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

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

A direction about 'proper medical purpose' under s 61H(a) of the Crimes Act 1900 is not required unless there is evidence from which a reasonable inference can be drawn that acts were for a proper medical purpose; in this case, there was no viable evidence supporting such an inference. A direction about no typical response to sexual assault should be given, reflecting CCA authority, though the statutory requirement does not apply. The usual right to silence direction will be omitted per tactical application by the accused. The jury will be directed about possible alternative 'pathways' for knowledge of lack of consent, and the need for unanimity as to outcome, not path.

Parties
Crown: Rex; Accused: Kieran Kirby
Jurisdiction
Australia
Judgment Date
28 August 2023
Procedural Posture
Criminal / Jury Directions Ruling Prior to Summing Up
Outcome
Procedural directions made for summing up
Legal Topics
Sexual Assault, Jury Directions, Proper Medical Purpose, Right to Silence, Victim Response Evidence
Criminal Law Sexual Assault Jury Directions Proper Medical Purpose Right to Silence Victim Response Evidence

Case Brief

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Parties

Rex

Crown

Kieran Kirby

Accused

Procedural Posture

Criminal / Jury Directions Ruling Prior to Summing Up

Legal Issues

  1. 1 Whether a direction on proper medical purpose is required for the definition of sexual intercourse under s 61H(a) of the Crimes Act 1900
  2. 2 Whether a 'no typical response' direction is required concerning victim responses to alleged sexual assault
  3. 3 Whether a 'right to silence' direction should be given where the accused's previous sworn evidence is read to the jury

Ratio Decidendi

A direction about 'proper medical purpose' under s 61H(a) of the Crimes Act 1900 is not required unless there is evidence from which a reasonable inference can be drawn that acts were for a proper medical purpose; in this case, there was no viable evidence supporting such an inference. A direction about no typical response to sexual assault should be given, reflecting CCA authority, though the statutory requirement does not apply. The usual right to silence direction will be omitted per tactical application by the accused. The jury will be directed about possible alternative 'pathways' for knowledge of lack of consent, and the need for unanimity as to outcome, not path.

Court Disposition

Procedural directions made for summing up

Orders

  • No direction on proper medical purpose to be given
  • A direction will be given about no typical response to sexual assault