Jones v Dunkel inferences in disciplinary hearings not bound by the rules of evidence

In Legal Practitioners Complaints Committee and MT QC [2009] WASAT 42, Judge Eckert’s 3 member tribunal considered the application of the rule in Jones v Dunkel to disciplinary prosecutions in tribunals (like VCAT) which are not bound by the rules of evidence.  The practitioner sought to have inferences drawn against the prosecutor from the fact that Schapelle Corby, whom he said might have been considered to be a critical witness for the prosecution, did not give any evidence.  The inferences sought was that nothing Ms Corby would have said would have assisted the prosecution’s case that Mr T QC was Ms Corby’s barrister or prospective barrister.  Her Honour applied the evidentiary presumptions, but in a relaxed fashion, allowing argument as to whether there was an explanation for the non-testimony of the kind which would render inoperable the presumption:

LPCC’s failure to call witnesses – Jones v Dunkel

67 Directly allied to his submissions concerning the standard of proof, [the practitioner’s counsel] sought to draw inferences against aspects of the [prosecution’]s case by reason of its failure to call several witnesses, particularly Ms Corby and the practitioner’s alleged junior, Mr Laskaris. There was also some short reference made to the failure to call Ms Lubis and Mr Rasiah, members of the Bali legal team, specifically in relation to their meeting with the practitioner on 3 June 2005.

68 The principles governing the operation of the ‘rule’ in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 (Jones v Dunkel) are set out in Cross on Evidence (7th Aust Ed) [1215] and have recently been summarised by Justice Owen in The Bell Group Ltd (In Liq) v Westpac Banking Corporation [No 9] [2008] WASC 239 (The Bell Group Ltd) at [1004] – [1022].

69 We have taken into consideration and applied such of these principles as are relevant to the present circumstances, but with this qualification. It is to be borne in mind that this is not an ordinary civil action but rather it constitutes professional disciplinary proceedings brought by the governing body against a legal practitioner before a tribunal subject to its own statutory procedures. These include that it is not bound by the rules of evidence or the practices of courts but is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms (s 32 SAT Act). We have so proceeded and in this respect were prepared to accept explanations from both parties as to why Ms Corby’s evidence might or might not have been available, without direct evidence in support.

70 We mention we have also had regard to the decision in [New South Wales Bar Association v] Kalaf [unreported, Supreme Court of NSW, Court of Appeal, 12 October 1987; BC 8801429], cited in another section of the practitioner’s closing submissions. The majority in the circumstances of that case were not prepared to make a finding that the practitioner before them had lied about the matter, in the absence of the Association (being the governing body and regulator) calling an available witness who had knowledge of the matter. In their view, although this aspect of the case did not turn upon the issue of onus, it was the Association, as the party carrying the burden of proof on this issue, rather than the practitioner, who was required to call the witness if it sought such a serious finding. Samuels JA who alone addressed the rule in Jones v Dunkel held it was the practitioner who would be expected to call the witness and drew an adverse inference from his failure to do so.’

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