Liberato Direction: De Silva v The Queen [2019] HCA 48

Thursday 6 February 2020 @ 9.28 a.m. | Crime | Judiciary, Legal Profession & Procedure

In De Silva v The Queen [2019] HCA 48 (decided 13 December 2019) the High Court of Australia, in a majority decision, dismissed an appeal from the Court of Appeal of the Supreme Court of Queensland (R v De Silva [2018] QCA 274 decided 16 October 2018). The High Court appeal was concerned with whether the trial judge (Judge Farr of the District Court of Queensland) should have given the jury a direction of the type discussed in the case Liberato v The Queen (1985) 159 CLR 507 (a "Liberato direction"). The direction is usually given in cases turning on the conflicting evidence of a prosecution witness and a defence witness. The direction requires that, ". . . even if the jury does not positively believe the defence witness and prefers the evidence of the prosecution witness, they should not convict unless satisfied that the prosecution has proved the defendant's guilt beyond reasonable doubt".


The Appellant in a jury trial was found guilty of having raped a woman (“the Complainant”) by digitally penetrating her. In that trial, the Complainant gave evidence but the Appellant did not. However, an audio-visual recording of an interview of the Appellant conducted by police on the day after the alleged offence (“the police interview”) was in evidence and according to the Appellant’s version of events, the Complainant was naked from the waist down, she asked him to cuddle her and if he would date her, and she became upset when the Appellant then said that he had a girlfriend. The Appellant also denied touching the Complainant’s vagina.

The Complainant’s version of events, was that she wearing a shirt and underwear, she had fallen asleep after talking with the Appellant, and she later awoke to feel the Appellant committing the alleged offence after he had removed her underwear.

Evidence was also given by friends of the Complainant, who were in a nearby bedroom at the time. They testified that the Complainant had burst into the bedroom, upset and yelling, and that she said what the Appellant had just done to her.

On Appeal - Court of Appeal

The Appellant made an appeal against the conviction to the Court of Appeal of the Supreme Court of Queensland (2018] QCA 274). The Appellant argued that there had been a miscarriage of justice resulting from the directions given by the trial judge (Judge Farr). The alleged miscarriage related to how the jury should approach the evidence contained in the police interview. The Appellant contending that Judge Farr had "improperly" used the word “innocence” twice while summing up in respect of how the jury might assess answers given by the Appellant during the police interview.

Also the Appellant submitted that, as the evidence made the charged offence essentially one of “word against word”, Judge Farr should have warned the jury that even if they did not believe the answers given in the police interview, they ought not to find the Appellant guilty if a reasonable doubt remained (as per a “Liberato direction” referred to above, see (1985) 159 CLR 507 at 515).

Court of Appeal - Findings

The Court of Appeal of the Supreme Court of Queensland (Fraser, Gotterson and Morrison JJA) unanimously dismissed the Appellant’s appeal against conviction holding that there was no need for Judge Farr to have given a Liberato direction, since there was no oral testimony of the Appellant’s to directly conflict with the Complainant’s oral testimony.

As well the Court of Appeal of the Supreme Court of Queensland also found that Judge Farr’s statements relating to the jury potentially viewing some answers given in the police interview as pointing to the Appellant’s “innocence” would not have conveyed to the jury that their task was to determine innocence or otherwise and that the summing had properly conveyed that the jury could not convict the Appellant if "exculpatory answers given by him" had left the jury with a "reasonable doubt" as to his guilt.

Appeal to the High Court - Grounds

By grant of special leave, the appellant appealed to the High Court. The ground for appeal was:

  • That the Court of Appeal of the Supreme Court of Queensland erred in finding that a "Liberato direction" was not required if the defendant did not give evidence.

The Appellant also sought leave to rely on the proposed ground of appeal:

  • The Court of Appeal of the Supreme Court of Queensland erred in failing to find that the directions given to the jury were inadequate and that as a result there was a miscarriage of justice.

The High Court Decision

The majority of the Court found that in some cases it may be appropriate to give a "Liberato direction", and that such a direction may be given notwithstanding that the accused's conflicting version of events is not given before the jury on oath.

The position taken by the majority on the High Court was that a "Liberato direction" is used to clarify and reinforce directions on the onus and standard of proof in cases in which there is a risk that the jury may be left with the impression that ". . . the evidence upon which the accused relies will only give rise to a reasonable doubt if they believe it to be truthful, or that a preference for the evidence of the complainant suffices to establish guilt." As a result, a "Liberato direction" need only be given in cases where the trial judge perceives a real risk that the jury might view their role in this way, regardless of whether the accused's version of events is on oath or in the form of answers given in a record of police interview.

The High Court majority dismissed the appeal, because it found that a "Liberato direction" was not needed in the circumstances of the case in question as the trial judge (Judge Farr) had given repeated and correct directions as to the onus and standard of proof. Further, there was nothing in the summing-up to suggest that the jury might have been left with the impression that its verdict turned on a choice between the complainant's evidence and the appellant's account in the interview. Thus the trial did not miscarry by reason of the omission of a "Liberato direction".

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De Silva v The Queen [2019] HCA 48 (13 December 2019), Short Particulars and Summary of Decision

De Silva v The Queen [2019] HCATrans 70 (12 April 2019) (special leave)

De Silva v The Queen [2019] HCATrans 176 (4 September 2019) (hearing)

R v De Silva [2018] QCA 274 (16 October 2018)

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