R v Kibby (No 3) [2023] NSWDC 342

District Court New South Wales

Medium Neutral Citation: R v Kibby (No 3) [2023] NSWDC 342 Hearing dates: 28 August 2023 Date of orders: 28 August 2023 Decision date: 28 August 2023 Jurisdiction: Criminal Before: Newlinds SC DCJ Decision: Rulings as to jury directions Catchwords: CRIME – proper medical purpose – right to silence – typical response - pathways Legislation Cited: Crimes Act 1900, s 61HA, s 292A-D Cases Cited: Maughan v The Queen [2020] NSW CCA 51 Pemble v The Queen [1971] HCA 20 R v Zaidi (1991) 57 A CRIM R 189 Rao v R [2019] NSW CCA 290 Zhu v The Queen [2013] NSW CCA 163 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 1. HIS HONOUR: There are four questions which I have been asked to decide for the purpose of my summing up, which will occur sometime later today. They are, in no particular order. First, the "proper medical purpose" issue. Secondly, the "no typical response" issue. Thirdly, the "right to silence" issue and fourthly, the "pathways" issue. 2. Dealing with them in that order, the first being "proper medical purpose". 3. Mr Smith, counsel for the Accused, has submitted that during the course of my summing up, it is necessary for me to direct the jury that in order for them to be satisfied that the Crown has proved the first element of the charge, sexual intercourse, it is necessary for the jury to be satisfied that the proviso to s 61H(a) being the relevant definition of sexual intercourse for the purpose of this trial, quote, "except where the penetration is carried out for proper medical purpose" has been shown not to apply. 4. Mr Smith relies on the decision of R v Zaidi (1991) 57 A CRIM R 189 together with the decision of the New South Wales Court of Criminal Appeal in Zhu v The Queen [2013] NSW CCA 163. 5. It seems to me those cases establish the following propositions. 6. The question of "proper medical purpose" arises at the point of consideration of the first element. That is, whether sexual intercourse has been proved. 7. Because of that, the question is one of subjective belief of the Accused, ie did the Accused believe that whatever degree of penetration might have occurred was for a medical purpose. 8. The proviso must be disproved by the Crown in circumstances where it can be concluded that the issue is, "open", "squarely raised" or "a live issue". 9. In any of those circumstances, a direction must be given viz, that the jury needs to be satisfied of part of the first element that no proper medical purpose could not be established. 10. Another way of putting it is that it is necessary for such a direction to be given if the issue is "before the jury" in the sense that the issue is raised by the evidence. 11. In Zaidi, Hoeben, CJ at CL, spoke in terms of "squarely raised" or "a live issue" or, "was a genuine issue in the proceedings". Fullerton J, in the same case, said a direction was required in circumstances where there was evidence from which a "reasonable inference" might be drawn that the penetration was for a proper medical purpose but was not necessary in the absence of a "viable case" that the penetration was for such a purpose. 12. I have concluded in this case that there is no viable case or that it would not be open to a jury to conclude on the evidence that there could possibly be a proper medical purpose for what the Accused is alleged to have done. 13. In order to understand my reasoning, it is necessary to understand that the allegation is that the Accused was a wardsman who was in the course of assisting the complainant, who was a 73 year old woman disabled by a back injury in a hospital, to have a shower. The allegation is that in the course of washing her in a shower, he did without her consent insert his finger into her anus. 14. The Accused emphatically denies that the event occurred, however I accept that that is not the end of the matter. If there was evidence from which an inference could be drawn to the effect that if the incident occurred, it might have been for a proper medical purpose, then the direction would be necessary. 15. However, in my view, there is no such evidence. It is in my judgment fanciful to suggest that whilst in the act of washing someone, even if one accepts for the purpose of this level of the argument that washing itself can be described as a proper medical purpose, that the insertion of a finger into the anus of the person being washed (even if only for a fleeting moment) could possibly sensibly be described as a medical purpose, let alone a proper medical purpose. 1. It is not to be overlooked that the Accused was not a medical practitioner, he was a wardsman, and the complainant did not have any medical issue concerning her anus which would involve any penetration of it. Rather, she had a bad back and to my mind, it just does not follow that if one is washing someone else that the act of putting a finger in that other person's anus could sensibly be described as being part of that washing process, let alone forming part of washing for a proper medical purpose. 2. The issue was not opened on by Mr Smith. There was no suggestion by Mr Smith that the elements of the charge as opened by the Crown which did not include any reference to proper medical purpose was insufficient at that time and of course, the Accused's emphatic position in this case as opened and established by all of his accounts, is that the incident just did not happen. 3. Moreover, for reasons the Crown has developed in written submissions which have become MFI 13, I think it is extremely doubtful whether, as a matter of construction of the statute as it then stood, that an act of a wardsman washing a patient in a shower can in the circumstances be caught by the definition of proper medical purpose. I say that because there was, at the time, a different definition that operated at a different part of the act of "hygienic purposes" (s 61 HA(2) of the Act) and there remains in the amended version of the legislation, a distinction drawn by Parliament between "hygienic purposes" and "proper medical purposes". 4. Be that as it may - leaving aside the question of proper medical purpose, it also seems to me that the question will always be contextual and for reasons that I have tried to explain earlier in this judgment, I do not think that on any sensible version of the evidence, any inference of proper medical purpose could be drawn by a tribunal of fact in circumstances where the Accused was not a medical practitioner of any kind, the complainant was not his patient, they therefore did not have the fiduciary doctor-patient relationship, the penetration if it occurred did not occur during the performance of any medical procedure in that it was not diagnostic, clinical or therapeutic; and, therefore, whilst I do not have to decide the question for the purpose of this application, I have serious doubts as to the fundamental premise of Mr Smith's argument. 1. For all those reasons, I do not propose to give a direction that Mr Smith has suggested. 2. The next matter I need to deal with is the question of whether I should give a direction as to whether the jury should proceed upon the basis that there is no "typical response" to be expected from people who are the subject of sexual assault. 3. The relevant date of the alleged offence in this case means that the provisions of s 292A-D of the Act not apply to this matter. 4. Those provisions would of course make such a direction mandatory. 5. I accept Mr Smith's submission that the transitional provisions are such that the amendments ought not be considered to act retrospectively and therefore there is no statutory requirement for me to give the typical expectation "direction". 6. Mr Smith submits that because there is no statutory requirement, I should therefore proceed upon the basis that Parliament did not intend the sections to act retrospectively, so much may be expected. 7. He then submits that as there was no common usage of directions of this type prior to the enactment of the reforms that the Accused has a reasonable expectation that the directions provided to the jury in this case are the directions that apply prior to the reforms and so in those circumstances, I should not give such a direction. 8. The Crown, on the other hand, whilst accepting that there is no statutory requirement for me to make the direction, reminds me that the law has always been that the Court must provide an adequate direction both as to the law and the possible uses of the relevant facts upon any matter upon which the jury could, in circumstances of the case, upon the material before them, find or base a verdict on whole or part. See for example Pemble v The Queen [1971] HCA 20 at paragraph [117]. 9. Ms Madden, who appears for the Crown, submits that directions to similar effect as those provided for in the current legislation should be given to properly assist the jury with their determinations of the issues. Prior to the introduction of the amendment, the New South Wales Court of Criminal Appeal had stressed on a number of occasions that there was a fallacy that any particular behaviour or reaction should be, "expected of victims of sexual abuse" see for example Rao v R [2019] NSW CCA 290 at [98] per Gleeson J A, Maughan v The Queen [2020] NSW CCA 51 at [2] per R A Hugh J at [13] and per Adamson J at [99]. 10. In this case, there has been a considerable amount of evidence directed to what is described in the complainant's own evidence as her, "freezing" at and after the time of the alleged assault. She gave a number of descriptions as to that freezing phenomena both in her evidence but also in a number of the alleged complaint evidence to the effect that that is what happened to her, that she was surprised at her response and then subsequently she regretted that response. 11. I think in those circumstances, taking into account the fact that I have to make a direction that is fair and appropriate in all the circumstances and in particular taking into account the comments by the Court of Criminal Appeal that predated the statutory amendments, that I should make what will effectively be the statutory direction but with a particular paragraph focused on the reference to the "freezing" described by the complainant. 12. Accordingly, I have concluded that I will give a direction about there being no typical response to sexual assaults. 13. Turning then to "right to silence", I have discussed this I think in a couple of the interlocutory judgments I have given already in this matter, and to what my untrained eye is the unusual way that the sworn evidence that the complainant gave at an earlier trial was read and put before the jury. 14. I was proposing to make what might be described as the usual direction as to right to silence in my summing up, but then to refer to the earlier evidence that was read as sworn evidence and give a usual direction about that being an "account" by the Accused. 15. A direction along those lines was crafted by the Crown and proposed on Friday, which became the unmarked up version of MFI 11. 16. The marking up on MFI 11 was done by the Accused. It can be seen that in that marking up the Accused is positively submitting that I should not make any direction going to the right to silence and in any context, but especially in the context of the way the Accused's evidence from the earlier trial was presented. 17. The right of an Accused to remain silent in any trial is axiomatic fundamental and requires no further discussion. The direction about it is axiomatic and close to automatic. 18. It follows that in the ordinary course usually after the equally axiomatic directions as to onus and burden of proof, the right of an Accused to silence is emphasised to a jury and if the Accused has not given evidence in the trial they are given very strong directions as to what, if anything, that means. 19. Mr Smith accepts all of that but submits that in this case the circumstances are such that the ordinary position should be departed from. He says that the prosecution has elected to read the Accused's evidence from the previous trial as part of the evidence in the case. He says that any direction about the Accused's failure to give evidence in those circumstances is potentially confusing for the jury. 20. His point is that to refer to the right to silence might have a tendency to undermine the direction that the jury, on Mr Smith's application, will get to the effect that they must treat the evidence given by the Accused at the earlier trial in the same way that they treat any other evidence. That is, if the standard direction is given, then the jury would be confronted with two conflicting directions. On the one hand, they will be told they cannot take into account the Accused's failure to give evidence in the trial, whilst on the other hand they can take into account the evidence that he gave at the last trial and assess it in the ordinary way. 21. I have some feeling of disquiet about this because I think there might be a risk that the jury in the jury room might speculate or start assessing the evidence given by the Accused at the first trial in the context of noting that he did not give the same evidence before them. 22. However, the submissions made by Mr Smith have merit, and as I see it my primary purpose is to ensure that the Accused gets a fair trial and as his counsel he is making a tactical forensic judgment which is his prerogative. The Accused has made a positive application for me to not give the right to silence direction. In those circumstances, I will accept Mr Smith's submission. I propose to give the direction set out in MFI 11 as marked up by the Accused. 23. The final matter I need to deal with is what was described as the "different pathways" available to the Crown to prove knowledge of the Accused of lack of consent of the complainant. 24. The proposition is that the jury should be told that even though there are, relevant to this case, three "pathways" by which knowledge of lack of consent can be found the jury does not have to be unanimous as to which pathway each of them adopts, rather they need to be unanimous as to the fact that a pathway has been made out by the Crown. There is no opposition to that direction by Mr Smith and I propose to give it.