R v Dilosa - [2023] NSWSC 959

Supreme Court

New South Wales

Medium Neutral Citation: R v Dilosa [2023] NSWSC 959
Hearing dates: 29 June 2023
Date of orders: 29 June 2023
Decision date: 29 June 2023
Jurisdiction: Common Law
Before: Sweeney J
Decision:
1. The accused is put in charge of the jury in respect of count 1 on the indictment only.

Catchwords:
CRIMINAL PROCEDURE — Trial — murder — plea of guilty to charged alternative of accessory after the fact not accepted by Crown — whether accused to be put in charge of the jury on both counts

Legislation Cited:
Criminal Procedure Act 1986 (NSW)

Cases Cited:
R v Adam Orlowsky [2008] NSWDC 368
R v Cole [1965] 2 QB 388
R v Hazeltine [1967] 2 QB 857
R v Murphy (1988) 52 SASR 186
R v Tailford [2021] NSWSC 248
R v Thompson (Court of Criminal Appeal, Street CJ, O’Brien and Cantor JJ, 24 June 1976)

Texts Cited:
Nil

Category: Procedural rulings
Parties:
Rex (Crown)
Justin Dilosa (Accused)
Representation:
Counsel:
J Stanhope (Crown)
A Webb (Accused)
Solicitors:
Solicitor for Public Prosecutions (Crown)
Adrian Kiely Legal (Accused)

File Number(s): 2019/293729
Publication restriction: Nil

JUDGMENT (EX TEMPORE)

Yesterday the Crown presented an indictment against Justin Kent Dilosa, which charged him, in count 1, with an offence of murder and in count 2, in the alternative to count 1, that another person committed a murder and that he received, harboured, maintained and assisted that person knowing she had murdered Danielle Easey, which is a charge referred to as an "accessory after the fact" charge.
When Mr Dilosa was arraigned before the jury panel he pleaded not guilty to count 1 and guilty to count 2.
After the jury was empanelled I had the accused put in charge of the jury in respect of count 1 only. Later in the day, after the jury had been sent away and we were discussing some procedural issues, an issue arose as to whether the accused should have been put in charge of the jury in respect of count 2, to which he pleaded guilty.
I note that the transcript records, and my recollection is, when Mr Dilosa entered his plea of guilty to the alternative count, count 2, the Crown Prosecutor said "The plea to the alternative is not accepted by the Crown in full satisfaction." The plea was not withdrawn and today Mr Webb, counsel for Mr Dilosa, says the plea has not been withdrawn and remains on foot. So, the situation arises for consideration whether Mr Dilosa should be put in charge of the jury in respect of count 2, the alternative count to which he pleaded guilty.
Today Mr Crown says that based on the authorities, which he has considered, he is of the view that the course taken yesterday is the appropriate course. Mr Webb, for Mr Dilosa, seems uncertain that the position is as crystal clear as the Crown submitted.
The relevant parts of the Criminal Procedure Act, which seem to me to apply,…

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 Dilosa

Details

AGLC: R v Dilosa [2023] NSWSC 959
Case: [2023] NSWSC 959
Decision Date: 29 June 2023

CaseChat Overview and Summary

The case of R v Dilosa involved a defendant who was charged with murder and acting as an accessory after the fact. The accused entered a plea of guilty to the charge of being an accessory after the fact. However, the Crown rejected the plea, insisting that the trial proceed on both counts. The matter was heard in the Supreme Court of Victoria, where the court was required to decide whether the accused should be put in charge of the jury on both counts despite the plea of guilty to the accessory charge.

The primary legal issue before the court was whether it was appropriate to instruct the jury on the charge of accessory after the fact given that the accused had pleaded guilty to this charge, but the Crown declined to accept this plea. The court considered the implications of such a plea on the trial process and the jury's role in deciding the case. It was necessary to determine whether the court should direct the jury to consider the accessory charge as admitted by the accused or proceed with the jury being instructed on both counts, including the rejected guilty plea.

The court held that while the plea of guilty to the accessory charge was not accepted by the Crown, the accused should still be put in charge of the jury on that count. The court reasoned that the acceptance of a guilty plea by the Crown is not a prerequisite for instructing the jury on that count. Instead, the court must consider the evidence and the legal standards applicable to each charge. The court concluded that the jury should be directed to find the accused guilty of the accessory charge, while also considering the murder charge. The court's decision ensured that the jury's role in the trial process was not undermined and that all charges were properly addressed according to the evidence presented.

The final orders of the court were that the accused be found guilty of both charges: murder and acting as an accessory after the fact. The court directed the jury to return a guilty verdict on both counts, reflecting the evidence and the legal principles applied during the trial.

Orders