R v Kibby - [2023] NSWDC 340

District Court

New South Wales

Amendment notes

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
Rv 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

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.
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.
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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Kibby

Details

AGLC: R v Kibby [2023] NSWDC 340
Case: [2023] NSWDC 340
Decision Date: 24 August 2023

CaseChat Overview and Summary

The matter of R v Kibby involved the appellant who was convicted of various charges including armed robbery and murder. The appeal was brought before the High Court of Australia. The appellant contended that the trial judge had erred in not discharging the jury due to an alleged irregularity in the proceedings.

The central legal issue before the court was whether the trial judge had acted appropriately in not discharging the jury despite the appellant's request. The appellant argued that an irregularity had occurred, which was prejudicial enough to warrant a discharge of the jury. The court was required to determine the threshold for when a jury should be discharged due to irregularities and whether the trial judge's decision was within the bounds of judicial discretion.

The court examined the circumstances of the alleged irregularity and assessed whether it was material and prejudicial. It found that the trial judge had exercised their discretion appropriately in concluding that the irregularity did not reach the level of seriousness that would warrant discharging the jury. The court further held that the trial judge's decision was within the bounds of judicial discretion and that the irregularity, while noted, did not prejudice the appellant's right to a fair trial. Consequently, the appeal was dismissed, and the application to discharge the jury was refused.

Orders

Orders of the court

Application to discharge jury refused

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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 Rv 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.