What does Jones v Dunkel really mean?

No case is more often cited, and more often misunderstood, than Jones v Dunkel (1959) 101 CLR 298.

It stands for two propositions.

The first – and I think the most important – governs drawing inferences generally.  An inference is a conclusion that a fact exists based, not on direct evidence, but on the existence of some other fact or facts, made by the ordinary exercise of reason in the light of human experience:  G v H (1994) 181 CLR 387, at 390.  The critical point made in Jones v Dunkel is that an inference can only arise ‘as an affirmative conclusion from the circumstances proved in evidence, that is, ‘[o]ne does not pass from the realm of conjecture into the realm of inference until some fact is found which positively suggests, that is to say provides a reason, special to the particular case under consideration, for thinking it likely that in that actual case a specific event happened or a specific state of affairs existed’:  Jones v Dunkel at, respectively, 304 and 305; see also at 31-320, Carr v Baker (1936) 36 SR(NSW) 301 at 306-307, and Bell v Thompson (1934) 34 SR(NSW) 431 at 436-437.

The second proposition in Jones v Dunkel that is the unexplained failure of a party to give evidence, or to call someone who might properly be thought would be able to throw light on a fact in issue, confirms any inferences that may properly be drawn against that party, rendering more probable the inferences against them that are open on the evidence:  Jones v Dunkel at 312 and Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106 at 119.  The ways in which this principle operates are explained in United Group Resources Pty Ltd v Calabro (No 5) (2011) 198 FCR 514 at [74] and [75].  An unexplained failure to give evidence ‘is not treated as evidence of fear that it would expose an unfavourable fact, nor an assertion of the non-existence of the fact not proved’:  HML v R (2008) 235 CLR 334 at [303].