Haile v R [2022] NSWCCA 71

Haile v R [2022] NSWCCA 71 · Read the judgment on AustLII

Catchwords: Word-on-word cases – Liberato direction

The CCA has in this case reenforced the need for a Liberato direction in word-on-word cases, and sounded a caution about any suggestion that such cases involve a ‘choice’ between versions.

The appellant faced trial for murder with three co-accused. He was convicted, although the jury were unable to agree upon verdicts for the co-accused. This summary deals only with the ground of appeal dealing with failure of the trial judge to give the ‘Liberato direction.’

The deceased was shot and killed in a park; there was no issue that the fatal shot was fired by the appellant. The deceased’s partner was present at the time he was shot. Crucially, although other witnesses gave evidence that they had heard gunshots, or that they had seen the deceased at around the time of his death, the only eyewitnesses to the shooting were therefore the appellant and his partner.

The appellant gave evidence in the trial. He did not dispute that he had fired the fatal shot, but asserted that he had acted in self-defence. He said that the deceased had brought the firearm to the meeting in the context of an illicit transaction in which the appellant (who agreed he was a drug dealer) had been expecting to collect a drug debt as well as supplying more drugs. He asserted that the deceased pointed the gun at him and there was a struggle, during which the appellant managed to obtain the firearm and fired it, before fleeing.

The trial judge’s summing up occupied some five days. The appellant was the only co-accused who gave sworn evidence in the trial, but at no time did the trial judge direct the jury as to how his evidence should be approached and evaluated, having regard to the fact that the onus of proof was on the Crown. However, the trial judge did observe that there was such a significant divergence between the evidence of the appellant on the one hand, and the deceased’s partner on the other, such that they could not both be correct. This contrast was punctuated during the summing up by reference to two rhetorical questions: ‘Is there anything to help you decide between these two versions?’ and ‘That is the sort of thing which I suggested you have a look at when you are trying to make a judgment between competing versions.’

Following these directions (which seem to have occurred early during the summing up), counsel for the appellant asked for a ‘Liberato direction’. That direction is named after the decision in Liberato v The Queen (1985) 159 CLR 507. The direction seeks to give full effect to the Crown’s onus of proof, and is to the effect that where an accused gives a competing version, it is not sufficient simply to choose which is the preferable version. Rather, the correct approach is to ask whether the accused’s version is reasonably possible, and if it is not then put the evidence to one side, and consider the other evidence presented by the Crown, remembering that the Crown must prove its case beyond reasonable doubt.

The trial judge declined to give the Liberato direction and the summing up continued. Towards the end of the summing up (that is, at least several days later), counsel renewed his application for a Liberato direction, along with a ‘Murray direction’.

Named after the decision in Murray v The Queen (2002) 211 CLR 193, the Murray direction is to the effect that, where the Crown seeks to establish the guilt of the accused based largely or exclusively on the evidence of a single witness, that witness’ evidence should be approached with caution, and examined carefully).

The application was again refused, with the trial judge providing reasons to the effect that his earlier general directions as to onus and standard of proof given at the outset of the summing up were sufficient, and the case was not involving only a single witness (involving, broadly, the witnesses who heard the gunshots, and some phone evidence).

Bellew J (with whom Bell CJ agreed with some additional observations; Ierace J agreeing with both) distilled the relevant principles from the authorities. First, it is never appropriate for a trial judge to frame the issue for a jury’s determination as one which involves making a choice between the evidence of the Crown and the evidence of the defence; the issue is always whether the Crown has proved its case beyond reasonable doubt (at [71]). Secondly, a Liberato direction will be warranted in any case where, absent such a direction, there is a risk that the jury may be left with an impression that the evidence upon which the accused relies will only give rise to a reasonable doubt if it is believed as truthful, or a preference for the evidence of the prosecution is sufficient to establish guilt (at [72]). Thirdly, when a Liberato direction is given, it should be made clear that a preference for the Crown evidence is not sufficient; the jury must not convict unless satisfied beyond reasonable doubt of the truth of the Crown’s evidence; if the accused’s version is accepted, or is doubtful but reasonably possible, a verdict of not guilty must follow and; if the accused’s evidence is not accepted it should be put to one side and the remaining question is whether the Crown’s evidence has proved the guilt of the accused beyond reasonable doubt (at [73]).

In the present case, although the trial judge appropriately directed the jury at the commencement and conclusion of the summing up about the onus and standard of proof, other parts of the directions framed the question in terms of a requirement to choose between the version of the appellant, and that of the deceased’s partner (at [76]). The errors were compounded by the refusal to give a Liberato direction because it was not a case of one witness against the appellant. It may have been strictly true that there was other evidence which the Crown relied upon, but such an analysis overlooked the fact that there were only two eyewitnesses: the appellant and the deceased’s partner (at [78]). Notwithstanding the Crown’s submissions that it would have been very difficult to formulate a Liberato direction in the present case because the Crown had formulated an alternative case which was also left to the jury, it was in fact clearly possible to formulate such a direction in the present case. Importantly, if the circumstances of a given case mean that a Liberato direction is required, the fact that the direction may require some modification to suit the particular case is highly unlikely to ever justify a decision not to give such a direction at all (at [81]).

The Chief Justice, in his concurring remarks, described this as a ‘graphic demonstration’ of why a Liberato direction will ‘invariably be essential where conflicting versions of events are presented in a criminal trial’. Any direction suggesting that the decision required involves a ‘choice’ of competing versions renders it highly likely that the jury will be misguided in its deliberations, and the trial miscarry (at [2]).

Although this case was couched entirely in terms of directions to a jury, the same principles would be imposed upon any decisionmaker in a criminal matter – including a Magistate of the Local Court.