Kibby v R

en (2002) 212 CLR 124; [2002] HCA 46 Ulutui v R (2014) 41 VR 676; [2014] VSCA 110 Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81 Wilde v The Queen (1988) 164 CLR 365; [1988] HCA 6 Texts Cited: N/A Category: Principal judgment Parties: Kieran Kibby (Applicant) Rex (Respondent) Representation: Counsel: P Boulten SC and S Howell (Applicant) Ann Bonnor (Respondent)

Solicitors: Ian Byrne Criminal Lawyer (Applicant) Office of the Director of Public Prosecutions (Respondent) File Number(s): 2021/00039479 Publication restriction: Pursuant to s 578A of the Crimes Act 1900 (NSW) there is to be no publication of the complainant's name. Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Citation: R v Kibby [2023] NSWDC 471 Date of Decision: 24, 27 August 2023 (judgment and conviction), 27 October 2023 (sentence) Before: Newlinds SC DCJ File Number(s): 2021/00039479

HEADNOTE [This headnote is not to be read as part of the judgment] The applicant was charged with two counts of aggravated sexual intercourse without consent which allegedly occurred at about the same time when he was employed as a wardsman at a private hospital. The complainant was a patient at the hospital and the incident allegedly occurred in a bathroom. One count alleged digital penetration of the anus and the second count alleged digital penetration of the vagina. At his third trial (two earlier trials having been aborted during COVID) a jury found the applicant not guilty of the second allegation (digital penetration of the vagina) but was unable to reach a verdict in relation to the other count. At his re-trial before Judge Newlinds SC and a jury, the applicant was found guilty of the count alleging digital penetration of the anus. The applicant sought leave to appeal against his conviction on the single ground that there was a miscarriage of justice due to the failure of the trial Judge to discharge the jury. To give proper effect to the acquittal in the third trial, the parties agreed that all reference to the allegation of digital-vaginal penetration should be removed from the recording of the complainant's evidence and the transcript of the applicant's evidence. Similarly, witnesses who gave evidence of conversations they had with the complainant and the applicant were instructed not to refer to the second allegation. All recordings and documents tendered at the re-trial had been edited to remove all references to that allegation. The last witness in the trial was a police officer. He was asked about the conversation he had with the complainant and gave evidence that the complainant told him that two sexual assaults occurred in the bathroom. Counsel who appeared for the applicant at trial immediately made an application that the jury be discharged. The Prosecutor's initial response was that the irregularity was "fatal" but withdrew that concession and argued that the matter could be cured by judicial direction. The next day, the trial Judge refused the application to discharge the jury and provided the jury with a direction that it should disregard the evidence of what the officer "thought" he was told by the complainant. The whole of the officer's evidence was withdrawn, he was recalled to give evidence again and provided a different account of the conversation. The issues for the Court were: Whether the irregularity amounted to a miscarriage of justice under s 6(1) of the Criminal Appeal Act 1912 (NSW) despite the directions provided by the trial Judge. Whether the proviso to s 6(1) should apply so as to dismiss the appeal on the basis that no substantial miscarriage of justice actually occurred. Whether a verdict of not guilty should be entered or a re-trial ordered. The Court allowed the appeal and ordered that there be a re-trial, finding: As to issue (1) per Hamill J (Davies and Rigg JJ agreeing) There was a miscarriage of justice in the sense that the applicant did not have a trial according to law to his prejudice and that the irregularity could realistically have affected the verdict (at [31]-[55]). Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36 and Ilievski v R; Nolan v R (No 2) (2023) 112 NSWLR 375; [2023] NSWCCA 248 applied. The following matters were relevant to that conclusion. The trial was a relatively short one and the incident occurred on the fourth day of the trial just a couple of days after conspicuously edited recordings and documents were tendered (at [50]). The jurors were directed before the recording of the complainant's evidence was played that the editing was not designed to "hide anything" from them. This was wrong and highlighted the problem when it arose a few days later (at [44], [50]). The jury was not required to separate immediately after the incident and had many hours together before being provided with any directions calculated to cure the prejudice (at [39]), [50]). While the appeal was against the conviction, not the judgment refusing the discharge, the trial Judge seemed to place the bar too high when his Honour said he should only discharge if the impugned evidence "will necessarily result in a miscarriage of justice" (at [46]-[47]). The immediate reactions of the parties and trial Judge were significant. The trial Judge knew immediately that the problem was the evidence that there were "two sexual assaults". The Prosecutor instinctively thought the incident was "fatal" to the integrity of the trial although she withdrew that concession. Defence counsel immediately sought an order discharging the jury (at [18], [49]). The editing of the recording was conspicuous as were edits to various notes made by the complainant in a notebook (at [40]-[41], [64]). The directions provided did not cure the problem and were problematic in the sense that they suggested (probably wrongly) that the officer gave evidence of what he "thought" the complainant said (at [53]). The impugned evidence was given by the last live witness at the trial. It was not a case conducted on the basis that the incontrovertibility of the acquittal could be maintained by directing the jury, particularly at that late stage of the trial (at [14], [44]). 1. Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22 and The Queen v Storey (1978) 140 CLR 364; [1978] HCA 39 applied. 2. Ulutui v R (2014) 41 VR 676; [2014] VSCA 110 considered and distinguished. As to issue (2) per Hamill J (Davies and Rigg JJ agreeing) The proviso ought not to be applied and it could not be said there was no substantial miscarriage of justice in circumstances where the case was essentially one of word against word (at [64]-[70]). Wilde v The Queen (1988) 164 CLR 365; [1988] HCA 6, Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81, Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7 and Orreal v The Queen (2021) 274 CLR 630; [2021] HCA 44 applied. As to issue (3) per Hamill J (Davies and Rigg JJ agreeing) While there were powerful factors in favour of entering a verdict of acquittal, the decision whether to put the applicant to trial again was a matter better left to the Director of Public Prosecutions in all of the circumstances of the case (at [71]-[73]).

JUDGMENT

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

The earlier trials

1. 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.
2. 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.
3. 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.

The 2023 trial

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.

The impugned evidence

1. 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.
2. 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: "Q. Did MH then tell you about events that had occurred on the Saturday morning in a bathroom at that hospital? A. She did. Q. What did MH say to you about what had happened in the bathroom? A. So MH 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. Q. Did MH say anything about hydrotherapy? About attending a hydrotherapy session? SMITH: I object to that. I would need to have a discussion with my friend about that question. HIS HONOUR: Right. Just hold on there, Detective. SOLICITOR ADVOCATE: Can your Honour just excuse me for a minute? HIS HONOUR: Yes. Just hold on there, Detective. SOLICITOR ADVOCATE: There is just a matter that I wish to raise in the absence of the jury, if I might? HIS HONOUR: Understood. Can I just ask you to go out for five minutes, please?"
3. 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.

Context, the immediate reactions of those in the courtroom and the length of time the jury was absent after the impugned evidence was adduced

1. 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.
2. As soon as the jury left the courtroom, the following exchange is recorded (with my emphasis throughout): "IN THE ABSENCE OF THE JURY HIS HONOUR: Shall we put the witness on mute? SOLICITOR ADVOCATE: Yes. HIS HONOUR: Mute the witness please. AUDIO VISUAL LINK CONCLUDED AT 10.10AM THE WITNESS WITHDREW SOLICITOR ADVOCATE: Can I -- HIS HONOUR: Two sexual assaults. SOLICITOR ADVOCATE: Yes, I tried to move on quickly so that it didn't raise it with them but it's -- SMITH: And I let her and then objected to the next question. But the jury weren't (sic) alive to it. HIS HONOUR: I heard it. SOLICITOR ADVOCATE: It's fatal. They've now heard that the allegation was two sexual assaults. I don't have instructions to make an application but I anticipate the Crown wouldn't oppose an application. HIS HONOUR: What do you want to do? SMITH: I'm sorry. My application is the jury needs to be discharged. I mean we've been navigating this minefield since the start."
3. [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.]
4. 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.

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

1. 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: "IN THE PRESENCE OF THE JURY HIS HONOUR: Good morning, members of the jury. Firstly, can I apologise for yesterday, we just had to have a discussion about a legal matter. I know you're busting to know what it was about, but it was best - the whole reason it happens in your absence is so we can speak freely. It took longer than I hoped, and then I decided to send you home anyway, so I'm sorry about that. And can I also apologise for this morning; again, it's the lifts in the judicial side of the building. I just - it's my fault, I should leave 20 minutes earlier than I do. I'm sorry about that. So, what's going to happen today is we're going to go back to the evidence of Plain Clothes Senior Constable Guerrera, take his evidence. Then, I think there's another agreed fact, which is short, which will be read to you, and then there's going to be the reading of evidence the accused gave on an earlier occasion, and that will take us to the conclusion of the evidence as I understand the position to be. If things go according to timetable, which as you know, they don't always, we should finish sort of not long after lunch, at which point we'll send you home. We'll come back on Monday where we will have the addresses of both sides and my summing up all in one block, which I do think is a better way to proceed it. And, again, on present timetable estimates, you'll be out deliberating sometime not long after lunch on Monday. So, that's the program. So, before we recall Plain Clothes Senior Constable Guerrera, can I just give you one of those directions of law that we have been talking about. So, before he comes back, I want to give you this direction, and as with every other direction of law that I give you, as we discussed at the start, you are required and dutybound to follow it. So, yesterday morning, you'll 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 19 August 2020, and you'll recall that he gave brief evidence about what he thought MH said to him about what had happened in the bathroom on 15 August. As you have heard and as you understand, the Crown case is that on 15 August, the accused sexually assaulted MH when he penetrated her anus with his finger. That's the only allegation that's made by the Crown against the accused. And, of course, the evidence you've heard, most particularly from MH, but also from, I think, everyone else, involves only evidence of that allegation, that is the digital penetration of her anus by the accused using his finger. Now, in those circumstances, what I have done is I have ruled that what Detective Guerrera said was inadmissible and should be taken off the Court record, which means it's not before you as a matter of evidence. Because I have done that, what the police officer said forms no part of the evidence in the case, it's extraneous to the material that you should consider, and it's not part of anything you're entitled to consider when you are considering your verdict. And so, in accordance with your oath, your verdict must be solely based upon the evidence, that is the evidence that is determined by me to be admissible. And for those reasons, you are to ignore - and this is the direction, you're to ignore and put out of your minds what was said by Constable Guerrera in the course of giving those answers yesterday. So, that's the direction I give you. If this was a movie, I'd say something like 'The jury is to disregard that', that's the simple proposition. And what we've decided is that we'd just recall him, we'll re-swear him, and then we'll start from the start again. Yes, Madam Crown? SOLICITOR ADVOCATE: The Crown calls Plain Clothes Senior Constable Matthew Guerrera, giving evidence by way of audio visual link. AUDIO VISUAL LINK COMMENCED AT 10.23AM."

The issues on the appeal and applicable principles

1. 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. 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. 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): "A miscarriage of justice to which s 6(1) of the Criminal Appeal Act refers includes any departure from a trial according to law to the prejudice of the accused. This accords with the long tradition of criminal law that a person is entitled to a trial where rules of procedure and evidence are strictly followed."
4. Gageler J (as the Chief Justice then was) said at [122]-[123] (with citations and footnotes omitted and my emphasis): "Finding a miscarriage of justice post-Weiss is in that way the result of a more precise and confined inquiry than might have been thought to have been indicated pre-Weiss, when the miscarriage of justice ground and the non-application of the proviso were both commonly explained to involve the finding of a loss of a 'real chance of acquittal' or of a 'chance which was fairly open ... of being acquitted'. By reframing the inquiry to be undertaken by an appellate court applying the proviso, Weiss has demanded greater precision in framing the inquiry to be undertaken by an appellate court finding a miscarriage of justice. Except in the case of an error or irregularity so profound as to be characterised as a 'failure to observe the requirements of the criminal process in a fundamental respect', an error or irregularity will rise to the level of a miscarriage of justice only if found by an appellate court to be of a nature and degree that could realistically have affected the verdict of guilt that was in fact returned by the jury in the trial that was had. Only if that threshold is met is a miscarriage of justice established. Only then can a further issue arise of the appellate court going on in the consideration of the proviso to ask and answer the distinct question of whether the court is satisfied that no substantial miscarriage of justice actually occurred. And only where that distinct question arises does the court need itself to be satisfied that the evidence properly admitted at trial established guilt beyond reasonable doubt before it can answer that no substantial miscarriage of justice actually occurred."

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

1. 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. In Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22 ("Crofts"), Toohey, Gaudron, Gummow and Kirby JJ said at 440-441: "It may be accepted that the Court of Criminal Appeal approached the matter with the correct principles in mind. No rigid rule can be adopted to govern decisions on an application to discharge a jury for an inadvertent and potentially prejudicial event that occurs during a trial. The possibilities of slips occurring are inescapable. Much depends upon the seriousness of the occurrence in the context of the contested issues; the stage at which the mishap occurs; the deliberateness of the conduct; and the likely effectiveness of a judicial direction designed to overcome its apprehended impact. As the court below acknowledged, much leeway must be allowed to the trial judge to evaluate these and other considerations relevant to the fairness of the trial, bearing in mind that the judge will usually have a better appreciation of the significance of the event complained of, seen in context, than can be discerned from reading transcript. Nevertheless, the duty of the appellate court, where the exercise of discretion to refuse a discharge is challenged, is not confined to examining the reasons given for the order to make sure that the correct principles were kept in mind."
3. 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.

The proviso

1. 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. 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. 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.

Disposition

1. 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. 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. 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. It is for those reasons that I joined in the following orders: 1. Grant the applicant leave to appeal against his conviction. 2. The appeal is allowed. 3. The conviction is quashed. 4. Order a re-trial in the District Court. 5. List the matter for mention in the District Court on 8 November 2024. 6. Conditional bail granted.
2. RIGG J: I joined in the orders of the Court on 25 October 2024 for the reasons given by Hamill J.

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