A trial judge's reference to 'the bare possibility of innocence' in directing a jury on circumstantial evidence constitutes a misdirection on the burden of proof, as it invites jurors to scrutinise whether a possibility of innocence is 'reasonable' or merely 'bare', contrary to the principle that a reasonable doubt is simply a doubt which reasonable jurors are prepared to entertain. The passage from O'Connor J in Peacock v The King should not be incorporated into jury directions. Section 34R of the Evidence Act 1929 (SA) is mandatory and requires the trial judge to identify and explain the permissible and impermissible uses of discreditable conduct evidence even where neither counsel draws the judge's attention to the issue. Where a trial judge chooses to identify items of circumstantial evidence favouring the prosecution, balance requires identification of corresponding items favouring the defence.
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