In Cubillo and Another v Commonwealth (No2) [2000] FCA 1084; (2000) 103 FCR 1 at [360] O'Loughlin J quoted the corresponding statement from the 4th edition of Cross on Evidence with approval, and added:
"However, that statement by no means provides a shield against a justifiable criticism that a party deliberately kept less favourable witnesses from testifying."
62 The nature of this qualification to when the Jones v Dunkel inferences can be drawn is illustrated by the United States authorities relied on in para [1215] of Cross on Evidence. Gafford v Trans-Texas Airways 299 F 2d 60 (1962) was an action for damages by an airline passenger injured when a plane was tossed around in violent turbulence. The co-pilot was called, and gave full evidence of all the details of the trip from the starting point to the point of the accident. The pilot was not called. The trial judge refused a request from counsel for the plaintiff to direct the jury that the failure to produce the pilot afforded an inference that the testimony of the pilot would not support the defendant's contentions. The United States Court of Appeals 6th Circuit held there was no error in refusal of that direction. The Court said, at 63:
"It is claimed by counsel for plaintiff that under Tennessee law this instruction should have been given. Stevens v Moore , 24 Tenn App 61, 139 SW 2d 710, is cited in support of this contention. This case involved damage to a rug while in the process of cleaning. The defendant's wife who worked in the office of the cleaning firm testified together with a driver for the defendant. Neither witness knew anything about the cleaning process. The defendant himself and two or three employees were familiar with the actual work of cleaning but none of them testified. It was held that the rule claimed by counsel for plaintiff was applicable and that the jury should have been so instructed. In laying down this rule the court quotes copiously from 22 CJ section 55 et seq.
The court says, at pp 72-73, 139 SW 2d at p 717 quoting from CJ: "'Failure of a party to call an available witness possessing peculiar knowledge concerning the facts essential to a party's case, direct or rebutting, or to examine such witness as to the facts covered by his special knowledge, especially if the witness would naturally be favourable to the party's contention, relying instead upon the evidence of witnesses less familiar with the matter, gives rise to an inference that the testimony of such uninterrogated witness would not sustain the contention of the party. No such inference arises where the only object of calling such witness would be to produce corroborative, cumulative, or possibly unnecessary evidence;' -
The rule was applied without discussion by the court in Strickland Transp Co v Douglas , 37 Tenn App 421, 264 SW 2d 233, where the defendant did not call as a witness the driver who parked a truck on the street which was the subject of the plaintiff's claim for damages.
It appears that the Tennessee rule on this subject derives from CJ. This rule is discussed in 31 CJS Evidence s 156c. One of the requisites for applying the rule is that the witness possesses peculiar or special knowledge. No inference arises against a party for failing to call a witness where such witness would only produce corroborative or cumulative evidence. At p 860 it is stated in the text, "Any inference drawn from such failure is not equivalent to direct evidence; it does not take the place of evidence of material facts, or shift the burden of proof so as to relieve the party on whom rests the necessity of establishing a prima facie case; the inference is not conclusive."
In the case at bar there is no indication that Lamb, although he was the command pilot, had peculiar or special knowledge not known by Palmer [the co-pilot]. Palmer was the operator and had the peculiar and special knowledge of the speed of the plane, flying conditions, turbulence, etc. Lamb's testimony at most would have been cumulative.
We conclude that the court did not err in refusing the requested instruction."
63 In Ballard v Lumbermens Mutual Casualty Co 148 NW 2d 65 (1967) Heffernan J said, at 73:
"A party to a law suit does not have the burden, at his peril, of calling every possible witness to a fact, lest his failure to do so will result in an inference against him. The requirements of the absent material witness instruction should be narrowly construed to be applicable only to those cases where the failure to call a witness leads to a reasonable conclusion that the party is unwilling to allow the jury to have the full truth. Wigmore states the rationale to be:
"The non production of evidence that would naturally have been produced by an honest and therefore fearless claimant permits the inference that its tenor is unfavourable to the party's cause ." 2 Wigmore, Evidence (3d ed) p 162, sec 285.
Wigmore cites the case of the Chimney-sweeper's jewel:
"… a chimney-sweeper's boy, finding a jewel, took it to the defendant, a jeweller for appraisal, but the defendant would not restore it. In an action of trover, in proving the value, 'the Chief Justice [Pratt] directed the jury that unless the defendant did produce the jewel and show it not to be of the finest water, they should presume the strongest against him, and make the value of the best jewels the measure of their damages; which they accordingly did.'" ( Armory v Delamirie (1722), 1 Strange 505)
It is apparent that policy factors behind this rationale are not present in this case. The plaintiff herein did, in fact, produce two or three possible witnesses to the same facts."
64 Wigmore on Evidence (Chadbourn Rev 1979), vol 2, para 287 sets out an exception to the inference arising from failure to call available evidence:
"… possible witnesses whose testimony would be for any reason comparatively unimportant , or cumulative , or inferior to what is already utilised, might well be dispensed with by a party on general grounds of expense and inconvenience, without any apprehension as to the tenor of their testimony. In other words, put somewhat more strongly, there is a general limitation (depending for its application on the facts of each case) that the inference cannot fairly be drawn except from the non production of witnesses whose testimony would be superior in respect to the fact to be proved. This limitation should not be enforced with any strictness; otherwise, it would become practically objectionable; but on principle it is sound, and has often been recognised."
65 Best's 2001-2 cumulative supplement to Wigmore gives the following recent examples of the principles set out in para 287 of Wigmore:
· "the failure of a party to introduce an available witness does not give rise to any inference or presumption that the testimony of the witness, if he had been called, would have been unfavourable to such party, where other qualified witnesses have testified for the party concerning the matters, and the testimony of the uncalled witness would have been merely cumulative or corroborative": Lowder v Economic Opportunity Family Health Centre, 680 So 2d 1133, 1136 (Fla Dist Ct App 1996)
· if testimony of a missing witness would be cumulative of facts already established, the missing-witness instruction is not warranted: Zdeb v Baxter Int'l Inc, No 1-97-1039, 1998 WL 340417 (Ill App June 26, 1998)
· "the missing witness inference is not available with respect to a witness whose testimony would be comparatively unimportant, or cumulative, or inferior to what is already utilised": Bruce v State, 569 A 2d 1254, 1267 (Md 1990)
66 The United States cases on this topic of cumulative witnesses are not influenced by any matters of substantive or procedural law which are peculiar to the United States - rather, they represent the working through of practical examples of sound reasoning concerning matters of fact. For that reason, the reliance of Cross on Evidence para [1215] on United States authorities to state circumstances in which no Jones v Dunkel inference can be drawn is sound in principle, and the statement in Wigmore para 287 can be applied by Australian courts.
67 In the evidentiary context in which Garling DCJ had to decide whether he would draw any Jones v Dunkel inference unfavourable to the plaintiff, on the topic of whether the light was off, Melissa and Mrs Pratt were merely extra witnesses, beyond the three eyewitnesses who had been called, two of whom his Honour expressly found were satisfactory witnesses and the third of whom he made no adverse comment on. For that reason, his Honour would have been justified in drawing no such inference unfavourable to the plaintiff from the absence of Melissa and Mrs Pratt.