R v MRB[2024] QCA 64

SUPREME COURT OF QUEENSLAND

1. [1]
   DALTON JA:  This is an appeal against conviction.  MRB was convicted by a jury of importing a border controlled drug, cocaine, in an amount which was a commercial quantity – s 307.1(1) Criminal Code Act (Cth).

The Cases Presented at Trial

2. [2]
   MRB admitted much of the Crown case.  He was an engineer employed in Brisbane.  He imported a generator which had been advertised on Gumtree in South Africa.  He paid about $5,000 for the generator and about $3,000 to have it shipped, by a legitimate freight company, to his employer’s address in Brisbane.  It duly arrived and he supervised it being unloaded with a forklift, put onto a pickup truck and driven to Sydney.  He made a false invoice in the name of someone who did not exist to record the sale of the generator from him to the person who supposedly lived in Sydney.  None of that was contested at trial and, given the Crown case, it was difficult to see how it could have been.
3. [3]
   MRB gave evidence at trial to the effect that the generator was worth about 10 times what he paid for it, and at the time he had purchased it, he knew it was stolen.  He purchased it in conjunction with a group of men who had a plan to sell it for its true worth, thus making a few thousand dollars each.  That accounted for the false invoice which he prepared once the generator arrived.  It also accounted for the fact that, although a legitimate transport company delivered the generator to his workplace, it was then delivered, by him, to one of the group whose role it was to transport the generator to Sydney.  It also accounted for encrypted communications between the group of men which included the expression of great excitement at the arrival of the generator and exhortations to one another to behave normally so as not to arouse suspicion about the arrival and onforwarding of the generator.  It accounted for MRB lying to police when he was first interviewed: he told them he was thinking of setting up a hire business and had imported the generator to hire out, but that, before it arrived, he managed to on-sell it at a profit.
4. [4]
   The defence case asked the jury to accept MRB’s evidence, or at least be persuaded that it might be true.  It asked the jury to take into account that MRB is tertiary educated, intelligent and with practical experience derived from his employment.  Such a man would not be so stupid as to allow a paper trail, using his own name, to be created if he knew he was getting involved in a substantial drug importation.  Allied with this, was the fact that MRB kept the emails and other communications on his phone, rather than deleting them after finding out, soon after the importation, that police were investigating.  Merely because the Crown had proved other persons in the group of men knew that there was an importation of drugs, it did not follow that MRB knew.
5. [5]
   Orally and in writing the trial judge put to the jury that the real question in the case was:

“Did the defendant intend to import the relevant substance as distinct from the generator in which it was concealed in circumstances in which he was at least reckless as to whether the substance was a border-controlled drug?”^[1]

6. [6]
   The Crown could prove that the generator contained a large amount of cocaine which was unpacked by others involved in the encrypted communications once it arrived in Sydney.  The member of the group who collected the generator in Brisbane was involved in the unpacking.  The Crown could also prove communications warning MRB to “keep his mouth shut” once it was realised that police were aware of the importation.  The Crown relied upon the fact of the group using encryption, as well as the content of the encrypted communication.  The Crown relied upon the lies initially told to police to demonstrate that MRB was “an accomplished liar” who could not be accepted as a credible witness in evidence.^[2]

The Ground of Appeal

7. [7]
   The appeal is on the basis that the trial judge gave an inaccurate and/or confusing Liberato direction.^[3]  In order to examine this proposition it is necessary to set out substantial parts of the summing-up both before and after the part of the summing-up which dealt explicitly with the directions which take their name from Liberato v The Queen.  The summing-up was thoughtfully organised and, with respect, delivered in a sequence which would enable the jury to understand the submissions of both Crown and defence about the appellant’s evidence.
8. [8]
   At the beginning of the summing-up the trial judge made it clear to the jury that it was the prosecution which bore the onus of proving the elements of the case beyond reasonable doubt.  He went on to tell the jury how that direction of law applied to the major issue for their determination.  He said, “The main factual issues are these: did the defendant intend to import the relevant substances, as distinct from the generator in which it was concealed, in the circumstances where he was at least reckless as to whether the substance was a border-controlled drug” – t 1-2.  He referred the jury to a one page document which he had given them on the first day of trial.  It identified five elements of the offence, only two of which were significantly in dispute.  The judge then said, “As a matter of law, the prosecution must prove those elements in this case and any other case. In this case, it has to prove those elements. Like the other elements that are not in dispute, it has to prove it beyond reasonable doubt before you can return a verdict of guilty. The main factual issues in this case then concern the state of the defendant’s mind.” – tt 1-2-3.
9. [9]
   Soon after, as part of this initial discussion the judge said to the jury:

“You therefore need to be satisfied beyond reasonable doubt that the defendant intended to import the relevant substance, as distinct from the generator in which it was concealed, in circumstances in which he was at least reckless as to whether the substance was a border‑controlled drug.  If the only reasonable inference is that he had that intention and was at least reckless in that regard, then the prosecution will have proven elements 2 and 5.  The other elements, having been proven, your verdict in that event will be guilty of the offence.

If you are not satisfied beyond reasonable doubt on elements 2 or 5, your verdict will be not guilty. …”^[4]

10. [10]
    A little time after this, the judge gave the jury a more generic, or conventional direction, “It is for you to decide whether you are satisfied beyond reasonable doubt, that the prosecution has proved the elements of the offence.  If you are left with a reasonable doubt about guilt in respect of the offence, your duty is to acquit, that is, to find the defendant not guilty.  If you are not left with a reasonable doubt, your duty is to convict in respect of that offence, that is, to find the defendant guilty.” – t 1-4 of the summing-up.
11. [11]
    Further, as the Crown case was circumstantial as to the important issue of intention, the jury were given a specific direction:

“In a circumstantial case such as this, the prosecution does not need to prove every fact for which he contends. It does, however, as I have said, need to prove each element of the offence and therefore the essential factual components of this case, such as the allegation that the defendant intended to import a relevant substance and that he knew, or at least was reckless as to, whether it was a border-controlled drug. To prove the elements of the offence and therefore to prove the offence, the prosecution has to satisfy you that the only rational inference is that the defendant committed the offence. …”^[5] (my underlining).

12. [12]
    The next relevant part of the summing-up was about the lies which the Crown proved, and the defence largely admitted, had been told by MRB to the police when he was first interviewed.  About this the trial judge said:

“I turn to lies or alleged lies. As I said, a number of these alleged lies are admitted. To put it in context, the prosecution relies on what it says are lies told by the defendant to police as showing that he lacks credibility, and that you should take that into account in assessing the credibility of his evidence more generally. The defence accepts, as they accepted on the first morning of the trial, when Mr Hunter opened the case and later when the defendant gave his evidence, that the defendant told a number of lies to police.

Now, the defence submits that lies were told because he had been told to lie, in effect. He feared for his and his wife safety if he told the truth. Shortly, I will list out certain matters that the prosecution says are lies and that go to his credit. You make up your mind whether he was telling lies, and if so, whether he was doing that deliberately. If you conclude the defendant deliberately told lies, that is relevant only to his credibility. It is for you to decide whether those suggested lies effect his credibility.

Please, heed this warning that I am required by law to give you: do not follow a process of reasoning, in effect, that just because a person is shown to have lied about something, that is evidence of guilt. The mere fact that a defendant tells a lie is not, in itself, evidence of guilt. A defendant may lie for many reasons, for example, fear, including fear for their safety, to bolster a true defence, to protect someone else, to conceal disgraceful conduct of his short of committing the offence, out of panic of confusion. If you think there is or may be some innocent explanation for a lie, then you do not take notice of it.

…

If you conclude that the defendant lied, it is for you to decide what effect that has on the credibility of other things that he said to the police, and the credibility of his evidence in the witness box. I remind you of this warning: do not follow the process of reasoning to the effect that just because a person is shown to have lied about something, that is evidence of guilt. An admitted or proven lie is relevant only to the defendant’s credibility.”^[6]

13. [13]
    Immediately after the direction on lies, the trial judge gave a Liberato direction in the following terms:

“I am turning to the defendant having given evidence. So I have already told you at the start of the trial, and it has been repeated, the defendant did not have to give evidence or call other people to give evidence on his behalf or otherwise produce evidence. That he had done so does not mean that he assumed responsibility of proving his innocence. The burden of proof has not shifted to him. His evidence is added to the evidence called by the prosecution.

As I have said, the prosecution has the burden of proving each of the elements of the offence beyond reasonable doubt. It is upon the whole of the evidence that you must be satisfied beyond a reasonable doubt that the prosecution has proved the case before the defendant may be convicted.

You should understand that a criminal trial is not a question about you making a choice between the evidence in the prosecution case and the evidence called by the defendant. The proper approach is to understand that the prosecution depends on you, the jury, accepting the evidence of the prosecution witnesses and the formal admissions and other evidence it relies on, despite the sworn evidence given by the defendant, proving the prosecution’s case beyond a reasonable doubt. That is, despite the evidence given by the defendant.

So you do not have to believe the defendant is telling the truth before he is entitled to be found not guilty. Whereas here, you have had  defence evidence. There is usually one of three possible results. The first, you may think that the defence evidence is credible, reliable, compelling, call it what you will, and that it provides a satisfying answer to the Prosecution’s case. If that was your conclusion, your verdict would be not guilty.

Second, you may not positively believe the defence evidence, so you may not be convinced by it, but it leaves you in a state of reasonable doubt as to what the true position was. If you are left in a state of reasonable doubt in the light of all the evidence, your verdict will be not guilty.

The third possibility is you think that the defence evidence or much of it should not be accepted. If that is your view, be careful not to jump from that view to an automatic conclusion of guilt.

If you find that defence evidence is unconvincing, you set it to one side and you go back to the rest of the evidence, and ask yourself whether, on a consideration of the evidence that you do accept, are you satisfied beyond reasonable doubt that the prosecution has proved each of the elements of the offence in question?”^[7] (my underlining).

14. [14]
    There were two passages in the summing-up subsequent to this which bore upon the jury’s understanding of Liberato matters.  Before setting those out, I will mention that the trial judge had given a draft of his summing-up to counsel the day before it was delivered and that the relevant part of the draft is in the following terms:

“Where, as here, there is defence evidence, usually one of three possible results will follow:

1. You may think the defence evidence is credible and reliable, and that it provides a satisfying answer to the prosecution’s case.

If so, your verdict would be not guilty,

or

2. You may not positively believe the defence evidence: you may not be convinced by it, but it leaves you in a state of reasonable doubt as to what the true position was.

If so, your verdict will be not guilty,

or

3. You may think that the defence evidence should not be accepted.

If that is your view, be careful not to jump from that view to an automatic conclusion of guilt. If you find the defence evidence unconvincing, set it to one side, go back to the rest of the evidence, and ask yourself whether, on a consideration of such evidence as you do accept, you are satisfied beyond reasonable doubt that the prosecution has proved each of the elements of the offence in question.”

15. [15]
    There are two matters of difference between the draft and what the primary judge said in Court.  One is that the sentence underlined in the summing-up was not in the draft.  The second matter is that the summing-up has been transcribed with a paragraph break between the words “automatic conclusion of guilt”, and the next sentence, whereas the draft did not contain a paragraph break there.  The lack of a paragraph break in the draft, and the substance of what was communicated in the last sentence of the extract of the summing-up at [13] above shows that last sentence was part of the “third possibility” being discussed by the trial judge.  I work on the basis that would have been communicated orally, even though the transcriber has erred in setting that sentence as a separate paragraph.
16. [16]
    As foreshadowed, after the Liberato directions were given, the trial judge made two further comments in his summing-up, in effect, as to the practical effect of the second limb of the Liberato direction.  He said:

“So in short summary, Mr Hunter has submitted that you should accept the accused’s evidence. Mr Hunter submitted the defendant would not have to be just stupid, but completely insane to do what he is alleged to have done, with the state of knowledge he is alleged to have had. But the defendant is neither stupid nor insane, and so you would reach the conclusion that he did not do those things, knowing or suspecting that drugs were involved.

Mr Hunter urged you to accept the defendant’s evidence about not knowing or suspecting drugs were involved. But he submitted in the alternative, if you did not accept the defendant’s evidence, you would at least have a reasonable doubt about whether the defendant’s story is true. Finally, he submitted that you conclude that the defendant was naïve and callously used by others.”^[8] (my underlining).

17. [17]
    Further, the trial judge said:

“The defence says, as you know, that he lied because he was threatened, and that his lies were what was described as lame. They were told by someone who realised just far too late that he had been caught up in something that was way over his head. So, if I was to try and capture the competing positions, the prosecution case is that the defendant was an intelligent person who sourced a generator, paid for it, took delivery of it, and used his name and details to lay what appeared to be an authentic paper trail that would not arouse suspicion with customs or other authorities, and that would provide the kind of story he told police, if things went bad.

The defence position is that you accept the defendant’s evidence in the witness box and find his explanation plausible, or at least have a reason to wonder if it is true. You would have a doubt as to whether he was so stupid to knowingly get involved in a large drug importation, with his name all over documents that would lead the police to him. You consider whether he was naive and coercively used by others, not knowing or believing that drugs were involved in the importation, or not being at least reckless as to whether a border-controlled drug was being imported by one or more of the people on the Ciphr phone chat.”^[9] (my underlining).

18. [18]
    Both these passages reinforced what had been said about the “second possibility” and showed the jury how to think logically about the result of a doubt which arose by reason of the appellant’s evidence.  Both examples clearly tell the jury that such a doubt favoured the position the defence counsel urged, ie., acquittal.

Liberato Directions

19. [19]
    Liberato was a rape case in which the accused gave evidence; the issue in that case was consent.  The trial judge told the jury that they could evaluate the complainant’s evidence and the defendant’s evidence and choose between them.  The trial judge otherwise gave orthodox directions that the prosecution bore the onus of proving each count.  The majority of the High Court (Mason ACJ, Wilson and Dawson JJ) refused special leave to appeal from a decision of the South Australian Full Court which had applied the proviso, whilst acknowledging faults with the summing-up.  Brennan J and Deane J dissented.  Brennan J 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. …” – p 515 (my underlining).

20. [20]
    Deane J referred to the trial judge in Liberato having told the jury that they had a choice between the evidence of the complainant and the accused.  He said:

“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’.” – pp 519-520.

21. [21]
    No particular form of words was suggested as being required in Liberato; the focus of the judgment was the purpose of ensuring that the jury thought logically about onus of proof issues in cases where the accused gave evidence.^[10]  After Liberato, cases and benchbooks began to put forward guides or models for directions which would achieve the purpose spoken of by Brennan J in that case.  In R v Anderson^[11] Kirby J came up with this formula:

“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?”

22. [22]
    The Western Australian Court of Appeal recently reaffirmed its preference for that formula in Johnson v Western Australia.^[12]
23. [23]
    In Queensland a three-step formula was also adopted.  For many years the benchbook suggested a direction in terms close to that recorded in R v KBE:

“A case may be described as ‘word against word’.  However, you should understand that is inaccurate because in a criminal trial, it is not a question of making a choice between the evidence of the prosecution’s principal witness and the evidence of the defendant’s statement; that is, what the defendant has said about the offence.  The proper approach is to understand that the prosecution case depends upon you, the jury, accepting that the evidence of the prosecution’s principal witness, that is, the complainant, was true and accurate beyond reasonable doubt, despite the statement from the defendant.  So, you do not have to believe that the defendant is telling the truth in that statement before he is entitled to be found not guilty.

Where, as here, there is evidence led of the defendant’s statement about the offence, usually one of three possible results will follow.  First, you may think the statement is credible and reliable and that it provides a satisfying answer to the prosecution’s case.  If so, your verdict would be not guilty.  Or secondly, you may think that although the statement was not convincing, it leaves you in a state of reasonable doubt as to what the true position was.  If so, your verdict would be not guilty.  Or thirdly, you may think that the statement should not be accepted.  However, if that is your view, be careful not to jump from that view to an automatic conclusion of guilt.  If you find the statement should not be accepted, set it to one side, go back to the rest of the evidence and ask yourself whether, on a consideration of such evidence as you do accept, you are satisfied beyond reasonable doubt that the prosecution has proved each of the elements of the offence in question.”^[13]

24. [24]
    In De Silva v The Queen the High Court indicated a preference for the clearer language which had originated in Kirby J’s judgment in Anderson.^[14]  In 2023 the Queensland benchbook changed to suggest a model more in line with this language, and in R v KBE I expressed the view that it was a change for the better.^[15]  However, like the other two members of the Court in KBE, my view was that a failure to use the clearer, more modern language, rather than language in terms of the model suggested by the benchbook before 2023, did not give rise to a miscarriage of justice.  Consistently with that view, I do not think that the trial judge’s use of the older model of direction in this case was erroneous.
25. [25]
    However, the appellant argued that there were two other problems with the Liberato direction given in this case.

• First it was said that the underlined sentence at paragraph [13] above was confusing or wrong because the judge ought to have directed that if MRB’s evidence left them in a state of reasonable doubt as to what his true state of mind was, they ought to have been instructed to bring in a not guilty verdict.
• Secondly, it was said that the final sentence of the direction at [13] above was confusing because of the use of the word “unconvincing” (underlined).  Much of that second point falls away when it is realised that due to the paragraphing error in transcription, that paragraph is part of the direction as to “the third possibility”.  The appellant argued that, even so, potential for confusion still remained because the judge used two different terms to describe the possibility that the jury rejected MRB’s evidence: “should not be accepted” and “unconvincing”.  That had the potential to be confusing because in discussing the “second possibility” the judge used the phrase “you may not be convinced”.

26. [26]
    In my view, both these arguments raise slight points.  Moreover, they are the type of arguments which focus on a careful parsing of the written transcription of a summing‑up at the expense of looking to see what was communicated to the jury.  In this regard I note that MRB was represented by an experienced, careful and well‑respected counsel.  He had been given the draft summing-up overnight.  The draft contained what is relied upon as the second defect.  The appellant’s counsel raised no objection.  Nor did he raise any objection when 10 or 15 minutes after the Liberato direction was given, the Court adjourned for a morning break, and counsel were asked if they had any difficulties with the summing‑up so far.  Counsel’s failure to perceive any difficulty with the oral communication to the jury is not determinative, but it is an indication that there was nothing communicated to the jury which was confusing or inaccurate in substance.^[16]
27. [27]
    As the primary judge stated to the jury on numerous occasions, the main issue for their determination was whether or not MRB believed he was importing a stolen generator, or had a state of mind which was reckless, or worse, as to the generator’s containing border controlled drugs.  The passages at the very beginning of the summing‑up – [8]-[9] above – give the jury clear and correct directions as to the onus and standard of proof not just in general terms, but specifically applied to this fundamental issue.  The same can be said for the circumstantial evidence direction about the appellant’s state of mind – [11] above.
28. [28]
    The Liberato direction followed the direction about lies, and assessing the credit of the appellant.  From the Liberato direction itself the jury could clearly understand that their task was not simply to decide whether they preferred the Crown evidence to the defence evidence; they were not to weigh word against word.  They were to think about MRB’s evidence in a disciplined framework of three possible views.  In my view, there is no realistic possibility that the summing-up failed to convey to the jury that those three potential views were that they: (1) accepted MRB’s evidence; (2) were unsure about the truth of MRB’s evidence, and (3) rejected MRB’s evidence.  I do not think that the repetition of the word “unconvincing” when talking about “the third possibility” raises a realistic possibility of confusion.
29. [29]
    There can also be no doubt that the summing-up communicated to the jury that if they were of the first view, they would enter a verdict of acquittal; of the second, they would enter a verdict of acquittal, and of the third, they would return to the prosecution case and assess it in accordance with the directions as to onus and standard of proof that had been clearly given to them.  That was what they were expressly told, and what was reinforced by the two subsequent illustrations concerning views one and two, [16] and [17] above.
30. [30]
    Set against the correct and focussed directions at the commencement of the summing‑up, I think that what was communicated to the jury was adequate to ensure that they did not think that a view (i) rejecting, or (ii) being uncertain about, the appellant’s evidence meant that the Crown had proved its case beyond reasonable doubt, to adapt the words of Brennan J in Liberato.
31. [31]
    I do not think the extra sentence added to the discussion of the second possibility (underlined at [13] above) made the direction confusing overall.  I think the structure at this part of the summing‑up made it plain that, if they were uncertain as to the truth of MRB’s evidence, their verdict would be not guilty.  In fact, having regard to the factual issues in this case, I do not know that it was inaccurate to speak of the state of reasonable doubt produced by a consideration of MRB’s evidence as being a state of reasonable doubt in light of all the evidence.  How were the jury to assess the truth of MRB’s evidence if not against all the other evidence in the case?  The Crown case was that the other evidence in the case showed the appellant’s evidence to be false.  The Crown relied upon the celebratory and enthusiastic comments made about the arrival of the generator in the encrypted communications, and the failure of MRB to check the generator when it arrived at his employer’s workshop, before consigning it onto Sydney.  The Crown argued that no rational employed engineer would become so celebratory about the arrival of a stolen generator, when he stood to gain only a few thousand dollars from its on-sale.  It argued an engineer who had imported a generator hoping to make profit on its on-sale would be concerned to see that the generator was as described and in good condition before sending it off to the new purchaser.
32. [32]
    In my view, the purpose of the Liberato direction was fulfilled by the passages of the summing-up to which I have referred.  The appeal against conviction must be dismissed.
33. [33]
    BODDICE JA:  Dalton JA’s comprehensive summary of the charges, evidence, addresses and summing up, allow me to briefly state my reasons for allowing the appeal, setting aside the verdicts below and ordering a re-trial.
34. [34]
    A direction in accordance with Liberato is given to a jury, in order to guard against the impermissible use of the evidence of a defendant in a criminal trial, in circumstances where the onus of proof never shifts from the Crown to establish the defendant’s guilt, beyond reasonable doubt.^[17]
35. [35]
    Whilst there is no specified formula for the giving of that direction, the words used must plainly inform the jury as to the proper use of that evidence.  The formulation in De Silva at [12], serves to use modern language to direct the jury in a clear and concise form.
36. [36]
    The focus of the first two limbs of that direction is upon circumstances where the evidence of the defendant either satisfies the jury that that evidence is true, or, even if it be unconvincing, that it may be true.  Such a state of mind, of itself, gives rise to a reasonable doubt as to the defendant’s guilt.  It is for that reason that the jury is to be plainly directed that in that circumstance, their duty is to acquit.
37. [37]
    In respect of the second limb, whilst the defendant’s evidence is to be considered in the context of the evidence led at trial by the Crown, it is the effect of the defendant’s evidence that is central.  To that extent, to include in the direction, as the trial judge did in the present case, a reference to the jury having regard to that evidence, in the context of the evidence as a whole, is to undermine the purpose of the direction.  The focus is on the fact that the defendant’s evidence, whilst unconvincing, has caused the jury to be satisfied that it may be true.
38. [38]
    Similarly, to refer to a reasonable doubt, in light of the evidence as a whole, risks confusion as to the onus of proof, in circumstances where the jury have been left with an acceptance that the appellant’s evidence might be true.  That acceptance, of itself, raises a doubt as to guilt such that the jury should acquit.
39. [39]
    Unlike Dalton JA, I find it unsurprising that defence counsel did not seek a re-direction in the present case.  The trial judge had afforded counsel the opportunity of a consideration, in advance, of the directions proposed to be given, by delivery of those directions in written form.  That written document did not include a reference to a consideration of the evidence as a whole, in respect of the second limb of the Liberato direction.  Defence counsel was entitled to assume that having been afforded that opportunity, the direction given would be in accordance with the written document.  In the course of the proceeding itself, defence counsel may have failed to note the change in the form of words used by the trial judge in the oral summing up.
40. [40]
    The undermining of the direction to be given, in accordance with Liberato, was exacerbated by the trial judge’s reference, after directing as to the third limb, that if the jury found the defendant’s evidence “unconvincing” they were to put it to one side and consider the evidence led in the Crown case.  Whilst that reference, of itself, would not necessarily have confused the jury, the use of “unconvincing” rather than “should not be accepted” assumed a greater significance having regard to the undermining of the second limb.
41. [41]
    Having regard to the significance of the defendant’s evidence, in the context of the issues in dispute at trial, the failure to give a direction in accordance with Liberato, which did not undermine the use the jury may give to that evidence, deprived the appellant of a fair chance of acquittal.  Accordingly, there was a miscarriage of justice.
42. [42]
    The Crown accepted that in the event of such a finding, the proviso was inapplicable.

43. [43]
    For the above reasons, I would order:

1. The appeal be allowed.
2. The verdicts below be set aside.
3. There be a re-trial.

44. [44]
    BURNS J:  I have had the considerable benefit of reading in draft the separate reasons of Dalton JA and Boddice JA.
45. [45]
    I agree with Dalton JA that the appeal against conviction must be dismissed and, save only for what follows, I agree with the reasons expressed by her Honour for arriving at that conclusion.
46. [46]
    The sole ground for the appeal against conviction was that the Liberato direction to the jury was inadequate and occasioned a miscarriage of justice. As part of the argument to support that ground of appeal at the hearing, counsel for the appellant relied on the two alleged defects earlier summarised by Dalton JA.^[18] The draft of the summing-up provided by the trial judge to counsel in advance of its delivery included what was said to amount to the second alleged defect. That there was no application for a re-direction tends against a finding that there was a risk of miscarriage of justice, as Dalton JA explained.^[19] However, there is less room for the application of that reasoning in the case of the first alleged defect, that is to say, the inclusion in the second limb of the trial judge’s Liberato direction of the sentence, “If you are left in a state of reasonable doubt in the light of all the evidence, your verdict will be not guilty”. That sentence did not appear in the draft summing-up so, if the appellant’s trial counsel was working under the reasonable assumption that the summing-up would conform with at least the substance of the draft, its inclusion may for that reason have been missed.
47. [47]
    In any event, like Dalton JA,^[20] I am not persuaded that the inclusion of the sentence about which complaint is made amounts to a misdirection. The appellant argued that the focus of the second limb of the Liberato direction should be confined to a consideration of the evidence of the accused and not extend to the whole of the evidence adduced in the case, but that is not so. The purpose of the second limb is to deal with the possibility that the jury, whilst not accepting of an accused’s account, consider that the account might be true. But an accused’s account does not fall for consideration in a vacuum; it must necessarily be considered by the jury in the context of the evidence comprising the Crown case. Where an accused gives evidence, he or she will be doing so in defence of the Crown allegations, and those allegations are of course derived from that wider body of evidence. Thus, if the jury conclude that an accused’s account might be true, they will be left in a state of reasonable doubt about the proof of the Crown allegations and must acquit. As Brennan J put it, 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”^[21].
48. [48]
    That said, it is uncontroversial that a Liberato direction was required in this case to guard against the risk that the jury might have been left with the impression that the appellant’s account could only give rise to a reasonable doubt if they believed it to be truthful.^[22] When taken with the other passages from the summing-up emphasised by Dalton JA, the directions given by the trial judge satisfied this requirement.