Criminal law – directions to jury – Liberato direction

De Silva v The Queen [2019] HCA 48 (13 December 2019) concerned the adequacy of directions given to the jury in a criminal trial. The trial judge had not been asked to give, and did not give, a direction along the lines of the direction proposed by Brennan J in Liberato v The Queen (1985) 159 CLR 507 at 515 (a ‘Liberato direction’). Such a direction serves to clarify and reinforce directions on the onus and standard of proof in a case in which there is a risk that the jury may be left with the impression that the evidence on 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.

The appellant, Mr De Silva, had been arraigned in the District Court of Queensland on an indictment that charged him with two counts of rape. The prosecution case on each count was dependent on acceptance of the complainant’s evidence. Mr De Silva did not give, or call, evidence. A recorded interview between him and the police, in which he provided exculpatory answers, was in evidence in the prosecution case. The jury ultimately returned verdicts of not guilty on the first count and guilty on the second count.

Mr De Silva’s case in the High Court was that it is prudent to give a Liberato direction in most, if not all, cases in which there is evidence of the conflicting defence account of material events. He complained that the instructions given to the jury at his trial by the trial judge were flawed in several respects, including that the instructions: were generic and not adapted to the circumstances of the case; did not ensure that the jury understood that a preference for the evidence of the complainant did not preclude a verdict of not guilty; and did not make clear that disbelieving the appellant’s version of events was no bar to a verdict of not guilty.

The High Court said that while it may, in some cases, be appropriate to give a Liberato direction notwithstanding that the accused’s conflicting version of events is not before the jury on oath, this was not such a case. The trial judge’s summing-up made clear the necessity that the jury be satisfied beyond reasonable doubt of the complainant’s reliability and credibility. The Court of Appeal had not erred in concluding that, when the summing-up is read as a whole, the trial did not miscarry by reason of the omission of a Liberato direction.

Kiefel CJ, Bell, Gageler and Gordon JJ jointly. Nettle J dissenting. Appeal from the Supreme Court of Queensland dismissed.

Immigration – representative proceedings – application for remitter

DBE17 (by his litigation guardian Marie Theresa Arthur) v Commonwealth of Australia [2019] HCA 47 (6 December 2019) was an application for an order, by consent, that a representative proceeding instituted in the original jurisdiction of the High Court be remitted to the Federal Court of Australia pursuant to s44(2A) of the Judiciary Act 1903 (Cth). The claim in the representative proceeding was for damages for false imprisonment arising from the allegedly unlawful detention of the plaintiff and each other group member. The plaintiff claimed that he and each other group member were purportedly detained under ss189 and 196 of the Migration Act 1958 (Cth) in circumstances which did not conform to the requirements of those provisions.


The application for remitter was listed for hearing in the High Court because, at first sight, it appeared that s476B of the Migration Act might have precluded the High Court from remitting the proceeding to the Federal Court or that s486B(4) of that Act might render the proceeding incompetent in its present form. Ultimately, the High Court did not consider that s476B of the Migration Act prohibited it from remitting the matter to the Federal Court or that s486B rendered the proceeding incompetent in its present form.

Nettle J. Matter remitted to the Federal Court of Australia.

Bankruptcy – vesting of property held by a bankrupt on trust for another

Boensch v Pascoe [2019] HCA 49 (13 December 2019) was an appeal from a judgment of the Full Court of the Federal Court of Australia dismissing an appeal from the decision of the Supreme Court of New South Wales that the respondent, Mr Pascoe, did not act without “reasonable cause” within the meaning of s74P(1) of the Real Property Act 1900 (NSW) in lodging and not withdrawing a caveat against dealings over land in respect of which the appellant, Mr Boensch, was the registered proprietor of an estate in fee simple (the Rydalmere property).

Mr Boensch was granted special leave to appeal to the High Court because the appeal raised a question of principle of general importance as to whether property held by a bankrupt on trust for another vests in the bankrupt’s trustee in bankruptcy pursuant to s58 of the Bankruptcy Act 1996 (Cth).

The High Court’s answer to that question was that, provided the bankrupt had a valid beneficial interest in the trust property, the trust property will vest in the trustee in bankruptcy subject to the equities to which it is subject in the hands of the bankrupt. For those purposes, a valid beneficial interest meant a vested or (subject to applicable laws as to remoteness of vesting) contingent right or power to obtain some personal benefit from the trust property.

There was no reason to doubt that, on the making of a sequestration order, the Rydalmere property vested in equity in Mr Pascoe by reason of Mr Boensch’s right of indemnity and, therefore, that Mr Pascoe had a caveatable interest in the property. Nor was there any reason to doubt that Mr Pascoe honestly believed on reasonable grounds that the property so vested, either on the basis that the trust was void or on the basis of Mr Boensch’s right of indemnity. On the facts as found, Mr Pascoe did not lodge or refuse to withdraw the caveat without reasonable cause.


Kiefel CJ, Gageler and Keane JJ jointly. Bell, Nettle, Gordon and Edelman JJ jointly concurring. Appeal from the Full Court of the Federal Court of Australia dismissed.

Immigration – Immigration Assessment Authority – apprehended bias

CNY17 v Minister for Immigration and Border Protection [2019] HCA 50 (13 December 2019) was an appeal from a decision of the Full Court of the Federal Court concerning a problem that had arisen in the administration of Pt 7AA of the Migration Act 1958 (Cth).

A delegate of the first respondent refused the appellant’s application for a protection visa. That decision was referred to the Immigration Assessment Authority (IAA) for review under Pt 7AA of the Act. The secretary of the department was required to give the IAA certain material in the secretary’s possession or control. The IAA had to review the decision “by considering the review material provided to [it]” by the secretary, without accepting or requesting new information, and without interviewing the appellant.

Unbeknown to the appellant, the secretary gave the IAA material which was not only irrelevant but prejudicial to him. The question for the High Court was whether a hypothetical fair-minded lay observer with knowledge of the material objective facts might reasonably apprehend that the IAA might not bring an impartial mind to the decision before it as a result of that information being given to it.

The High Court by majority answered that question in the affirmative. A fair-minded lay observer might have apprehended that the IAA might not have brought an impartial mind to the review, by reason of the irrelevant and prejudicial material which the IAA was mandated to consider. The material might have led the decision-maker to make a decision otherwise than on the legal and factual merits of the case because it might have led the decision-maker to the view that the appellant was not the sort of person who should be granted a visa or that he was not a person who should be believed. A fair-minded lay observer might have apprehended that this might have had an effect on the decision-maker, even if that effect was subconscious.

Nettle and Gordon JJ jointly. Edelman J separately concurring. Kiefel CJ and Gageler J jointly dissenting. Appeal from the Full Court of the Federal Court of Australia allowed.


David Kelsey-Sugg is a Victorian barrister, ph 03 9225 6286, email The full version of these judgments can be found at

This story was originally published in Proctor May 2020.

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