Jones v Dunkel

A majority of the High Court found that the trial judge's jury directions were a misdirection. As Justice Kitto wrote:

'His Honour told the jury that the fact that Hegedus had not gone into the box left them in this position, that they could accept the facts given by the plaintiff as proved, and that the question for them then was whether they thought that from the proved facts an inference of negligence ought to be drawn. It was right enough to point out, in effect, that the evidence given might be the more readily accepted because it had been left uncontradicted, and that the omission to call Hegedus as a witness could not properly be treated as supplying any gap which the evidence adduced for the plaintiff left untouched.

But what should have been added, and not being added was in the circumstances as good as denied, was that any inference favourable to the plaintiff for which there was ground in the evidence might be more confidently drawn when a person presumably able to put the true complexion on the facts relied on as the ground for the inference has not been called as a witness by the defendant and the evidence provides no sufficient explanation of his absence.

The jury should at least have been told that it would be proper for them to conclude that if Hegedus had gone into the witness-box his evidence would not have assisted the defendants by throwing doubt on the correctness of the inference which, as I have explained, I consider was open on the plaintiff's evidence. In my opinion what his Honour said on the point amounted to a misdirection.' ^[5]

For this reason a majority of the court ordered that there be a retrial.

Jones v Dunkel is a very important case for Australian rules of civil procedure. Its role has led to it being the tenth most cited case in the High Court's history.^[3]

The case gave rise to what is commonly termed 'the rule in Jones v Dunkel'. One (non-judicial) phrasing of the rule is as follows: ‘... the unexplained failure by a party to give evidence, to call witnesses or to tender documents or other evidence may (not must) lead to an inference that the uncalled evidence or missing material would not have assisted that party's case'.^[2]

Justice Glass described the rule as operating where a witness 'would be expected to be available to one party rather than the other', for whatever reason.^[2][6] For example, failing to request the testimony of a police officer would not give rise to the rule, (due to assumptions of impartiality); however a party failing to call their doctor, employee, or close relative might give rise to an adverse inference. This rule is not strict; and may be displaced if there is an adequate explanation as to why the witness was not called.^[2]

Inferences that are drawn in accordance with the rule can't be used to fill gaps in evidence, or 'connect conjecture into suspicion'.^[7]

Jones v Dunkel has application in criminal proceedings, but is very restricted in that context.^[8]