A Jones direction is an instruction a trial judge gives a jury when one party has failed to call a witness who was available and whose evidence would have been relevant to the case. The direction takes its name from the High Court decision in Jones v Dunkel (1959) 101 CLR 298, in which the High Court confirmed that a court may, in appropriate circumstances, draw an inference against a party who fails to call a witness they might reasonably have been expected to call.
Although the case originated in a civil context, the principle has been applied in criminal proceedings across Australia, with some important modifications to account for the different burdens and rights at play in a criminal trial.
What the direction actually says
In a criminal trial, a Jones direction typically instructs the jury on two related points. First, the jury may use the failure to call the witness as a basis for not drawing any inference favourable to the accused from that witness's absence. Second, in limited circumstances, the failure may actually support an inference that the uncalled evidence would not have assisted the party who chose not to call the witness.
It's not a direction that reverses the burden of proof. It doesn't require the accused to prove anything. What it does is permit the jury to reason about absence, which is a narrow but meaningful tool in certain factual disputes.
When does the direction arise in criminal proceedings?
The direction is most relevant when the prosecution fails to call a witness the defence would reasonably have expected to appear. Courts consider several factors before giving the direction:
- The witness was available and could have been called.
- The witness was in a position to give evidence on a matter genuinely in dispute.
- There was no good reason offered for the failure to call the witness.
- The failure was not adequately explained by the calling party.
Importantly, the direction is not automatic. The trial judge has a discretion to give it, and the discretion is informed by whether the inference would be fair and rational in the circumstances of the particular case. Courts are cautious about giving a Jones direction where the absent witness's relevance is marginal or speculative.
The accused and the Jones direction
One of the most contentious areas is whether a Jones direction can be given against an accused who fails to give evidence or to call a witness. Here the criminal law is strict. An accused has a right to silence, and that right is protected by statute and common law across all Australian jurisdictions. A judge cannot direct a jury to draw an adverse inference from an accused's decision not to testify.
This is the clearest distinction from the civil rule. The Jones v Dunkel inference, in its stronger form, cannot be used to fill gaps in the prosecution's evidence by pointing to the accused's silence. Judges are required to actively guard against that misuse.
Where the accused fails to call a third-party witness, the analysis is more fact-specific. Courts have permitted a Jones direction in those circumstances, but only when the witness was clearly available, the evidence would have been directly relevant, and the failure to call was not adequately explained. The right to silence, being personal to the accused, does not extend to protect strategic decisions about which third-party witnesses to call.
How judges manage the direction in practice
A judge who decides a Jones direction is warranted will typically give it carefully and in context. The direction will identify the specific witness, note the failure to call them, explain that the jury may use that failure in the way described, and remind the jury that the failure does not shift the burden of proof. The prosecution must still prove its case beyond reasonable doubt.
Defence counsel regularly contest applications for a Jones direction. The challenge is usually that the absent witness's evidence would not have been material, that the witness was not truly available, or that there was a legitimate forensic reason not to call them. Getting that argument right can prevent a damaging jury instruction from being delivered at all.
This procedural interplay at trial is similar in some respects to a voir dire, where contested evidentiary questions are resolved before the jury hears them. Both mechanisms shape what the jury is ultimately allowed to reason about.
Practical significance for defendants
A Jones direction, if given, can reinforce a prosecution narrative without the prosecution actually calling the evidence. That makes it a significant tactical consideration in trial preparation. Defence teams need to identify early which witnesses the prosecution might leave out, anticipate whether a direction could follow, and decide whether to call those witnesses themselves or prepare to argue against the direction being given.
Failure to anticipate the issue can leave the jury with an instruction that is difficult to overcome. This is one reason why the quality of pre-trial preparation matters as much as courtroom advocacy. Knowing the law and the facts well enough to see these issues coming is part of what separates an experienced criminal law team from a generalist one. Ann Valos Criminal Law specialises in exactly this kind of trial preparation, with accredited specialists who have over 30 years of combined experience in complex criminal matters.
For defendants concerned about how a court might characterise their conduct at trial, understanding related directions is also worth doing. A Farquharson direction, for instance, governs how juries reason from circumstantial evidence to a finding of guilt. Taken together, these directions shape the logical framework the jury applies to the facts.
A note on jurisdiction
The Jones direction applies across Australian jurisdictions, but its precise formulation varies. New South Wales, Victoria, Queensland, and other states have developed their own case law refining when and how the direction should be given. Practitioners need to know the local authorities, not just the High Court principle. If you're facing a criminal trial and questions of witness evidence are live, the applicable state law can make a real difference to how the direction is framed and whether it should be resisted.
If you have questions about your matter, Ann Valos Criminal Law offers accredited criminal law specialists who can advise on trial preparation and the evidentiary issues that shape outcomes.