Where the Crown case rests substantially on circumstantial evidence a jury cannot return a guilty verdict unless the Crown has excluded all reasonable hypotheses consistent with innocence: The Queen v Baden-Clay (2016) 258 CLR 308 at , ; Barca v The Queen (1975) 133 CLR 82 at 104. For an inference to be reasonable it must rest upon something more than mere conjecture: The Queen v Baden-Clay at  quoting Peacock v The King (1911) 13 CLR 619 at 661; Gwilliam v R  NSWCCA 5 at , . It is not incumbent on the defence either to establish that some inference other than guilt should be drawn from the evidence or to prove particular facts tending to support such an inference: The Queen v Baden-Clay at  citing Barca v The Queen at 105. It is sufficient that an accused’s hypothesis consistent with innocence can be derived reasonably from the evidence in the Crown case. No standard of proof applies: Wiggins v R  NSWCCA 256 at .
It is the duty of the trial judge to put to the jury with adequate assistance any matters which the jury, upon the evidence, could find for the accused: The Queen v Baden-Clay at . This includes directing attention to alternative hypotheses not the subject of evidence but available and consistent with the accepted evidence: Wiggins at . The trial judge can invite defence counsel to state any reasonable hypothesis consistent with innocence that may be put to the jury in the summing up: The Queen v Baden-Clay at .
Where an accused with peculiar knowledge of the facts is silent, “hypotheses consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the accused”: The Queen v Baden-Clay at  quoting Weissensteiner v The Queen (1993) 178 CLR 217 at 227–228, which was cited with approval in RPS v The Queen (2000) 199 CLR 620 at 633.
A direction in relation to a circumstantial Crown case is an amplification of the proposition that the Crown must prove its case beyond reasonable doubt where the evidence relied upon by the Crown may give rise to another reasonable explanation for the facts other than that the accused is guilty of the offence charged: see generally Shepherd v The Queen (1990) 170 CLR 573; R v Keenan (2009) 236 CLR 397 at . The usual circumstantial case is often referred to as a “strands in a cable case”.
In considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence: The Queen v Baden-Clay at  citing The Queen v Hillier (2007) 228 CLR 618 at . The evidence must be considered as a whole and not by a piecemeal approach to each particular circumstance: The Queen v Hillier at . Individual items of evidence, on their own inadequate to found a conviction, may take strength from other items: Davidson v R (2009) 75 NSWLR 150 at .
See also Criminal Practice and Procedure NSW at [2-s 161.15]; Criminal Law (NSW) at [CLP.580].
[2-510] “Shepherd direction” — “link in the chain case”
Generally, no particular fact or circumstance relied upon in a circumstantial case needs to be proved beyond reasonable doubt. There may, however, be a circumstantial case where one or more of the facts relied upon by the Crown is, or are, so fundamental to the process of reasoning to the guilt of the accused that the fact or facts must be proved beyond reasonable doubt. Such a fact is referred to as an “intermediate fact” being an indispensable link in a chain of reasoning toward an inference of guilt: Shepherd v The Queen (1990) 170 CLR 573. There is no settled way of determining what constitutes an indispensable intermediate fact, however Simpson J in Davidson v R (2009) 75 NSWLR 150 at  said it may be tested by asking whether, in the absence of evidence of that fact, there would nonetheless be a case to go to the jury: D’Agostino v R  NSWCCA 259 at . This is often referred to as a “link in a chain case”. As to the appropriateness of such a direction, see Davidson v R at , ,  and Burrell v R  NSWCCA 163 at ff. Such a direction should not be given where it would be likely to confuse the jury. It is ultimately for the jury to determine whether the particular fact has such significance.
[2-520] Suggested direction — “strands in a cable case”
It is assumed for the purposes of this direction that the jury have already been directed in terms of the Onus and standard of proof at [3-600] and as to Inferences at [3-150]. It is also assumed that the legal ingredients of each charge in the indictment will have been the subject of directions: see Summing-up format at [7-000].
Of course, where the Crown is relying upon direct evidence as well as a circumstantial case, the directions will have to acknowledge the existence of the two different types of case and the different approach to direct evidence which can prove the offence if it is accepted beyond reasonable doubt. The following directions are to be adapted if the Crown is intending to prove a particular element or elements of the offence charged by a circumstantial case rather than the guilt of the accused generally.
As I have already told you, the onus of proving [the accused’s] guilt in respect of the [charge(s)] which it brings against [the accused] is on the Crown. It must establish [his/her] guilt beyond reasonable doubt. This means that, in respect of each of the essential legal ingredients or elements of the [charge(s)], you must be satisfied beyond reasonable doubt that the Crown has established its case before you would be entitled to bring in a verdict of “guilty” of [that charge/those charges].
I have also told you that your function as the judges of the facts in this case extends beyond coming to a conclusion as to whether you find that any particular fact has been established by the evidence. Your function also extends to drawing reasonable inferences or conclusions from the facts you find established. “Inference” and “conclusion” mean the same thing. I will use the word “conclusion” to refer to the line of reasoning that the Crown intends to prove by its circumstantial case.
In this case, the Crown relies [wholly/partly] … [if partly, identify which part] on what is called “circumstantial evidence”. In relying upon circumstantial evidence, the Crown asks you to find certain basic facts and then from those facts to draw a conclusion as to the existence of a further fact(s).
Circumstantial evidence can be contrasted with direct evidence. Direct evidence is what a witness says that he or she saw or heard or did. It may be a witness saying that he or she saw an accused person do the act which the Crown says constitutes the alleged crime charged. It may be a video recording showing an accused person committing an act that the Crown relies upon as part of its case or it can be evidence from a witness that he or she heard an accused person admit to committing the crime. In a direct evidence case, if the evidence is accepted beyond reasonable doubt, it is capable of proving the guilt of the accused.
In a circumstantial case, the Crown lacks direct evidence of that kind. This does not mean that a circumstantial case is for that reason weaker than a case based upon direct evidence. Some direct evidence can be of very dubious quality. For example, direct evidence from a witness identifying an accused person as being the offender can be very unreliable because identification evidence can be honest but mistaken.
But in a circumstantial case no individual fact can prove the guilt of the accused. Where the Crown’s case depends either wholly or in part on circumstantial evidence, then the jury is asked to reason in a staged approach. The Crown first asks the jury to find certain basic facts established by the evidence. Those facts do not have to be proved beyond reasonable doubt. Taken by themselves they cannot prove the guilt of the accused. The jury is then asked to infer or conclude from a combination of those established facts that a further fact or facts existed. The ultimate fact the Crown asks the jury to find based upon the basic facts is that an accused person is guilty of the offence charged.
A case based on circumstantial evidence may be just as convincing and reliable as a case based upon direct evidence. This will depend upon the number and nature of the basic facts relied upon by the Crown when considered as a whole (not individually or in isolation). And it will depend upon whether all of the evidence leads to an unavoidable conclusion that the Crown has established the guilt of the accused. It is important that you approach a circumstantial case by considering and weighing, as a whole, all the facts you find established by the evidence. It is wrong to consider any particular fact in isolation and ask whether that fact proves the guilt of [the accused], or whether there is any explanation for that particular fact or circumstance which is inconsistent with [the accused’s] guilt.
The correct approach is first to determine what facts you find established by the evidence. As I have already told you, any particular fact to be taken into account by you does not need to be proved beyond reasonable doubt. You then consider all of those facts together as a whole and ask yourself whether you can conclude from those facts that [the accused] is guilty of the offence charged. If such a conclusion does not reasonably arise, then the Crown’s circumstantial case fails because you are not satisfied of guilt beyond reasonable doubt. Of course, it follows that you must find [the accused] not guilty.
But if you find that such a conclusion is a reasonable one to draw based upon a combination of those established facts then, before you can convict [the accused], you must determine whether there is any other reasonable conclusion arising from those facts that is inconsistent with the conclusion the Crown says is established. If there is any other reasonable conclusion arising from those facts that is inconsistent with the guilt of [the accused], the circumstantial case fails because you are not satisfied beyond reasonable doubt of [the accused’s] guilt.
You should understand that drawing a conclusion from one set of established facts to find that another fact is proved involves a logical and rational process of reasoning. You must not base your conclusion upon mere speculation, conjecture or supposition.
[Specify the nature of the Crown’s circumstantial case and what fact(s) the Crown asks the jury to conclude or infer from a consideration of the evidence.]
In order to satisfy you beyond reasonable doubt of [the accused’s] guilt of the offence, the Crown must first persuade you that the inference or conclusion it relies upon is a reasonable one to draw from the facts that you find established by the evidence. It then must prove to you that the only reasonable inference or conclusion that can be drawn from a consideration of all the established facts viewed as a whole is that [the accused] is guilty of the offence. If there is any other reasonable conclusion open on those facts that is inconsistent with the conclusion the Crown asks you to find, then the Crown’s circumstantial case has failed.
[Summarise the Crown’s circumstantial case and the defence arguments in reply.]
[2-530] Suggested direction — “link in a chain case”
If it is a case in which there is a fact or facts essential to a finding of guilt or a finding in favour of the Crown (in respect of an essential matter which it must prove) and it is thought helpful to identify that fact or those facts, then after it/they have been identified, continue as follows:
The Crown asks you to draw an inference or conclusion of guilt [as to an essential ingredient of the charge] … [specify ingredients] beyond reasonable doubt from the [fact(s)] which I have summarised.
It will not be open to you to come to a conclusion favourable to the Crown unless you were, first to find as a fact that … [refer to the essential intermediate fact]. As that fact is essential to your coming to a conclusion in favour of the Crown — because the Crown must prove its case beyond reasonable doubt — then you would first have to be satisfied as to the existence of that particular fact beyond reasonable doubt. This particular fact must be proved beyond reasonable doubt not because it alone proves the guilt of [the accused] but because it is an essential step in the reasoning that the Crown asks you to follow in order to establish its case. Unless that fact is proved beyond reasonable doubt, the reasoning relied upon by the Crown must fail.
As I have already said, in relation to facts which are not essential to your process of reasoning, you would not consider those facts you find established by the evidence in isolation, but you would have regard to them as a whole.
If you were satisfied beyond reasonable doubt as to the existence of the essential fact, then you can take that fact together with all the other facts you find established and ask whether you can draw an inference or conclusion in favour of the Crown from those facts considered as a whole. If such a conclusion that the Crown asks you to find is not available then the Crown’s circumstantial case fails. But it is for you to determine what conclusion, if any, can reasonably be drawn from the established facts, and then consider whether there is any other reasonable explanation for those facts other than that of [the accused’s] guilt. If there is no other explanation consistent with all the established facts considered together, then it would be open to you to convict [the accused].
If, however, you are not satisfied beyond reasonable doubt as to the essential fact to which I have referred, you must return a verdict of not guilty. You should also find [the accused] not guilty if, looking at the established facts as a whole you cannot conclude beyond reasonable doubt that [he/she] is guilty. As I have said, this would also be the position if, at the end of your deliberations, you are of the view that some other reasonable explanation exists for those facts other than that [the accused] is guilty.