De Silva v The Queen

Case [2019] HCA 48

HIGH COURT OF AUSTRALIA

KIEFEL CJ,
BELL, GAGELER, NETTLE AND GORDON JJ

NERANJAN AGRAJITH KALUBUTH DE SILVA  APPELLANT

AND

THE QUEEN  RESPONDENT

De Silva v The Queen

[2019] HCA 48

Date of Hearing: 4 September 2019
Date of Judgment: 13 December 2019

B24/2019

ORDER

1.Leave is granted to amend the Notice of Appeal.

2.Special leave to appeal is granted in relation to ground 2 in the Amended Notice of Appeal.

3.Appeal dismissed.

On appeal from the Supreme Court of Queensland

Representation

P J Callaghan SC with P Morreau and B P Dighton for the appellant (instructed by Robertson O'Gorman Solicitors)

M R Byrne QC with P J McCarthy for the respondent (instructed by Office of the Director of Public Prosecutions (Qld))

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

De Silva v The Queen

Criminal practice – Trial – Directions to jury – Liberato v The Queen (1985) 159 CLR 507 ("Liberato") – Where appellant convicted by jury of rape – Where appellant did not give sworn evidence at trial – Where appellant made exculpatory statements in recorded police interview – Where record of interview admitted into evidence – Where appellant did not seek Liberato direction at trial – Where trial judge did not give Liberato direction – Whether Liberato direction required where accused does not give sworn evidence – Whether Liberato direction required where record of interview containing exculpatory statements admitted into evidence.

Words and phrases – "beyond reasonable doubt", "choice between witnesses", "conflicting version of events", "criminal standard", "evidence on oath", "exculpatory answers", "interview with the police", "jury directions", "Liberato direction", "onus and standard of proof", "out-of-court statement", "recorded interview", "summing-up as a whole", "sworn evidence", "who do you believe", "word-on-word".

  1. KIEFEL CJ, BELL, GAGELER AND GORDON JJ.   The appellant was arraigned in the District Court of Queensland (Judge Farr SC and a jury) on an indictment that charged him with two counts of rape[1]. Each offence was alleged to have been committed on the same occasion against the same complainant. In each case the allegation was of digital penetration of the complainant's vagina without her consent. The prosecution case on each count was dependent upon acceptance of the complainant's evidence. The appellant did not give, or call, evidence. A recorded interview between the appellant and the police was in evidence in the prosecution case ("the interview"). In the interview, the appellant denied any act of digital penetration.

    [1]Criminal Code (Qld), s 349.

  2. The trial judge gave conventional directions, which are not the subject of complaint, as to the onus and standard of proof. His Honour was not asked to give, and did not give, a direction along the lines of the direction proposed by Brennan J in Liberato v The Queen[2] (a "Liberato direction"). The jury returned verdicts of not guilty on the first count and guilty on the second count.

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De Silva v The Queen [2019] HCA 48
Case
[2019] HCA 48
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CaseChat Overview and Summary

The case of *De Silva v The Queen* concerned an appeal to the High Court of Australia following a conviction for rape. The appellant had not given sworn evidence at his trial, but exculpatory statements he made in a recorded police interview were admitted into evidence. The central question was whether the trial judge was required to give a *Liberato* direction to the jury, which typically addresses situations where an accused does not give sworn evidence and the jury's decision might turn on a choice between conflicting versions of events.

The High Court was required to determine whether a *Liberato* direction was mandatory in circumstances where an accused person does not give sworn evidence, particularly when exculpatory statements made in a police interview are admitted into evidence. The Court also considered whether the trial judge's summing-up, when viewed as a whole, adequately conveyed the onus and standard of proof to the jury, and whether any failure to give a specific *Liberato* direction constituted a miscarriage of justice.

The High Court noted that a *Liberato* direction is not always required and depends on the specific issues and conduct of the trial. In this instance, the Court found that the trial judge's summing-up, while not containing a formal *Liberato* direction, provided repeated and correct instructions on the onus and standard of proof. However, the Court identified a potential misdirection concerning the use of the appellant's exculpatory statements in the police interview. The judge's instruction that the jury must first be satisfied that the answers were "accurate and true" before giving them weight was considered a misstatement of the law, as it applied a higher standard than necessary for exculpatory statements and risked leading the jury to disregard them unless convinced of their truth. This, the Court concluded, created a realistic possibility that the jury approached their task incorrectly, potentially leading to a miscarriage of justice.

Consequently, the High Court granted special leave to appeal and allowed the appeal. The Court quashed the conviction and ordered that a new trial be held.

Orders

Orders of the court

1. Leave is granted to amend the Notice of Appeal.

2. Special leave to appeal is granted in relation to ground 2 in the Amended Notice of Appeal.

3. Appeal dismissed.

Background

Background to the litigation

Whether a Liberato direction is required will depend upon the issues and the conduct of the trial. At a trial where there has been no suggestion, whether express or implied, that the jury's determination turns on which of conflicting prosecution and defence versions is to be believed, there may be no need to expand on conventional directions as to the onus and standard of proof. As Wheeler JA also observed in Johnson, the expression "reasonable doubt" is apt to convey that a juror who is left in a state of uncertainty as to the evidence should not convict[20]. [20](2008) 186 A Crim R 531 at 535 [14].The facts On the evening of the subject events, the appellant and the complainant, who were acquaintances, made independent arrangements to stay overnight at a mutual friend's unit. Both had attended bars and nightclubs earlier in the evening. By the time they, and their mutual friend, Neil, returned to his unit, the complainant appeared to be intoxicated. The appellant had consumed some alcohol but he did not show signs of intoxication. Neil's girlfriend, Olivia, was present at the unit when the three arrived. It was arranged that the complainant would sleep on the couch in the lounge room and the appellant would sleep in the guest room. Olivia and Neil slept in his bedroom. The complainant got ready for bed, taking off her white t-shirt and putting on a black long-sleeved t-shirt. She removed her skirt but kept on her underwear. She was upset over the breakup of a relationship. The appellant sat on the couch with her and gave her a hug in a comforting manner. She then lay down to go to sleep. The complainant said that she woke to feel fingers being inserted into her vagina. She explained that she "wasn't completely coherent just yet". She had tried to "bring [herself] completely conscious to comprehend what was going on". It stopped and the complainant said she was "very still, trying to comprehend what I thought I had just felt". This was the incident charged in the first count, on which the jury returned a verdict of not guilty. Then the complainant said she felt fingers penetrating her vagina again. This was the incident charged in the second count, on which the jury returned a verdict of guilty. The complainant jumped off the couch and started yelling. Neil had died before the trial. A statement that he gave to the police was in evidence. In this he described the complainant bursting through the door of his bedroom saying "[g]et him out. Get him out". He said that he had walked out of the bedroom and seen the appellant mumbling, "[s]he's crazy. I'm leaving". The complainant was crying and she said "[h]e fingered me. What sort of person does that whilst someone is asleep". Olivia gave evidence of walking into the lounge room, where she saw the complainant yelling and shouting and telling the appellant to "get out". The complainant was wearing a loose shirt and black underwear. The appellant said "I've got to go" and left the unit. Olivia endeavoured to calm the complainant down. The complainant said that the appellant "tried to finger her".

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

KIEFEL CJ, BELL, GAGELER AND GORDON JJ (dissent) NETTLE J
In the result, I consider that there is a realistic possibility that the jury approached their task on the basis that they were to disregard the appellant's exculpatory answers unless they were persuaded that they were "accurate and true". So to approach their task would have been wrong in law and likely to have resulted in a conviction where, if properly directed, the jury may have acquitted. I consider that the appellant was thus deprived of a realistic chance of acquittal to which he was entitled and so subjected to a substantial miscarriage of justice. Conclusion It follows, in my view, that the appeal should be allowed. The order of the Court of Appeal should be set aside and in its place it should be ordered that the appeal to the Court of Appeal be allowed, the conviction be quashed and a new trial be had.

Ratio Decidendi

Legal Principle Established

Established by: NETTLE J

The respondent did not take issue below or in this Court with the proposition that a Liberato direction could have been given in a case, such as this, in which the accused did not give evidence. The issue, however, in the respondent's submission, is whether the Court of Appeal erred in concluding that, on the whole of the summing-up, there was no miscarriage of justice in this case. The respondent points to the absence at the appellant's trial of the circumstances that Brennan and Deane JJ suggested called for a specific direction in Liberato: the trial did not involve starkly opposed sworn evidence, nor did the judge invite the jury to consider "who do you believe". Consideration This was a short trial in which the evidence, counsel's addresses and the summing-up were completed by lunchtime on the second day. The trial judge addressed some preliminary remarks to the jury after they were empanelled. These included the instruction that: "A defendant in a criminal trial is presumed to be innocent. So before you may return a verdict of guilty on either charge, the prosecution must satisfy you that the defendant is guilty of the charge in question and must satisfy you of that beyond reasonable doubt." As detailed earlier, the jury were given repeated, correct directions as to the onus and standard of proof in the course of the summing-up. Nothing in the trial judge's summary of the way the respective cases were put, or in the way his Honour summed up, suggests that the jury might have been left with the impression that their verdicts turned on a choice between the complainant's evidence and the appellant's account in the interview. The focus of defence counsel's address was on the suggested incapacity of the prosecution case to support a finding of guilt beyond reasonable doubt in light of the complainant's intoxicated and emotional state. As noted, the directions concerning the use to be made of the appellant's answers in the interview commenced with a direction taken from Burns[30] as to the necessity to be satisfied that the appellant gave the answers and, if so, to be satisfied that those answers were accurate and true. The statements in Burns were made in the context of a dispute as to the making of a confessional statement. The function of the summing-up is to meaningfully assist the jury to decide the real issues in the case. It should not contain formulaic directions unconnected to the determination of those issues. The instruction, that the jury first satisfy themselves that the answers on which the prosecution relied were given, was superfluous and apt only to distract: no party was suggesting that the appellant had not given the answers attributed to him in the electronically recorded interview. [30](1975) 132 CLR 258. Whether, as the Court of Appeal reasoned, the words "if you accept them", when the trial judge came to the answers in the interview on which the appellant relied, would have been understood by the jury as meaning accepting that the answers were given, the direction was superfluous and potentially confusing. The requirement that jurors first satisfy themselves that the accused made an out‑of‑court statement is directed to disputed confessional statements and not exculpatory statements. It is, however, to read too much into the impugned passage to take from it, as the appellant submits, that the jury would have understood the direction as meaning "if you accept the truth of" the answers. The further instruction to give them "whatever weight you think appropriate" would make no sense were the jury to understand that a prerequisite to any use of the answers was satisfaction of their truth. Any risk of confusion was overcome by the further, correct, instruction:"So in relation to both the answers which the prosecution relies upon as being supportive of its case against him, and those which point to innocence, it is entirely up to you what use you make of them and what weight you give to them."