Liberato direction

It would perhaps be entirely natural for a jury hearing a trial that could be described as “word on word” to conclude that their task is “choose between the versions”. Of course, dealing with a trial in that fashion would be entirely contrary to the onus that the Crown bears in criminal cases, and a Liberato direction serves to remind jurors of this.

It would perhaps be entirely natural for a jury hearing a trial that could be described as “word on word” to conclude that their task is “choose between the versions”. It might be even be difficult to resist that conclusion, when the jury has been addressed at length by each counsel extolling the virtues of their version and denigrating the contrary version.

Of course, dealing with a trial in that fashion would be entirely contrary to the onus that the Crown bears in criminal cases, and a Liberato direction serves to remind jurors of this.

In Liberato v R [1985] HCA 66, Brennan and Deane JJ were the justice whose judgment has since adopted. This is notwithstanding that they spoke in dissent, although the majority (Mason, Wilson, and Dawson JJ) rejected the appeal, not due to a rejection of the principle, but rather because, in their view, “no question of law is involved and where this Court is merely being asked to substitute for the view taken by the Court of Criminal Appeal a different view of the evidence and of the effect of the summing up”

It is important to note that R v Burt [2003] NSWCCA 248 that a failure to give the direction does not necessarily bespoke error, provided that there is still “clear and unequivocal direction” about the onus and standard of proof.

Liberato

Liberato v R [1985] HCA 66

“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”