Citation: R v Kibby [2023] NSWDC 340
Court: District Court of New South Wales
Date: 24 August 2023
Judge(s): Newlinds SC DCJ
Background
The accused faced one count of aggravated sexual assault of a victim under his authority, arising from an incident on 15 August 2020 at Delmar Private Hospital in Dee Why. The accused was a wardsman and the complainant was a patient. The alleged assault occurred in a bathroom while the accused was assisting the complainant to shower.
This was the third jury empanelled on the charge. A previous trial had resulted in the accused being acquitted of a related charge arising from the same bathroom incident, but the jury had been unable to reach a verdict on this charge. Both the Crown and the defence had taken considerable steps throughout the retrial to prevent the jury from learning about the other allegation or the prior proceedings.
On the fourth day of trial, a police witness gave evidence that inadvertently disclosed a reference to another allegation of sexual misconduct by the accused arising from the same circumstances. The accused applied immediately to have the jury discharged. The Crown opposed the application.
Legal Issues
- Whether the police witness's inadvertent disclosure of a reference to another allegation of sexual misconduct constituted grounds for discharging the jury.
- Whether a miscarriage of justice would necessarily result if the trial continued, or whether a judicial direction could cure the prejudicial effect of the evidence.
- What legal test governs an application to discharge a jury following a prejudicial incident at trial.
Decision
Issue 1: The applicable legal test
The court applied the framework from the plurality in Crofts v The Queen, which requires consideration of: the seriousness of the occurrence; the stage of trial at which it arose; the deliberateness of the conduct; and the likely effectiveness of a corrective judicial direction (at [11]). The court also applied the caution from Hamide v R that a proposed direction must not do more harm than good by highlighting the very problem it seeks to cure (at [12]).
The court held that the correct formulation of the test is not whether there is a risk of miscarriage of justice, but whether proceeding will necessarily result in one. A degree of risk is present in every criminal trial, and that threshold alone does not justify discharge (at [27]).
Issue 2: Seriousness and context of the occurrence
The court accepted that the police officer's evidence was prejudicial and should not have been given. However, it found the seriousness of the incident was somewhat ameliorated by the wider context of the trial evidence, particularly the evidence of the complainant's daughter, which had been led specifically to confine the jury's understanding of the allegation to the charge at hand (at [20]-[21]).
The court found the detective's evidence was not deliberately intended to prejudice the trial. The Crown had properly advised the witness before he testified. The court characterised the conduct as foolish rather than dishonest (at [28]-[29]).
Issue 3: Whether a direction could cure the prejudice
The court acknowledged the accused's argument that any corrective direction would itself highlight the very matter the jury was being asked to ignore, and accepted that observation as a fair one (at [25]). Nonetheless, the court concluded that a modified version of the Crown's proposed direction, given only once when the detective was recalled the following morning, could adequately address the prejudice (at [26], [30]).
The court found the matter finely balanced, but was not satisfied that proceeding with a corrective direction would necessarily result in a miscarriage of justice. Accordingly, it declined to discharge the jury (at [26]-[27]).
Orders Made
- Application to discharge the jury refused.
Key Takeaways
- The District Court confirmed that the threshold for discharging a jury is not the mere existence of a risk of miscarriage of justice. A trial judge must be satisfied that proceeding will necessarily result in a miscarriage of justice before exercising the discretion to discharge (at [27]).
- The Crofts v The Queen framework governs applications to discharge a jury following a prejudicial incident, requiring evaluation of the seriousness of the occurrence, the stage of trial, the deliberateness of the conduct, and the likely effectiveness of any curative direction (at [11]).
- Where a corrective direction is proposed, the court must assess whether the direction will do more harm than good by drawing further attention to the prejudicial material, as confirmed in Hamide v R (at [12]).
- Inadvertent disclosure of a reference to a prior or related allegation is not automatically fatal to a trial. Context, including the totality of the evidence already before the jury, bears on how seriously the incident should be weighed (at [20]-[21]).
- A corrective judicial direction, where given only once and framed to minimise emphasis on the prejudicial matter, may be sufficient to prevent a miscarriage of justice even where some risk of prejudice remains (at [26], [30]).
Legislation and Cases Referenced
Legislation
- Not stated
Cases
- Ahola (No 6) [2013] NSWSC 703
- Crofts v The Queen [1996] 186 CLR 427
- Gilbert v The Queen [2000] CLR 414
- Hamide v R [2019] NSWCCA 219
- R v Rogerson (No 34) [2016] NSWSC 259