177 The rule in Jones v Dunkel operates in circumstances in which a party is required to explain or contradict something and so will almost always have an operation where a party bears the burden of proof on a matter: Ho v Powell at [16] and Coshott v Prentice at [80]–[81]. A Jones v Dunkel inference will not always be drawn and whether it is drawn depends on weighing all of the evidence: Flack v Chairperson, National Crime Authority (1997) 80 FCR 137 at 148–149; (1997)150 ALR 153 at 164.
178 The conditions for the operation of the rule in Jones v Dunkel are as follows: (1) the absent witness would be expected to be called by one party rather than the other; (2) the witness' evidence would elucidate a particular matter; and (3) the witness' absence is unexplained (Payne v Parker [1976] 1 NSWLR 191 (Payne v Parker) at 201–202 per Glass J (with whom Hutley J agreed)).
179 A witness may be expected to be called by one party rather than the other in circumstances where he or she might be regarded as being in the camp of one party, so as to make it unrealistic for the other party to call him: O'Donnell v Reichard [1975] VR 916 at 920 per Gillard J.
180 In Claremont Petroleum NL v Cummings (1992) 110 ALR 239 at 259, Wilcox J rejected an argument that a former director of the applicant should be regarded as being within the applicant's camp. There was no reason to believe that the uncalled witness "feels any allegiance or goodwill towards the company … the evidence shows he has had no contact with members of the present board", and it was found the witness was equally available to both parties (the respondent being a previous director of the company).
181 The second condition is made out when the uncalled witness is "a person presumably able to put the true complexion on the facts relied on [by a party] as the ground" for any inference favourable to the plaintiff: RHG Mortgage Ltd v Ianni [2015] NSWCA 56 at [75], per McColl AJA. The condition is not satisfied if there is no demonstrated reason to think the evidence of the uncalled witness would elucidate any particular matter: ASIC v Hellicar at [266].
182 In respect of the third condition, the significance to be attributed to the fact that a person did not give evidence will in the end depend upon whether, in the circumstances, it is to be inferred that the reason why the person was not called was because the party expected to call him or her feared to do so. The reason why the witness is not called may have no relevant relationship to the fact in issue: it may be related to, for example, the fact that the party simply does not know
