Where s 60 of the Evidence Act 2008 (Vic) is enlivened, a trial judge is not ordinarily obliged to direct the jury that prior inconsistent statements may be used as evidence of the facts asserted, because in the absence of a direction that the evidence cannot be so used, the jury will assume the facts asserted are evidence of the truth. A Liberato direction is not required where the jury is invited to choose between inconsistent accounts of the same witness, as distinct from choosing between the evidence of the accused and a contradictory witness. An appellant cannot complain on appeal of a direction that was deliberately sought by defence counsel at trial for forensic advantage.
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