For anyone involved in a court process that deals with witnesses and witness statements, you should understand your obligations to witnesses in litigation. The case of Jones v Dunkel [1959] HCA 8 sets out where witnesses are failed to be called to be witnesses and/or make a statement or make evidentiary documents available. This article does not attempt to explain the Evidence Act in each state and territory. Rather we will explore the general principles from the case of Jones v Dunkel to assist businesses who are in the process of litigation.

1. The Rule: An Inference May Be Made

If you are running a matter where you need to call witnesses or submit evidentiary documents and you fail to do so without explanation, the court may infer that whatever the document’s contents, or what the witness may have to say, would not be helpful to your case. In short, although there is no evidence to conclude a specific fact, the courts have the liberty to make an inference which could be detrimental to your case.

2. When Can a Court Make the Inference?

It is only possible for the court to make an inference if there are issues in the evidence which require there to be an explanation. The court can therefore not make the above inference if there are no issues that need explaining that has arisen according to the facts and current evidence of the case.

3. The Failure to Provide the Document/Witness is Not Deficient

Despite the possible inference that can be made regarding the failure to call documents/witnesses, this cannot lead to the conclusion that the evidence you have provided is deficient in any way. In effect, this means that the inference that the court may make cannot be used to make a conclusion that is not based on the evidence already provided to the court.

4. Possible Reasons Why a Document/Witness Was Not Called

Of course, there could be reasons why a document and/or witness was not called that effectively overrides the possible inference, for example:

  • No possible contact could be made with the witness; 
  • You were not aware that what the witness would say would warrant a fear to call the witness; or 
  • You simply did not know what the witness would say. 

Other possible reasons may include unavailability or possibly even loss of memory.

5. Relationship With the Witness

The court will also consider your relationship with the witness to determine if an inference exists. For example, if the witness is likely to be hostile towards you, this is quite likely to be an adequate explanation not to call that witness. Further, if the possible witness is in some way closely associated with the opposing party and therefore also no longer has a relationship with you, this may be considered a suitable explanation for not calling the witness.

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The above provides a summary of the Jones v Dunkel rule when it comes to calling witnesses and the inferences that a court can make if they aren’t called. When deciding whether to call a witness, consider whether the particular witness’ absence could give rise to an inference. If you are unsure, or if you have any questions about your matter, get in touch with our disputes lawyers on 1300 544.

Kristine Biason

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