R v Kibby [2023] NSWDC 340

District Court New South Wales

Medium Neutral Citation: R v Kibby [2023] NSWDC 340 Hearing dates: 24 August 2023 Date of orders: 24 August 2023 Decision date: 24 August 2023 Jurisdiction: Criminal Before: Newlinds SC DCJ Decision: Application to discharge jury refused Cases Cited: 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 Category: Procedural rulings Parties: Rex (Crown) Kieran Kirby (Accused) Representation: Counsel: Ms P Madden (Crown) Mr M Smith (Accused)

Solicitors: Office of the Director of Public Prosecutions (Crown) Ian Byrne Lawyers & Solicitors (Accused) File Number(s): 2021/39479 Publication restriction: Statutory non-publication order re identity of complainant – name redacted.

JUDGMENT: EX TEMPORE

Re on behalf of the accused to discharge the jury 1. HIS HONOUR: Today is the fourth day of the trial of the accused in relation to one count of aggravated sexual assault of a victim who was under the authority of the offender. The circumstances of the alleged offence arose out of an interaction between the offender and the complainant, Mrs Huckerby, on 15 August 2020, whilst Mrs Huckerby was a patient at Delmar Private Hospital in Dee Why, and the accused was a wardsman. 2. The incident at the heart of the charge occurred in a bathroom whilst the accused was assisting Mrs Huckerby to shower. The matter has a long and reasonably chequered history. This is the third jury who has been charged with determining the guilt or otherwise of the accused in relation to this charge. In June last year, the charge was heard by another jury and Judge Huggett of this Court, together with at least one other charge, arising out of an incident that happened either immediately before or after the alleged incident in this case. 3. On that occasion, the jury acquitted the accused of the other charge but could not reach a verdict in relation to this charge, thus leading to this trial being a re‑hearing of the one count that remained on the indictment. The Crown in this matter has been represented by Ms Madden, Solicitor Advocate, and the accused by Mr Smith. It is to both of their credit that they have worked extremely hard so as to allow this case to be presented to the jury in a way that sought to keep away from the jury any information or suggestion that there had been another allegation, let alone another charge arising out of the same interaction between the accused and Mrs Huckerby. Up until this morning, they had been successful in their endeavours. 4. However, today the last live witness in the case was called, Senior Constable Matthew Guerrera, who gave evidence by video link before the jury. Whilst he was being asked a series of introductory questions, he was asked a question to the effect, what did Mrs Huckerby tell him when he first spoke to her at the hospital a few days after the alleged incident. When asked what Mrs Huckerby had said to him, he said: "Margaret had explained to Senior Constable Scholes and I that she had been escorted to the bathroom after previously speaking with the wardsman she knew by the name of Kieran, and that whilst in the bathroom two sexual assaults had taken place." 1. Shortly after that evidence, both the Crown and Mr Smith sought to make applications in the absence of the jury, which eventually culminated in an application by the accused that the jury be discharged, which application was opposed by the Crown. 2. It may be accepted that any evidence or suggestion about another allegation or charge against the accused based on a complaint made by Mrs Huckerby arising out of the same circumstances in the bathroom whilst having the same shower is prejudicial if it gets before the jury. That, of course, is why both the Crown and the accused have worked so hard to present the case in the way they have. The evidence of the complainant was given by a presentation of the audio-visual recording of her evidence in the first trial. It was heavily edited so that any reference by the complainant, either in her evidence-in-chief or during cross-examination, to the events that gave rise to the other charge, were edited out of the transcript. That being said, it was obvious whilst watching it that it was edited, and it was reasonably easy to identify where edits occurred. 3. There has also been quite a lot of evidence about various contemporaneous notes made by various witnesses in the case, which evidence has been put before the jury, not by the tendering of those documents, but by inviting various authors of those notes to accept that certain things are written on those notes. Again, that was done because in those notes there was references to the circumstances that gave rise to the other alleged offence. 4. It may be accepted, therefore, and I do accept, that the statement by the officer was prejudicial to the Accused and could impact on the deliberations of the jury. In saying that, it could potentially affect their deliberations in opposite directions. The jury might be tempted to speculate as to what happened in relation to the other allegation, whether it went anywhere, whether it eventuated in a court case, in a prosecution and whether or not there was an acquittal or a conviction. 5. The jury might speculate that another jury in another court case had not accepted the evidence of Mrs Huckerby in relation to that other charge and that type of speculation might prejudice the Crown's case. 6. That all being said, the question, as I understand it for me, is whether it is necessary for me to discharge the jury in this matter in order to prevent a miscarriage of justice. In Crofts v The Queen [1996] 186 CLR 427 Dawson J said in relation to such applications, "But it is a discretion which is to be exercised in favour of a discharge only when that course is necessary to prevent a miscarriage of justice. It's in that sense that it has been said that the underlying principle is that of necessity and that a higher degree of need for such discharge must appear before a discharge or be ordered." 1. The plurality in Crofts (Toohey, Gaudron, Gummow and Kirby JJ) at 440 said that whilst no rigid rule was applied when making such a judgment, and whilst it does amount eventually to an evaluation of relevant matters by a trial judge the question should be determined by reference to at least the following in relation to whatever event has happened in a trial that has caused the application. First, the seriousness of the occurrence; second the stage (of the trial) at which the occurrence has occurred; third, the deliberateness of the conduct; fourth, the likely effectiveness of a judicial direction designed to overcome its apprehended impact. 2. In Hamide v R [2019] NSWCCA 219 at 114 the Court of Criminal Appeal added to that shopping list of relevant considerations the proposition that when considering the effectiveness of any proposed direction to overcome the relevant matter, attention must be paid to whether such a direction will do more harm than good in that one needs to consider the question whether the suggested direction only highlights the very problem it is sought to overcome and therefore exacerbates it. 3. In Ahola (No 6) [2013] NSWSC 703, Button J observed at [17] by reference to the leading authorities that they, "Do not require or encourage trial judges to take an overly sensitive approach to the accidental receipt of prejudicial material." 1. All of the relevant authorities were reviewed helpfully and comprehensively by Bellew J in R v Rogerson (No 34) [2016] NSWSC 259 between paragraphs [39-49]. I do not need to reiterate what his Honour said. 2. Ultimately, it seems to me, that the relevant steps for me to take are first to identify the incident that has occurred so as to give rise to the application, and then whilst applying the various criteria that have been identified in the cases, to form my own judgment as to whether, if the case proceeds before the current jury, there will be a miscarriage of justice. Or, to put it in the negative, the discretion is only to be exercised when it is found to be necessary to prevent a miscarriage of justice. 3. Mr Smith puts it this way. He says, that the jury already understands that the evidence of Mrs Huckerby has been heavily redacted. He points out that it is obvious when you review those edits that what has been edited is every occasion when Mrs Huckerby refers to the incident the subject of these charges and that it is a reasonable inference that what has been edited out is some additional matter that Mrs Huckerby was talking about when responding to questions about what happened. 4. He also says that the jury knows that the various documents that have been referred to in evidence have not been shown to them, rather they have received evidence about what is in them in a second-hand way that would perhaps allow someone thinking about it to conclude that there were things in those documents that were prejudicial to the accused. He points out that the jury probably understands that there was an earlier trial, because that is reasonably self-evident from Mrs Huckerby's pre-recorded evidence. All of that may be accepted. 5. Mr Smith says that the reference by the officer to the other allegation of sexual misconduct would allow the jury to, to use his phrase, "join the dots" and therefore work out that there was another allegation and that the various edits and information that has been deliberately kept from the jury is obviously about that other allegation. 6. He says that once a jury or any member of it has worked that out there is simply too much risk that they will then embark on a process of speculation as to what may or may not have happened in relation to that other allegation which means that there ought to be found by me that there is a risk or a realistic risk that the jury will not be able to put what everyone agrees is irrelevant and prejudicial material out of their minds during their deliberation. 7. On the other hand, Ms Madden, who appears for the Crown, by reference to the criteria identified by the plurality of the high court in Crofts at para 440 firstly makes the submission that whilst the evidence from the police officer was a serious error on his part, which of course should not have happened, that in the context of all of the evidence in the trial it should not be seen as overly serious. The relevant context being all of the other evidence including the evidence of Mrs Huckerby, and all of the complaint witnesses which is very clearly to the effect that the only allegation is the one that is before this jury. I had particularly in mind the evidence of Mrs Huckerby's daughter which was tendered as complaint evidence. It was led by the Crown intentionally for the very reason to prevent any suggestion of another allegation being put before the jury, and the daughter's evidence was emphatically that what she was told by her mother was nothing more and nothing less than information relevant to the matter at hand and nothing more. 8. I generally accept the Crown's submissions about this. I have aggregated the first two criteria identified by the high court, that is the seriousness of the occurrence and the stage at which the "mishap" occurs, because it seems to me that they really throw up the same considerations. The seriousness being the impact of the incident on the jury is to my mind ameliorated somewhat by the context being all of the evidence that came before. 9. Accepting that the evidence should not have got before the jury, and accepting that it is prejudicial, the question then becomes can it be cured by a direction? The various cases referred to by Justice Bellew in Rogerson make it plain that this is the critical question. In particular, I was reminded by what Justice McHugh said in Gilbert v The Queen [2000] CLR 414 at 31 to this effect: "The criminal trial and indictment proceeds on the assumption that jurors are true to their oath, that, in the quaint words of the ancient oath, they harken to the evidence and that they obey the trial judge's direction. On that assumption, which I regard as fundamental to the criminal jury trial, the common law countries have staked a great deal. If it was rejected to disregarded, no one - accused, trial judge or member of the public could have any confidence in any verdict of a criminal jury or in the criminal justice system whenever it involves a jury trial. If it was rejected or disregarded the pursuit of justice through the jury system would be as much a charade as the show trial of any totalitarian state. Put bluntly, unless we act on the assumption that criminal juries act on the evidence and in accordance with directions of the trial judge, there is no point in having criminal jury trials." 1. I accept that there is a limit to the application of that fundamental proposition. There are many cases on the record where it has been determined, both at trial and appellate level, that notwithstanding the best crafted direction imaginable that whatever had happened before the jury simply could not be cured in a way that prevented a miscarriage of justice. 2. Where the line is between the acceptance that juries follow and obey judicial directions of law scrupulously on the one hand, and when there are occasions when a direction simply cannot cure a potential miscarriage of justice is, to say the least, obscure and as far as I can tell from the authorities is something that has to be judged on a case by case basis by the trial judge exercising an evaluative judgment, taking into account all relevant factors and disregarding any irrelevant factors. The Crown has submitted that the misstep in the detective's evidence can be cured by a direction in the following terms: Direction: Not to speculate "We are in a position to proceed with the evidence of Plain Clothes Senior Constable Guerrera, but before we do there is one thing I want to say to you. What I am about to say to you is a direction that I am giving you in my capacity as the trial judge and, as is the case with every other direction I give you, you are bound by it and you are bound, in particular, to apply it to your consideration of the issues in this case. Yesterday morning, you will recall that Plain Clothes Senior Constable Guerrera was being asked some questions by Madam Crown about his attendance at Delmar Private Hospital on the morning of the 19th of August 2020. And you will recall that he was asked about what Margaret Huckerby said to him about what had happened in the bathroom on the 15th of August 2020. In the course of that questioning, PCSC Guerrera was asked this question ("insert"). And his evidence was ("insert"). Members of the jury, as you have heard, the Crown case is that on the 15th of August 2020, the accused sexually assaulted Margaret Huckerby when he penetrated her anus with his finger. That is the only allegation made by the Crown against the accused. And the evidence you have already heard of Margaret Huckerby, herself, involves only one allegation - of the digital penetration of her anus by the accused. In those circumstances, I propose to exercise the power that I have to strike that evidence by PCSC Guerrera from the court record. I emphasise that you must not speculate about whether or not Margaret Huckerby said that to PCSC Guerrera when she spoke to him that day. Because I have taken the view that the evidence should be struck from the record, what was said by PCSC Guerrera forms no part, whatsoever, of the evidence in this case. Because it has been struck from the record, it is not part of the evidence that you are entitled to consider in your deliberations. In accordance with your oath, your verdict must solely be based upon the evidence. And for all of those reasons, members of the jury, you are to ignore and completely put out of your minds what was said by PCSC Guerrera in the course of giving that answer. And you are bound by this direction that I am giving to you. 1. Mr Smith was highly critical of the direction. Indeed, he used it as a springboard to emphasise his submission that the direction not only does not cure the problem caused by the police officer's evidence, but rather it highlights and emphasises the very matter which the jury is being asked to put to one side. I think that is a fair comment, although I do not accept his description of the proposed direction as, "absurd". What I do accept is that like every direction that is made after there has been an incident that involves some prejudicial material getting before a jury, there will always be a sense in which the direction itself is emphasising the very problem it is seeking to cure and reminding the jury of the incident. 2. Whilst I have come to this conclusion with some hesitation and whilst I do find the matter extremely evenly balanced, I have decided that whilst there is a risk that the matter proceeding might result in a miscarriage of justice, I am not satisfied that if the matter proceeds with a direction as proposed by the Crown, although slightly modified by me, that it will necessarily result in a miscarriage of justice. 3. I think to pose the legal test at the level of risk is to ask the wrong legal question. There will always be a risk in any criminal trial that something will go wrong that might result in a miscarriage of justice. As I read the authorities before I discharge the jury I must be satisfied that to not discharge the jury will result in a miscarriage of justice. 4. Before leaving the matter, I have determined that the evidence given by detective Guerrera, was not deliberately given so as to prejudice this trial. I appreciate and I accept entirely that Ms Madden and her team had conferenced him and that he had been well advised as to what he should or should not say during that important part of his evidence. I am satisfied about that, not just because I trust Ms Madden when she tells me that but because it is obvious to me how hard she and her team have worked to keep this sort of evidence away from the jury. 5. The question for me then becomes whether the detective is a fool or criminally dishonest. Absent any other evidence or suggestion that he is criminally dishonest and was seeking to work an injustice, I prefer the former characterisation of his behaviour, ie it was foolish. 6. As far as the proposed direction is concerned, firstly, I think it should be given only once and that should happen tomorrow morning when the officer is recalled. Secondly, by reference to the third paragraph, that is the paragraph that starts yesterday morning, I think it should be amended so as to delete it from where it starts, quote, "And you will recall" down to the second reference to, quote, "Insert". Instead, I think it should say something like, "You will recall that the detective gave some evidence as to what Ms Huckerby said to him about what happened in the bathroom". 7. I think the second sentence of the fifth paragraph should be deleted. That is because I think that doubles up with what is said in the last paragraph and I agree with Mr Smith that the less the direction highlights, the very thing that we are trying to prevent the jury from doing, the better. 8. For those reasons, I do not accede to the accused's application to discharge the jury which I think means that unless there is anything else we need to do, I should adjourn the Court until 10 o'clock tomorrow where we should retake the police officer's evidence.