Inferences arising from failure to call a witness for fear of what they would say

Even though I can remember little about them, I know that two of my favourite books are the 18 year old Francoise Sagan’s Bonjour Tristesse and Helen Garner’s The Children’s Bach.  They are both short.  A book is a good book when you can finish it in one bath.  Entertaining as Justice Owen’s judgment writing style was in The Bell Group Ltd v Westpac Banking Corporation [No 9] [2008] WASC 239, it is not a short decision.  Much is probably buried away in there, unlikely to be read in this drought, for want of sufficient rainy days. So here is his Honour’s handy exposition of the rule in Jones v Dunkel, which commences at paragraph 999:
‘8.7. Jones v Dunkel: general approach
999    The parties exchanged 612 witness statements for about 290 individuals (including experts). On the database under ‘Images’ there are over 3800 individuals who are listed as the author of one or more of the documents that have been tendered. That means there are over 3800 people whose fingerprints are on the dealings to which this litigation relates. As I have already said, during the trial 167 individuals gave evidence. I am sure the remaining 120 persons (or thereabouts) who had provided witness statements and the 3500 or so other authors (or so many of them as still cling to this mortal coil) are all delightful people. Nonetheless, I had no wish to make the acquaintance of any more of them than was absolutely necessary.

1000    I will take that comment a little further by giving an example that, in my view, justifies the taking of a realistic approach to the failure to call witnesses. One (admittedly an important one) of the hundreds of issues raised in this case is whether the banks relied, to their detriment, on representations that the BGNV on-loans were subordinated. In their written closing submissions, the plaintiffs identified over 130 bank officers who played a part in decisions that are relevant to that issue and who were not called as witnesses. It will be apparent from the preceding paragraph that I would have been less than amused at the prospect of hearing from all of them. The task of assessing evidence of another 130 individuals (on this single issue) would likely have driven me even closer to insanity without necessarily advancing the cause of achieving a just result in the litigation.

1001    At an early stage in the proceedings, I made it clear that I intended to apply the rule in Jones v Dunkel in a realistic way. So far as I am concerned, the rule in Jones v Dunkel is grounded in commonsense. It falls to be applied in accordance with the circumstances of the case. The trier of fact is the person in the best position to assess the importance that the testimony of a witness would play, or would likely have played, in relation to the issue concerned. The circumstances of this case compel a sparing use of the principle.

1002    Nonetheless, I should outline what I apprehend to be the basic jurisprudence that has developed in relation to the rule and that has governed the way in which I have approached its application.

1003    The unexplained failure by a party to give evidence or to call a witness or tender certain documents may, in appropriate circumstances, lead to an inference that the uncalled evidence would not have assisted the party’s case: Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298, 308, 312 and 320 – 321.

1004    The failure to call a witness or tender documents can allow evidence that might have been contradicted by such witness or document to be more readily accepted. Further, where an inference is open from facts proved, the absence of the witness or document may be taken into account as a circumstance in favour of the drawing of the inference: Jones v Dunkel 308, 312 and 320 – 321; RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620 [26]. But the absence of a witness or document cannot be used to make up any deficiency in the evidence. Thus it cannot be used to support an inference that is not otherwise sustained by the evidence. The rule cannot fill gaps in the evidence or convert conjecture and suspicion into inference: Jones v Dunkel 308, 312 and 320 – 321; Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18; (2000) 200 CLR 121 [53]; Hesse Blind Roller Company Pty Ltd v Hamitovski [2006] VSCA 121 [28].

1005    The principle can operate against a party who bears the burden of proof or against a party who does not bear the onus: Ho v Powell [2001] NSWCA 168; (2001) 51 NSWLR 572 [16].

1006    Whether the failure to call a witness or tender a document gives rise to any inference depends upon a number of circumstances. In Fabre v Arenales (1992) 27 NSWLR 437, 449 – 450 Mahoney JA (Priestley and Sheller JJA agreeing) said that the significance to be attributed to the fact that a witness did not give evidence depends in the end upon whether, in the circumstances, it is to be inferred that the reason why the witness was not called was because the party expected to call him feared to do so. There are circumstances in which it has been recognised that such an inference is not available or, if available, is of little significance. A party may not be in a position to call a witness. The party may not be sufficiently aware of what the witness would say to warrant the inference that he feared to call him. The party may simply not know what the witness will say. A party is not required, under pain of the drawing of an adverse inference, to call a witness ‘blind’.

1007    These statements were referred to with approval by Miller J in Hewett v Medical Board of Western Australia [2004] WASCA 170. See also Heydon JD, Cross on Evidence (7th Aust ed) [1215]; Cubillo v Commonwealth (No 2) [2000] FCA 1084, (2000) 103 FCR [358].

1008    No adverse inference can be drawn if the failure to call a witness is explained by, for example, illness or other unavailability or by loss of memory: Cross on Evidence [1215]; Hewett [205].

1009    The hostility of a witness towards a party may be an adequate explanation for the failure to call that witness: Smith v Samuels (1976) 12 SASR 573, 581; Cross on Evidence [1215].

1010    Where the rule would otherwise operate, the onus is upon the party failing to call the witness to establish the unavailability of the witness: Smith v Samuels (1976) 12 SASR 573, 581; Cubillo (No 2) [356].

1011    The significance of the inference depends on the closeness of the relationship between the absent witness and the party who did not call the witness: Hospitality Group Pty Ltd v Australian Rugby Union Ltd [2001] FCA 1040; (2001) 110 FCR 157 [64]; Cross on Evidence [1215]. Thus no inference will arise where the relationship with the party criticised for not calling the witness has ceased and a relationship between the witness and the opposing party has begun: Shum Yip Properties Development Pty Ltd v Chatswood Investment and Development Co Pty Ltd [2002] NSWSC 13; (2002) 40 ACSR 619 [64].

1012    The rule only applies where a party is ‘required to explain or contradict’ something. What a party is required to explain or contradict depends on the issues in the case as thrown up in the pleadings and by the course of the evidence in the case. No inference can be drawn unless evidence is given of facts requiring an answer: Schellenberg v Tunnel Holdings [51]; Cubillo (No 2) [355]; Ronchi v Portland Smelter Services Ltd [2005] VSCA 83 [81]; Hesse Blind Roller Company Pty Ltd v Hamitovski [2006] VSCA 121 [28]; Cross on Evidence [1215].

1013    When no challenge is made to the evidence of witnesses who are called, no Jones v Dunkel inference can arise in respect of other witnesses who could have been called to give the same evidence: Cross on Evidence [1215]; Cubillo (No 2), 120; Hesse Blind Roller [29]; Ronchi v Portland Smelter Services Ltd [81].

1014    As it is expressed in Cross on Evidence [1215], the rule does not require a party to give merely cumulative evidence. However, potential evidence will not be regarded as cumulative unless it could not have affected the complexion of the evidence already called: Ronchi [85]. The rule as to cumulative evidence does not provide a shield against a justifiable criticism that a party has deliberately kept less favourable witnesses from testifying: Packer v Cameron (1989) 54 SASR 246, 253; Cubillo (No 2) [360]; Ronchi [85].

1015    In the case of a witness who is not a party to the proceedings, the rule cannot be applied unless it would be natural for a particular party to call the witness: Cross on Evidence [1215]. This requirement was discussed by Glass JA in Payne v Parker [1976] 1 NSWLR 191, 201 – 202. Glass JA said that it would be natural to expect that a witness would be called by one party rather than the other where:

(a) the witness would be expected to be available to one party rather than the other;

(b) the circumstances excuse one party from calling the witness but require the other party to call him or her;

(c) the witness might be regarded as in the camp of one party so as to make it unrealistic for the other party to call him or her;

(d) the knowledge of the witness may be regarded as the knowledge of one party rather than the other; or

(e) a witness’s absence should be regarded as adverse to the interests of one party rather than another.

See also O’Donnell v Richards [1975] VR 916, 920 – 921; Cubillo (No 2) [356]; Cross on Evidence [1215].

1016    A party is not necessarily to be expected to call the party’s own employees although the higher the office of the employee within the party the more reason there is for thinking that the employee’s knowledge is available to the employer party rather than to any other party: Cross on Evidence [1215]; Earle v Castlemaine District Community Hospital [1974] VR 722; Ronchi [33].

1017    In order for the principle to apply, the evidence of the missing witness must be such as would have elucidated a matter: Payne v Parker, 202; Cubillo (No 2) [360]. It is not enough to conclude that a party may have knowledge. Unless the tribunal of fact concludes, on the balance of probabilities, that the missing witness would have knowledge, there is no basis for an adverse inference from the failure to call the witness.

1018    The rule does not prevent the drawing of an inference favourable to the party who failed to call the witness. What inferences are to be drawn from the whole of the evidence remains a question to be determined in all the circumstances. Other evidence may justify the drawing of an inference in favour of the party who has failed to call the witness: Flack v Chairperson National Crime Authority (1997) 80 FCR 137, 149; Cubillo (No 2) [359].

1019    The appropriate inference to draw is a question of fact to be answered by reference to all the circumstances of the case. It may be that no inference at all may be appropriate: Spence v Demasi (1988) 48 SASR 536; Cubillo (No 2) [357].

1020    In some cases, the passage of time between the event in question and the trial, and the inability of various witnesses who do give evidence to recall relevant matters may support an inference that witnesses not called would not have been able to contribute evidence useful to the resolution of matters in issue: Australian Competition and Consumer Commission v Radio Rentals Ltd [2005] FCA 1133; (2005) 146 FCR 292, [149] – [151].

1021    In Re: HIH Insurance Ltd and HIH Casualty and General Insurance Ltd, Australian Securities and Investments Commission v Adler (2002) 168 FLR 253; [2002] NSWSC 171, ASIC proceeded against three former directors of HIH for breaches of the Corporations Law. Santow J made a Jones v Dunkel inference against the directors in respect of their failure to give evidence, which strengthened the adverse inference that his Honour drew from other evidence; that they had failed to exercise reasonable care and diligence as directors. The Jones v Dunkel inference was drawn because of the personal involvement of the directors in the transactions in question, their status as parties and their presence in court during the trial (and thus obvious availability to be called).

1022    The principles of Jones v Dunkel can apply to the failure by a party to ask a witness called by that party questions in-chief, at least where the most natural inference is that the party feared to do so: Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389, 418 – 419. Whether an inference is to be drawn depends upon all the circumstances. In Government Employees Superannuation Board v Martin (1997) 19 WAR 224, 246 Ipp J concluded that, in the circumstances of that case, the inference that the plaintiff had relied upon an assumption so clearly arose from the documents that the inference should be drawn notwithstanding the absence of direct evidence of reliance from the relevant persons who were called as witnesses for the plaintiff at the trial.’