Relationship of the defendant and the deceased
129The deceased and the defendant had a long marriage of some 50 years. There were two periods of the marriage, the first from 1961, when the marriage commenced until June 1996, when the plaintiff moved in with the deceased in Richmond House, and the second from October 1999 after the plaintiff had returned to Australia, until the deceased's death in 2010.
130Due to medical issues, the defendant started experiencing pain during sexual relations from about 1990 and had surgery to try and correct the problem in 1996, which was unsuccessful.
131In June 1996, the deceased and defendant purchased an apartment at Cargill Court about 5 minutes from Richmond House. During the period from July 1996 to October 1999, when the plaintiff resided with the deceased in Richmond House, the defendant was separated from the deceased and lived in the apartment at Cargill Court. However, the deceased and the defendant continued to run their business together seven days per week. In October 1999, after the plaintiff had returned to Australia, the defendant returned to live with the deceased in Richmond House and recommenced a sexual relationship with him. However, due to ongoing medical problems, the sexual side of their relationship deteriorated.
132The defendant became aware that the deceased was using sex workers from about 1993 but the situation was not openly addressed between them until 2000. In 2000, the defendant and the deceased discussed the deceased's need for other sexual partners and agreed that he should have relationships with other women as the defendant was unable to fulfil the deceased's sexual needs. In 2001, the defendant moved back to the apartment at Cargill Court so that the deceased could bring other women to Richmond House.
133The defendant gave evidence that she was aware of a number of relationships which the deceased had between 2001 and his death in 2010, including those with Lynley Deaker and Lara Burgess who gave evidence in these proceedings. She was also aware that the deceased had contact with the plaintiff when he was in Sydney and that they had holidayed together on a number of occasions after the plaintiff returned to Australia in 1999. However, the defendant and the deceased continued to work together in their business until they closed it in 2003 and continued to eat meals, socialise and combine their financial affairs until the deceased's death in 2010.
134The defendant submitted that it was a fair inference that the deceased's estate was substantially amassed by their joint efforts. I accept this inference. The defendant also submitted that the deceased did not owe an obligation to the plaintiff. I do not accept this submission.
135The plaintiff's submission was that the deceased and the defendant separated as man and wife at least from 2001, when the defendant recommenced living in a separate residence at Cargill Court, until the deceased's death. It was submitted that there was no common residence, no sexual relationship, no mutual commitment to a shared life and no holding out to the public they were a couple. Further, the Court could hold that the relationship between the defendant and the deceased was one of friendship and financial only, from 2001. In addition, it was submitted that the Court could also find that the marital relationship between the defendant and the deceased broke down from 1993 when the plaintiff and the deceased formed a relationship.
136The defendant and the deceased worked in business together throughout their relationship and unfortunately due to the medical problems from which the defendant suffered they were not able to have a sexual relationship later in life. However, in my view their marriage relationship (apart from 1996 - 1999) continued in fact and law until the death of the deceased.
137The defendant submitted that a Jones v Dunkel inference should be drawn as the plaintiff did not call either of her sons to give evidence. The so-called rule in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 permits the Court to draw an inference that the uncalled evidence would not have assisted the party who failed to call it and entitle the trier of fact to more readily draw any inference fairly to be drawn from other evidence: Cross on Evidence 4th Aust ed (1991), at [1215]; Romeo v Papalia [2012] NSWCA 221 at [121]. However the failure to call the witness cannot be used to fill gaps in the evidence: Romeo v Papalia.
138Strictly speaking, as Hodgson JA (with whom Beazley JA agreed) pointed out in Ho v Powell [2001] NSWCA 168, Jones v Dunkel related to a situation where there was evidence supporting an inference against a party, and that party did not give or call evidence, which that party was plainly in a position to have given or called, in order to explain or contradict the material presented. His Honour said that in his opinion, a similar principle applies where a person bearing the onus of proof does not give or call evidence which that person is plainly in a position to give or call; and unless some explanation is given of this failure, the tribunal of fact is entitled to infer that this evidence would not have assisted that person's case (at [15] - [16]).
139The rule is a specific application of the well-established principles that a party is expected, within reasonable limits, to produce at the trial all the evidence that is fairly available to him: Spence v Demasi (1988) 8 MVR 1 at 12. The principle does not extend to drawing an inference that the uncalled evidence would in fact have been damaging to the party not calling it: Moore v Moore [2012] FAMCA 387 per Strickland J at [84]. Similarly, in civil cases, the unexplained failure of a party to call witnesses is not treated as evidence of fear that it would expose an unfavourable fact, nor as an assertion of the non-existence of the fact not proved: HML v R [2008] HCA 16; Fazio v Fazio [2012] WASCA 72.
140In relation to the plaintiff and her sons, the first question, in my view is: which party is expected to call them? The cases deal with this by asking: to which party is the witness available, or what "camp" is the witness in? See for example Commonwealth Bank of Australia v Munro [2011] NSWSC 128 at [44]; Payne v Parker (1976) 1 NSWLR 191 per Glass JA. The second question is whether the witness's evidence would elucidate a particular matter. The final question is whether that party could be fairly expected to call the witness, or whether there is a reason that properly explains their absence, other than that the witness would not assist that party's case.
141Cox J summarised these questions in relation to a supporting witness (as opposed to a party not giving evidence) in Spence v Demasi, as follows:
"So far as a potential supporting witness is concerned, the court will first have to decide whether his absence should be regarded as telling against one party rather than the other - whether, in the nature of things, he should be put in a particular camp or simply seen as available equally to both sides. Even where that test is satisfied, an adverse inference cannot be drawn if there is an obvious or proved, and satisfactory, explanation for the failure to call the witness. That will depend upon the facts of the particular case."
142In relation to the first matter, the significance of the inference depends on the closeness of the relationship of the absent witness with the party who did not call the witness: Cross on Evidence at [1215]; Hospitality Group Pty Ltd v Australian Rugby Union Ltd [2001] FCA 1040; Dilosa v Latec Finance Pty Ltd (1966) 84 WN (Pt1)(NSW) 557 at 582.
143Once it is established that a witness is available to one of the parties, the tribunal of fact must be satisfied that he probably would have the relevant knowledge or there would be no basis for any adverse deduction from the failure to call the witness: Payne v Parker.
144Finally, it is necessary to verify that the potential witness not only could shed light on the subject in dispute, but also would ordinarily be expected to do so: RPS v R [2000] HCA 3. In relation to reasons why a party might choose not to call a witness, without attracting a negative inference against them despite the witness being in their "camp" and being able to elucidate a matter, Bray CJ said in Smith v Samuels [1976] 12 SASR 573:
"For the unfavourable inference to be justified the witness not called must be available: it must be 'in the power' of the party to call him. He may be unavailable through absence or illness. He may be unavailable because he would not be a competent witness. In my view he may also be unavailable in the relevant sense, or at least no unfavourable inference should be drawn from his absence, when there are strong reasons for not calling him other than the falsehood of the story he might be expected to confirm, such as his hostility to the party or, I would say, jeopardy or grave prejudice to the witness himself...." (emphasis added)
145The plaintiff gave evidence that both her sons knew about her relationship with deceased and had met him on several occasions, although her younger son had had more contact with the deceased than the older son. Her evidence was that both sons had visited the Paddington house from time to time when she and the deceased were both there. The plaintiff stated that her younger son, Giles, was at her home in the Southern Highlands with herself and the deceased the night before the deceased died and was particularly upset at what had occurred.
146Under cross-examination, the plaintiff was asked if there was any reason why either of her sons could not have given evidence in these proceedings to which she responded there was no reason but that she didn't want either son to be involved. The plaintiff stated that Giles had offered to give evidence but that her older son Alex had a mental illness and that she did not discuss her relationship with the deceased with him.
147In relation to the first question, whether the plaintiff's sons were available to the plaintiff, it seems that Giles was available but given that Alex has a mental illness, this raises the question of whether he would have been unavailable due to that condition. The second question is whether either son's evidence would have added anything further as to the nature and extent of the relationship between the plaintiff and the deceased. The final question is whether the plaintiff could reasonably be expected to have called her sons to give evidence and whether there is a reasonable explanation as to their absence other than that their evidence would not assist the plaintiff's case.
148In answer to the first question, I find that Giles was available to give evidence for the plaintiff but in view of his mental illness, Alex was not. However, in answer to the second question, I am of the view that Giles wouldn't have any relevant knowledge given the nature of the relationship between the plaintiff and the deceased. From 1999 onwards when the plaintiff returned to Australia, the plaintiff and the deceased were living separately and apart. Therefore, in answer to the third question, there is a reasonable explanation as to their absence and I do not draw an inference against the plaintiff because of her failure to call her sons to give evidence.