What is the test for cross-examining contradictory evidence in a murder trial?

First, the trial judge was correct in ruling that Browne v. Dunn had been violated. The rule in Browne v. Dunn is a rule of fairness: if counsel is going to challenge the credibility of a witness by calling contradictory evidence, the witness must be given an opportunity to address the contradictory evidence. It may be that counsel is not required to put every contradictory detail to a witness. However, the two matters in issue were hardly mere details. They lay at the heart of the appellant’s defence. The cell phone evidence was particularly damaging, unless the appellant could show that someone else was using his phone the night of the murder. We can only conclude that defence counsel, who is both an able and experienced criminal defence lawyer, made a tactical decision not to cross-examine on these two matters. His failure to do so amounted to a breach to of the rule in Browne v. Dunn.

Second, the trial judge did not give a general Browne v. Dunn instruction to the jury. Instead, he let counsel deal with the issue in their jury addresses. The lack of a Browne v. Dunn instruction favoured the defence.