Liberato direction

Mason, Wilson, Dawson JJ (would refuse special leave as no issue of principle)

1. Each of the four applicants was convicted, after a joint trial with a fifth accused, upon a count or counts of rape. Their appeals to the Court of Criminal Appeal in South Australia against conviction were dismissed and they now seek special leave to appeal to this Court.

2. There is no dispute that there were defects in the summing up given by the learned trial judge and that these defects were correctly identified by the Court of Criminal Appeal. That Court, however, reached the conclusion that there was no substantial miscarriage of justice within the meaning of the proviso to s.353(1) of the Criminal Law Consolidation Act 1935 (S.A.) that would justify an order for retrial. It is this conclusion which is the subject of complaint in this application.

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5. It has been repeatedly affirmed by this Court that it is not a court of criminal appeal and that it will not grant special leave to appeal in criminal cases unless some point of general importance is involved, which, if wrongly decided, might seriously interfere with the administration of criminal justice. See now Judiciary Act 1903 (Cth), s.35A. It would not be in accordance with that practice to grant special leave to appeal in this case where no question of law is involved and where this Court is merely being asked to substitute for the view taken by the Court of Criminal Appeal a different view of the evidence and of the effect of the summing up. Cf. Reg. v. Howe [1958] HCA 38; (1958) 100 CLR 448, at p 457.

Brennan J (would grant special leave and allow the appeal)

5. … Although the Court of Criminal Appeal held that there had been misdirections, they applied the proviso to s.353(1) of the Act holding that the Crown had established that there was no substantial miscarriage of justice except in Sekulic's case. The question is whether that conclusion should be upheld.

6. It was necessary for the learned trial judge to direct the jury that the prosecution bore the onus of proving in relation to each count (a) that M.K. had not consented to the relevant act of sexual intercourse and (b) that the particular accused, when he committed the relevant act of sexual intercourse, had one of the guilty states of mind prescribed by s.48. It was also necessary to direct the jury that they could not find those facts against an accused unless they were satisfied beyond reasonable doubt. The learned trial judge's directions on these issues were, for the most part, in essentially orthodox terms.

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9. This was the last direction given by his Honour before the jury returned its verdict. Mr Peek had sought a direction to acquit if the jury thought it "reasonably possible" that an accused had assumed M.K. was consenting, a state of mind inconsistent with a realization that she might not be consenting. His Honour did not give a direction in those terms. He directed the jury that an accused was entitled to be acquitted if the jury were "satisfied" - a term used in the summing up to mean satisfied beyond reasonable doubt - that an accused had an exculpatory belief, and "if that gives rise to a doubt" about the accused's guilt. The jury may have taken his Honour to be directing them that if it were possible that an accused believed that M.K. was consenting, they might acquit provided they were satisfied that he had that belief and provided such a belief gave rise to a doubt as to whether he knew that she was not consenting or was recklessly indifferent to whether she was consenting or not. Such a direction would be, at best, confusing. His Honour did not clarify the matter when he said as he sent the jury out again:

" You have had the benefit of that submission from Mr Peek and my attempts to explain to you the law and if there is anything further that you would ask we will wait upon you."

The effect which this direction may have had on the jury's comprehension of earlier orthodox directions as to onus and standard of proof is a matter of surmise.

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11. When a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness, it is commonplace for a judge to invite a jury to consider the question: who is to be believed? But it is essential to ensure, by suitable direction, that the answer to that question (which the jury would doubtless ask themselves in any event) if adverse to the defence, is not taken as concluding the issue whether the prosecution has proved beyond reasonable doubt the issues which it bears the onus of proving. The jury must be told that, even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence. The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue. His Honour did not make that clear to the jury, and the omission was hardly remedied by acknowledging that the question whom to believe is "a gross simplification".

Deane J (would grant special leave and allow the appeal)

4. The above misdirections about onus of proof must be considered against the background of a number of passages in the learned trial judge's summing up in which he carefully and correctly explained to them the requirements of the criminal onus and standard of proof. They must, however, also be considered against a background where, on a number of occasions, his Honour directed the jury in terms which indicated that the overall question for them essentially involved the making of a "choice" between prosecution and defence evidence: "in many ways this case boils down to who do you believe"; "You may well think that the attitudes are so far apart that you have to make a choice"; "The case may well be one as I have put to you before, where the real question is who do you believe on the whole of the evidence, (the complainant) or the accused?" Provided that they are accompanied by clear and unequivocal directions about the criminal onus and standard of proof, express or implied references in a summing up to a "choice" between particular witnesses are, no doubt, sometimes unavoidable and commonly unobjectionable. The main significance of the directions about having to make a "choice" lies, in the present cases, in their clear suggestion that the "real question" in the cases turned upon a mere "choice" between the evidence of the complainant and that of the accused and in the possible contribution of that suggestion to the overall effect of the misdirections about onus of proof. Their significance in that regard is underlined by the linking, in the passage which I have quoted in the preceding paragraph, of satisfaction of "a belief in the accused" with a failure to be satisfied beyond reasonable doubt of the ingredients of the charge. It was heightened, rather than reduced, by his Honour's further direction, after the completion of his summing up, that his previous statements to them that the case "might well be" one "about whom you might believe" was "a gross simplification in many ways and I am sure you will bear in mind what I have put to you about considering the evidence carefully and weighing it very carefully".

5. Overall, it appears to me that it is more probable than not that the learned trial judge's orthodox directions on the standard and effect of the onus of proof would have prevailed over the effect of the misdirections. It is, however, impossible to do more than speculate in that regard. There must remain a significant possibility that the members of the jury were, at the very least, confused about the nature and the operation of the criminal onus to the extent that they saw their task as essentially one of making a "choice" between the Crown evidence and the evidence called and statements made on behalf of the accused and as involving no more than a decision about whether or not, to adapt the words of the learned trial judge at one stage of his summing up, they should "believe" the complainant "on the whole of the evidence".

Beazely JA

1. There are two appeals before the Court. The appellant, Jay William Short appeals against his convictions on one count of murder (s 19A of the Crimes Act 1900 NSW) (the first count), one count of robbery with corporal violence (s 95 of the Crimes Act) (the second count) and one count of assault occasioning actual bodily harm (s 59 of the Crimes Act) (the third count). The Crown appeals against the sentences imposed by the trial judge.

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44. There were three grounds of appeal. The principal ground was that the trial judge erred in directing the jury that the "cardinal question" for them was whether they believed the appellant. The second ground was that his Honour erred in preventing counsel for the appellant from cross-examining witnesses and addressing the jury about the possibility of the exhibits having been contaminated. These two grounds related to the murder count. The third ground challenged the guilty verdicts on the charges relating to Ms Tonkin and Ms Lewis as being unreasonable and/or as not supportable having regard to the evidence. It was conceded by the Crown that if the appellant succeeded on either the first or second ground and was thereby entitled to a new trial, there would have to be a new trial on all three counts.

Ground 1: That the trial judge erred in directing the jury that "the cardinal question for you is, do you believe him?"

45. The trial judge twice directed the jury that the "basic question" (in the first direction) or the "cardinal question" (being the language use by His Honour in the second direction) for them was whether they believed what the appellant had said in his evidence. Counsel for the appellant submitted that this posed the wrong question for the jury's deliberation and was tantamount to a direction that their task was to choose between the Crown's evidence and the evidence of the accused: see R v E (1995) 89 A Crim R 325 at 330 and R v Towner (1991) 56 A Crim R 221.

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72. Brennan and Deane JJ were in the minority in Liberato. However, the passages to which I have referred are well recognised statements of the correct principles to be applied in such circumstances.

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80. Although the phraseology used by his Honour was unfortunate, in my opinion, the two directions taken in the context of the summing up as a whole could not have misled the jury nor deprived the appellant of a chance of acquittal. His Honour made it clear that the jury was to keep in the forefront of their deliberations the question whether the Crown had proved beyond reasonable doubt that the appellant strangled Ms Lewis. His Honour did not at any stage direct the jury that it was a matter of choice between the Crown's case and the appellant's case, let alone a matter of "mere choice": see R v Dwyer.

Grove J

122. I agree with Beazley JA.

Kirby J

123. I have had the advantage of reading the judgment of Beazley JA in draft form. I agree with the order proposed, and her Honour's reasons.

124. I would only add that, in my view, it was desirable that his Honour add two comments immediately after he posed what he termed "the cardinal question", namely: "Do you believe him?" (referring to the accused). The first comment was a reminder of the standard of proof. The issue was whether the accused's account might be true. If it might be true, there must be a reasonable doubt. The jury should acquit. The second was a reminder that a rejection of the accused's version did not necessarily mean that the prosecution must succeed. The accused's version, if rejected, should be put to one side. The question would remain: "Has the Crown proved the accused's guilt beyond reasonable doubt?".

Wood CJ at CL

1. The appellant stood trial at Bathurst District Court before his Honour Judge Nield and a jury, on five counts of assault with an act of indecency (s 61L Crimes Act 1900) and one count of sexual intercourse without consent (s 61I Crimes Act). The latter count was substituted for the count originally preferred of sexual intercourse without consent, when leave was given to the Crown to amend the indictment, at the conclusion of the evidence called from the complainant.

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56. The appellant accepted that his Honour correctly directed the jury that the onus was on the Crown to prove each of the allegations beyond reasonable doubt. However, it was submitted that the directions given, as to how they should assess whether the Crown had done so, were erroneous

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62. The present case was one where the jury had been given repeated directions concerning both the onus and the standard of proof. Additionally his Honour stressed that the issues were to be decided on the "evidentiary material", which was identified with some precision, including the evidence of the appellant.

63. There is no rigid formula to which judges must adhere when dealing with the inevitable and obvious clash between a complainant and accused in a case involving an alleged sexual assault. Indeed, as Deane J also observed in Liberato v The Queen:

"Provided they are accompanied by clear and unequivocal directions, about the criminal onus and standard of proof, express [or] implied references in the summing up to a `choice' between particular witnesses are no doubt unavoidable and commonly unobjectionable."

64. I am satisfied that a proper balance was maintained, and that the jury were adequately directed in a way that meant that they would not have fallen into the error of approaching their task as one involving a simple choice between the versions given by the complainant and appellant. The clear direction that the evidence which they accepted left them satisfied beyond reasonable doubt of the appellant's guilt, necessarily carried with it the message that if the complainant's evidence gave rise to a reasonable doubt, they must acquit.

Greg James J

97. I agree

Howie J

98. I agree that the appeal should be dismissed for the reasons given by Wood CJ at CL.

Spigleman J

1. I agree with Dunford J

Dunford J

2. This was an appeal by Peter Li against his conviction on three counts of sexual intercourse without consent in circumstances of aggravation contrary to s 61J Crimes Act 1900 following trial by a jury before his Honour Judge Finnane QC in the District Court at Sydney. He also sought leave to appeal against the severity of the sentences imposed on him following such convictions. On 1 December last the Court upheld his appeal, set aside the convictions and ordered a new trial. I now state my reasons for concurring in such order.

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69. The trial judge gave appropriate directions on the burden of proof in the Written Directions, and early in his summing up, quite properly said:

"The question in the end is has the Crown proved its case to your satisfaction beyond reasonable doubt?"

70. However, a short time later, he said:

"The Crown must prove its case beyond reasonable doubt, I've said that to you and I will say it again. If there is a doubt in your mind, and it's a reasonable one, you should give the benefit of it to the accused and you should find him not guilty" (my italics).

71. Such direction is incorrect, inappropriate and should not be given in those terms: Green v The Queen [1971] HCA 55; (1971) 126 CLR 28 at 32-33 and also R v Reeves (1992) 29 NSWLR 109 at 116-117. His Honour repeated the error at SU 12-13 in the context of lies where he said:

"Now, If you have a doubt about which of these cases is correct and that's a doubt based on reason as I have assumed it would be, then you would have to acquit the accused. If you feel that you just cannot be sure whether what the complainant says is true, or what he says is true, then you must acquit him in this particular case".

72. Not only was it there in his last passage a reference to "a doubt based on reason" but in two instances, the judge has proposed to the jury the question which of the two cases is correct, what the complainant says or what the appellant says. This was also a material misdirection. The issue can never be which of the cases is correct or who of the complainant and the accused is telling the truth: Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507 at 515. They should have been directed the test was whether taking into account the whole of the evidence, including what had been said by the appellant in his recorded interview, and the witnesses called in his case, they were satisfied beyond reasonable doubt of the truth of the complainant's evidence.

Hidden J

77. I agree with Dunford J

Kiefel, Bell, Gageler and Gordon JJ (would dismiss the appeal)

1. The appellant was arraigned in the District Court of Queensland (Judge Farr SC and a jury) on an indictment that charged him with two counts of rape. Each offence was alleged to have been committed on the same occasion against the same complainant. In each case the allegation was of digital penetration of the complainant's vagina without her consent. The prosecution case on each count was dependent upon acceptance of the complainant's evidence. The appellant did not give, or call, evidence. A recorded interview between the appellant and the police was in evidence in the prosecution case ("the interview"). In the interview, the appellant denied any act of digital penetration.

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4. On 12 April 2019, Bell, Keane and Nettle JJ granted the appellant special leave to appeal on a single ground: "[t]he Court of Appeal erred in finding that a Liberato direction is not required if the defendant does not give evidence". On the hearing, the appellant acknowledged that a Liberato direction is not required as a matter of law. He sought leave to amend his Notice of Appeal to add a second ground: "[t]he Court of Appeal erred in failing to find that the directions given to the jury were inadequate and that as a result there was a miscarriage of justice". The Court heard full argument on the proposed second ground and reserved consideration of whether special leave to appeal would be granted to rely on it. For the reasons to be given, while it may, in some cases, be appropriate to give a Liberato direction notwithstanding that the accused's conflicting version of events is not before the jury on oath, this was not such a case. The Court of Appeal was correct to find that the summing-up as a whole conveyed that the jury could not convict if the appellant's exculpatory answers in the interview left them with a reasonable doubt as to his guilt. In circumstances in which the proposed second ground of appeal is bound up with consideration of the first, it is appropriate to grant special leave to rely on the appellant's Amended Notice of Appeal but the appeal must be dismissed.

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9. Whatever may have been the practice when Liberato was decided, in Murray v The Queen this Court made clear that it is never appropriate for a trial judge to frame the issue for the jury's determination as involving a choice between conflicting prosecution and defence evidence: in a criminal trial the issue is always whether the prosecution has proved the elements of the offence beyond reasonable doubt. In light of Murray, the occasions on which a jury will be invited to approach their task as involving a choice between prosecution and defence evidence should be few.

10. This is not to say that the occasions calling for a Liberato direction should be few. The Liberato direction serves to clarify and reinforce directions on the onus and standard of proof in a case in which there is a risk that the jury may be left with the impression that the evidence on which the accused relies will only give rise to a reasonable doubt if they believe it to be truthful, or that a preference for the evidence of the complainant suffices to establish guilt. Subject to statute, a Liberato direction should be given in a case in which the trial judge perceives that there is a real risk that the jury might view their role in this way.

11. The Liberato direction is addressed, in terms, to a trial at which there is conflicting sworn evidence. Intermediate appellate courts have expressed differing views as to whether a Liberato direction is appropriate in a case in which the conflicting defence version of events is not given on oath, but is before the jury, typically in the accused's answers in a record of interview. If the trial judge perceives that there is a real risk that the jury will reason that the accused's answers in his or her record of interview can only give rise to a reasonable doubt if they believe them, or that a preference for the evidence of the complainant over the accused's account in a record of interview suffices to establish guilt, a Liberato direction should be given. Where the risk of reasoning to guilt in either of these ways is present, whether the accused's version is on oath or in the form of answers given in a record of interview, the Liberato direction is necessary to avoid a perceptible risk of miscarriage of justice. When an accused gives, or calls, evidence there is a natural tendency for the focus to shift from the assessment of the capacity of the prosecution case to establish guilt to an assessment of the perceived strengths or weaknesses of the defence case. Recognition of this forensic reality suggests that the risk that the jury will reason in either of these ways is more likely to arise in a trial in which the conflicting defence account is on oath.

12. In Johnson v Western Australia, Wheeler JA identified one possible shortcoming in using Brennan J's statement in Liberato as a template for the direction: a jury may completely reject the accused's evidence and thus find it confusing to be told that they cannot find an issue against the accused if his or her evidence gives rise to a "reasonable doubt" on that issue. For that reason, it is preferable that a Liberato direction be framed along the following lines: (i) if you believe the accused's evidence (if you believe the accused's account in his or her interview with the police) you must acquit; (ii) if you do not accept that evidence (account) but you consider that it might be true, you must acquit; and (iii) if you do not believe the accused's evidence (if you do not believe the accused's account in his or her interview with the police) you should put that evidence (account) to one side. The question will remain: has the prosecution, on the basis of evidence that you do accept, proved the guilt of the accused beyond reasonable doubt?

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32. As detailed earlier, the jury were given repeated, correct directions as to the onus and standard of proof in the course of the summing-up. Nothing in the trial judge's summary of the way the respective cases were put, or in the way his Honour summed up, suggests that the jury might have been left with the impression that their verdicts turned on a choice between the complainant's evidence and the appellant's account in the interview. The focus of defence counsel's address was on the suggested incapacity of the prosecution case to support a finding of guilt beyond reasonable doubt in light of the complainant's intoxicated and emotional state.

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35. In context, the trial judge's reference to answers in the interview "indicating [the appellant's] innocence" was, as the Court of Appeal held, descriptive of the answers as exculpatory. The submission, that the reference to innocence and the inclusion of the words "if you accept them" in these two sentences of the summing-up undermined the clarity of the directions on the onus and standard of proof, is overly ambitious. Defence counsel appears not to have perceived any such risk. There was no request for any redirection on the use the jury might make of the answers in the interview. Nor did defence counsel seek a Liberato direction. The failure of counsel to seek a direction is not determinative against successful challenge in a case in which the direction was required to avoid a perceptible risk of the miscarriage of justice. The absence of an application for a direction may, however, tend against finding that that risk was present.

36. The summing-up made clear the necessity that the jury be satisfied beyond reasonable doubt of the complainant's reliability and credibility. The Court of Appeal did not err in concluding that, when the summing-up is read as a whole, the trial did not miscarry by reason of the omission of a Liberato direction.

Nettle J

39. That direction was unexceptionable in itself. But there are some aspects of it that should be noted for reasons that will later appear. The first is the expression: "you must accept that the defendant said such things". That would have conveyed to the jury that, in order to have regard to the allegedly incriminatory answers, the jury had to be satisfied that the appellant in fact gave the allegedly incriminating answers. The second aspect is the use of the expression: "[t]he second part of that is that you would have to ... conclude that what he said in those statements [was] accurate and true" (emphasis added). That would have conveyed to the jury that the second matter of which they had to be satisfied before they could have regard to the incriminatory answers was that the incriminatory answers were "accurate and true". The third aspect of the direction is the trial judge's explication of the concept of weight, namely: "whether [the allegedly incriminating answers] do support the prosecution case in any way". As so expressed, that would have conveyed to the jury that the concept of weight stands separate and apart from the two conditions earlier explained of accepting that the appellant gave the allegedly inculpatory answers and that those answers were "accurate and true". Hence, as the concept of weight was so explained, the jury would have understood weight in this context to go to probative effect rather than credibility or reliability.

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41. There are several aspects of that direction that should also be noted. The first is that it would have conveyed to the jury that they were not entitled to make any use of any exculpatory answers given in the record of interview unless they "accept[ed] them". The second aspect is that, although the judge did not here spell out in terms that, in order to have regard to the exculpatory answers, the jury had to accept that the appellant in fact gave the exculpatory answers and, as a "second part of that", accept that those answers were "accurate and true", it is not unlikely that the jury would have understood the judge's use of the short-hand expression "accept them" as intended to convey exactly the same two conditions as had been outlined in the course of the immediately preceding Burns direction. The third aspect of the direction is that, here, as in the Burns direction, the judge referred to "weight" separately and apart from the notion of "accepting them" and, although his Honour did not here repeat in terms that weight means "whether they [the exculpatory answers] do support the [defence] case in any way", it is not unlikely that the jury would have taken that to be the judge's meaning, just as it was in the immediately preceding Burns direction.

42. Seen, therefore, in the immediate context of the Burns direction, the net result of the direction on the exculpatory aspects of the record of interview may well have been to leave the jury with the impression that they were not permitted to have regard to the exculpatory answers unless they accepted both that those answers were given and that those answers were “accurate and true”.

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45. Further, as was earlier noticed, at the conclusion of the direction on the exculpatory aspects of the record of interview the judge directed the jury that, if they did "accept" the exculpatory answers, it was entirely up to them what use they made of them and what weight they gave them. In that context, that direction was misleading. The law is that, if the jury believed the appellant's account of what occurred, they were bound to acquit, and, even if they did not accept his account, but considered it was possible that it might be correct, they were bound to acquit. It was only if they rejected his version of what occurred that they were entitled to ignore it.

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47. Finally, it might not be without significance that the jury sought a re-direction as to the meaning of beyond reasonable doubt. It is, therefore, a little surprising that, although the judge was aware of this Court's decision in R v Dookheea, his Honour chose not to adopt the response there recommended of contrasting the standard of proof beyond reasonable doubt with the lower civil standard of proof on the balance of probabilities in order to convey to the jury that being satisfied of guilt beyond reasonable doubt does not simply mean concluding that the accused may have committed the offence charged, or even that it is more likely than not that the accused committed the offence charged; that what is required is a much higher standard of satisfaction, the highest known to the law: proof beyond reasonable doubt. By itself, such a direction would not have saved the situation, but it would have assisted.

48. In the result, I consider that there is a realistic possibility that the jury approached their task on the basis that they were to disregard the appellant's exculpatory answers unless they were persuaded that they were "accurate and true". So to approach their task would have been wrong in law and likely to have resulted in a conviction where, if properly directed, the jury may have acquitted. I consider that the appellant was thus deprived of a realistic chance of acquittal to which he was entitled and so subjected to a substantial miscarriage of justice.

Bell CJ

1. I have had the privilege of reading Bellew J’s reasons. They express with great clarity the various respects in which the trial judge erred. Those errors dictate that the appeal must succeed, the appellant’s conviction and sentence be quashed and a new trial ordered. I agree with his Honour’s reasons for those orders.

2. The facts of this case, as explained in Bellew J’s reasons, supply a graphic demonstration as to why a Liberato direction will invariably be essential where conflicting versions of events are presented in a criminal trial. The inappropriate language of “choice” as between “competing” versions employed by the trial judge in his directions to the jury wrongly and misleadingly suggested a binary inquiry was required in circumstances where the inculpatory “version” of events may have been quite inadequate to satisfy the standard of proof beyond reasonable doubt. Just as the Liberato direction “serves to clarify and reinforce directions on the onus and standard of proof” in a case where there are competing versions of events (see De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48 at [10] extracted by Bellew J at [69] below), the failure to give a Liberato direction in such a case is apt to give insufficient guidance to a jury. To give, as occurred in the trial in the present case, a positive direction or series of directions in terms of “choice” of competing versions renders it highly likely that the jury will be misguided in its deliberations, and the trial miscarry. That was regrettably what occurred in this case.

Bellew J

4. On 2 February 2016 Daniel Haile (the appellant) pleaded not guilty to an Indictment alleging that on 30 October 2013, at Pendle Hill in the State of New South Wales, he murdered Raymond Pasnin (the deceased). The appellant was jointly indicted with the following co-accused:

1. Louise Catherine Spiteri-Ahern (Spiteri-Ahern), who pleaded not guilty to the murder of the deceased, and not guilty to an alternative count of soliciting the appellant to murder the deceased;

2. April Barber (Barber), who pleaded not guilty to being an accessory before the fact to the murder of the deceased; and

3. Amin Zraika (Zraika), who pleaded not guilty to concealing a serious indictable offence.

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The Crown case

16. At approximately 11:55pm on 30 October 2013, the deceased was shot and killed in the car park of a unit block in Pendle Hill (the unit block). At the time of his death, he was in the company of his then partner, Lyndal Archbold (Archbold). There was no dispute at the trial that the shot which killed the deceased was fired by the appellant. Although there were other witnesses who gave evidence of hearing gunshots and seeing the deceased at or about the time that he was killed, Archbold and the appellant were the only eyewitnesses to the shooting.

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THE APPELLANT’S CASE

28. The appellant did not deny that he had fired the shot that killed the deceased, but asserted, in the course of sworn evidence before the jury, that he had acted in self-defence.

29. The appellant gave evidence that he was involved in the supply of drugs, and that he had come to know the deceased as a consequence of having sold him significant quantities of ice. The appellant said that on one particular occasion on which he had supplied drugs to the deceased, the deceased had offered a firearm as a form of payment.

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The application for a Liberato direction

49. Following these directions, counsel for the appellant (who was not senior counsel for the appellant before this Court) sought a specific direction from the trial judge, the nature of which he articulated in the following exchange with the trial judge:

COUNSEL: When your Honour took this jury to the events of the car park, your Honour gave them directions or suggested ways they might decide between the two versions. I say that that is an incorrect direction at law, with respect, and that the jury should be told it is not merely a matter of choosing between witnesses. This is obviously crucial to their determination of [the appellant's] guilt or innocence and, indeed, I was going to submit your Honour that, in the event that your Honour hadn’t considered doing it, that your Honour would be giving this jury a Liberato direction because, so far as the immediate events around the shooting, there is only two people who can give evidence about that and they have given evidence about it and, very clearly, this jury should be told it is not a matter of simple choice between the two.

HIS HONOUR: … [M]y initial instructions to the jury included considerable reference to the obligation on the Crown to prove beyond reasonable doubt. It is contained on every single page of the written directions and in a statement to the jury that nothing I said thereafter was to be regarded as a qualification of those remarks.

Now, I don't regard myself as obliged in every issue in the case to keep constantly going back, saying, “The Crown has to prove, the Crown has to prove, the Crown has to prove”.

COUNSEL: But when your Honour gives them a direction to the effect that they have to decide between the two – –

HIS HONOUR: Well, they do.

COUNSEL: – – it leads them into what I say is the very real potential that they will erroneously conclude that it is a mere choice between which they prefer.

HIS HONOUR: I don't believe that is a reasonable possibility.

COUNSEL: As your Honour pleases.

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53. In rejecting the application for a Liberato direction, the trial judge said the following in ex-tempore reasons:

It was also suggested that I should give the jury some Liberato and/or a Murray direction. I decline to do either. I do so because the circumstances of this case, in my view, do not bring the principles referred to in those cases into operation.

I take the view that the fundamental directions I gave to the jury at the commencement of my summing-up were clear, were emphasised, and some of them, particularly dealing with the onus and burden of proof were included on every page of my written directions to the jury.

Secondly, this is not a case where it is one witness against the accused. The Crown case depends on, and has at least four strands or witnesses in it: One is Ms Archbold; a second is [Tom Jones]; a third is the evidence concerning the likelihood of the deceased having been dealing in ice or buying it from [the appellant]; and a fourth concerns the pattern of phone calls.

True it is that, to an appreciable degree, that evidence is directed to the question of self-defence; nevertheless, in my view, it is quite sufficient to take the case well away from the circumstances in which it is regarded as appropriate to follow either of the Liberato or the Murray direction which I was asked to give.

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71. First, it is never appropriate for a trial judge to frame the issue for a jury’s determination as one which involves the making of a choice between conflicting Crown and defence evidence. In a criminal trial, the issue is always whether the Crown has proved its case beyond reasonable doubt.

72. Secondly, a direction of the kind postulated by Brennan J in Liberato will be appropriate for the purposes of reinforcing directions as to the onus and standard of proof in any case where, absent such a direction, there is a risk that the jury may be left with an impression that:

1. the evidence upon which the accused relies will only give rise to a reasonable doubt if that evidence is believed as truthful; or

2. a preference for the evidence led by the prosecution is sufficient to establish guilt.

74. Thirdly, if such a direction is considered appropriate, it should be given in terms which make it clear that:

1. a preference for the evidence led by the Crown is not a sufficient basis for a finding of guilt;

2. the jury must not convict the accused unless satisfied, beyond reasonable doubt, of the truth of the evidence relied upon by the Crown;

3. if the accused’s account is accepted, a verdict of not guilty must follow;

4. if the accused’s account is not accepted, but the jury consider that it might be true, a verdict of not guilty must follow;

5. if the accused’s account is not accepted, it should be put to one side, and the question will remain whether the Crown, on the basis of the evidence that is accepted, has proved the guilt of the accused beyond reasonable doubt; and

6. even if evidence given by an accused is not positively believed, the jury must nevertheless acquit the accused if that evidence gives rise to a reasonable doubt about his or her guilt.

75. Bearing in mind these principles, and for the reasons that follow, I am satisfied that this ground of appeal is made out in the present case.

76. The trial judge appropriately directed the jury, both at the commencement of his summing-up and at its conclusion, that the Crown bore the onus of proof. However, it remains the case that on a series of occasions in the course of a summing-up which extended over a number of days, the trial judge directed the jury in terms which, expressly or by implication, framed the issue for the jury in terms of the requirement for a choice between the evidence of Archbold and the evidence of the appellant. Those directions were erroneous. The authorities to which I have referred make it clear that framing the issue in such terms is never appropriate, for the simple reason that doing so has the clear tendency to obscure the fundamental fact that in any criminal trial, the issue for the jury is whether the Crown has established its case beyond reasonable doubt. I should also say that his Honour’s direction to the jury that they should ask themselves “Why should [Archbold] lie?” was also an error, for the reasons I have expressed in considering ground 2 below.

77. There was a clear risk that the jury may have understood that their task involved choosing between the two competing accounts. Unfortunately, that risk was created by the terms of the directions which his Honour gave, and which are set out in the passages above. Moreover, that risk was heightened, and the identified errors of the trial judge compounded, by the fact that at no stage was the jury directed as to how the sworn evidence of the appellant was to be assessed, and how that assessment was to be undertaken bearing in mind the fact that the Crown bore the onus of proof.

78. These errors were further compounded by the trial judge’s error in refusing to give the Liberato direction which had been sought. The basis of that refusal was his Honour’s assessment that the circumstances of this case did not “bring the principles referred to in [Liberato] into operation” because this was not a case of “one witness against [the appellant]”. Analysing the case in that way may have been correct in the (very technical) sense that there were a number of witnesses called by the Crown who gave evidence as to the circumstances in which the deceased was shot and killed. However, such analysis completely overlooked the fact that there were only two eyewitnesses to the deceased’s murder, namely Archbold and the appellant. His Honour’s repeated directions as to the necessity for the jury to decide or choose between their respective accounts effectively framed the case as one in which there was indeed “one witness against [the appellant]”. Accordingly, the analysis of the case that had been conveyed by his Honour’s directions was precisely the analysis, the disavowal of which was used by his Honour as a basis for concluding that a Liberato direction was not warranted.

Ierace J

259. I agree with Bellew J and with the additional observations of Bell CJ.