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.
