A failure to respond to a question constitutes an implied 'representation' within the meaning of the hearsay rule in the Evidence Act 1995 (NSW), and evidence of such negative responses is hearsay. Section 165 of the Evidence Act 1995 (NSW) may apply to visual identification evidence that does not fall within the statutory definition of 'identification evidence' (which is limited to inculpatory identification), but a Domican-type warning should not be given in respect of exculpatory identification evidence where the identification was made in calm circumstances with adequate opportunity for observation. In a circumstantial murder case, the combination of individual doubts over separate strands of evidence may collectively give rise to a reasonable doubt even where no single doubt would suffice.
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