Published by Geoff Harrison | 18 September 2023
A Liberato Direction stems from the High Court decision of Liberato v R [1985] HCA 66 (below) which is generally provided to a jury/tribunal of fact where a version of events has been provided by the accused. The essence of the direction is to reinforce the fact that the Crown always bears the onus of proving the offence beyond a reasonable doubt and that it is not a case of simply preferring one version of events over another. The suggested direction is as follows:
First, if you believe the accused’s evidence [the account relied on by the accused in his/her interview with the police], obviously you must acquit.
Second, if you find difficulty in accepting the accused’s evidence [the account relied on by the accused in his/her interview with the police], but think it might be true, then you must acquit.
Third, if you do not believe the accused’s evidence [if you do not believe the account relied on by the accused in his/her interview with the police], then you should put it to one side. Nevertheless, the question will remain: has the Crown, upon the basis of evidence that you do accept, proved the accused’s guilt beyond reasonable doubt?
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Liberato v R [1985] HCA 66; (1985) 159 CLR 507 (17 October 1985)
HIGH COURT OF AUSTRALIA
LIBERATO v. THE QUEEN [1985] HCA 66; (1985) 159 CLR 507
Criminal Law
High Court of Australia
Mason A.C.J.(1), Wilson(1), Dawson(1), Brennan(2) and Deane(3) JJ.
CATCHWORDS
Criminal Law - Appeal from conviction - Misdirections in summing up found by court of criminal appeal - Appeal dismissed because no substantial miscarriage of justice - Special leave to appeal to High Court - Principles for grant - Burden of proof - Conflict between prosecution and defence witnesses - Invitation to jury to choose between witnesses - Need to tell jury that it must be satisfied beyond reasonable doubt of truth of prosecution evidence - Criminal Law Consolidation Act 1935 (S.A..), s. 353(1).
HEARING
Adelaide, 1985, September 4, 5;
Perth, 1985, October 17. 17:10:1985
APPLICATION for special leave to appeal from the Supreme Court of South Australia.
DECISION
MASON A.C.J., WILSON, DAWSON JJ.: Each of the four applicants was convicted, after a joint trial with a fifth accused, upon a count or counts of rape. Their appeals to the Court of Criminal Appeal in South Australia against conviction were dismissed and they now seek special leave to appeal to this Court.
2. There is no dispute that there were defects in the summing up given by the learned trial judge and that these defects were correctly identified by the Court of Criminal Appeal. That Court, however, reached the conclusion that there was no substantial miscarriage of justice within the meaning of the proviso to s.353(1) of the Criminal Law Consolidation Act 1935 (S.A.) that would justify an order for retrial. It is this conclusion which is the subject of complaint in this application.
3. It is not suggested that the Court of Criminal Appeal fell into any error of law in its consideration of the summing up or that it failed to recognize any inaccuracy or insufficiency in the directions given. Nor is it suggested that the Court misconceived the principles governing the application of the proviso. See Mraz v. The Queen [1955] HCA 59; (1955) 93 CLR 493, at pp 514-515; Simic v. The Queen [1980] HCA 25; (1980) 144 CLR 319.
4. The real basis of the submission made to us is that the Court of Criminal Appeal in considering the application of the proviso ought to have taken a view of the evidence and of the overall effect of the charge to the jury which would have precluded it from concluding that no substantial miscarriage of justice had occurred. The Court reached its conclusion after an examination of the summing up as a whole and of all of the evidence given at the trial. There is nothing before us which would indicate that this material is incapable of supporting the view taken by the Court.
5. It has been repeatedly affirmed by this Court that it is not a court of criminal appeal and that it will not grant special leave to appeal in criminal cases unless some point of general importance is involved, which, if wrongly decided, might seriously interfere with the administration of criminal justice. See now Judiciary Act 1903 (Cth), s.35A. It would not be in accordance with that practice to grant special leave to appeal in this case where 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. Cf. Reg. v. Howe [1958] HCA 38; (1958) 100 CLR 448, at p 457.
6. Special leave should be refused.
BRENNAN J.: In January 1984 M.K., a woman aged 23 who was visiting Australia from Germany, was crossing the Nullarbor Plain by bus on her way to Adelaide. The bus stopped at Eucla. In the hotel there, she met the applicant Rooney and other members of a group who were also making for Adelaide travelling in a car towing a trailer containing their motorcycles. She gave Rooney the telephone number of her aunt in Adelaide with whom she proposed to stay.
2. On 16 January, Rooney telephoned M.K. and later called for her on his motorcycle. They went to a suburban hotel where they met Rooney's friends: Liberato, Andrews and his girlfriend Valerie Neave, Egan, Sekulic and another couple who played no part in the events that were to follow. The party stayed at the hotel drinking until closing time about midnight. M.K. then accompanied Rooney as his pillion passenger to a house at Salisbury Downs, an Adelaide suburb, occupied by Andrews and Valerie Neave. The other men in the party were staying at that house that night. M.K. and some of the men stayed up all night, drinking beer and playing cards. Valerie Neave and Andrews went to bed in their bedroom but later in the night Andrews got up and rejoined the group who were still awake. Sekulic, who had one leg in plaster, went to sleep in another bedroom. M.K. was "drunk", as she admitted at the trial, but the degree of her intoxication does not clearly appear from her evidence. She had taken her shoes off and she was rubbing her bare feet on Liberato's leg and entwining her leg with his. The others saw this.
3. At about 5.00am Egan grabbed M.K. and pressed her to him, but she rejected his embrace. About 6.00am Egan seized her, carried her into the loungeroom and engaged in the first of eleven acts of sexual intercourse which founded the counts of rape charged against the respective accused. Section 48 of the Criminal Law Consolidation Act 1935 (S.A.) ("the Act") defines the crime of rape as follows:
" 48. A person who has sexual intercourse with
another person without the consent of that other
person -
consent to sexual intercourse with him;
or
(b) being recklessly indifferent as to whether
that other person consents to sexual
intercourse with him,
shall be guilty of the felony of rape and liable
to be imprisoned for life."
Sexual intercourse as defined by s.5 of the Act includes oral or anal penetration by the male organ. The eleven counts in the information were numbered in the order of the acts of sexual intercourse as they occurred, namely -
count 1 - Egan - vaginal;
count 2 - Rooney - oral;
count 3 - Andrews - vaginal;
count 4 - Liberato - oral;
count 5 - Rooney - vaginal;
count 6 - Egan - anal;
count 7 - Sekulic - vaginal;
count 8 - Rooney - oral;
count 9 - Egan - oral;
count 10 - Egan - vaginal;
and count 11 - Sekulic - vaginal.
4. The accused were tried before the Supreme Court of South Australia. The jury convicted each of the accused on the count or counts with which he was charged. On appeal, the Court of Criminal Appeal (Zelling, White and Mohr JJ.) dismissed the appeals of the present applicants but allowed Sekulic's appeal. Sekulic's appeal was allowed for reasons presently to be mentioned. Egan, Rooney, Andrews and Liberato now apply for special leave to appeal from the judgment of the Court of Criminal Appeal.
5. In a trial of several accused, charged separately with sundry counts of rape alleged to be committed by them individually, the task of a trial judge is indeed complex. The learned trial judge in the present case delivered a summing up covering over 100 pages of transcript. As the Court of Criminal Appeal found, it was not free from blemishes. White J., with whose judgment Zelling and Mohr JJ. agreed, listed the blemishes in a six point summary:
" 1. A number of incomplete or inadequate or
confusing directions as to the use which the jury
should make of evidence of partial intoxication:
first, when considering whether each accused
realized she might not be consenting; if he did,
then secondly, whether partial intoxication
explained how each accused came to press on with
sexual intercourse.
2. A number of incomplete or confusing directions
following the jury question as to 'reckless
indifference and assumed consent'.
3. Too many separate directions over-emphasizing
the importance of lies as evidence capable of
amounting to corroboration - coupled with too few
directions or inadequate directions that the lies
might be explicable in terms of panic or fear of
injustice - and coupled also with an erroneous
direction that refusal to comment could impliedly
be equated with lying.
4. Occasional mis-directions undermining the
principle that the onus of proof remained with
the prosecution throughout, including (i)
suggestions that an accused had to satisfy the
jury about his belief or to sustain his belief
and (ii) that an issue might be resolved by
asking who is believed on that topic.
5. Speculation about an unproved conversation
between Egan and Sekulic.
6. The effect of the above matters cumulatively
on the jury's deliberations in those cases where
the complainant's signals of non-consent were
ambiguous."
Although the Court of Criminal Appeal held that there had been misdirections, they applied the proviso to s.353(1) of the Act holding that the Crown had established that there was no substantial miscarriage of justice except in Sekulic's case. The question is whether that conclusion should be upheld.
6. It was necessary for the learned trial judge to direct the jury that the prosecution bore the onus of proving in relation to each count (a) that M.K. had not consented to the relevant act of sexual intercourse and (b) that the particular accused, when he committed the relevant act of sexual intercourse, had one of the guilty states of mind prescribed by s.48. It was also necessary to direct the jury that they could not find those facts against an accused unless they were satisfied beyond reasonable doubt. The learned trial judge's directions on these issues were, for the most part, in essentially orthodox terms.
7. The chief evidence of lack of consent and the existence of a guilty state of mind came respectively from M.K. and the accused, each of whom gave evidence. Her evidence denied that she had consented to any act of intercourse, and she described events from which the jury could infer that the respective accused must have had a guilty state of mind. The accused each denied that he had either of the guilty states of mind - knowledge or reckless indifference - prescribed by s.48 and their description of the events was such that the jury could infer that she might have been consenting to the several acts of sexual intercourse. There was no dispute that those acts had occurred. M.K. gave much of her evidence through an interpreter. She spent five days in the witness box giving evidence-in-chief and being cross- examined and the jury thus had a substantial opportunity of assessing her credibility. But there were two events contained in M.K.'s story which might have been regarded by the jury as casting some doubt upon her complaint that the acts of sexual intercourse occurred without her consent. The first event relates to an act of oral intercourse by Rooney when her conduct seemed to be intended to excite Rooney. If that was her conduct in relation to count 2 (as White J. thought) it occurred during the act relating to count 1 at the beginning of the series of acts. However, it seems that she may have been referring to count 8. White J. described what she did - on one or other of these occasions - as "a puzzling, even extraordinary, course of conduct for a woman in her position". The second event relates to counts 7 and 11 when Sekulic had sexual intercourse with her. Sekulic had been wakened by Egan saying: "This is for you" when he brought M.K. into the bedroom naked. Sekulic had responded: "That is a nice present to wake up to". Then Sekulic, with his leg in plaster, lay on his back while she twice had intercourse with him. White J. said of the first occasion:
" It was she who arranged this. She agreed that
she had facilitated the intercourse and made
movements as though she enjoyed it. She never at
any stage signalled her non-consent to him".
White J. summarized her evidence relating to the second occasion - the last act of intercourse before M.K. left the house - as follows:
" On her own story in examination-in-chief, she was
acting at this time (in spite of her tiredness
and all the previous sexual activity) as if she
had lost her sexual inhibitions. She appeared by
her actions to be not only consenting but
enthusiastically enjoying what was happening.
When cross-examined (p.273) she repeated that she
had said to Sekulic the words 'I am doing this
because I like you'."
None the less the jury convicted Sekulic. The circumstances relating to counts 2 (or 8), 7 and 11 were such as to require the most anxious consideration of the credibility of M.K. and of the weight to be given to her evidence not only in respect of those counts but in respect of the other counts as well. In the circumstances, if she had consented to the acts of sexual intercourse charged in counts 2 (or 8), 7 and 11 - particularly count 11 - the cogency of her evidence that she had not consented to the acts involved in the other counts would be diminished. M.K.'s credibility and the weight to be accorded to her evidence as against the weight to be accorded to the accused's evidence were questions of central importance in the case. In those circumstances, it is difficult to satisfy the Court that a misdirection as to the onus and standard of proof, or as to the evidence which might corroborate the evidence of M.K., or as to the way in which the jury should weigh the competing bodies of evidence in reaching their verdict did not occasion a substantial miscarriage of justice.
8. It is necessary to examine the misdirections on the matters which White J. identified. His Honour's first point relates to incomplete, inadequate or confusing directions on partial intoxication, but those directions can be passed by. They related to the effect of intoxication on the state of mind of the accused. The second point relates to the "incomplete or confusing directions" given to the jury when they returned to the Court three hours after they first retired. At that time, the foreman asked:
" We would like your definition of rape again
please, referring to the reckless indifference
and assumed consent. There seems to be some
confusion in the jury about that."
His Honour gave a further direction, but evidently misunderstood what the jury had in mind in seeking a direction on assumed consent. The following exchange then occurred:
" HIS HONOUR: Certainly the word 'assumed' was
used. Mr Foreman, I think it is proper to tell
you that you don't assume consent at all. It is
for the Crown to prove beyond reasonable doubt
that at the particular time of the particular act
of intercourse she was not consenting.
MR PEEK: Your Honour, isn't it really this in a
nutshell, simply this, if it is reasonably
possible that any of the accused did in fact
assume that she was consenting, then that accused
must be acquitted. That is what it comes down to
in my respectful submission. If the jury think
it is reasonably possible, he assumed she was
consenting, then obviously he does not have the
mental element of rape and he must be acquitted.
HIS HONOUR: You have to give the benefit of any
doubt to the accused ladies and gentlemen, and
there may be occasions where a belief in the
accused is something that you are satisfied about
and if that gives rise to a doubt about the
ingredients of the charge, then the accused must
have the benefit of that doubt.
MR BORICK: I agree with Mr Peek's submissions.
HIS HONOUR: Do you think so Mr Cuthbertson?
MR CUTHBERTSON (Crown Prosecutor): I prefer your
Honour to leave it on the basis of the definition
you have given of reckless indifference, which is
a realisation that there was a very real risk
that (M.K.) was not consenting. If that has been
proved beyond reasonable doubt, then that element
has been satisfied.
HIS HONOUR: I hope I made that plain to you that
there is an alternative but by the same token if
you have a doubt about either of those two states
of mind, which is reasonable, then you are to
resolve that in favour of the accused. There
can't be any doubt about that either."
9. This was the last direction given by his Honour before the jury returned its verdict. Mr Peek had sought a direction to acquit if the jury thought it "reasonably possible" that an accused had assumed M.K. was consenting, a state of mind inconsistent with a realization that she might not be consenting. His Honour did not give a direction in those terms. He directed the jury that an accused was entitled to be acquitted if the jury were "satisfied" - a term used in the summing up to mean satisfied beyond reasonable doubt - that an accused had an exculpatory belief, and "if that gives rise to a doubt" about the accused's guilt. The jury may have taken his Honour to be directing them that if it were possible that an accused believed that M.K. was consenting, they might acquit provided they were satisfied that he had that belief and provided such a belief gave rise to a doubt as to whether he knew that she was not consenting or was recklessly indifferent to whether she was consenting or not. Such a direction would be, at best, confusing. His Honour did not clarify the matter when he said as he sent the jury out again:
" You have had the benefit of that submission from
Mr Peek and my attempts to explain to you the law
and if there is anything further that you would
ask we will wait upon you."
The effect which this direction may have had on the jury's comprehension of earlier orthodox directions as to onus and standard of proof is a matter of surmise.
10. The risk of the jury failing to understand the true onus and standard of proof was enhanced by the "occasional mis-directions" referred to in the fourth point of the criticisms made by White J. During his summing up the learned trial judge, referring to a defence submission that M.K. had "got excited" told the jury:
" It reflects the fact that in many ways this case
boils down to who do you believe, and the result
after asking that question is fairly predictable.
However, again, that is for you to say."
A little later his Honour said:
" You may well think that the attitudes are so far
apart that you have to make a choice. Again,
this is a matter for you. As Mr Peek puts it to
you, of course if you are unable to make a
choice, then clearly you have not been satisfied
beyond reasonable doubt and the accused must be
acquitted."
A failure to distinguish between satisfaction beyond reasonable doubt and choosing between two contradictory stories again appears in a later passage of the summing up:
" Mr Borick did say to you that a verdict of not
guilty did not mean that you rejected entirely
what (M.K.) says as much as it may well mean that
you are simply not satisfied beyond reasonable
doubt as to the allegation. That may be so ladies
and gentlemen. 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, (M.K.) or the accused?"
After the jury retired, counsel sought a redirection. The jury was brought back, and the relevant redirection was given in these terms:
" ... you are the judges of the facts and it is for
you to make up your minds about what you think
about the evidence. In that context in the course
of my submissions I recall saying to you this
might well be a case about whom you might
believe. That is a gross simplification in many
ways and I am sure you will bear in mind what I
have put to you about considering the evidence
carefully and weighing it very carefully."
11. 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, and the omission was hardly remedied by acknowledging that the question whom to believe is "a gross simplification".
12. The third point of the summary by White J. relates to directions given by the learned trial judge as to corroboration of M.K.'s evidence. Each of the accused except Liberato had falsely denied, when interviewed by the police, that acts of sexual intercourse had taken place. The learned trial judge told the jury frequently that these statements might be used as corroboration of M.K.'s evidence. The jury were directed that if they were satisfied that the lies had been told out of a consciousness of guilt of rape, the telling of the lies was corroborative of M.K.'s evidence. Such a direction was unexceptionable provided the jury were warned that, although the weight of the false denials was a matter for them, they should recognize the dangers of placing too much reliance on those denials which may have been made for reasons other than consciousness of guilt of rape (Reg. v. May (1962) QdR 456; Lonergan v. The Queen (1963) Tas.SR 158). The gravamen of the criticism here is that an insufficient warning was given. Although it was for the trial judge to rule whether the false denials in the circumstances could support such an inference of consciousness of guilt (Eade v. The King [1924] HCA 9; (1924) 34 CLR 154, at p 159), it was for the jury to give the false denials the weight which they thought appropriate (Woon v. The Queen [1964] HCA 23; (1964) 109 CLR 529, at pp 537,539). A sufficient warning against placing too much reliance on the false denials was not given, and that failure may have affected the weight which the jury would otherwise have given to the competing bodies of evidence.
13. The fifth point of criticism related to speculation by his Honour in several parts of the summing up as to what Egan might have said to Sekulic when or before he brought M.K. into Sekulic's bedroom. In fact M.K.'s evidence indicated that the only conversation between Egan and Sekulic was: "This is for you" and the reply: "That is a nice present to wake up to". The erroneous speculation may have diminished the weight which the jury might otherwise have placed on the evidence given by Egan and Sekulic. It was necessary for the Crown to show that the misdirections related to matters of such minor significance that they could not really affect the jury's findings or perhaps to show that, on the whole of the case, no reasonable jury properly directed could fail to accept the evidence of M.K. beyond reasonable doubt. To argue that, because the jury had a full opportunity to assess M.K.'s credibility and because they must have accepted her uncorroborated evidence in convicting Liberato (whose account of the events had remained consistent throughout), the misdirections had no effect on the verdicts is to circumvent the question which the misdirections raise. The question is not whether the jury could and did act on her evidence beyond reasonable doubt, but whether they would have done so if there had been no misdirections relating to the assessment of her credibility and on the approach which had to be taken to the resolution of conflicts between her evidence and the evidence of the accused.
14. The Court of Criminal Appeal estimated the strength of the prosecution case against each of the other accused by accepting the jury's assessment of M.K.'s credibility. The appeals raised the question whether the jury might not have made a different assessment if the misdirections had not occurred. The error in the Court's reasons appears in what White J. said about the facts of the case:
" (I)t is just to act upon the complainant's version
of what happened, unless and until her accepted
version can no longer be safely acted upon by
reason of some misdirection which might fairly be
said to have affected the jury's assessment of
her credibility."
If the Court acted on M.K.'s version of what happened in order to determine whether a misdirection might have affected the jury's assessment of her credibility as to what happened, it engaged in circular reasoning. That appears to be the course which it followed in allowing Sekulic's appeal. It was only because White J. thought that M.K.'s evidence against Sekulic "barely implicates him as having a guilty mind at all" that his Honour held that the cumulative effect of the misdirections required Sekulic's appeal against conviction on counts 7 and 11 to be allowed. If proper directions on the onus and standard of proof, the assessment of M.K.'s credibility and the resolution of conflicts in the evidence might have left the jury with a reasonable doubt about M.K.'s version of what happened, it could not be said that the misdirections identified by White J. occasioned no substantial miscarriage of justice. The accused may have lost a reasonable opportunity of acquittal (Mraz v. The Queen [1955] HCA 59; (1955) 93 CLR 493, at p 514). It was fundamental to the prosecution case that the jury should believe beyond reasonable doubt the truth of M.K.'s evidence on the issues of absence of consent and the existence of a guilty state of mind, as the learned trial judge correctly and emphatically directed them. But they were misdirected as to how they should decide those issues and those misdirections went to the heart of the case. The appeals should have been allowed.
15. This Court, having heard full argument in the matter, reserved its decision on the application for special leave to appeal. As I have come to the conclusion that the Court of Criminal Appeal should not have allowed the convictions to stand, I would not refuse special leave to appeal. To do so would allow the convictions to stand contrary to the view I have formed. There is a further reason why, in my opinion, special leave should be granted. This case raises for consideration an important problem in the application of the proviso. In cases where an error of law affects the way in which a jury assesses the strength of the evidence tending to show the guilt of an accused person, a Court of Criminal Appeal cannot rely on the jury's assessment in considering the application of the proviso. If the jury's assessment were to be relied on for that purpose, errors affecting the making of that assessment would be virtually unappealable. Such errors are not covered by the proviso unless they affect only part of the inculpatory evidence and that part is so unimportant that the Court of Criminal Appeal is able to be satisfied that a reasonable jury, properly directed, would undoubtedly have convicted on the unaffected evidence. This is not such a case. It is appropriate to grant special leave to state what is the correct approach to the application of the proviso.
16. Special leave should be granted and the appeals allowed. I would order a retrial.
DEANE J.: I agree with the judgment of Brennan J. and with the orders which he proposes.
2. It is common ground that, on three separate occasions in the course of his summing up, the learned trial judge effectively reversed the onus of proof by instructing the jury in terms of being "satisfied" of some particular aspect of the accuseds' or an accused's case. On one occasion, his Honour told the jury that they would "have to consider the role that (the particular accused) was playing immediately before each of the particular acts with which he stands charged when considering whether you are satisfied on the whole of the relevant evidence that at that particular time of that particular act of intercourse, it was reasonably possible that he did believe (the complainant) was consenting" (underlining added). On another occasion, when dealing with the effect of statements made to the police which were relied upon as corroboration, his Honour said: "it is for you to say, ladies and gentlemen, but are you satisfied that (the particular accused) panicked when he spoke to the police ..." (underlining added). These misdirections in relation to the case of a particular accused could readily have been applied by the jury, or some of them, to cases of the other accused.
3. Undoubtedly, the most important of the three directions effectively reversing the onus of proof was at the critical stage when the jury, having retired, returned to the court and requested further directions including directions on "reckless indifference and assumed consent". In the course of his short directions in answer to that request, his Honour said:
"You have to give the benefit of any doubt to the
accused ladies and gentlemen, and there may be
occasions where a belief in the accused is
something that you are satisfied about and if that
gives rise to a doubt about the ingredients of the
charge, then the accused must have the benefit of
that doubt" (underlining added).
The direction that "there may be occasions where a belief in the accused is something that you are satisfied about" and the two previous directions about being "satisfied" of particular aspects of an accused's case were in a context where his Honour had, at an early stage of his summing up, informed the jury that references to their being "satisfied" about something should be understood in the sense of being satisfied beyond reasonable doubt.
4. The above misdirections about onus of proof must be considered against the background of a number of passages in the learned trial judge's summing up in which he carefully and correctly explained to them the requirements of the criminal onus and standard of proof. They must, however, also be considered against a background where, on a number of occasions, his Honour directed the jury in terms which indicated that the overall question for them essentially involved the making of a "choice" between prosecution and defence evidence: "in many ways this case boils down to who do you believe"; "You may well think that the attitudes are so far apart that you have to make a choice"; "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. Their significance in that regard is underlined by the linking, in the passage which I have quoted in the preceding paragraph, of satisfaction of "a belief in the accused" with a failure to be satisfied beyond reasonable doubt of the ingredients of the charge. It was heightened, rather than reduced, by his Honour's further direction, after the completion of his summing up, that his previous statements to them that the case "might well be" one "about whom you might believe" was "a gross simplification in many ways and I am sure you will bear in mind what I have put to you about considering the evidence carefully and weighing it very carefully".
5. 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".
6. There can be no room for the application of the proviso to s.353(1) of the Criminal Law Consolidation Act 1935 (S.A.) 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] HCA 59; (1955) 93 CLR 493, at p 514).
7. It is true that, as the Court of Criminal Appeal pointed out, the members of the jury in the present case "obviously believed" the complainant. That is however, in my view, simply beside the point on the question of the effect of the misdirections about onus of proof and choice between witnesses. What would be in point on that question would be if it appeared that the members of the jury were satisfied not only that, as a matter of choice, they accepted the evidence of the complainant in preference to the evidence of the accused but that it was plain beyond reasonable doubt that the evidence of the complainant should be so accepted. It is, however, impossible to say that the members of the jury were so satisfied in the present cases unless one first assumes against the accused that the learned trial judge's misdirections did not have the result that some or all of the jury failed properly to appreciate the nature and function of the criminal onus and standard of proof.
8. There remains to be considered the question whether the cases are proper ones for the grant of special leave to appeal. In my view, they are. The merits have been fully argued. That argument has led me to the conclusion that the Court of Criminal Appeal incorrectly applied the proviso to s.353(1). The effect of that conclusion is, in each case, that the applicant is presently serving a jail sentence pursuant to a conviction or convictions which should have been quashed by the Court of Criminal Appeal. With due respect to those who may see the matter differently, I find it difficult to imagine circumstances in which I would be persuaded that special leave to appeal should be refused notwithstanding that the case was one in which the Court had entertained full argument leading to such a conclusion. That is particularly so in the case of the present applications in that the application of the proviso by the Court of Criminal Appeal was effectively an exercise of original jurisdiction from which the only appeal is that which lies, by special leave, to this Court.
ORDER
Applications for special leave to appeal refused.