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This article was written by Kathryn Sampias

Kathryn Sampias has a Bachelor of Laws, a Bachelor of Arts and a Graduate Diploma in Journalism. Kathryn was admitted to practice in 2005 and practised law for more than eight years, working both in private practice (mainly in defence litigation for professional indemnity disputes) and in the public service for the Australian Securities and Investments Commission (ASIC) in enforcement.

The Jones v Dunkel Rule


The Jones v Dunkel rule is a rule of evidence relating to situations where one party fails to lead evidence, and this failure is unexplained. The relevant evidence can either be a document or a witness. The rule is that the jury can draw an inference in this circumstance, that the evidence if led, would not have benefited that party with their case. The rule mainly relates to civil matters; however, it has some application in criminal matters, but that application is limited. The Jones v Dunkel rule’s application is considered in further detail below.

The 1959 decision of Jones v Dunkel

Jones v Dunkel [1959] HCA 8, 101 CLR 298 was a case relating to a traffic accident between two trucks on the Hume Highway. The plaintiff, Jones, was killed in the accident. His wife sued the defendant company, Dunkel, for negligence. An employee of the company, Hegedus, was injured in the accident but survived.

Jones’ wife alleged that Hegedus had caused the accident through his negligent driving. Hegedus had made a statement to police in the days following the accident, while he was in the hospital, about what had happened. However, the defence did not call him as a witness during the trial. At trial, the jury found in favour of the defendant.

The plaintiff had argued that the jury should consider the defendant’s failure to call Hegedus. However, the judge had directed it to decide based on the plaintiff’s evidence as the defence had not provided evidence from Hegedus. The plaintiff appealed the trial decision, and the High Court held that the jury had been misdirected and a new trial was ordered.

The High Court noted that one of the main issues in the case was whether or not Hegedus had been driving on the wrong side of the road. As evidence had not been led from Hegedus, the jury was entitled to draw an inference that on this point the defence’s evidence would not have been favourable.

What are the requirements that need to be satisfied for the rule to apply?

The rule in Jones v Dunkel was considered in a later case of Payne v Parker [1976] 1 NSWLR 191 at 201 by Glass JA who detailed that for the rule to apply three elements needed to be met. These are:

  1. The evidence that is missing would have been expected to be called by the party against whom the rule is to be relied on;
  2. The evidence that is missing would have been relevant to determining facts in issue; and
  3. No explanation is given for the absence of the evidence. An explanation for witnesses not providing evidence could include illness or details about why they may be hostile witnesses.

Significance of the Jones v Dunkel rule

From a practical point of view, the party relying on the Jones v Dunkel rule can ask the court to:

  1. Consider the failure to lead or produce evidence when deciding whether or not to accept other evidence brought before the court by the party who failed to lead or produce the evidence; and
  2. More easily come to a conclusion that favours that party from the evidence that party has provided that would have otherwise been brought into question by evidence the other party may have provided from the missing witness or document.

The court cannot infer that the evidence that was not led would have been damaging to the party’s case who failed to show the evidence.

It should also be noted that there may be a situation where a witness did appear in the trial, but then they were not called by another party where it seems they should have been. Although that witness has appeared to give evidence during the proceedings, the Jones v Dunkel rule can still be applied where there is an unexplained failure of a party to call them as a witness.

Jones v Dunkel rule in criminal cases

The Jones v Dunkel rule in criminal cases is mainly applied to the evidence led by the prosecution. Suppose the prosecution could have reasonably been expected to call a witness and does not do so. In that case, the jury can infer that the witness would not have provided any evidence that would have assisted the prosecution’s case.

However, this inference cannot be extended to be taken to infer that the witness that has not appeared would have provided evidence damaging to the prosecution case. The practical way this is most likely to apply is that evidence provided by witnesses for the defence may be more likely to be accepted by the jury as no evidence to the contrary has been provided by the prosecution.

The Jones v Dunkel rule cannot be used against the defence in a criminal trial to draw any inferences based on the fact the defence does not provide evidence to defend its case. However, if there are some things in the prosecution’s claim that a witness for the defendant could contradict, and the defendant does not call that witness the court may note this.

If you require legal advice or representation in any legal matter please contact Armstrong Legal. 

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