De Silva v The Queen [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".