60The appellant relies on two decision of the High Court. The directions given by the trial judge in the present case were not in a form that could give rise to the problem identified in Robinson. There was no suggestion by his Honour that the appellant's evidence should be assessed in a manner different to the evidence of other witnesses. Furthermore, as submitted by the Crown, his Honour's direction reinforced for the jury that the appellant was entitled to the presumption of innocence.
61The second decision relied upon by the appellant is Liberato. In that case only two of the judges of the High Court dealt with the issue raised in the appeal, the majority deciding that special leave should be refused. The essence of Brennan J's judgment was to emphasise the importance of ensuring that, in an appropriate case, even if the jury do not accept the evidence of an accused they should nevertheless consider whether it would cause them to have a reasonable doubt about the prosecution case.
62I am not persuaded that the passages in the summing-up to which the appellant drew attention gave rise to the problem identified by Brennan J. All that his Honour did, as he was required to do, was remind the jury of the prosecutor's submission. This must inevitably lead to his Honour, at that point of the summing-up, emphasising the aspects of the evidence on which the prosecution relied.
63The task for the jury in this case, as it is in every case, was to determine whether the prosecution had proved the case against the appellant. In the course of his summing-up to the jury the trial judge gave the jury the familiar direction as to the assessment they should make of the evidence of each witness. His Honour told the jury that they were required to decide whether a witness was telling the truth but that they were not obliged to accept or reject the whole of the evidence of any one witness.
64His Honour also said to the jury:
"Let me say something now about the onus of proof. This, as you have already been told more than once, is a criminal trial of a most serious nature, and the burden of proof of guilt is placed on the Crown. That onus rests upon the Crown in respect of every element of the charges. There is no onus of proof on the accused at all. It is not for any of the accused to prove his innocence, but for the Crown to prove the guilt of each and to prove it beyond reasonable doubt.
It is, and always has been, a critical part of our system of justice that persons tried in this court are presumed to be innocent unless and until they are proved guilty beyond reasonable doubt. This is, of course, the presumption of innocence.
I give this important direction now. The expression, 'beyond reasonable doubt', is an ancient one. It is deeply ingrained in the criminal law of the State for almost 200 years and it needs no explanation from trial judges. The Crown does not have to prove, however, every single fact in the case beyond reasonable doubt. The onus that rests upon the Crown is to prove the elements of the charges beyond reasonable doubt; the Crown Prosecutor has correctly outlined those to you and I shall subsequently outline the elements as I said to you at the commencement of the trial.
In a criminal trial there is only one ultimate issue. Has the Crown proved the guilt of an accused person beyond reasonable doubt? If the answer in respect of any of the accused persons is yes, the appropriate verdict is guilty. If the answer in respect of any of the accused persons is no, the verdict must be not guilty."
65Later, in the summing up his Honour again reminded the jury that the accused does not have to prove anything rather the Crown has to prove the case beyond reasonable doubt. His Honour said:
"In the context of a criminal trial, there are some very important words that I am going to give to you now. Where proof is required beyond reasonable doubt, you should not draw any inference from the direct evidence unless it is the only rational inference in the circumstances.
In the present case, the Crown has asked you to draw inferences that the accused meant to facilitate, meant to help people come to Australia, and the case in that sense very much depends on the circumstances, not completely, but depends on the circumstances, and you are asked to draw inferences. And you have to be satisfied that, when you consider the evidence, the only rational inference that can be drawn.
I trust that does not sound a little ponderous. Do not be frightened to do that. It is something, again, we do all the time. But what you do is, you look at the direct evidence, you satisfy yourself about its existence, you draw the inference, and then you say, was it a justifiable inference, was it the only rational explanation for the conduct?
Having said that to you now, when I come to the arguments of counsel, very much the three counsel asked you to be careful in following that process, and you will remember that that is essentially what they argued, that you could not draw from the circumstances conclusions to satisfy you beyond reasonable doubt as to the mental element, the mental state, I think was the word used by one of the counsel.
...
Now, as to the accused persons who gave evidence, they become witnesses in the trial like any other witness, and you evaluate their evidence in accordance with the principles and policies I have already explained to you. It is up to you as to whether or not you feel you can safely rely upon what they told you."
66When dealing specifically with the case against the appellant the trial judge had this to say:
"So far as Mr Alomalu's case is concerned, the Crown Prosecutor acknowledged that the evidence was that he had never heard of Australia, and because he was at the meeting that you are asked to find took place, and what was said, that he knew the boat was coming to Australia.
The Crown Prosecutor repeated that you would need to accept Mr Lahniya's evidence in this regard, and phrases would indicate that they were each a component of a crew, and she said to you the evidence is overwhelming that each of the accused was intending to facilitate the coming to Australia of the refugees."
67From these passages in the summing up it is apparent that the trial judge carefully told the jury that the Crown must prove its case beyond reasonable doubt. His Honour reminded the jury of the appellant's evidence that he had never heard of Australia, contrasting this with the evidence of Lahniya. Significantly his Honour reminded the jury, as the Crown Prosecutor had done, that the jury would "need to accept" Lahniya's evidence before they could convict the appellant.
68In these circumstances I am not persuaded that the miscarriage contended for by the appellant occurred. I accept that his Honour could have given the direction suggested in the Bench Book, which would have removed any doubt about these matters. However, having regard to the directions that his Honour gave, the Bench Book direction was not essential.