Jones v Dunkel

Section 20 of the Evidence Act would suggest that no such direction could be given against the Defence... Similarly, the High Court in Mahmood v State of Western Australia [2008] HCA 1 found that the direction should not be given where the prosecution fails to call a witness,

The direction in Jones v Dunkel springs from a motor negligence case, where the jury was told that the failure of the Defendant to call the only witness to the accident could be properly be regarded as a basis to assume that the evidence would not have assisted their case.

Section 20 of the Evidence Act states that no such direction should be given in respect of the Defence case. As much was confirmed in Dyers v R [2002] HCA 45, where Defence had not called a witness who might have corroborated the Accused’s dock statement. The court found that “The principles stated in Jones v Dunkel presuppose that there is occasion for the calling of evidence by an accused. Such a presupposition is incompatible with the presumption of innocence, and the right of the accused neither to give, nor to call evidence at trial.”

Similarly, the High Court in Mahmood v State of Western Australia [2008] HCA 1 found that the direction should not be given where the prosecution fails to call a witness, holding that “the question is not whether the jury may properly reach conclusions about issues of fact but whether, in the circumstances, they should entertain a reasonable doubt about the guilt of the accused.“

Jones v Dunkel

Jones v Dunkel [1959] HCA 8

“The jury should at least have been told that it would be proper for them to conclude that if Hegedus had gone into the witness-box his evidence would not have assisted the defendants by throwing doubt on the correctness of the inference which, as I have explained, I consider was open on the plaintiff's evidence.”