AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Court of Criminal Appeal 13 November 2024

Kibby v R

[2024] NSWCCA 207

Sexual offences
CRIMINAL APPEAL MISCARRIAGE OF JUSTICE WHERE PROSECUTOR NOT AT FAULT INCONTROVERTIBILITY OF ACQUITTAL SHORT TRIAL WHETHER PROVISO SHOULD BE APPLIED

Citation: Kibby v R [2024] NSWCCA 207
Court: NSW Court of Criminal Appeal
Date: 13 November 2024
Judges: Davies J, Hamill J (principal reasons), Rigg J

Background

The applicant, a wardsman at a private hospital on Sydney's Northern Beaches, faced two counts of aggravated sexual assault allegedly committed against a 73-year-old patient during a showering incident in August 2020. The prosecution alleged digital penetration of both the anus and the vagina. Following two COVID-related aborted trials, a third trial in June 2022 resulted in a not guilty verdict on the vaginal penetration count, with the jury unable to reach a verdict on the anal penetration count.

At the subsequent retrial, the parties took careful steps to preserve the integrity of the earlier acquittal. All recordings, transcripts, and documents were edited to remove any reference to the vaginal penetration allegation, and witnesses were directed not to mention it. The last witness, a police officer, nonetheless told the jury that the complainant had described two sexual assaults occurring in the bathroom.

Defence counsel immediately applied to discharge the jury. The prosecutor initially described the irregularity as "fatal" to the integrity of the trial, before withdrawing that concession and arguing judicial directions could remedy the problem. The trial judge refused the discharge application and instead directed the jury to disregard the officer's evidence, recalled the officer, and had him give a different account. The jury ultimately convicted the applicant on the remaining count. He sought leave to appeal on the single ground that the trial judge's refusal to discharge the jury occasioned a miscarriage of justice.

  • Whether the police officer's inadvertent reference to two sexual assaults amounted to a miscarriage of justice under s 6(1) of the Criminal Appeal Act 1912 (NSW), notwithstanding the trial judge's curative directions
  • Whether the proviso to s 6(1) should apply to dismiss the appeal on the basis that no substantial miscarriage of justice actually occurred
  • Whether, if the appeal succeeded, the appropriate remedy was entry of a verdict of acquittal or an order for a new trial

Decision

Miscarriage of justice. The Court of Criminal Appeal found unanimously that the irregularity amounted to a miscarriage of justice. The applicant did not receive a trial according to law, and the irregularity could realistically have affected the verdict. The Court identified several compounding factors: the trial was short, the damaging evidence came from the last live witness, and the jury was not separated immediately after the incident, leaving members together for many hours before receiving any curative direction.

The timing and context made the prejudice particularly acute. The jury had already been told, when edited recordings were first played, that the editing was not designed to "hide anything" from them. That assurance was undermined when the very thing that had been carefully excised was blurted out by the final witness. The conspicuous nature of the earlier edits, including redactions to the complainant's notebook, made it harder to contain the damage after the fact. The Court also noted that the trial judge appeared to apply too high a threshold in assessing whether to discharge, framing the question as whether impugned evidence "will necessarily result in" a miscarriage, rather than whether it realistically might.

The Court further noted that the immediate reactions of those in the courtroom were themselves telling. The prosecutor's instinct was that the incident was fatal, defence counsel moved immediately for discharge, and the trial judge plainly understood at once what the problem was. The directions that followed were also problematic in their own right: they characterised the officer's account as what he "thought" the complainant had said, a characterisation that was probably inaccurate and added a layer of confusion.

The proviso. The Court declined to apply the proviso, which would have allowed the conviction to stand if no substantial miscarriage of justice actually occurred. At its heart, the trial was a case of word against word, turning entirely on the relative credibility of the complainant and the applicant. In that context, the Court could not be satisfied that the irregularity had no meaningful bearing on the verdict.

Remedy. The applicant argued for entry of an acquittal rather than a new trial, pointing to the fact that this was effectively a fourth proceeding, that he had served more than a year in custody following conviction, and that any retrial would face the continuing difficulty of insulating the jury from knowledge of the acquittal on the related charge. The Court accepted these were powerful considerations. However, the Court left the decision whether to proceed to a fifth trial with the Director of Public Prosecutions, noting that the custodial component of the original sentence substantially exceeded the time already served.

Orders Made

  • Leave to appeal against conviction granted
  • Appeal allowed
  • Conviction quashed
  • New trial ordered in the District Court
  • Matter listed for mention in the District Court on 8 November 2024
  • Conditional bail granted

Key Takeaways

  • A prior acquittal on a related charge is incontrovertible, and a retrial cannot safely proceed where the jury has been exposed to evidence that effectively revives that acquitted allegation, particularly at a late stage of the proceedings.
  • The curative capacity of judicial directions is not unlimited. Where the irregularity is serious, the trial is short, the jury has had unsupervised time together after the event, and the case turns on credibility, directions to disregard are unlikely to be sufficient.
  • The proviso in s 6(1) of the Criminal Appeal Act 1912 (NSW) will not rescue a conviction where the trial was essentially a contest of credibility between two witnesses and the irregularity could realistically have influenced the jury's assessment of that contest.
  • Assurances given to a jury that editing of evidence was not designed to conceal anything can heighten rather than diminish prejudice when the concealed matter is subsequently disclosed by a witness.
  • Where an appeal court finds a miscarriage of justice but declines to enter an acquittal, the question of whether to proceed with a new trial rests with the Director of Public Prosecutions, not the appellate court.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 61J
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Criminal Procedure Act 1986 (NSW), ss 306I(1), 306I(6)

Cases
- Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36
- Ilievski v R; Nolan v R (No 2) (2023) 112 NSWLR 375; [2023] NSWCCA 248
- Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22
- Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7
- Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81
- Wilde v The Queen (1988) 164 CLR 365; [1988] HCA 6
- Baini v The Queen (2012) 246 CLR 469; [2012] HCA 59
- Cook (a pseudonym) v The King [2024] HCA 26; (2024) 98 ALJR 984
- AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8
- Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15
- Cesan v The Queen (2008) 236 CLR 358; [2008] HCA 52
- Lane v The Queen (2018) 265 CLR 196; [2018] HCA 28
- Abdallah v R [2019] NSWCCA 294
- Medich v R [2021] NSWCCA 36; (2021) 390 ALR 398