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Does Jones v Dunkel Apply in Criminal Cases in NSW?

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The legal landscape is shaped by landmark cases that establish fundamental principles and guide the application of law in various jurisdictions. Jones v Dunkel is one such case that holds significance in the context of evidence and inferences in court proceedings.

What Is Jones v Dunkel Rule?

Jones v Dunkel is an Australian High Court case that was decided in 1959. The case concerned a plaintiff’s failure to call a witness who could have provided essential evidence to support their claim.


The court ruled that when a party fails to call a witness who could reasonably be expected to support their case, an adverse inference can be drawn against that party. This means that if the witness’s testimony would likely have strengthened the party’s case, the court may infer that the witness’s testimony would have been unfavourable to that party as they were not called to give evidence.


The Jones v Dunkel rule is grounded in the principle that parties to legal proceedings are under an obligation to adduce all relevant evidence available to them. Failure to do so may lead the court to draw an adverse inference that the evidence would have been unfavourable to that party and that the evidence would not have assisted that party. This can impact the ultimate outcome of the case as a inference favourable to the other party can be drawn.

The Jones v Dunkel 1959, rule is usually applied in civil cases to address situations where a party fails to present crucial evidence or witnesses. For example, if a plaintiff fails to call a witness who was present during an accident and could have provided key details about the incident, the court may infer that the witness’s testimony would not have supported the plaintiff’s version of events. This occurs where the plaintiff there is unexplained failure.


In civil cases, the rule serves as a means to level the playing field and ensure that parties do not withhold evidence that could potentially undermine their claims. It encourages parties to act in good faith and present all relevant evidence available to them, promoting a fair and just resolution of disputes.

Application of Jones v Dunkel in Criminal Cases in NSW

The application of Jones v Dunkel in criminal cases in NSW is a nuanced topic and has been the subject of debate among legal scholars and practitioners. However, the general consensus is that the Jones v Dunkel rule is not directly applicable in criminal cases in NSW.


Unlike civil cases, where the burden of proof rests on the balance of probabilities, criminal cases involve the higher standard of proof beyond a reasonable doubt. In criminal cases, the prosecution bears the burden of proving the guilt of the accused. The accused is presumed innocent until proven guilty, and they are not obliged to adduce any evidence in their defence.


The right to silence is a fundamental principle in criminal law. The accused has the right to remain silent during the trial, and their silence cannot be used against them. This principle aligns with the idea that the prosecution must prove the accused’s guilt beyond a reasonable doubt, regardless of whether the accused presents evidence or calls witnesses.

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Exceptions to the Rule of Jones v Dunkel

However, there can be exceptional circumstances in criminal cases where an adverse inference may arise due to the accused’s actions. For instance:


Failure to Answer Questions


If the accused provides inconsistent or evasive answers during police questioning or fails to account for their whereabouts at the time of the alleged crime, the court may draw an adverse inference against them. This inference does not stem from the Jones v Dunkel rule but from the conduct of the accused during the investigation.


Alibi Witnesses


In some situations, the defence may inform the prosecution about potential alibi witnesses (witnesses who can testify that the accused was elsewhere at the time of the alleged crime). If the defence fails to call these witnesses during the trial, the court may draw an adverse inference, but this is based on the specific circumstances of the case and not the Jones v Dunkel rule.


Accordingly, the Jones v Dunkel rule does not directly apply in criminal cases in NSW due to the fundamental differences in the burden of proof and the right to silence. Criminal defendants are not under any obligation to present evidence or witnesses in their defence, and their silence cannot be used against them.


However, there are exceptions where the conduct of the accused during the investigation or trial may result in an adverse inference being drawn against them. These exceptions are specific to individual cases and should not be confused with the application of the Jones v Dunkel rule in civil cases.


If you are going to a defended hearing in a criminal matter, it is essential to seek legal advice from our traffic lawyers in Sydney. Our free consultation lawyers will assist you in discussing your case.

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