Libdy v R [2021] NSWCCA 34

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Libdy v R [2021] NSWCCA 34 Hearing dates: 10-11 March 2021 Date of orders: 11 March 2021 Decision date: 11 March 2021 Before: Macfarlan JA Walton J Hamill J Decision: (1) Leave to appeal granted. (2) Appeal allowed. (3) Vacate the order to discharge the jury. (4) Remit the matter to the District Court for the trial to continue on Friday, 12 March 2021. Catchwords: CRIMINAL LAW – urgent appeal against decision to discharge jury – where Prosecutor raises tendency and coincidence reasoning in closing address – where notice requirements not complied with – prejudice to accused – where trial Judge invites application to dispense with notice requirements – where application opposed – decision to discharge jury without application by either party – whether Prosecutor should be permitted to improve its case in subsequent trial – whether appropriate to discharge jury – relevant considerations – where accused opposes discharge – "simple solution" for Prosecutor to withdraw submission and Judge to provide "anti-tendency" directions – decision to discharge unreasonable and plainly unjust – decision based on extraneous and irrelevant considerations – order to discharge jury vacated Legislation Cited: Criminal Appeal Act 1912 (NSW), s 5G Evidence Act 1995 (NSW), ss 97, 98 Cases Cited: Barber v R; Zraika v R [2016] NSWCCA 125 Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22 Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15 Hamilton (a pseudonym) v R [2020] NSWCCA 80 R v Grand (1903) 3 SR(NSW) 216 R v Lamb; R v Mason; R v Hill [2016] NSWCCA 135 Trieu v R [2012] NSWCCA 169 Texts Cited: Hamilton v The Queen [2021] HCATrans 19 Category: Principal judgment Parties: Mohammed Libdy (Applicant) Regina (Respondent) Representation: Counsel: E Ozen SC (Applicant) T Krayem (Applicant) G Newton (Respondent)