› Standard of Proof — Circumstantial Evidence — Reasonable Hypothesis Consistent with Innocence
Evidence
› Admissibility
› Tendency, Coincidence and Propensity — Non-propensity Use Under s 34P(2)(a) Evidence Act 1929 (SA)
Quick Take
1Where two cannabis cultivations share similarities in location and setup sufficient to establish common organisers, evidence of an accused's involvement as a gardener in one crop is admissible under s 34P(2)(a) for improbability reasoning to prove involvement in the other crop, but the probative force of such reasoning has inherent limits — particularly where there is no direct evidence linking the accused to the second crop and the possibility of overlapping but non-identical gardening teams cannot be excluded as a reasonable possibility.
2In a wholly circumstantial case where the jury has no significant advantage over the appellate court, the appellate court must independently assess whether the prosecution excluded as a reasonable possibility the hypothesis that an accused was a gardener for only one of two crops, applying Dansie v The Queen (2022) 274 CLR 651.
3A judicial direction against the 'automatic' form of impermissible propensity reasoning (e.g. 'he must be guilty') without expressly warning against the 'more likely' form may be adequate depending on context, including the absence of propensity-based prosecution submissions and the thoroughness of directions on the permissible use, but the question was left open as not requiring final determination.
