Monday 22 August 2016

Should an inference be made against a party that fails to call a witness?

In the recent case of Masoud and Masoud the Full Court of the Family Court was required to consider whether the trial Judge had failed to draw an inference against the wife when she had not called her father and mother as witnesses in relation to money that they all said her parents had loaned to her and which the husband thought had been a gift.

The so called "rule in Jones and Dunkel" allows a Court to draw an inference unfavourable to the party that failed to call the witness, such that the evidence of the uncalled witness would not have assisted the party's case.

In Masoud and Masoud the Full Court, accepting the rule, noted however that "it is important to observe that the operation of the "rule" is not a substitute for evidence".

In this case the wife had given evidence, in both an affidavit and in person before the Court, as to the existence of a loan, as did her father in an affidavit. That evidence was supported by a loan agreement that had been produced to the Court. No evidence was either led by the husband or elicited in cross-examination of the wife to cast doubt on the evidence of the wife and her father.

In the particular circumstances of the case the Court found that the trial Judge had not fallen into error in not making an inference against the wife.