Evidence, Calling witnesses, Inferences Facts; Daryl Jones’s husband was killed in a truck collision. She brought an action in the Supreme Court of New South Wales under the Compensation to Relatives Act 1897 (NSW) alleging that her husband’s death was caused by the negligence of the driver of the other truck (Hegedus), which was owned by the defendant (Dunkel). In answering the case of negligence, Dunkel did not call Hegedus as a witness. At the conclusion of the summing up and in response to a question by insurer as to what the jury should make of Dunkel’s failure to call the driver, the trial judge directed the jury that it could accept the favourable facts pleaded by Jones as proved, the jury returned a verdict in favour of Dunkel. James appealed unsuccessfully to the Full-Court of the Supreme Court, and then appeal to the High Court.
Application; The rule in Jones and Dunkel is not limited to calling witnesses but reducing evidence generally. However, the rule only applies if a party is required to explain or contradict something, that is if in the course of evidence in the case, evidence is given a fact requiring an answer. (Jones v Dunkel at 321-2).
The failure of a party to call a witness does not necessarily give rise to an inference being drawn in accordance with Jones v Dunkel. An inference is drawn only if evidence otherwise provides a basis for it. Further the rule does not permit an inference that the evidence would have been averse to the party. It only permits an inference that the evidence would not have assisted that party.
In drawing inferences, the law… Does not authorise a court to choose between gases, where the possibilities are not unlimited, on the grounds that one gas seems more likely than another or the others. The facts approved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied. (Dixon CJ at 305)
Holding; the High Court found that this direction was incomplete, and that the jury should have instead been directed that an inference favourable to the plaintiff maybe more confidently drawn where a person presumably able to put the true complexion of the facts relied upon has not been called as a witness by the defendant, and the evidence provides no sufficient explanation for that witness’ absence.
'It was right enough to point out in the fact 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 a supplying any gap which the evidence adduced for the plaintiff left untouched. But what should’ve been added, and not being added was in the circumstances as good as denied, was there 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 plaintiffs evidence.' (Kitto J at 308)