Circumstantial Evidence
Circumstantial evidence is evidence of circumstances which can be relied upon
not as proving a fact directly but instead as pointing to its existence. It differs from
direct evidence, which tends to prove a fact directly: typically, when the witness
testifies about something which that witness personally saw, or heard. Both direct
and circumstantial evidence are to be considered.1
To bring in a verdict of guilty based entirely or substantially upon circumstantial
evidence, it is necessary that guilt should not only be a rational inference but also
that it should be the only rational inference that could be drawn from the
circumstances.
If there is any reasonable possibility consistent with innocence, it is your duty to
find the defendant not guilty. This follows from the requirement that guilt must be
established beyond reasonable doubt.
Commonly, three special directions are given in substantially circumstantial cases
1. as to drawing inferences;2
2. that “guilt should not only be a rational inference but should be the only rational inference
that could be drawn from the circumstances”;3
3. that if there is any reasonable hypothesis consistent with innocence, the jury’s duty is to
acquit.4
The second and third are but different ways of conveying, or emphasising, the meaning of
“beyond reasonable doubt”.5 So while such directions may be helpful “in many, if not most,
cases involving substantial circumstantial evidence”, “there is no invariable rule of practice”
that such directions “should be given in every case involving circumstantial evidence”.6
1 A possible addition is: It is not necessary that facts in dispute be proved by direct evidence. They may be
proved by circumstantial evidence alone, by direct evidence alone, or by a combination of direct and
circumstantial: that is, both direct and circumstantial evidence are acceptable proof of facts. So you
should consider all the evidence, including circumstantial evidence.
2 See Summing-up, General, Primary Facts and Inferences, especially footnote 7.
3 Shepherd v The Queen (1990) 170 CLR 573 at 578. See also R v Goldsworthy, Goldsworthy & Hill [2016]
QSC 220 at [10], “where the Crown case rests either wholly or partly on circumstantial evidence, a no case
submission is to be decided on the basis of such inferences that are reasonably open in support of the Crown
case”.
4 R v Perera [1986] 1 Qd R 211 at 217; R v Owen (1991) 56 SASR 397 at 406.
5 R v Holman [1997] 1 Qd R 373 at 380.
6 Shepherd at 578.
Benchbook – Circumstantial Evidence No 48.1
March 2017 Amendments
