The rule in Jones v Dunkel

The case

Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 arose from a fatal collision between two trucks. The widow of the deceased driver sued, and the driver of the defendants’ truck, who was present at the collision, did not give evidence. The High Court held that the jury should have been told that his unexplained absence could lead them to infer that his evidence would not have helped the defendants, and that this could make them more willing to draw inferences against the defendants from the evidence that was before them.

Read the judgment in the case index: Jones v Dunkel [1959] HCA 8.

When the inference is available

Courts usually ask three questions before the inference is drawn:

1. Was the witness one the party would be expected to call? The witness is usually said to be "in the camp" of that party: an employee, a business partner, a close relative, or someone whose evidence the party controls or would naturally rely on.
2. Would the evidence have elucidated a particular matter in issue? The inference attaches to a specific question, not to the party’s case at large.
3. Is the absence unexplained? A reasonable explanation, such as death, illness, unavailability, or a legitimate forensic reason, displaces the inference.

The same reasoning applies where a party itself does not give evidence on a matter within its knowledge, and where a party calls a witness but does not ask that witness about a matter the witness could speak to.

What the inference cannot do

The rule is permissive, not mandatory. Its effect is limited:

• It cannot supply evidence that is not there. The other party must still prove its case on the evidence actually adduced.
• It permits an inference that the missing evidence would not have assisted the party. It does not permit an inference that the evidence would have been positively damaging.
• It allows the tribunal of fact to draw an inference already open on the evidence with greater confidence.

Criminal proceedings

The principle has very limited operation against an accused person, because the prosecution bears the onus of proof and the accused has a right to silence. In Azzopardi v The Queen [2001] HCA 25; (2001) 205 CLR 50 the High Court held that a judge may comment adversely on an accused’s failure to give evidence, of the kind considered in Weissensteiner v The Queen (1993) 178 CLR 217; [1993] HCA 65, only in rare and exceptional cases, and that a jury should ordinarily be told that silence is not evidence against the accused. In Dyers v The Queen [2002] HCA 45; (2002) 210 CLR 285 the Court held that a jury should not be directed that it may infer from the defence’s failure to call a witness that the evidence would not have assisted the accused.

Under the uniform evidence law, s 20 of the Evidence Act 1995 (NSW) and its counterparts govern comment on an accused’s failure to give evidence, and on a failure to call the accused’s spouse, de facto partner, parent or child.

Using it in practice

• Raise it in closing submissions, and identify the specific matter on which the missing witness could have given evidence.
• Give the other side notice where fairness requires it, so it has the chance to explain the absence.
• If you act for the party who did not call the witness, put the explanation into evidence. One given only from the bar table may not be accepted.
• Tribunals not bound by the rules of evidence may still apply the reasoning, but should be cautious about doing so.

Frequently asked questions

Sources

• Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
• Azzopardi v The Queen [2001] HCA 25; (2001) 205 CLR 50
• Dyers v The Queen [2002] HCA 45; (2002) 210 CLR 285