Kibby v R

1. [1]

   DAVIES J: I joined in the orders of the Court on 25 October 2024 for the reasons given by Hamill J.

2. [2]

   HAMILL J: By notice of appeal filed 26 August 2024, Kieran Kibby sought leave to appeal against his conviction for one count of aggravated sexual intercourse without consent. At the conclusion of the hearing of the appeal on 25 October 2024 the Court granted leave and allowed the appeal, quashed the conviction, and ordered that there be a new trial. The Court was unanimously of the view that the substance of Mr Kibby’s single ground of appeal – that a miscarriage of justice was occasioned by the trial Judge’s refusal to discharge the jury – must be upheld. On 29 October 2024 the Court granted Mr Kibby bail on conditions that were essentially agreed between the parties. These are my reasons for joining in those orders.

3. [3]

   To understand how and why Mr Kibby’s trial miscarried, it is necessary to recount the history of the allegations and the litigation.

The allegations, earlier trials and the evidence leading to an application to discharge the jury

1. [4]

   On 15 August 2020, Mr Kibby was working as a wardsman at the Delmar Private Hospital in Dee Why on Sydney’s Northern Beaches. He had worked there for about 15 years. He was assisting a 73-year-old female patient, MH, to shower. MH alleged that he inserted his finger into her anus while he was behind her, that he turned her around, and then penetrated her vagina with his finger.

2. [5]

   MH made a prompt complaint to her daughter that night, made notes of what she said happened at her daughter’s suggestion, and spoke to senior staff at the hospital on Monday 17 August 2020. Mr Kibby was confronted with the allegations a few days later. He denied them in a written response to the hospital. He was later arrested and charged with two counts of aggravated sexual intercourse without consent.

3. [6]

   There were two earlier trials which were aborted very soon after they commenced. The details are not known although the problems seem to have been related to the COVID-19 pandemic.

4. [7]

   A third trial was conducted before Judge Huggett (as her Honour then was) in June 2022. That trial ran its full course and both MH and Mr Kibby testified, as did the complainant’s daughter, relevant hospital staff and investigating police. MH gave evidence of each incident of sexual intercourse, being digital penetration of the anus and digital penetration of the vagina. Mr Kibby gave evidence in which he denied both acts of intercourse alleged by the prosecution.

5. [8]

   The jury returned a verdict of not guilty in relation to the count particularised as digital penetration of the vagina. The jury was unable to reach a verdict in relation to the count alleging digital penetration of the anus.

6. [9]

   The trial with which this appeal is concerned was a fourth trial and the second trial that ran to verdict. It commenced before Judge Newlinds SC on 21 August 2023 when Mr Kibby was arraigned on a single count pursuant to s 61J of the Crimes Act 1900 (NSW). The count alleged that, on 15 August 2020 at Dee Why, Mr Kibby had sexual intercourse with MH without her consent, knowing that she was not consenting, and in circumstances of aggravation, namely that the complainant was under his authority. The circumstances of aggravation arose from Mr Kibby’s employment and from the fact that MH was a patient of the hospital. The sexual intercourse alleged was the digital penetration of the anus.

7. [10]

   The only live issue was whether sexual intercourse occurred, that is whether Mr Kibby inserted his finger into MH’s anus as she alleged. Neither the complainant nor the applicant gave live evidence in the fourth trial.

8. [11]

   Pursuant to s 306I(1) of the Criminal Procedure Act 1986 (NSW), the recording of MH’s evidence from the third trial was played to the jury. By agreement between the parties and in accordance with s 306I(6), the recording was edited before it was played. All references to the allegation that Mr Kibby inserted his finger into MH’s vagina were removed. The editing assumed some significance in the events that followed and to the arguments advanced on appeal.

9. [12]

   The applicant’s evidence from the third trial, also edited to remove references to the second allegation upon which he was found not guilty, was read to the jury in the prosecution case, with the Prosecutor reading the questions and an officer of the Director of Public Prosecutions reading the answers.

10. [13]

    All but one of the remaining witnesses – being the complainant’s daughter, the two staff members who received the complaint and confronted the applicant, and a police officer called Tyrell – gave evidence. In accordance with the agreement between the parties reflected in the editing of the evidence of the complainant and the applicant, none of those witnesses referred to the second allegation of sexual intercourse (by digital penetration of the vagina) of which the applicant was found not guilty in the third trial.

11. [14]

    Plain Clothes Senior Constable Matthew Evan Guerrera was called to give evidence and appeared by audio visual link (“AVL”) on the fourth day of the trial. According to the discussions which occurred later, Mr Guerrera had been instructed in conference with the Prosecutor not to refer to the allegation of digital vaginal intercourse. He was the last live witness in the trial. There was only the tender of some agreed facts and the playing out of the applicant’s evidence from the third trial to follow.

12. [15]

    After some brief introductory questions, Mr Guerrera was asked about attending the hospital on 19 August 2020 and a conversation he had with MH that morning. The following is recorded in the transcript of proceedings:

13. [16]

    The emboldened and italicised portion of that part of the transcript was referred to by the parties to the appeal as “the impugned evidence”. This evidence caused counsel for the applicant at trial (who did not appear on the appeal) immediately to make an application that the jury be discharged.

14. [17]

    Mr Guerrera was the first witness on the fourth day of the trial, Thursday 24 August 2023. Based on times recorded in the transcript, the impugned evidence was given within two or three minutes of him taking his affirmation.

15. [18]

    As soon as the jury left the courtroom, the following exchange is recorded (with my emphasis throughout):

16. [19]

    [Senior Counsel for the applicant on the appeal raised a question as to whether counsel at trial said (as per the transcript) the jury “weren’t alive to it” and it seems more likely, given the context and the application, that Mr Smith asserted that the jury “were alive to it”. However, that is not a question that needs to be resolved and could only have been an impressionistic observation.]

17. [20]

    After a brief discussion between counsel and the trial Judge, the jury was brought back to the courtroom and told that “something has come up and there’s going to be a legal application”. The matter (from the jury’s perspective) was stood down until 11.00am and the jury was informed there may be an early morning tea if the Court needed more time to resolve the issue. There were further discussions between the lawyers and the trial Judge. The jury was brought back, seemingly during its lunch hour, and told that the discussions about the “legal matter” were continuing and that “the only fair thing to do for you is to send you home.” The jury was invited to return the following day at 10.00am.

18. [21]

    In the discussions that followed, the Prosecutor retracted her concession that the prosecution would not oppose the application to discharge the jury, and submitted that the problem could be cured by firm directions that the jury disregard the evidence given by Mr Guerrera. Counsel for Mr Kibby maintained the application, arguing that no direction could cure the problem that had arisen.

19. [22]

    On Friday 25 August 2023, his Honour refused the application for discharge of the jury and delivered a short judgment providing his reasons: R v Kibby [2023] NSWDC 340. The jury returned to the courtroom, the evidence given by Mr Guerrera the day before was withdrawn from its consideration, and his Honour provided directions to which it will be necessary to return. Mr Guerrera was recalled and his evidence commenced again. The applicant’s evidence from the third trial was then read (or acted out) and the prosecution case was closed. The jury was sent home for the weekend. There was no defence case and the addresses and summing up took place on Monday 28 August 2023.

20. [23]

    The jury retired to consider its verdict on Monday 28 August 2023 at 3:27pm and returned a verdict of guilty the following day at 2:22pm.

21. [24]

    One further matter of context was that when the complainant’s evidence was played, his Honour provided the following direction to the jury about the edits to the recording (again, with my emphasis):

22. [25]

    On the hearing of the appeal, Senior Counsel pointed out that the edits were in fact, and contrary to what Judge Newlinds told the jury, calculated to hide from the jury the allegation upon which the applicant was acquitted. It was submitted that, as events transpired, this heightened the difficulties in dealing with the impugned evidence given by the police officer.

The directions, the withdrawal of the police officer’s evidence and the officer’s evidence when he was recalled

1. [26]

   Once his Honour decided to allow the trial to continue and following some discussions about the directions he should provide to the jury, the trial Judge directed the jury as follows:

2. [27]

   Mr Guerrera then gave evidence of his attendance at the hospital and his conversation with MH and other relatively insignificant matters. His evidence, including cross-examination, took around 16 minutes according to various times referred to in the transcript. The critical part of the conversation was given as follows:

3. [28]

   The first of those questions was identical to the question which provoked the officer giving the impugned evidence the day before. In saying that, I must emphasise that nothing in this judgment is a criticism of the Solicitor Advocate who appeared for the prosecution at the trial. She conferred with the officer in advance and was entitled to expect that he would not tell the jury about “two sexual assaults” when the trial related only to one and the officer must have known that Mr Kibby had been acquitted of the second sexual assault alleged by MH.

The issues on the appeal and applicable principles

1. [29]

   The issues on the appeal were first, whether there was a miscarriage of justice pursuant to s 6(1) of the Criminal Appeal Act 1912 (NSW). The second issue was whether, assuming miscarriage was established, the proviso to s 6(1) applied, that is whether there was a substantial miscarriage of justice. There was very little dispute between the parties as to the applicable legal principles. Those principles are well-established and it is not necessary to undertake a particularly detailed exposition here. The respondent submitted that there was no miscarriage and, even if the Court formed the contrary view, no substantial miscarriage of justice was actually occasioned.

2. [30]

   The appeal is against the conviction, and not against the judgment of the trial Judge refusing to discharge the jury: see, for example, Patel v The Queen (2012) 247 CLR 531 at 551; [2012] HCA 29 at [67], Hamide v R (2019) 101 NSWLR 455 at 473; [2019] NSWCCA 219 at [78], Rassi v R [2023] NSWCCA 119 at [56] and Ilievski v R; Nolan v R (No 2) (2023) 112 NSWLR 375; [2023] NSWCCA 248 at [52] (“Ilievski”). The trial Judge’s reasons for declining to discharge the jury should be considered in determining whether the trial miscarried, but an error in those reasons will not of itself establish a miscarriage of justice. Similarly, the Court is not restricted to examining the reasons of the trial Judge.

3. [31]

   The Court must consider and determine whether, in the circumstances, the “blemish” or “irregularity” in the trial (to adopt the muted language often employed in such cases) resulted in a miscarriage of justice for the purpose of s 6(1) of the Criminal Appeal Act. The inquiry or test has been described in various ways. In Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36 (“Hofer”), Kiefel CJ, Keane and Gleeson JJ said at [41] (footnotes omitted):

4. [32]

   Gageler J (as the Chief Justice then was) said at [122]-[123] (with citations and footnotes omitted and my emphasis):

5. [33]

   Applying the High Court authorities, Dhanji J (with whom Lonergan J agreed) put the process of reasoning well in Ilievski at [89]. I will not set out that passage of his Honour’s judgment, but his Honour explained the stages of the process with his customary clarity. Beech-Jones CJ at CL (as his Honour then was), who dissented in the outcome, said at [13]:

6. [34]

   In considering these matters, it is important to pay some deference to the trial Judge’s decision not to discharge the jury, a discretion with which this Court will not interfere lightly.

7. [35]

   It is also necessary to consider carefully the directions given by the trial Judge on the well-established assumption that a jury is capable of understanding, and obeying, judicial directions including, in many cases, an instruction to disregard prejudicial material which has inadvertently come before it: see generally, Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15 at [13] (Gleeson CJ and Gummow J) and [31]-[32] (McHugh J), and specifically (for example) The Queen v Storey (1978) 140 CLR 364 at 372; [1978] HCA 39 (“Storey”).

8. [36]

   I will not immediately attempt to distil the various formulations of the application of the proviso to s 6(1) of the Criminal Appeal Act which have emerged in many High Court decisions over time but will return to that subject. First, I will explain my conclusion that there was a miscarriage of justice under s 6(1).

The reasons the impugned evidence gave rise to a miscarriage of justice

1. [37]

   In Maric v The Queen (1978) 52 ALJR 631; (1978) 20 ALR 513 Gibbs ACJ (as his Honour then was) observed at 634 (20 ALR 513 at 520) that “every case depends on its own facts” and “on the nature of what has been admitted into evidence, the circumstances in which it has been admitted and what, in the light of the circumstances of the case as a whole, is the correct course.” His Honour concluded that passage by emphasising that “[i]t is very far from being the rule that in every case where something of this nature gets into evidence through inadvertence the jury must be discharged.”

2. [38]

   In Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22 (“Crofts”), Toohey, Gaudron, Gummow and Kirby JJ said at 440-441:

3. [39]

   The evidence in the applicant’s trial was adduced over a period of less than five days. When the impugned evidence was given early on the fourth day of the trial, the jurors were sent to the jury room and not directed to separate for a further three or four hours. The jury received no directions of substance until the following morning. Those directions commenced by acknowledging that the jury must be “busting to know what it was about”. It is difficult to imagine that at least one of the jurors would not have worked out “what it was about”, namely the police officer’s reference to “two sexual assaults”. The directions, while firm and legally uncontroversial, only served to emphasise that reality by stressing that there was, in the trial, only one allegation of sexual assault.

4. [40]

   The respondent noted that the jury did not have a transcript of the complainant’s evidence and did not ask for it. It was submitted that the timing of the editing was less obvious in the video recording. In deference to that submission, each member of the Court reviewed relevant parts of the recording before the hearing of the appeal. One perception may be that the editing is less obvious in the recording but this Court must proceed on the basis of what the jury saw and heard. The edits to the recording played to the jury are conspicuous. For example, in some instances, the complainant is wearing glasses in one frame but not in the next (or vice versa). In each case, her position relative to the camera and her posture had noticeably changed. Importantly, in many cases, the edits were made immediately or shortly after MH gave evidence of the anal penetration and her turning around.

5. [41]

   Further, there were other documents before the jury that were obviously edited in a similar way. For example, exhibit 2 was a portion of the notes made by MH. After the words “finger in bottom to anus” there is an obvious gap in the handwriting followed by:

6. [42]

   The “too” related to the words that followed but, because of the peculiar spacing, could easily have been interpreted differently. More importantly, the gap was an obvious edit to the handwritten document which took on more significance once the police officer told the jury that the complainant alleged “two sexual assaults”. Copies of the note were distributed to the jury whereupon MH was taken through each word of the note. Again, there is a very plain edit to the recording of the evidence immediately after the word “anus”.

7. [43]

   There are forensic and legal challenges in conducting a re-trial following an acquittal on one or more of multiple counts. That is because the acquittal “may not be questioned or called into question by any evidence which, if accepted, would overturn or tend to overturn the verdict”: Garrett v The Queen (1977) 139 CLR 437 at 445; [1977] HCA 67, Mraz v The Queen (No 2) (1956) 96 CLR 62; [1956] HCA 54, Storey (supra), Rogers v The Queen (1994) 181 CLR 251; [1994] HCA 42, Gilham v R (2007) 73 NSWLR 308; [2007] NSWCCA 323 at [14] and see the survey of authorities in the judgments in Abdallah v R [2019] NSWCCA 294.

8. [44]

   It is correct, as the respondent submitted, that in some cases it is necessary to adduce the evidence because it is intrinsic to the narrative and, in other cases, an accused person chooses to have the evidence admitted: see, for example, Storey and Ulutui v R (2014) 41 VR 676; [2014] VSCA 110. In such cases, it may be accepted that a jury will be directed forcefully that the acquittal cannot be called into question. However, this was not such a case. The parties – not just the applicant – made a joint decision that any evidence of the allegation of digital penetration of the vagina must be removed to ensure both a fair trial and that the principle that the acquittal must not be called into question was not undermined or diminished. I do not accept that a direction at that late stage of the trial was capable of curing the prejudice when the jury had been told – wrongly and at the outset – that the edits had not been made to “hide anything” from them.

9. [45]

   As importantly, the parties reached a clear agreement that no evidence of the second alleged assault would be adduced. That agreement came unstuck when Mr Guerrera gave evidence that the complainant told him she was sexually assaulted twice in the bathroom. Despite the directions provided a day later, the jury was left to wonder what the second sexual assault involved.

10. [46]

    I have considered the judgment given by Judge Newlinds but it does not dissuade me from the view that there was a miscarriage of justice. Apart from anything else, his Honour appeared to proceed on the premise that the jury only needed to be discharged if a miscarriage of justice was inevitable. This emerges from the following passage in the judgment (with my emphasis):

11. [47]

    I agree with Senior Counsel for the applicant that this passage suggests that the trial Judge placed the bar too high. It is one thing to say that a judge confronted with an application to discharge a jury should be guided by a test of “necessity”: Crofts at 432 (Dawson J) and at 440 (Toohey, Gaudron, Gummow and Kirby JJ). It is a different thing to require a party who seeks a discharge of a jury to establish that a failure to abort the trial “will necessarily result in a miscarriage of justice”. It is worth repeating that in Crofts the High Court accepted that the trial Judge applied the correct legal test but concluded, in any event, that the trial miscarried.

12. [48]

    It is not without significance that the trial Judge in the present case said the application was “extremely evenly balanced” and that he reached the conclusion to continue with the same jury “with some hesitation”.

13. [49]

    It is also significant that the first words spoken by the Judge once the jury left the courtroom were “two sexual assaults” and that the Prosecutor’s instinctive and immediate response was that the slip by the police officer was “fatal”. Of course, the Director is not bound by that observation and the ultimate position taken by the Prosecutor at trial, after an adjournment, was to oppose the application and to submit that the problem could be cured by direction.

14. [50]

    The trial was a very short one, the impugned evidence came out on what would have been the last day of evidence and just two or three days after the recording of the complainant’s evidence was played along with the tender of her notes, each of which was replete with obvious editing. The jury did not separate for at least three hours immediately after the incident, and was outside of the courtroom for the next 24 hours probably, as the trial Judge said, “busting to know what it was about”, and in circumstances where it had been directed that the edits were not meant to hide anything.

15. [51]

    There is little doubt that at least some members of the jury would have worked out what was going on and that there would have been discussion in the jury room about the matter. This is not to speculate as to what went on in the jury room, but simply to acknowledge the collective intelligence and engagement of a jury in criminal proceedings. The jury was not directed not to speculate. It was simply told that the officer’s evidence was ruled to be inadmissible and that there was only one allegation of sexual assault. The officer was then recalled, asked the same question and provided a different answer.

16. [52]

    While the directions were fashioned with the assistance of counsel then appearing for the accused, Mr Smith’s firm and repeated stance was that the problem could not be cured by direction.

17. [53]

    Part of the direction provided to the jury – that the officer “gave brief evidence about what he thought MH said to him about what had happened in the bathroom” – was also problematic. The implication that the officer was mistaken in his recollection of the conversation was almost certainly misleading: cf Cook (a pseudonym) v The King [2024] HCA 26 at [57]; (2024) 98 ALJR 984. Given that MH alleged from the outset that there were two sexual assaults in the bathroom, there is no doubt that that is what she told Mr Guerrera.

18. [54]

    I have taken into account the fact that the incident was the result of a mistake and not a deliberate act on the part of the Prosecutor or the police officer. While that has been held to be relevant, it would be an extremely rare case where such evidence would be adduced deliberately by a Prosecutor.

19. [55]

    For those reasons, I was and remain satisfied that the adducing of the evidence in all of the circumstances resulted in a trial that was conducted otherwise than in accordance with the law and that the “irregularity ‘could realistically have affected the verdict of guilt that was in fact returned by the jury’”: Ilievski (per Beech-Jones J at [13] applying Hofer).

The proviso

1. [56]

   I turn then to what was described in Hofer at [41] as “the larger and different question raised by the proviso”. This is a reference to an intermediate appellate court’s power to dismiss an appeal against a criminal conviction despite a finding of legal error or miscarriage “if it considers that no substantial miscarriage of justice has actually occurred”. In New South Wales, those are the final words of s 6(1) of the Criminal Appeal Act. It is language that has been considered in a multitude of High Court decisions going back 70 years: see, for example, Mraz v The Queen (1955) 93 CLR 493; [1955] HCA 59 (“Mraz”), Quartermaine v The Queen (1980) 143 CLR 595; [1980] HCA 29, Wilde v The Queen (1988) 164 CLR 365; [1988] HCA 6 (“Wilde”), TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46, Crofts (supra), Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81 (“Weiss”), AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8, Gassy v The Queen (2008) 236 CLR 293; [2008] HCA 18, Cesan v The Queen (2008) 236 CLR 358; [2008] HCA 52, Pollock v The Queen (2010) 242 CLR 233; [2010] HCA 35, Handlen v The Queen (2011) 245 CLR 282; [2011] HCA 51, Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92; [2012] HCA 14 (“Baiada Poultry”), Baini v The Queen (2012) 246 CLR 469; [2012] HCA 59, Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7 (“Kalbasi”), Lane v The Queen (2018) 265 CLR 196; [2018] HCA 28 (“Lane”), Hofer (supra), and Orreal v The Queen (2021) 274 CLR 630; [2021] HCA 44 (“Orreal”).

2. [57]

   This is not an occasion on which to review these authorities or make an heroic attempt at summarising and synthesising their import and nuance: cf, for example, Medich v R [2021] NSWCCA 36; (2021) 390 ALR 398 at [899]-[914]. However, for the sake of transparency, a few observations should be made before explaining briefly why I was unable to conclude that no substantial miscarriage of justice actually occurred.

3. [58]

   Up until the publication of the decision in Weiss, it was generally accepted that the proviso ought not to be applied where the accused person had lost “a chance which was fairly open to [them] of being acquitted”: see, for example, Mraz at 514 and Wilde at 381. In Weiss the High Court essentially rejected that approach saying at [32]-[33] that it tended to “mask the nature of the appellate court’s task” and ought not to be seen as a substitution for the statutory language.

4. [59]

   Weiss required an appellate court “to make its own independent assessment of the evidence and determine whether, making due allowance for the ‘natural limitations’ that exist in the case of an appellate court proceeding wholly or substantially on the record, the accused was proved beyond reasonable doubt to be guilty.” The High Court has since made it clear that this is not “an exercise in speculation or prediction” as to what a putative jury may do, and that the court’s satisfaction of proof of guilt beyond reasonable doubt was “a necessary, but not a sufficient, condition of the application of the proviso”: see, for example, Baiada Poultry at [29], Kalbasi at [112]-[113] and Hofer at [54].

5. [60]

   Some errors are so fundamental to the “presuppositions of the trial” that the proviso ought not to be applied, although the High Court has made it clear that attaching labels to such errors, such as “fundamental defect”, may distract from the ultimate question: see, for example, Baiada Poultry at [23] and Lane at [46].

6. [61]

   The respondent was correct to submit in the present case that the irregularity was not so fundamental that it prevented the jury from performing its function. She was also correct to submit that the fact that the jury returned a guilty verdict “cannot be discarded from the appellate court’s assessment of the whole record of trial”: Weiss at [43]. Conversely, this is not a case in which it is “possible to conclude that the error made at trial would, or at least should, have had no significance in determining the verdict”: Weiss at [43]. In Lane it was emphasised at [48] that:

7. [62]

   See also the observations of the dissenting judges concerning the respective roles of the jury and the appellate court in Wilde at 375 (Deane J) and at 384 (Gaudron J).

8. [63]

   The respondent submitted that the applicant’s evidence should be put to one side (that is, rejected) on the basis that parts of it were inconsistent with other evidence in the case concerning the extent of MH’s immobility and the fact that he initially said he was wearing gloves (or acting in accordance with hospital protocols) but, in truth, failed to do so despite his 15 years of experience and knowledge of the hospital’s protocols. She submitted that the complainant’s evidence was compelling and was supported by the immediacy of her complaint, her visible distress when speaking to others and the notes she made in her diary.

9. [64]

   I have considered the whole of the evidence adduced at the trial. This included the transcript of the evidence given by the complainant at the trial, which was provided in the application books by agreement between the parties.

10. [65]

    I accept that MH appeared to provide a strong and mostly consistent account. The “complaint” witnesses (Claire Competiello, Andrea Beard, Kerry Clare and the two police officers) each provided evidence that could support MH’s account. Again, what MH said to these witnesses was largely, although not entirely, consistent. However, MH’s accounts of turning around in the shower were somewhat inconsistent and are not easy to reconcile with her physically holding onto the metal rails as the events unfolded. That is a relatively minor matter and does not lead me to disbelieve her evidence, certainly not based on a reading of the transcript. However, it was a matter to be considered in assessing the strength of the prosecution case which was based largely on an assessment of the credibility of the two main witnesses. Based on the limited parts of her evidence I watched to consider the conspicuousness of the edits to the recording, the complainant appeared to be a believable witness. However, I did not watch the entire recording: cf SKA v The Queen (2011) 243 CLR 400 at 410-412; [2011] HCA 13 at [27]-[35].

11. [66]

    There is no doubt that Mr Kibby’s account had some flaws. He initially claimed (in writing) that he acted “as per hospital protocol” but around a month later acknowledged that he was not wearing gloves. This was a breach of the protocols with which he said he complied. This inconsistency in his account does not result in a wholesale rejection of his version of events. That version essentially comprised a consistent denial of wrongdoing. He provided an innocent account when he was called upon to respond by his supervisors at the hospital. At trial, he gave evidence in which he consistently and firmly denied the allegation that he placed his finger in the complainant’s anus. I am unable to reject his version of events based on other evidence as to the extent of MH’s immobility.

12. [67]

    It is not a question of choosing between these two versions or of preferring one version over the other. It is necessary to be satisfied – based only on the record of the trial – that the accused’s denial can safely be rejected to the criminal standard and that the evidence otherwise established his guilt beyond reasonable doubt.

13. [68]

    While the factual landscape is different, the case has some similarities to Orreal where Gordon, Steward and Gleeson JJ said:

14. [69]

    Their Honours stressed (at [41]) the “natural limitations” of determining guilt based “wholly or substantially on the record”. Kiefel CJ and Keane J agreed that the majority of the Queensland Court of Appeal erred in applying the proviso in that case and emphasised at [20] the significance of the fact that the case “[turned] on issues of contested credibility”.

15. [70]

    Based purely on the record of the trial, I was unable to conclude that no substantial miscarriage of justice actually occurred in Mr Kibby’s trial. At its heart, this was a case of word against word where the credibility of the two witnesses was essential to an evaluation of whether the applicant’s guilt was established beyond reasonable doubt.

16. [71]

    I concluded that the single ground of appeal must be upheld and that the proviso should not be applied.

Disposition

1. [72]

   The applicant submitted that it was an appropriate case for the Court to quash the conviction and to enter a verdict of acquittal, rather than order that there be another trial. There were powerful arguments in favour of that course. This was the fourth occasion where the applicant was put to trial, he served more than a year in full-time custody between the time of the conviction and the disposition of the appeal, and there were real difficulties in conducting the re-trial in the face of his acquittal on the other allegation of sexual assault. Those difficulties will subsist in any further re-trial.

2. [73]

   However, ultimately, I agreed with the respondent’s submission that the question of whether there should be a fifth trial should be left in the hands of the Director of Public Prosecutions. The custodial component of the sentence imposed – against which there was quite properly no appeal – was substantially longer than the period Mr Kibby has spent in custody: R v Kibby [2023] NSWDC 471. Further, it seems the first two trials were aborted reasonably quickly after they commenced. In the circumstances, the discretion as to whether to proceed with the re-trial should be exercised by the Director, rather than this Court deciding to enter a verdict of acquittal.

3. [74]

   Accordingly, I agreed there should be an order for a re-trial and to allow the Director to decide whether that trial should proceed.

Orders

1. [75]

   It is for those reasons that I joined in the following orders:

   1. (1)

      Grant the applicant leave to appeal against his conviction.

   2. (2)

      The appeal is allowed.

   3. (3)

      The conviction is quashed.

   4. (4)

      Order a re-trial in the District Court.

   5. (5)

      List the matter for mention in the District Court on 8 November 2024.

   6. (6)

      Conditional bail granted.

2. [76]

   RIGG J: I joined in the orders of the Court on 25 October 2024 for the reasons given by Hamill J.