This is another instalment in my attempt to compile a list of entries about the cases (mostly old) which are used in litigation as part of the vernacular.
What is it?
The rule in Jones v Dunkel is one which lawyers cite regularly when seeking to highlight a perceived gap in their opponent’s evidence.
It is essentially a common law rule of evidence under which an unexplained failure by a party to put evidence before the court whether it’s a witness or document, may lead to an inference that this evidence would not have assisted that party.
Glass JA in Payne v Parker  1 NSWLR 191 at 201 said that for a failure to call a witness there are 3 elements required to enliven the rule:
(a) The missing witness would be expected to be called by one party rather than the other
Normally this is because the witness would be expected to be in the defaulting party’s camp or at least more available to that party. Based on this aspect, if the uncalled witness is a party themselves or a senior executive likely to have knowledge of the impugned transactions of a corporate party, the adverse inference may prove particularly strong.
(b) His evidence would elucidate a particular matter
The court must be able to conclude that, based on the other evidence available at the hearing, the witness would probably be able to shed some light on the facts in issue.
(c) His absence is unexplained
The rule has no application if the absence is explained. This will normally need to be coupled with a reasonable explanation of why the missing witness was not compelled to attend by subpoena. This can involve such things as illness, refusal to waive privilege or that the witness is likely to be hostile to the calling party. However, positive evidence of ‘unavailability’ is required.
If the requirements of the rule are satisfied the non-defaulting party may then ask the court to:
i. Take the failure into account when deciding whether to accept any other evidence put before the court by the defaulting party about which the witness could have spoken; or
ii. More readily draw a favorable inference from evidence adduced by the non-defaulting party that could otherwise have been contradicted by the witness not called.
However, there can be no inference that the evidence not put before the court would have been damaging or adverse to the defaulting party’s case.
One technical matter: a failure to call a witness also includes a situation in which they are called by the plaintiff during its case in chief, but there is a failure to re-call them in answer to a fresh matter arising out of the defendant’s evidence.
Why is it important?
Although Jones v Dunkel is all about inferences, you might as well say that the rule is as much about impressions. If the court thinks a party is withholding something from the evidence, it will make some or all of the rest of that party’s evidence no matter how strong, start to seem a lot less credible.