Juries may face the challenge of deciding cases where the prosecution’s evidence directly conflicts with the accused’s version of events. To help guide juries in these situations, judges may provide what is known as a Liberato direction, named after the case, Liberato v The Queen (1985) 159 CLR 507.

What Is the Liberato Direction?

The Liberato direction is a judicial instruction given to the jury in cases where the evidence from the prosecution and the defence is in direct conflict. It commonly arises when the accused has provided a version of events, either in court, through a witness, or via a recorded police interview, that contradicts the prosecution’s account.

The direction reminds jurors that they must not find the accused guilty simply because they disbelieve the accused or prefer the prosecution’s evidence. Guilt must be based solely on whether the prosecution has proven its case beyond a reasonable doubt.

Purpose of the Liberato Direction

The Liberato direction plays a key role in safeguarding a fair trial. Its main purposes include:

Reinforcing the Presumption of Innocence

The direction emphasises that the accused is presumed innocent until proven guilty. The prosecution carries the burden of proof. Disbelieving the accused’s account does not automatically equate to guilt.

Preventing Bias Against the Accused

Jurors may sometimes misinterpret the accused’s silence, decision not to testify, or a weak explanation as evidence of guilt. The Liberato direction prevents the jury from drawing these improper conclusions.

Clarifying the Jury’s Focus

Even when jurors reject the accused’s version of events, they must still carefully evaluate whether the prosecution’s case alone meets the standard of proof. The direction ensures the jury stays focused on the prosecution’s evidence, not the perceived weaknesses of the defence.

When Is the Liberato Direction Given?

A judge will typically provide a Liberato direction when:

• There is a clear conflict between the prosecution’s and defence’s evidence.
• There is a risk that the jury may wrongly assume guilt because the accused remained silent or provided an unconvincing account.

About Post Author

Brian Walker

B.Acc., GradDipLegPrac, Juris Dr
Barrister & Accountant.
Former Criminal Defence Solicitor. Former Federal Prosecutor for the Commonwealth Director of Public Prosecutions prosecuting Commonwealth crimes relating to drugs and child exploitation. Former Australian Federal Police member litigating proceeds of crime matters. Former Australian Taxation Office employee investigating offshore tax evasion matters.

Post Created by Jesslyn Duong, paralegal.

See author's posts