Section 106(d) of the Evidence Act 1995 (NSW) applies only to matters of which a witness is 'unable to be aware' and not to matters which a witness is unable to recall, following R v PLV. In a circumstantial case where the defence raises a specific alternative hypothesis, the trial judge is not required to direct the jury on the need to exclude other hypothetical possibilities not raised by the evidence or the defence case. The formulation 'reasonable possibility' in jury directions on the standard of proof is consistent with High Court authority.
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