Failure to call witnesses

A case that still doesn’t get a guernsey in every practitioner’s headspace is Jones v Dunkel (1959) 101 CLR 298.

It’s one of those chestnut cases we all should be familiar with, perhaps second only to Browne v Dunn (1893) 6 R 67 (HL).

There’s been a lot of commentary written about Jones v Dunkel over many years, and I don’t think I can really add much to it. The gist of it is that the unexplained failure by a party to give evidence or to call a witness that the tribunal of fact could expect to hear from may (but not must) lead to an inference the uncalled evidence would not have helped the party’s case.

(Jones v Dunkel does not go as far as saying the tribunal of fact can infer the un-called witness would have harmed the party’s case.)

Ordinarily, the inference may not be drawn against the accused in a criminal case: Dyers v The Queen (2002) 210 CLR 285. Why? Because the High Court said in R v Apostilides (1984) 154 CLR 563 that the prosecution bears the onus of calling all relevant witnesses: the accused doesn’t (usually) have any obligation or expectation to call witnesses.

One of the bloggers I subscribe to just highlighted a recent Western Australian Supreme Court judgment discussing Jones v Dunkel in Inferences arising from failure to call a witness for fear of what they would say. It’s a slightly humorous but also pragmatic view at how the rule should and can operate, and well worth a read.

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