Inferences

[3-150] Suggested direction

Last reviewed: September 2025

The following suggested direction is suitable for use in relation to inferences contended for by the Crown. It should not be given in respect of inferences contended for by the defence: see Note 6 below.

You may, in your role as judges of the facts, draw inferences from evidence.

Inferences are conclusions of fact reasonably drawn from a combination of proved facts. If A, B and C are established as facts then one might rationally conclude that D is also a fact, even though there might be no evidence that D is indeed a fact. There can be no inference unless there are facts from which to infer the fact which it is sought to establish. The question is whether, on the basis of the primary facts, it is reasonable to draw the inference.

Let me give you an example. If you wake up one morning, look through the window and see the ground is wet, you may perhaps infer it had rained overnight.

If you find that the facts are equally consistent in establishing more than one inference, then selecting one of them to prefer would amount to guesswork or, in other words, conjecture or speculation. If that is the case, you should not draw any inference.

In my example about the wet ground, you will, when you think about it, realise that the possible inference I suggested might be questionable. Someone may have used a hose or sprinkler, or a water pipe may have leaked instead.

In this case, the Crown asks you to draw an inference that … [apply principles to case in hand].

[Where the inference concerns an essential element or fact the Crown is required to prove beyond reasonable doubt add: Because the Crown relies upon the drawing of this inference in order to prove an element of the offence [or essential matter the Crown is required to prove], you must be satisfied of the inference beyond reasonable doubt. You should not draw this inference from the evidence unless it is the only reasonably available inference to be drawn from the evidence. You could not be satisfied beyond reasonable doubt if there are any other reasonably available inferences.]

[3-160] Notes

Last reviewed: September 2025

1.

There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish: Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152 at 169–170. The test is whether, on the basis of the primary facts, it is reasonable to draw the inference: Lane v R [2013] NSWCCA 317 at [109]–[110]; Jones v Great Western Railway Co (1930) 47 TLR 39 at 45.

For an inference to be reasonable, it must rest on something more than mere conjecture or speculation: Gwilliam v R [2019] NSWCCA 5 at [101], [104]; Lane v R at [107]; The Queen v Baden-Clay (2016) 258 CLR 308 at [47]; Peacock v the King (1911) 13 CLR 619 at 661; Barca v The Queen (1975) 133 CLR 82 at 104–105; Crane v R [2025] NSWCCA 93 at [131]. Mere conjecture or speculation arises where there are no positive proved facts from which the inference can be made, meaning that the method of inference fails: Caswell at 170; Seltsam Pty Ltd v McGuiness [2000] NSWCA 29 at [84]–[88]; Jones v Great Western Railway Co (1930) 47 TLR 39 at 45; cited in Crane v R at [203]. One does not pass from the realm of conjecture into the realm of inference until some fact is found which positively suggests, that is to say provides a reason, special to the particular case under consideration, for thinking it likely that in the actual case a specific event happened or a specific state of affairs existed; inference requires something more than mere conjecture, guesswork or surmise: HCF v The Queen [2023] HCA 35 at [13].

2.

If the circumstances are equally consistent with a number of varying hypotheses, “no one can be selected as the one that is true”: Crane v R at [203], citing Jones v Great Western Railway Co at 45.

3.

In a criminal case, where the inference concerns an element of the offence or an essential fact, the conclusion as to reasonableness of the inference must go further, and be such as to exclude other reasonable hypotheses: Gwilliam v R at [104]; Luxton v Vines (1952) 85 CLR 352 at 358; Crane v R at [202]–[208]. In such a case, it is necessary not only that the accused’s guilt be a reasonable inference but that it be the only reasonable inference that the circumstances would enable the jury to draw: The Queen v Baden-Clay at [46]; Barca v The Queen at 104; Plomp v R (1963) 110 CLR 234 at 252; Thomas v R (1960) 102 CLR 584 at 605–606.

4.

Provided the evidence is capable of giving rise to the inference contended for by the Crown, the fact the defence can suggest some other inference which would be consistent with the innocence of the accused does not, of itself, show that any probative value the evidence has is outweighed by the danger of unfair prejudice under s 137 of the Evidence Act 1995: R v SJRC [2007] NSWCCA 142 at [38]–[40]. As long as the inference or interpretation contended for by the Crown is open on the evidence, the Court in assessing probative value of the evidence is required to assume the inference sought to be drawn by the prosecution will be drawn. The starting point for the assessment is to assume that the inference most favourable to the Crown will be drawn and to assess the potential probative value on that basis, without regard to the availability of any competing inference: R v Burton [2013] NSWCCA 238; R v Gregory-Roberts [2016] NSWCCA 92 at [85].

5.

Whether the evidence in question in fact bears the interpretation placed upon it by the prosecution is a matter of inference, and a matter of fact for the jury. It is frequently part of the function of the jury to determine which, if any, of a number of competing inferences should be drawn: R v Burton [2013] NSWCCA 335 at [160] applying; R v SJRC [2007] NSWCCA 142 at [39]. For a judge to withdraw it from the jury simply because some possible alternative inference is open involves a usurpation of the jury’s function: R v Berrill [1982] Qd R 508 at 527, applied in R v Kalajzich (1989) 39 A Crim R 415 at 430.

6.

Some care needs to be taken in terms of directions given where inference drawing is relied upon by the defence. The jury should not be directed that it should be “very careful about drawing the inference asked of you by the defence”. There is nothing wrong with directing the jury that the process of drawing an inference should be a reasonable one, but it will rarely be appropriate for a jury to be warned that it needs to be “very careful” about drawing an inference favourable to an accused in a criminal trial. That is because the accused, except in unusual cases, bears no onus: Waldron v R [2023] NSWCCA 128 at [38]–[39], [48]. There is no obligation on the accused to adduce evidence to prove or support their hypothesis. It is sufficient if such an hypothesis can be reasonably derived from the evidence in the Crown case. No standard of proof applies. All that is necessary is that the hypothesis be such as to raise a reasonable doubt that the accused person has been proved guilty. It is not incumbent on an accused “to establish that some inference other than that of guilt should reasonably be drawn from the evidence: Wiggins v R [2020] NSWCCA 256; Barca at [105]; Baden-Clay at [62].

7.

Consider whether a circumstantial evidence direction is relevant — see Circumstantial evidence [2-500].