R v Lavery

The appeal concerned the criminal conviction of Susan Lavery. The dispute arose from directions given by the trial judge regarding the burden of proof in a sexual offences trial. The appeal was heard by Kelly, Peek, and Nicholson JJ.

The legal issues before the court were whether the trial judge had erred in their directions concerning the burden of proof, specifically in relation to the use of a "Calides" direction. The court was also required to consider the appropriate form and placement of such directions in modern summing up.

The court held that the trial judge had not erred in their directions as to the burden of proof. However, Peek J, with whom Nicholson J agreed, suggested that the primary focus in any criminal case must remain on whether the prosecution has proven guilt beyond reasonable doubt. They noted that a full "Calides" direction could be counter-productive and that a direction utilising only the third limb of the "Calides" direction might be more appropriate in contemporary summing up. Nicholson J, agreeing with Kelly J, also cautioned that the giving of any "Calides" direction should be approached cautiously. The court's reasoning indicated that while the second limb of the "Calides" direction might be a needless distraction or even risk implying an accused must "persuade" the jury of innocence, the third limb, when presented in isolation and alongside standard directions on onus of proof, could offer comfort to a juror uncertain about the truth.

The appeal was dismissed.