Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Appeal - Criminal law and procedure - Liberato direction

2 WHEELER JA: This is an appeal against conviction in respect of six counts of sexual penetration without consent. They arose out of an indictment containing 12 counts altogether, all of them arising out of a series of events on 14 October 2006. The appellant has been granted an extension of time within which to appeal.

3 It was common ground at trial that the acts of sexual penetration the subject of the charges took place. The issue for the jury was whether those acts were consensual.

4 The complainant's evidence was, broadly, to the following effect. She and the appellant had once been in a relationship. During the course of that relationship, the appellant became violent towards her. They separated, and after October 2002 the relationship between them had, so far as she was concerned, ceased. However, as they had had a child together, born shortly before the separation, the appellant would come and visit his daughter. Just before the events in question, the appellant, the complainant and others had been to the Speedway. The appellant had been drinking. She was angry about the manner of his driving when he was driving her and some of the children home. Once they had arrived at her house, she expressed her anger to him. He left the house, but returned about 15 minutes later. He then spoke abusively to her, accusing her of flirting and promiscuity. She said that, although she was angry, she tried to calm the appellant down and to apologise so that he would not become violent towards her.

5 It was against that background, the complainant said, that the two of them began to play a game of strip poker in the lounge room. At some stage, the appellant told the complainant to remove all of her clothes and became insulting towards her. He then hit her on the left temple, causing her to fall to the floor and black out. She then remembered waking in the bedroom, where a variety of sexual assaults are alleged to have occurred. She recalled seeing the appellant recording some of the acts with his mobile telephone at one stage. She recalled waking on the kitchen floor of the house and calling a friend.

6 There was also evidence from a witness who had been telephoned by the complainant, and who went to her house and observed her lying on the ground in what he described as "a lot of pain". He gave evidence of recent complaint. The next day, the complainant was examined at the Sexual Assault Referral Centre. The medical practitioner there took a

number of photographs showing bruises to her body. According to the doctor, nothing indicated that the bruises were older than 24 hours.

7 In a videotaped record of interview with police, the appellant admitted to having sex with the complainant on the evening in question on a number of occasions. It was his evidence that no violence was inflicted by him on the complainant and that she consented to what took place. He did not give evidence at trial, but three witnesses were called by the defence. Two gave general evidence about the relationship between the appellant and the complainant. Another was an expert haematologist. The haematologist's evidence was that the quality of many of the photographs taken at the Sexual Assault Referral Centre was too poor to allow him to provide an opinion on the age of the bruises, but that some were of sufficient quality to enable him to conclude that some of the bruises were more than 24 hours old. He based this opinion, it seems, primarily on the colour shown in the photographs.

8 In his direction to the jury, the learned trial judge described the main issues in the trial. He pointed out that, although there was no formal admission, it appeared to be admitted in the way that the trial had been run that the penetrations alleged had occurred, the relevant question being whether they occurred without the complainant's consent. His Honour directed the jury as to the elements of the offences and directed them, of course, that, in order to convict, they had to be satisfied beyond a reasonable doubt that the sexual penetrations had occurred without consent. In relation to the counts alleging aggravated sexual penetration without consent, his Honour, in reference to his use of the expression "proved", reminded the jury that "[w]hen I say 'proved', I mean beyond reasonable doubt" (blue AB 30). In relation to the burden and standard of proof, his Honour again at a later point directed the jury that the burden of proof was on the prosecution. He reminded the jury that he had said "at the beginning" (that is, in some preliminary remarks to the jury prior to the commencement of the evidence) that it was for the prosecution to prove its case and it was not for an accused person to prove innocence. He reminded the jury that the accused was presumed to be innocent. He directed the jury that the level of proof that had to be reached by the prosecution before the jury could take the view that the prosecution had proved the case was "the highest level of proof that exists in the law and it's called proof beyond reasonable doubt".

9 The sole ground of appeal is that his Honour's discretion miscarried when he determined not to give a Liberato direction (Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507), when the circumstances required one. The particulars which it is alleged make out the claim that the circumstances required such a direction are as follows:

1. the issue at trial was one of consent;
2. there was evidence, exculpatory of the Appellant, that was adduced by the prosecution ('the evidence');
3. the evidence was in the form of a record of interview conducted between police and the Appellant;
4. His Honour determined not to give the jury a 'Liberato direction' ;
5. the conflict between the testimony of the complainant and the evidence demanded such a direction be given;
6. His Honour's failure to so direct resulted in a miscarriage of justice.

10 Separating out the particulars which are apparently relevant from those which either merely record that such a direction was not given, or assert that it should have been, the ground comes down to a claim that, because the issue was one of consent, and because there was some evidence exculpatory of the appellant in the form of a record of interview adduced by the prosecution, such a direction was required. Merely to set out the ground of appeal is, in my view, enough to demonstrate that it must fail.

11 It appears that the appellant relies particularly upon the case of Salmon v The Queen [2001] WASCA 270, as establishing that such a direction should have been given in the present case. That case is, however, authority for the proposition that a direction to the effect formulated by Brennan J in Liberato is not required as a matter of law where there is a conflict between the evidence of an accused and the evidence of a complainant (Malcolm CJ [3], Kennedy J [11] and McKechnie J [87] - [98] and [101]). I expressed a similar view in Leyshon v The State of Western Australia [2006] WASCA 132 at [42] - [47], in terms with which Martin CJ agreed [1] (although, not having been referred to Salmon, I erroneously expressed the view that there was no binding authority in Western Australia in relation to the requirement to give a Liberato direction). There are therefore two relatively recent binding authorities in this State to the effect that the direction referred to is not required as a matter of law. Nor, plainly, is it the law that a direction in the form discussed by Brennan J in Liberato (515) is required whenever there appears to be evidence exculpatory of the accused. If that were so, then it would be required in almost every trial.

12 As I understand it, the appellant relies upon the proposition enunciated by McKechnie J at [99] of Salmon which is, "[i]t is a counsel of prudence to give a Liberato direction in most, if not all, cases. It is a sensible direction which further emphasises the standard and the burden of proof". I would, however, respectfully disagree. It may appear to be a "counsel of prudence" to give such a direction, if considered from the viewpoint of an appellate court which is repeatedly asked to entertain grounds of appeal suggesting that such a direction should have been given; a commonsense approach might suggest that many unnecessary appeals would be avoided if such directions were given routinely. However, such an approach would overlook the trial judge's duty to explain the law in a way which relates to the facts of the case, which is clear, and which does not unduly burden the jury with refinements which are unnecessary to their deliberations.

13 In my respectful view, a direction in the form which appears to be suggested by Brennan J in Liberato has the potential, in some cases, to confuse jurors. It would therefore be undesirable to suggest that it should be given as a matter of "prudence" in all cases, without regard to the particular circumstances. In order to understand that view, I set out what Brennan J actually said:

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. (515)

14 There are, in my view, a number of difficulties with these observations. It is not commonplace for judges to invite the jury to consider the question, "Who is to be believed?", in those terms. Trial judges, in my experience, generally endeavour to avoid putting the matter in that way, precisely because such a question might suggest to a jury that it is necessary for them to pick one or the other of the competing versions of events. Nor am I entirely convinced that the jury would doubtless ask themselves that question, in any event. The expression "reasonable doubt", if it conveys anything, is surely apt to convey that a juror who is in a state of uncertainty about the evidence must refrain from convicting.

15 Finally, in respect of the two sentences beginning, "The jury must be told" , it must be accepted that a jury may positively disbelieve and therefore completely reject the evidence of an accused person. In that situation, it would be positively confusing for them to have been told that they could not find an issue against the accused, if the accused's evidence gives rise to a "reasonable doubt", because, if the evidence is rejected, it must be set aside, and cannot give rise to a doubt.

16 For those reasons, I am inclined to agree with the views expressed in other cases in this State to the effect that a preferable formulation of the relevant direction may be that suggested in Anderson [2001] NSWCCA 488; (2001) 127 A Crim R 116 [25] (Kirby J, Sheller AJ and Dowd J concurring): see Koushappis v Western Australia [2007] WASCA 26; (2007) 168 A Crim R 51 [104] (Roberts-Smith JA, McLure and Buss JJA concurring), Azarian v The State of Western Australia [2007] WASCA 249 [114] (Miller JA). However, there is no form of words which must be used in all circumstances. The essential point which must be made, where a judge considers it necessary or desirable to do so, is that a jury's task is not to choose between opposing stories, but to determine the question of whether the State has proved its case beyond reasonable doubt.

17 The nature of the direction indicates the circumstances in which it will be required. It will be required where something has been said by either counsel or the judge, or perhaps even by a witness, which may have the effect of indicating that a jury does have the task of choosing between opposing stories. The essence of the observations of Brennan J in Liberato was that care should be taken not to compromise the clarity and effectiveness of the central directions of law on the onus and standard of proof by indicating that the jury's task was to make such a choice and that, if it was possible that such a misapprehension might arise, it should be the subject of a direction.

18 In the present case, nothing was said by any person, so far as I can discern, which could have distracted the jury from the clear directions given by his Honour in relation to the onus and standard of proof. There was nothing about the case which indicated that the jury would be likely to consider that they had to choose between competing versions of events.

For those reasons alone, in my view, no direction of the kind contended for by the appellant was required.

19 However, there was, in the present case, one additional consideration which tends to suggest that a direction along the lines suggested by Brennan J in Liberato might have been undesirable. That circumstance is that the present was not a case of oath against oath. The appellant did not give sworn evidence. It is appropriate for a trial judge to indicate to a jury that jurors are entitled to give less weight to exculpatory assertions contained within a record of interview, and that it is for the jury to decide what weight should be given to such statements (Mule v The Queen [2005] HCA 49; (2005) 79 ALJR 1573). It would have been open to the jury to set aside those exculpatory assertions as having no weight, had they wished. In those circumstances, it seems to me that to suggest to the jury that they could not find an issue against the appellant contrary to his assertions if those assertions gave rise to a reasonable doubt, might have indicated to the jury that they were obliged to give some weight to his assertions and might potentially have left them in a state of uncertainty about how they should approach the videotaped record of interview.

21 BUSS JA: The material facts and the ground of appeal are set out in the reasons of Wheeler JA.

22 The sole issue is whether Judge Fenbury's discretion miscarried when he determined not to give the jury a so-called Liberato direction.

23 In the present case, the critical question for the jury was whether the State had proved the elements of each of the offences in the indictment beyond reasonable doubt; in particular, whether the State had proved beyond reasonable doubt that the complainant had not consented to the acts of sexual penetration in question.

24 The determination of this critical question did not require a comparison between alternatives other than being persuaded and not being persuaded beyond reasonable doubt of the appellant's guilt, including being satisfied beyond reasonable doubt that the complainant did not consent. See Murray v The Queen [2001] HCA 72; (2002) 211 CLR 193 [56] - [57] (Gummow and Hayne JJ). The question for the jury was not whether they should accept the appellant's version of events in his video recorded out of court statement to the police, but whether the State had negatived his version as a reasonably possibility. See Murray [23] (Gaudron J).

25 In the present case, it was important that the trial judge's directions should not have created any doubt in the mind of the jury that the determination of whether the appellant was guilty or not guilty merely involved weighing up what was said by the complainant in her sworn evidence in court and what was said by the appellant in his out of court statement to the police, and deciding which version was to be preferred. Also, it was important that his Honour's directions should not have left the jury with any impression that they could convict the appellant merely because they disbelieved what he said in his out of court statement. Compare Noble v The State of Western Australia [2005] WASCA 33 [23] (Steytler P, Roberts-Smith and Pullin JJA agreeing). And see Koushappis v Western Australia [2007] WASCA 26; (2007) 168 A Crim R 51 [104] - [105] (Roberts-Smith JA, McLure and Buss JJA agreeing).

26 Further, it would not inevitably follow from the jury's acceptance of the complainant's evidence that her evidence should be accepted as proof beyond reasonable doubt. A complainant's evidence may be truthful without necessarily being reliable. See M, EG v Police [2007] SASC 128 [34] - [35] (Gray, Layton and Kelly JJ).

27 In Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507, Brennan J (dissenting) said:

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 (515).

In Liberato, Deane J, who also dissented, said that provided that they are accompanied by 'clear and unequivocal directions about the criminal onus and standard of proof', express or implied references by a trial judge in his or her summing up to a 'choice' between particular witnesses 'are, no doubt, sometimes unavoidable and commonly unobjectionable' (519). A little later, his Honour said:

There can be no room for the application of the proviso to s 353(1) of the Criminal Law Consolidation Act 1935 (SA) in an appeal where there is a significant possibility that, by reason of misdirection by the learned trial judge, a jury has convicted on the basis of a choice between the Crown and defence witnesses as distinct from being satisfied beyond reasonable doubt of the ingredients of the charge against the accused. If some members of a jury in a criminal trial have, by reason of misdirection, failed to comprehend that a finding of guilty cannot be based merely on a failure to believe the accused or on a choice between the Crown and defence witnesses, the accused has been denied a trial in accordance with law and, in the event of a conviction, there has been a fundamental miscarriage of justice. That being so, the Court of Criminal Appeal could not, in the present cases, properly have been satisfied for the purposes of the proviso that 'no substantial miscarriage of justice' had 'actually occurred'. The reason is that a court of criminal appeal can only properly be so satisfied, in a case where there has been fundamental misdirection, if the circumstances are such that it is clear that there is no real possibility that justice has miscarried by reason of that misdirection: cf. Mraz v The Queen ((1955) [1955] HCA 59; 93 CLR 493, at p 514) (520).

Also see KRM v The Queen [2001] HCA 11; (2001) 206 CLR 221 [105] (Kirby J).

28 As Redlich JA (Warren CJ and Forrest AJA agreeing) pointed out in R v KDY [2008] VSCA 104, the trial judge's direction in Liberato had invited the jury to choose between evidence adduced by the prosecution and evidence adduced by the defence. This invitation followed upon a serious misdirection by the trial judge that the jury should give the accused the benefit of any doubt where 'a belief in the accused was something about which the jury was satisfied' [26]. Redlich JA then referred, with approval, to the observation of Hunt AJA (Grove and Hall JJ agreeing) in R v Niass [2005] NSWCCA 120 to the effect that the so-called Liberato direction will be appropriate in many cases 'where there is a reasonable likelihood that the jury would otherwise obtain the impression that the evidence upon which the accused relies can give rise to a reasonable doubt as to his guilt only if they believe that evidence to be true' [28].

29 It is well-established that a so-called Liberato direction is not required as a matter of law. See, for example, Salmon v The Queen [2001] WASCA 270 [3], [11], [101]; R v Chen [2002] NSWCCA 174; (2002) 130 A Crim R 300, 328 - 329; Niass [28]; KDY [26]. Such a direction should be given, however, if, in the circumstances of the particular case, there is a real (as distinct from a fanciful) risk that the jury may otherwise have the impression that disbelief of an accused's evidence, or preference for a complainant's evidence, means that the State has proved its case beyond reasonable doubt.

30 The dissenting judgments of Brennan and Deane JJ in Liberato do not require a particular form of direction in relation to the burden and standard of proof. See Miles v The Queen [2000] WASCA 364, where Murray J said:

In my opinion it is clear that Brennan J was not intending to lay down any particular addition of principle to the form of direction required in relation to the onus and standard of proof, but was seeking to make it clear that if the directions of the trial Judge included observations about conflicting evidence, care should be taken to avoid any observations which might compromise the clarity and effectiveness of the directions of law on the onus and standard of proof [14].

Also see R v Norman [2005] SASC 89 [11] (Vanstone J, Doyle CJ and Duggan J agreeing); KDY [26].

31 In Koushappis [100], [104], Roberts-Smith JA (McLure and Buss JJA agreeing) approved a form of direction suggested by Kirby J (Sheller AJ and Dowd J agreeing) in R v Anderson [2001] NSWCCA 488; (2001) 127 A Crim R 116:

First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you find difficulty in accepting the evidence of the accused, but think that it might be true, then you must acquit.

Third, if you do not believe the accused, then you should put his testimony to one side. The question will remain; has the Crown, upon the basis of evidence that you do accept, proved the guilt of the accused beyond reasonable doubt [25]?

Also see Azarian v The State of Western Australia [2007] WASCA 249 [114] (Miller JA).

In the present case, a so-called Liberato direction was not required

32 In the present case, the decision of the trial judge to refuse to give a so-called Liberato direction was, with respect, a correct exercise of his Honour's discretion.

33 The trial judge directed the jury, relevantly, that:

(b) it was for the State to prove the appellant's guilt in relation to each count beyond reasonable doubt;

(c) it was not for the appellant to prove his innocence;

(d) the appellant did not have any burden of proof; and

34 The trial judge told the jury that the appellant's denials and assertions in his out of court statement to the police were matters for the jury to consider and they should give them whatever weight they saw fit.

35 Significantly, the learned judge did not, at any stage, invite the jury to compare the sworn evidence of the complainant in court with the out of court denials and assertions of the appellant, and to determine which version of events they preferred. The appellant's counsel did not submit to this court that the appellant's trial counsel or the prosecutor made any such invitation.

36 The trial judge plainly and unequivocally directed the jury that they could not convict the appellant of any count on the indictment unless they were satisfied that the State had proved his guilt in relation to that count beyond reasonable doubt. The jury could not have been left with the impression that whether the appellant was guilty or not guilty on any count depended on whether they preferred the complainant's version of events or the appellant's version. The jury must have understood that the crucial issue in relation to each count was whether or not the prosecution had proved beyond reasonable doubt that the complainant did not consent to the acts of sexual penetration which occurred.

37 In my opinion, the trial judge did not misdirect the jury concerning the burden or standard of proof, and there was nothing in the circumstances of the present case which required the giving of a so-called Liberato direction.