Australian Law and Circumstantial Evidence

In The Boscombe Valley Mystery, Arthur Conan Doyle writes, “Circumstantial evidence is a very tricky affair. It might appear to point in one direction, but if you adjust your perspective a little, you might discover that it’s pointing in a completely opposite direction in an equally uncompromising way.” Nothing is more deceptive than an obvious truth, according to Doyle. (Findlay, Australian Criminal Justice, 50). Doyle must have been discussing the use of circumstantial proof in the legal system generally and in Australian courts specifically. Australian law is indeed very tricky because of the way circumstantial evidence is handled in the courts. A member of the jury in the Australian courts, that may be an ordinary citizen just like the rest of the jurors all over the world, is bound to be directed by the judge using conceptual metaphors in the process of decision- making. Confessional evidence exemplify the witness as relating that the alleged offender told him he did it, and identification or direct evidence refers to a witness testifying that he saw him do it, circumstantial evidence refers to when the witness presuming he must have done it (Williams, Australian Constitutional Law and Theory, 567).

Conceptual Metaphors

Under the Australian law, with the direction of the judges, juries use the conceptual metaphors “links in the chain” and “strands in cable” in the evaluation of circumstantial evidence in criminal cases (Findlay, Australian Criminal Justice, 235). Links-in-a-chain is a conceptual metaphor for a case that is proven through sequential reasoning. Strands-in-a-cable is a conceptual metaphor for a case that is proven through accumulation of facts. It is upon the discretion of the trial judge what conceptual metaphor to advise to the jury. Strands-in-a-chain is easier to prove because if one of the chain’s links is lacking, the prosecution’s case fails. But if the case has very significant intermediate facts, the judge is bound to advise links in the chains so the jury can draw from these facts a guilty inference.

No Smoking Gun

What makes circumstantial evidence tricky and deceptive, as described by Doyle, is the fact there is no “smoking gun” in circumstantial cases that is why it is often seen as weaker than cases with direct evidence. (Williams, Australian Constitutional Law and Theory, 547). There is no scientific or rational explanation that the accused killed the victim. A questionable witness can also derail the credibility of a direct evidence. With no smoking gun in their hands, the prosecution will also fight to discredit the direct witness’s believability. However, even if the defense would endeavor to discredit a direct testimony, it will be regarded as unreliable tarnishing the whole case.

The power of circumstantial evidence lies on the prosecution and their ability to build a scenario using circumstantial facts that all point to the guilt of the alleged offender kicking the chances of the defense (Findlay, Australian Criminal Justice, 125). One point of major consideration is that fact that members of the jury uses commonsense since they did not know about the case before hand, or even the law before they were called in. The more the prosecution lays all the possibilities, the more the assumptions of the defense are inhibited. The members of the jury using their commonsense will also question all the possible things that could have happened. As such the prosecution endeavors to present one circumstantial evidence to another leading to an inevitable guilty outcome.

In Criminal Trials, the prosecution uses circumstantial evidence so the jury will arrive to a guilty verdict (Findlay, Australian Criminal Justice, 105). It can become the Crown’s most powerful means to convict the suspect. But it is also crucial that the crown crush all the threads of evidence not only point out to the suspect’s guilt but also crush any all the threads of evidence pointing to the suspect’s innocence. Otherwise, the case will be acquitted citing reasonable doubt. It is challenging because in a rational sense, circumstantial evidence does not prove anything or in the defense eyes, a wrongful interpretation by the crown. But the presentation of this kind of evidence is not for the defense, but for the jury. The presentation is built in a way that the suspect is guilty using many circumstantial facts. It is the process that drives its power to convict. The jury is boxed in to established scenario, and in the process, all the other established facts are eliminated.

It is apparent that the prosecution is treading on a complex area when using circumstantial evidence because it is essentially not capable of satisfying the jury’s pursuit of the truth beyond reasonable doubt. Circumstantial evidence relies on indirect factors that drive the jury or the judge to come up with conclusions. The argument is vital in setting up the series of facts and connecting these facts through logic and experience to drive an inference of guilt.

The Crown

Boyle’s words ring certainly true with Australia’s Commonwealth Government or Crown. Circumstantial evidence casts shadows of doubt to the case that may not establish a guilty verdict particularly if the Crown has not included all rational hypothesis conforming to innocence. A reasonable conclusion it must not be based on a conjecture (Findlay, Australian Criminal Justice, 124).

The Crown has the burden of proof when it comes to proving beyond reasonable doubt the charges it lays against the accused. It has the responsibility to establish guilt in terms of all the legal aspects of the charges. In coming up with an inference about the case, the judge has to see to it that fact has come out from the sets of presented evidence. In certain cases in Australia, the Crown depends either partly or wholly on circumstantial evidence. Even when this happens the judge demands the facts from which he could base his inference.

Circumstantial evidence is also used as a contrast to direct evidence, which refers to what a witness has seen, did or heard first hand (Williams, Australian Constitutional Law and Theory, 467). A direct witness is one that testifies to have seen or heard the accused in the commission of the act that is crucial to the Crown’s case. It can also happen the direct witness’s testimony is sufficient beyond reasonable doubt establishing the guilty of the accused. Circumstantial evidence do not the factors and advantage of direct evidence. However, it does not necessarily mean that a circumstantial case is weaker than direct evidence. It still boils down to the quality of evidence given that some evidence even direct ones can still be irresolute. For example, the witness identifying the accused can be honest, but still be mistaken.

A circumstantial evidence cannot suffice as proof of guilt. When the case becomes dependent on the circumstantial case, the jury is uses a staged approached in their line of logic. The jury must look for facts that are based on the evidence, which may not be proven beyond reasonable doubt. But these facts are not taken individually but as a collective. The jury then makes an inference based on those gathered facts that the alleged offender is guilt of the charges.

A circumstantial case can be convincing and dependable as a case based on direct evidence. The number and nature of collective facts are crucial because the Crown will consider these facts individually, but as a collective whole. And the crown will also make sure that the evidence will result in an inevitable conclusion and demonstrate the guilt the alleged offender’s guilt. It is vital that a circumstantial case is approached with significant consideration and evaluation. The jury must zero in on the facts being built by the evidence even if they still cast shadows of doubt. The important thing is how these gathered facts as a whole work out in proving guilt. If after this the jury still cannot come up with an inference, then the circumstantial case is deemed a failure because the guilt has not been proven beyond reasonable doubt. As such the alleged offender will be deemed not guilty.

Drawing an inference from one set of gathered facts to prove another fact entails astute and judicious reasoning. The inference must not be founded by mere postulation, conjecture, or assumption. In order for the evidence to reach the notch of guilty beyond reasonable doubt, the inference must be relied upon. It should also prove that the only rational conclusion that can be established based on the gathered facts taken as whole is that the alleged offender is guilty. Other rational inferences that are open based on those facts are not aligned with the conclusions then the circumstantial case is then deemed a failure. The inference of guilt is an essential part of the charge. So is reaching the level of guilt beyond reasonable doubt when summarized the facts.

Media Perception of Circumstantial Evidence

Just like Doyle, Media has its own perception of circumstantial evidence. It often perpetuates the wrong impression that circumstantial evidence cannot be used to drive criminal conviction. In Australia’s Crown particularly, many cases use circumstantial evidence to arrive to a guilty verdict. This is because in most criminal case, there is no direct evidence, or many of the presented direct evidence may be marred in terms of credibility. Circumstantial evidence provides the link between the accused and the crime. In the end, all the jury is left to decipher decide on and build on are the pieces of circumstantial evidence in coming up with a conviction or acquittal decision. As such it is the quality of their presentation and their admissibility that clinches their worth. On these terms, they gain equal footing with direct evidence. The concept of circumstantial evidence has indeed existed for a long time, an not just the opposite of direct evidence. It is founded on common sense, which a jury is expected to be equipped with as lay people that are tasked to arrive to an inference based on the presented facts.

A truth is important to another truth when the presence of one can be exhibited to be the cause, one of the causes of one of the effects of the presence of the one, be it as a solitary entity or together with other truths, deems the presence of the other truth highly possible or impossible, based on the natural course of circumstances. An example to this is the Peacock vs. The King in the 20th century where circumstantial evidence was the crucial to the case’s decision (Williams, Australian Constitutional Law and Theory, 937). The circumstances surrounding the crime by coincidence is able to manifest a proposition with mathematical precision. Circumstantial evidence does not diminish or derogate the evidence. However, for it to be effected depends on how the prosecutors treat it. Circumstantial evidence requires a classification according the prospectant, concomitant or retrospectant. These classifies the facts comprising evidence of the at to be proven before the committed crime. When it is at time of the act, it refers to concomitant; and after the act, retropectant.

Criminal cases with circumstantial evidence allow evidence of facts, which a jury is tasked to conclude as a fact. Circumstantial evidence was not allowed unless it was important in some other way because of its issues exhibiting a mere inclination to do the crime. The evidence of the same facts needed to have powerful level of probative strength. It should also be acts showing an obvious similarity to the charged act that it would be illogical to think they happened merely by chance.

Evidence Act 1995

In this Sydney case the Makin couple accepted a fee to care for infants. It was good economics for them to accept the fees and get rid of the infants, which effected to a murder charge (Williams, Australian Constitutional Law and Theory, 867). However, the Crown found it difficult to explain why when the murdered baby was found buried in the Makin property, twelve other infants were buried in the same location. They were convicted because the presence of the other bodies confirmed their murder charge. Another case regarding on circumstantial evidence was that of George Smith whose three wives (through bigamous marriage) all drowned in a bathtub at different times but with similar odd circumstances. He was also deemed guilty and convicted for murder (Reynolds and Goddard, Leading Cases in Australia, 234).

Another case had the accused Noor Mohamed charged for the death of cyanide poisoning (Reynolds and Goddard, Leading Cases in Australia, 236). The evidence for the death of the first mistress was however not accepted because it only showed a proclivity to commit the murder. The prosecutor egged the suspect to admit by using the term striking similarity. But the admission of evidence was the exception rather than the rule because it was that relevant to the case, that excluding it would be an insult to common sense. The common denominator of these cases is that the evidence of the same facts was a specific kind of circumstantial evidence, which had to bare a specific probative worth or force by reason that it exhibited a series of acts leading to an inevitable incrimination of the accused.

The subject of tendency evidence is not governed by the Evidence Act selections 97 and 98. Selection 97 disallows the acceptance of evidence of personality, reputation, behavior or inclination to verify that a suspect has or had been inclined to act in a specific manner or be in a specific state of mind if the court thinks the evidence would not have vital probative worth (Findlay, Australian Criminal Justice, 346). Section 98 rules out evidence of two or more associated circumstances to verify that because of the unlikelihood of the coincidence, the suspect acted upon or was in a specified state of mind while doing the act, unless the evidence would bare probative worth (Findlay, Australian Criminal Justice, 348). The effect of the law enables the easier acceptance of the indirect evidence because it does not require many evaluations that are debated on in common law cases. The burden now is on the party, which is calling the evidence to explain its acceptance as having probative worth.

The Evidence Act’s Section 101 also requires probative worth of all evidence to significantly be bigger than any prejudicial outcomes on the defendant; otherwise the evidence should be excluded in the criminal proceedings (Gans, Modern Criminal Law of Australia, 342). Section 137 does not require significant prejudice nor inhibit prejudice to unjust prejudice, but is mandatory (Gans, Modern Criminal Law of Australia, 343). It does not bring back the stringent common law injunction against the acceptance of circumstantial and same fact evidence barring certain cases. The new concepts that are introduced in the Act include evidence of a sexual acts that are uncharged are not the same as charged sexual act. Circumstantial evidence is a significant and vast issue on its own whose effect in the Evidence Act has been to undermine the common law to make its acceptance in criminal cases (Gans, Modern Criminal Law of Australia, 344).

It is importing that the circumstances surrounding the evidence to a certain moral extend do not include every hypothesis but the one intended to be validate. As such the outcome of the criminal case that the tendency of circumstances to point out the guilt, no matter how strong and copious get nothing unless the commission of the crime has primarily been established. The strength of the circumstantial evidence is its exclusivity in essence, and the mere tendencies of the hypothesis with the circumstances being in the vague and insufficient unless they do not include other supposition, it is vital to ask with assiduous attention what the other assumption there may be that entirely of partially agrees the facts in evidence. The rules of evidence are similar in criminal and civil law. Likewise, the rules of common sense and rationality also follow in establishing the inference based on the criminal or civil acts.

The evidence in civil cases are essentially equitable, the common practice is to rely on the jury to acknowledge their accepted hypothesis in cases when there are two evenly or almost evenly possible hypothesis. However, there is a different practice in criminal cases where the judges have the obligation to acquit if there is any logical hypothesis that aligns with innocence of the suspect. If the evidence needs to be proven as circumstantial, the subordinate facts connected with the primary facts must be established as basis from a rational inference.

In the incrimination of the suspect the circumstantial evidence must have no rational explanation. According to the natural route of human affairs, the level of possibility that the commission of the facts that are proven would be accompanied by the commission of the act to be proven is very high that there is no possibility for opposite supposition (Crofts, Australian Essential Criminal Law, 237).

Links in a Chain: Crown v. Clay-Baden Case

In Australia however, a potent circumstantial evidence can convict the accused party. An example to this was the Crown v. Baden Clay case where in the Supreme Court convicted the Baden-Clay for killing Allison even if there was no direct evidence (Findlay, Australian Criminal Justice, 435). Expectedly, the lawyers of Baden-Clay filed for appeal because of the so-called unreasonable verdict. However, some Australian criminal lawyers asserted that the circumstantial evidence in this case overpowered the direct evidence brought by a vulnerable witness amidst cross-crown.

The Crown established a scenario where the sole logical result was the guilt of Baden-Clay. Individually the circumstantial factors mattered very little said the lawyers in their analysis. But the jury is usually placed in a situation where they endeavor to comprehend what happened from one point to another, so a guilty verdict becomes inevitable when all the circumstantial factors are taken as a whole (Findlay, Australian Criminal Justice, 435). The Crown prosecutors also fenced in the defense in establishing the profile of other results to the jury. They established momentum in raising circumstantial factors such as the Baden Clay knowing the Allison, and that they had had conflict, and the fact that he was the last one to see her. Additionally, the prosecutors pointed out to the scratches on Baden Clay’s face; him lying to the police; and the leaves on Baden Clay’s head. When these are documented as one, they form an undisputed circumstantial case that can drive conviction.

Links in a Chain: Crown v. Thomas

Another example of circumstantial case is the case between Crown v. Thomas, wherein the Peter is the witness (Gans, Modern Criminal Law of Australia, 256). Peter in his testimony declared that he saw Thomas fire the gun at Ann before she feel to the ground. As this is an example of direct evidence, if indeed the jury is convinced, and arrive to a guilty conclusion. However, the whole case becomes a circumstantial one if Peter sees Thomas and Ann enter the room, hears Thomas saying tell Ann he was going to shoot her, hears a shot, and sees Thomas rushing out with a smoking gum. Peter testifies seeing Tom and Ann going into a room, and then hearing Thomas saying that he was going to shoot Ann. These pieces of facts when taken individually cannot result in a guilty verdict. But as a whole, the build up of these circumstantial facts will drive jury to a guilty inference; that indeed Thomas shot Ann.

But before it comes to that, the jury has the duty to make sure that the testimony and the witness are credible, to prove the guilt beyond reasonable doubt. Many situations can formulate conclusions about the alleged criminal’s guilt. These situations include, lying to the police, resisting arrest, having a clear motive to commit the crime, timing and presence in the scene of the crime when it was committed, inconsistencies in stories, dodging of facts, and denial of facts. The prosecution will use these situations to as building bricks to set up their circumstantial case (Gans, Modern Criminal Law of Australia, 147).

The power of circumstantial case lies on the jury’s reliance on credibility and common sense. Even with scientific evidence, the jury still has to make associations and possibilities to erase any shadows of doubt. For instance, finger print evidence has to clearly establish the way the killer handled the object with the fingerprint in association with perpetration of the crime.

Links in a Chain: Crown v. Plomp

An example of this is the case of Hendrikis Plomp who was tried and convicted for murder after his wife drowned when the couple went swimming (Dunkan and Chappelle, Issues in Australian Criminal Justice, 312). His case was completely supported by circumstantial evidence, which includes his personal testimonies regarding the happy relationship he had with his wife. As it turned out, this personal testimony was erroneous. The evidence presupposed vital importance when it was proven that Plomp had been having an affair with another woman to whom he proposed marriage after the death of his wife. The common direction where proof of guilt relies upon circumstantial evidence, but to have the jury arrive to a guilty verdict, it is vital for the jury not just to come up with the reasonable inference but the only reasonable inference that the circumstances (Dunkan and Chappelle, Issues in Australian Criminal Justice, 309).

The trial judge granted the established direction that where the jury depended on evidentiary circumstances, guilt must not only ne a reasonable inference but must be the only reasonable inference, which is magnifying the rule that prosecutors must very their case beyond reasonable doubt. This is helpful if the circumstantial evidence that is used in the case is substantial. But in cases where there this kind of evidence is only slightly being utilized, it can become more confusion. A direction is vital for the jury to do their duties in a proper way. However, there is no rule or law that prompts the jury when it comes to circumstantial evidence. The judge may also instruct the jury to seek by conclusion an aspect of the charged crime if no conclusions were agreeable to the appellant logically open based on the facts. A direction from the judge in this regard is often necessary if the prosecution is dependent on circumstantial evidence. Circumstantial evidence is considered as a chain with intertwining pieces otherwise, the chain will not work. If a piece of evidence in the link is broken or does not work, then it will definitely will not work for the party that’s presenting the evidence (Dunkan and Chappelle, Issues in Australian Criminal Justice, 112).

In circumstantial evidence, the prosecution can rely on of amalgamation of circumstances, nothing of which would convict the accused because it is a mere suspicion. But if it is taken to its entirety can form an inference of guilt with much absoluteness as human nature can require. However there are cases when the series of metaphors is more appropriate in terms of prosecution entirely relying upon the evidence. There are also cases wherein it is not clear which in the series of metaphors is appropriate. However, juries may still be urged to look at the evidence in its entirety, so the case may not fail just become of the unreliability of the evidence. Rather the jury may look at it as a untangled rope and as such they should look at every piece of evidence. The idea of subordinate facts, which comprise crucial links in a chain of rationality lead to a conclusion of guilt beyond reasonable doubt.

The jury should make a decision whether or not they accept an evidence to a particular fact, not by taking into consideration the evidence associated to isolated fact in the reference of the entire evidence, and that can come up a conclusion of guilt from an amalgamation of facts, none of which are taken individually would support that conclusion. However, the jury cannot take on a fact as a foundation for a conclusion of guilt unless in the end they are pleased with the fact beyond reasonable doubt.

When circumstantial evidence the jury in both criminal and civil are tasked to establish a conclusion from the circumstances of the case. These circumstances must draw a more possible conclusion in favor of what is alleged in a civil case (Dunkan and Chappelle, Issues in Australian Criminal Justice, 316). On the other hand, the circumstances surrounding a criminal case must no include any rational hypothesis that is in line with innocence. It is an inevitable consequence that the circumstances in a criminal case from which the conclusion is derived must established beyond reasonable doubt. It is an apparent and logical proposition that one cannot be pleased of an conclusion’s truth beyond reasonable doubt particularly when they are derived from facts about doubt around the fact’s presence.

Circumstantial evidence often can absolutely prove the commission of a crime. But this has two conditions, chief of which require the primary facts from which the conclusion of guilt is be based from must be proven beyond reasonable doubt (Arenson, Australian Law in the common Law Jurisdiction, 456). The strength of a conclusion can be attributed to the strength of each of those facts taken as a whole. Secondly, the conclusion of guilt has to be the only conclusion, which is logically open on all the principal facts. The establishment of the conclusion is merely a function of the jury’s complex judgment of human affairs, experience and rational thinking.

A conclusion of guilt can be established appropriately if it is founded upon principal facts that are proven beyond reasonable doubts. Some cases are hard to prove beyond reasonable doubt. If a principal fact comprises of an essential part of an charged crime, a juror must be convinced that the fact has been proven beyond reasonable doubt before this juror can appropriately vote a guilty verdict with the rest of the jurors. The satisfaction of the jurors in terms of a fact that is proven beyond reasonable doubt is highly dependent on the quality of the fact and the process that the each juror find appropriate to reach an inference on the fundamental question whether the accused is guilty or innocent. However, in cases where the accused is reliant on each of the four matters being proven against him, it is apparent that each of those aspects must be validated beyond reasonable doubt.

It would really be right for the trial judge to clarify to the jury in this case that even the slightest doubt in each of these aspect would be amplified in the collective view. However, if the accused offender’s guilt would be built by the existence of any one or more matters, each of which had been proven on the scale of possibilities, it would also be odd to ask that a jury should not consider each of them unless they are pleased beyond reasonable doubt, whether with one of the facts or with all the facts as a collective.

Links in a Chain: Crown v. Chamberlain

The case of Chamberlain in 1984 is an example of in the confusion behind circumstantial evidence. Lindy Chamberlain’s case is indeed a good example of circumstantial case (Arenson, Australian Law in the common Law Jurisdiction, 756). Chamberlain was accused of the slashing the throat and killing her daughter Azaria on a family trip, before hiding the body. She insisted that her daughter was killed by a dingo and carried where the body was found. Clearly all the gathered facts lead to a circumstantial cashew here no direct evidence to work on. The facts provided the proverbial links that defines a circumstantial evidence: foetal haemoglobin in varied parts of the car; evidence of possible bleeding if the baby’s head had been attacked by a dingo and the absence of blood in the tent; the condition and arrangement of the girl’s clothing when they where found (Arenson, Australian Law in the common Law Jurisdiction, 456)

The 12 members of the jury that were tasked to evaluate the pieces of evidence were unsophisticated people from the community as apparent from their notes ranging from: “doesn’t believe in Dingo,” “Can’t believe Ms. C murdered her daughter” to “must say guilty.” (Arenson, Australian Law in the common Law Jurisdiction, 687). Chamberlain was found guilty of murder; her husband was also found guilty as an accessory to the crime. Chamberlain’s subsequent was dismissed with the court saying that the jury’s decision should not be disturbed because of the legitimate basis of the conviction.

In 1990, the High Court of like cases asserted that the Chamberlain case was founded on a misconception, which was a nice way of disagreeing to a decision (Findlay and Kirchengast, Criminal Law in Australia, 145). The links of the chain metaphor of a circumstantial case may apply in cases where the subordinate facts must be proven as part of the chain’s link, otherwise the case must be deemed a failure. Most of the times the entirety of the circumstances must be proven putting significance to the delivery of the overall quality of proof. Thus the misconception of the Chamberlain case can be explain in the following terms according to Dawson J: The inference in the Chamberlain case do not adhere to the proposition that in a case relying on circumstantial evidence, the jury may appropriately derive a conclusion of guilt upon individual facts that are proven beyond reasonable doubt. It also does not support the proposition that a case with this kind of direction should be granted to a jury.

Although it is acknowledged in the Chamberlain case that if the jury needs to arrive to an inference of fact as a indispensable step in the process of analysis to arrive to an conclusion of guilt, then such must be proven beyond reasonable doubt (Findlay and Kirchengast, Criminal Law in Australia, 145). However, it does not mean that each factor in the evidence must be considered beyond reasonable doubt. Whether it is sensible for the trial judge to instruct the jury to prove beyond reasonable doubt the subordinate conclusion of fact depends on the case. Such advise to the jury will only be likely if the inference is a needed link in the logical chain.

In 2000, the courts in Australia have cited the strength of the collective circumstances and advised against the isolating or sealing the evidence (Findlay and Kirchengast, Criminal Law in Australia, 145). The metaphor links in a chain seemed like an exception rather than the rule. But links to a chain remains relevant when in times when the judge advises the jury. Its objective is to provide ordinary members of the community that are converged in a jury to utilize significant tools to guide them in the evaluation of circumstantial evidence. It is the call of the judge to advise the jury whether to consider the evidence as the metaphors, links in a chain or strands in a cable. Links in a chain advise is give if there are vital facts that must be proven in the chain of logic in the process of establishing a guilty inference. The judges advise although based on his analogy is crucial in the direction that will be taken by the jury.

Strands in a Cable: Crown v. Essendon

An example this is the Essendon case, a non-criminal case with no jury, meaning the trial judge was not bound to dispense direction using the either of the metaphors (Findlay and Kirchengast, Criminal Law in Australia, 134). The prosecutor had the choice what metaphor to use in the process of proving that their circumstantial evidence is verified beyond reasonable doubt. The prosecution thus picked the more difficult test links-in-a-chain to persuade the AFL tribunal who was not satisfied with the prosecutors’ presentation stating that there were two indispensable links that were missing in the chain (Findlay and Kirchengast, Criminal Law in Australia, 140).

Consequently, the prosecutors lost in the battle. During the appeal it switched to strands in a cable analogy in time for hearing. This time, the panel liked the strategy, which comes as no surprise since the Australian court decisions have a preference to it. It was accepted in the mainstream practice of Australian law as a strategy in analyzing and proving circumstantial evidence. In effect, the prosecutors were able to present the same arguments in a new way.

Because of its confusion concept the