Nick Dowse Circumstantial Evidence
Circumstantial Evidence – Structure of Answer
1. Issue: “What circumstantial evidence would the Crown wish to lead in the [murder] trial against
2. Circumstantial evidence is all evidence which is not direct evidence of a fact in issue and includes
evidence of motive, opportunity, habit, conduct and similar fact evidence (Field @ [3.28]).
a. Evidence of a basic fact from which the jury is asked to infer a further fact (Shepherd per
Dawson J @ ).
b. Contrasted with direct evidence: which is evidence of a person who witnessed the event
sought to be proved (Shepherd per Dawson J @ ).
3. Like all other evidence, circumstantial evidence must be relevant (Wilson). Also, must not infringe
exclusionary rules, and is still subject to judicial discretion to exclude.
4. It is possible to win a case entirely made up of circumstantial evidence (Chamberlain).
5. The probative force of a mass of evidence may be cumulative (Shepherd per Dawson J @ ).
a. i.e. if you have a number of different pieces of circumstantial evidence, you can cumulate
6. Go through and categorise each of the facts in the problem:
i. Relationships between the accused and others will be admissible because they
establish motive, explain the occurrence as well as assist in the choice between 2
explanations (all three) (Wilson per Barwick CJ @ ).
1. Wife shot in back of head. Wife had been arguing with husband, who police
alleged shot her. Witnesses overheard wife say “I know you want to kill me
for my money. Why don’t you get it over with?” These statements are
otherwise hearsay but = OK to use as circumstantial evidence because court
could infer a motive for killing. Assisted the choice between 2 explanations:
accidental or deliberate (Wilson).
1. Wife died bodysurfing with husband. Evidence that she was a good swimmer
etc. Husband had a girlfriend and had told her that he was a widower and
promised to marry the girlfriend, before the wife had died. = circumstantial
evidence of motive = killing deliberate, not accidental (Plomp).
1. Woman went into a shop in Toowoomba and said she needed to buy a black
dress for her husband’s funeral. But her husband wasn’t dead yet… =
circumstantial evidence of motive (Lane).
i. This relates to an accused person’s ability to commit the crime.
ii. Is there evidence at the crime scene that puts them there at the relevant time?
iii. For example, was the accused’s hair found at the scene where the victim died? Etc
iv. Where a person denies they committed a crime, can go ahead and show they
nevertheless had the opportunity to do it.
v. The opposite is also true: if the person has an alibi that shows they couldn’t have
been at the murder scene at the time, this will be a good defence.
vi. Section s 590A regulates alibis in criminal trials
1. An accused person shall not upon the person’s trial on indictment, without the
leave of the court, adduce evidence tending to show that by reason of the
presence of the accused person at a particular place or in a particular area at
a particular time the accused person was not, or was unlikely to have been,
at the place where the offence is alleged to have been committed at the time
of its alleged commission unless, before 14 days after date for committal set
down, the person gives notice of particulars of the alibi (s 590A Criminal
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i. If a person habitually acts in a certain way, this will be relevant to the way in which
he or she might have acted on a particular occasion (Eichsteadt v Lahrs).
1. In E v L, victim always alighted his bicycle through an intersection before
crossing it. This was relevant to whether the defendant was able to see him
before hitting his car.
ii. Here, [deceased/accused] always did [act] and this will be admissible evidence to
i. Evidence of flight (fleeing from the jurisdiction) is an example of conduct which is
circumstantial evidence that may prove an inference of guilt (Melrose).
ii. The telling of lies is an example of conduct which is circumstantial evidence that
may prove an inference of guilt (Edwards).
iii. Hiding under the bed, concealing your identity and closing the curtains is conduct
which may be circumstantial evidence of guilt (Black).
iv. See facts of these cases in “Implied Admissions and Confessions” notes.
e. Propensity and Similar Fact Evidence
i. Similar Fact Evidence (SFE) is evidence of similar conduct by a person on other
occasions. It is used to prove the offence with which he or she is charged, or the
civil conduct that it is alleged he or she committed, or some element of either of
ii. State what the SFE is here.
iii. Test for SFE: Similar fact evidence is admissible if the trial judge concludes that on
the whole of the evidence, the similar fact evidence, if accepted, bears no rational or
reasonable explanation consistent with the innocence of the accused (Pfennig). No
longer strictly necessary for the SFE to disclose striking similarities, unusual feature
or an underlying unity although these may assist in satisfying the test (Pfennig).
1. P was charged with murder of 10 year old boy.
2. The boy’s body was never found.
3. They found the boy’s bike, fishing rod, thongs and bag neatly stack on
railings in a reserve.
4. They discounted that the boy drowned because he did not like swimming, did
not take a towel or swim shorts and declined the opportunity to go swimming
earlier that day.
5. P denied killing the boy.
6. The crown used SFE. SFE was that P kidnapped a boy 12 months later in a
a. On that occasion, the boy’s bike and things had been neatly stacked nd
on a hill and P had been convicted of the rape and abduction of the 2
7. So the crown wanted to lead evidence about the 2 boy to infer that P killed
the first boy.
a. Test for circumstantial evidence:
i. Admissible if the trial judge concludes that on the whole of the
evidence, the similar fact evidence, if accepted, bears no
rational or reasonable explanation consistent with the
innocence of the accused
1. Here, he didn’t like swimming, which would otherwise be
the rational explanation. With that gone, could admit circ
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ii. No longer strictly necessary for the disputed evidence to
disclose striking similarities, unusual feature or an underlying
unity, although these may assist in satisfying the test
v. Phillips (2006 case)
1. Charged with 8 offences of a sexual nature
2. 6 victims
3. The SFE in -:
a. Girl in early to mid teens
b. The sexual offences involved vaginal intercourse
c. Girls were friends of the accused
d. Girls were able to identify the accused
e. Accused did not start in a violent way
f. He gave them the opportunity to engage in sexual activities of their
own free will
a. Intermediate and trial courts must continue to apply Pfennig: 
b. The similar fact evidence sought to be admitted was unremarkable and
not uncommon and not probative: 
c. SFE is used to assist on issues relating to the accused’s conduct or
state of mind: 
d. Whether the victim consented relates to the victim’s state of mind, not
the accused’s: 
e. Pfennig does not require the SFE (by itself) to prove the guilt of the
f. Judge should exclude SFE if there is a reasonable view that it is
consistent with innocence: 
vi. Admissibility of SFE under Statute
1. The possibility of collusion or suggestion does not render the similar fact
evidence inadmissible where the probative value outweighs prejudice (s 132A
2. Also, s 132B is relevant where there is a domestic relationship:
a. Applies to homicide, offences endangering life or health (e.g. GBH,
torture) and assault offences (s 132B(1)).
b. Relevant evidence of a domestic relationship between the offender
and the victim is admissible (s 132B(2)).
c. R v Roach  QCA 360
i. Applied s 132B
ii. A woman had a sexual relationship with a man over a 2-year
iii. The woman received a carer’s pension for the man who
suffered a range from problems cirrhosis, drug dependence and
iv. The couple lived in boarding houses and shelters, but at the
time of the incident the woman lived alone.
v. The man visited the woman and went straight to the fridge
without asking, and they had a dispute.
vi. The man punched the woman several times causing bruising on
her arms and haematoma around her left eye.
vii. There were earlier assaults showed how the man treated the
woman, made the man’s conduct intelligible, and was relevant
to determining whether the assault occurred.
1. This evidence admissible under s 132B.
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d. HML and others v The Queen  HCA 16
i. Accused had committed sexual offences against the victim in
ii. This case tells us why we can use relationship evidence:
1. Useful to explain:
a. Whether the offence is an isolated incident
b. Why a complainant does not complain to another
c. Why the accused makes demands
d. Why a complainant complies with the accused’s
f. Character Evidence
i. There is no privilege against self-incrimination for the offence currently charged (s
ii. Crown cannot ask the accused questions about their previous convictions or bad
character unless (s 15(2) QEA):
1. The question elicits an answer that is admissible to show the person is guilty
of the offence charged (s 15(2)(a)); or
2. The question elicits an answer that is evidence to show that any other person
charged (the co-accused) in that criminal proceeding is not guilty of the
offence with which the accused is there charged (s 15(2)(b)); or
3. The accused has raised their own good character, OR, casts imputations on
the character of the prosecutor, crown witnesses or the co-accused (s 15(2)
a. i.e. where accused tries to say one of the crown witnesses is involved