpose
of entering into another area of discourse, that is to say, the drawing of
inferences by a tribunal of fact. This is what is often behind references that
are made to a "comment" following apparent non-observance of the rule. It
is important, in the interests of accuracy, to consider the substance of the
comment to which reference is made. It is one thing to remark upon the fact
that a witness or a party appears to have been treated unfairly. It is quite
another thing to comment that the evidence or unsworn statement of a
person should be disbelieved, perhaps as a recent invention, because it raises
matters that were not put in cross-examination to other witnesses by that
person's counsel. Depending upon the circumstances of the case either or
both of those comments may be available: see, eg, R v Robinson [1977] Qd R (1990) 387
at 394. However, especially in a criminal trial, there are considerations
which may indicate the need for caution. What happened in the present case
is an excellent illustration of those considerations. They were referred to by
King CJ in the Court of Criminal Appeal in South Australia in R v Manunta
(28 July 1989, unreported). In that case a trial judge had drawn attention to
the fact that the accused's counsel had failed to put in cross-examination
certain exculpatory matters to which the accused later made reference. The
trial judge drew the jury's attention to the rule in Browne v Dunn and said:
"You are entitled, for example, to ask yourselves, ladies and
gentlemen, could these be matters of recent invention be concocted by
the defendant and his witness in an attempt to cast doubts on the
evidence of the police officers without giving to the police officers the
opportunity of contradicting this proposition"
King CJ said:
"It seems to me that the failure of counsel to cross-examine the police
officers on the topic left open the inference that the challenge to the
notes was an afterthought on the part of the appellant and was simply a
lie told in cross-examination because he thought it would serve his
interests. The cogency of such an inference might be open to question.
It is possible that the idea that the police were referring to notes other