His Honour then gave this direction:
"Once again the cardinal question for you is, do you believe him? Do you think that the substance of that version of events, as he has given it to you, is reliable and safe to act upon?" (emphasis added)
63 It is this direction and that set out in para 51 of these reasons which are the subject of ground one of the appeal.
64 His Honour continued:
"The assessment of the accused's evidence has to be approached in much the same way as the assessment of Aaron Martin's evidence, for the accused too, was cross-examined at length, without ever as it were, breaking down and saying, 'Well I was right the first time. I did kill her.' So in his case, as in that of Aaron Martin, it is necessary to look at the collateral attacks and the testing of other things which can be looked at, in order to see whether, in general at least, he is reliable in the things that he says when explaining what happened from his point of view on the night in question."
65 His Honour outlined the attack made by the Crown on the appellant's version of events given at trial and concluded:
"Let us pause there ladies and gentlemen. That completes what I want to say to you … on question 3 of count 1 and the summary of the accused's case on that same question. They are the contending cases that you have to weigh when you are resolving that question. May we look at it again in the form in which I have set it out for you: Has the Crown proved beyond reasonable doubt that the victim was strangled by the accused ?" (emphasis added).
66 Shortly afterwards, there was the following exchange between his Honour and counsel for the appellant:
"ZAHRA: … when your Honour had started to refer to the accused's case, in particular, the accused giving … evidence. Your Honour had said something to the effect of the question is, do you believe him? Your Honour has gone at some length up until now, to talk about the onus of proof. I accept your Honour, at the start, talking about that. He gave evidence. He need not have given evidence. Your Honour made it very clear to the jury at that point of time, the question do you believe him, is no doubt an important one in relation to his credibility.
HIS HONOUR Where is the question?
ZAHRA: It is the question in relation to - he is questioned in relation to his credibility at the time.
HIS HONOUR: Is the position not fairly put in a way which would provide the attention of the jury to concentrate upon and ultimately framed in terms that stress the proper onus of proof as Q3 does. That is what's required isn't it?
ZAHRA: If your Honour please."
67 The matter was not raised again by counsel for the appellant. The complaint now made in respect of the two directions which are the subject of challenge on the appeal is that they were tantamount to a direction that the jury's task was merely to make a choice between the Crown's evidence and the accused's evidence, whereas, the correct question for their determination was whether the Crown had proved its case beyond reasonable doubt. It was submitted that the error was compounded by the emphasis given in the second of the two directions by his Honour's employment of the phrase "the cardinal question for you is, do you believe him?".
68 In Towner Allen J (Priestley JA and Badgery-Parker J agreeing) said at 228-229
"A trial judge has a delicate task when directing a jury in respect of a confession challenged as a fabrication pursuant to a conspiracy by police. There will be, usually, diametrically opposed versions given by the police on the one hand and the accused on the other. Both cannot be right. One must be wrong. In that sense a choice is predicated. The trial judge must deal with the opposing versions, however, in such a way that it is made clear to the jury that it is not their task to make that choice, that is to determine which of the versions it is that is the correct one and which it is that is the false one. Their task is simply to determine whether they are satisfied beyond reasonable doubt of the guilt of the accused - which not uncommonly will mean satisfaction beyond reasonable doubt of the truth of evidence of confessions. If they are so satisfied in respect of the confessions it follows that they have rejected the accused's version. That, however, is the result of accepting the police version. It is not the result of choosing it in preference to the version given by the accused. That it is not a matter of choice is made manifest by a consideration of the position where the jury is not satisfied beyond reasonable doubt of the reliability of the police evidence in relation to the confessions. If they are not so satisfied they must acquit. But that does not mean that they have chosen the accused's version in preference to that given by the police. They well may have been very unhappy about his version but still have had reasonable doubt as to the reliability of what the police had said. Indeed they could positively have disbelieved his version yet still have had such doubt as to the police version. Liars on both sides of the record are not an unknown phenomenon."
69 Towner was a case of police fabrication of confessional material. So was R v E, the other authority relied upon by counsel for the appellant. This is not such a case. However, like the case where there is an allegation of a fabricated confession, and as is invariable in any case where an accused gives evidence denying commission of the offence, this case involves a conflict between the Crown case and that of the accused. The conflict arises here because of the appellant's retraction of the confession made in the first record of interview. When there is such conflict, the principle which operates is fundamental, reflecting the basic tenet of a criminal trial, namely, that at all times the jury's task is to determine whether the Crown has satisfied them beyond reasonable doubt of the guilt of the accused of the offence charged. It is necessary to ensure that the directions given to the jury reflect that fundamental tenet.
70 That is not always a simple task. In Liberato v The Queen (1985) 159 CLR 507, the High Court gave consideration to the problems which can arise in such circumstances. Brennan J said at 515:
"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."
71 However, Deane J at 519 acknowledged that where there were conflicting accounts it was "sometimes unavoidable and commonly unobjectionable" for references in the summing up to be made to 'choice' between the competing versions. His Honour said:
"… on a number of occasions, his Honour directed the jury in terms which indicated that the overall questions for them essentially involved the making of a 'choice' between prosecution and defence evidence: … '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."
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.
73 Challenges to directions given by trial judges where there is a direct conflict in the evidence are not infrequent, perhaps reflecting the difficulty which confronts a trial judge in adequately directing a jury in a way which is both correct and clearly understandable by the jury. However, the authorities reveal, as is clear from Liberato, that a reference to "choice" or to the question "who is to be believed" does not of itself give rise to appealable error provided that the correct question is clearly kept in the forefront of the jury's mind. Thus, for example in Tarantino (1993) 67 A Crim R 31, a case of an alleged fabricated record of interview, it was held that the trial judge's statement that "clearly somebody in this courtroom has told you a pack of lies", was not appealable error, given the summing up as a whole. As Hunt CJ at CL said at 36:
"Taken by itself, that direction stated the issue wrongly, and it should have been accompanied by a warning that the issue was whether the Crown witnesses were telling the truth (not the appellant), and that she was entitled to be acquitted if the jury were not satisfied with the veracity of the Crown evidence even though they may not have accepted the version which she had given. But that statement did not stand alone. The judge went on to pose the test correctly, as to whether the police and Customs witnesses were telling the truth. This followed immediately upon entirely accurate directions as to the onus of proof …"
74 In R v Dwyer [1999] NSWCCA 47, Dunford J (Meagher JA and Grove J agreeing), having referred to the trial judge's direction that "for essential purposes in this case, it is a case of your having to make a choice between two accounts, diametrically opposed, from the complainant on the one hand, and the accused on the other", stated:
"… if it had been left on the basis of a 'mere choice' between the evidence of the complainant and the evidence of the appellant, the summing-up would have been defective and a new trial justified: Liberato and Others v The Queen (1985) 159 CLR 507 at 515, 519 per Brennan J and Deane J. …
On the other hand, a reference to there being two diametrically opposed versions given by the complainant and the appellant, and even the reference to the jury having to 'choose' between the two versions, will not necessarily be fatal provided it is made clear to the jury that it is not 'merely' a 'choice' between the two versions, but that they must be satisfied beyond reasonable doubt that at least in its essential ingredients the version given by the complainant is true: R v Beserick (1993) 30 NSWLR 510 at 528-9, R v PAH (unreported - CCA - 18 December 1998) at 8-10."
75 In R v PAH (unreported, New South Wales Court of Criminal Appeal, 18 December 1998), Wood CJ at CL (Sheller JA and Dunford J agreeing) said:
"It will generally be advisable, particularly when the accused has given evidence, to advise the jury that the Crown case depends upon them accepting that the evidence of its principal witness was true beyond reasonable doubt, notwithstanding the denial by the accused, and that they do not have to believe that he was telling the truth before he is entitled to be acquitted."