The obligation on a trial judge to put the defence case fairly before the jury applies in all cases, including short single-issue trials, and is not overridden by s 161 of the Criminal Procedure Act 1986 (NSW). Earlier NSWCCA authority suggesting a lesser obligation in short trials must be read subject to the unqualified requirements stated by the High Court in RPS v The Queen. Where the defence case is not fairly put, the proviso in s 6(1) of the Criminal Appeal Act 1912 (NSW) will not be applied, even where the Crown case appears strong. A full Liberato direction, including the second limb (if you do not accept the accused's account but consider it might be true, you must acquit), is required where the case turns on a conflict between prosecution evidence and the accused's out-of-court account.
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