The Court of Criminal Appeal held that the trial judge's purported Liberato direction was erroneous because it conveyed to the jury that they had to unanimously accept the accused's evidence before acquitting, failed to direct that acquittal was required if the jury thought the accused's evidence might be true (the second limb), and improperly invited the jury to consider the 'weight' of the accused's evidence. The Court declined to apply the proviso under s 6(1) of the Criminal Appeal Act 1912 (NSW) notwithstanding an arguably strong Crown case, because the misdirection meant the jury was never properly equipped to assess whether the accused's evidence as to his state of mind — the sole disputed element — could possibly be true, and it could not be said a guilty verdict was inevitable. The Court affirmed that while slavish adherence to the Bench Book Liberato formulation is not required, departure should only occur when circumstances require it.
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