Case: RPS v The Queen [2000] HCA 3 ; (2000) 199 CLR 620
Outcome: considered
foreshadowed that it would call evidence from its executives, such as Rowley, David Liu and Alan Watling but it did not do so. ASIC submits that, where an inference is open from facts proved, the unexplained failure of a party to call a witness or tender a document may be taken into account as a circumstance in favour of the drawing inference: Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298 at 308, 312 and 320-321; RPS v The Queen [2000] HCA 3 ; (2000) 199 CLR 620 at [26] . ASIC submits that it should be inferred that Rowley, Liu and Watling were available to be called, but FMG chose not to call them for strategic reasons. As a result, ASIC says, if there are inferences to be drawn from documents in evidence, which could have been explained by these executives, or by Forrest who also elected not to give evidence, the inference should be drawn against FMG that the evidence of these executives would have been of no assistance to their case, and that the documents should bear the meaning contended for by ASIC. In RPS [2000] HCA 3 ; 199 CLR 620 , Azzopardi v The Queen [2001] HCA 25 ; (2001) 205 CLR 50 and Dyers [2002] HCA 45 ; 210 CLR 285 , the High Court considered the applicability of the rule in Jones v Dunkel to criminal proceedings. It decided that the rule is of very limited application to defendants in criminal cases, its reasoning based on the accusatorial nature of criminal proceedings. As an illustration of the Court's approach, in Dyers , Gaudron and Hayne JJ stated at [9]: As was pointed out in RPS... , it will seldom, if ever, be reasonable to conclude that an accused in a criminal trial would be expected to give evidence. Not only is the accused not bound to give evidence, it is for the prosecution to prove its case beyond reasonable doubt. The mode of reasoning which is spoken of in ... Jones v Dunkel (26) ordinarily, therefore, cannot be applied to a defendant in a criminal trial. That mode of reasoning depends upon a premise that the person concerned not only could shed light on the subject but also would ordinarily be expected to do so. The conclusion that an accused could shed light on the subject-matter of the charge is a conclusion that would ordinarily be reached very easily. But given the accusatorial nature of a criminal trial, it cannot be said that, in such a proceeding, the accused would ordinarily be expected to give evidence. So to hold would be to deny that it is for the prosecution to prove its case beyond reasonable doubt. That is why the majority of the Court concluded, in RPS and in Azzopardi , that it is ordinarily inappropriate to tell the jury that some inference can be drawn from the fact that the accused has not given evidence. In RPS [2000] HCA 3 ; 199 CLR 620 , at [26]-[27] Gaudron A-CJ, Gummow, Kirby and Hayne JJ contrasted the reasonable expectation that a party in a civil trial would give or call relevant evidence in the circumstances described in Jones v Dunkel with the conclusion that it would seldom, if ever, be reasonable to expect an accused in a criminal trial to give evidence. Weissensteiner provides an example of where the latter would be reasonable.