reference to contemporary materials, objectively established facts, the apparent logic of events, the presence or otherwise of corroboration and the effect of the evidence as a whole.
173 I mention at this point that the applicant submitted that in terms of appearance, he remained polite and courteous and composed during a long and challenging cross-examination. It is certainly true that the cross-examination was detailed and challenging. Both the witness and cross-examining counsel remained composed during that process. For reasons I will give, I find that the applicant was not an honest and reliable witness in the many areas I will identify. In addition, I have found a number of other witnesses were not honest and reliable witnesses in the areas I will identify.
Jones v Dunkel
174 Each party advanced an argument in support of a Jones v Dunkel inference in relation to the failure of the other party to call a particular witness or to seek to adduce evidence on a particular topic from a witness that that party did call. The details will be discussed in due course.
175 In Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361 (Kuhl v Zurich Financial Services), Heydon, Crennan and Bell JJ described the rule in Jones v Dunkel in the following terms (at [63]–[64]):
63 The rule in Jones v Dunkel is that the unexplained failure by a party to call a witness may, in appropriate circumstances, support an inference that the uncalled evidence would not have assisted the party's case. That is particularly so where it is the party which is the uncalled witness. The failure to call the witness may also permit the court to draw, with greater confidence, any inference unfavourable to the party that failed to call the witness if that uncalled witness appears to be in a position to cast light on whether the inference should be drawn. …
64 The rule in Jones v Dunkel permits an inference not that evidence, not called by a party, would have been adverse to the party but that it would not have assisted the case. …
176 In ASIC v Hellicar, Heydon J described the scope of the rule in Jones v Dunkel as follows (at [232]):
Secondly, the Court of Appeal accepted that its reasoning went "beyond Jones v Dunkel". Indeed, it agreed with the trial judge's conclusion that the rule in Jones did not apply. As the Court of Appeal said, two consequences can flow from the unexplained failure of a party to call a witness whom that party would be expected to call. One is that the trier of fact may infer that the evidence of the absent witness would not assist the case of that party. The other is that the trier of fact may draw an inference unfavourable to that party with greater confidence. But Jones does not enable the trier of fact to infer that the evidence of the absent witness would have been positively adverse to that party.
