R v Dilosa; R v McHenry

[2021] NSWSC 1470

Supreme Court

New South Wales

Medium Neutral Citation:

R v Dilosa; R v McHenry [2021] NSWSC 1470

Hearing dates:

10 November 2021

Date of orders:

10 November 2021

Decision date:

11 November 2021

Jurisdiction:

Common Law

Before:

Wilson J

Decision:

The notice of motion filed by the accused Dilosa on 9 November 2021 is dismissed.

Catchwords:

CRIMINAL PROCEDURE — pre-trial hearing — murder — application for separate trials — accounts given by co-accused to police implicating accused — accounts repeated to mental health professionals — whether evidence highly prejudicial to applicant such that case against accused impermissibly stronger — whether unfairness can be remedied by jury directions — whether possible to balance public interest of trials heard together and any prejudice to co-accused — possible prejudice can be ameliorated by direction — application refused

Legislation Cited:

Criminal Procedure Act 1986 (NSW)

Cases Cited:

Caleo v R [2021] NSWCCA 179

Gilbert v The Queen (2001) 201 CLR 414; [2000] HCA 15

R v Annakin (1988) 17 NSWLR 202; (1988) 37 A Crim R 131

R v Baartman (Court of Criminal Appeal (NSW), 6 October 1994, unrep)

R vBeavan (1952) 69 WN 140

R v Chami (2002) 128 A Crim R 428; [2002] NSWCCA 136 at [12]

R v Fernando and Anor [1999] NSWCCA 66

R v Grondkowski (1946) 1 KB 369

R v Middis (Supreme Court (NSW), Hunt J, 27 March 1991, unrep)

Symss v R [2003] NSWCCA 77

Trotter v R [2016] NSWCCA 57

Webb v The Queen; Hay v The Queen (1994) 181 CLR 41; [1994] HCA 30

Category:

Procedural rulings

Parties:

Regina (Crown)
Justin Dilosa (Accused Dilosa)
Carol McHenry (Accused McHenry)

Representation:

Counsel:

Proceedings: 2019/00293729
J Stanhope (Crown)
A Webb (Accused Dilosa)

Proceedings: 2019/00293779
J Stanhope (Crown)
A Evers (Accused McHenry)

Solicitors:

Proceedings: 2019/00293729
Solicitors for Director of Public Prosecutions (Crown)
Adrian Kiely Legal (Accused Dilosa)

Proceedings: 2019/00293779
Solicitors for Director of Public Prosecutions (Crown)
Legal Aid NSW (Accused McHenry)

File Number(s):

2019/00293729; 2019/00293779

Publication restriction:

Nil

Judgment

1. HER HONOUR: The accused, Justin Dilosa, stands charged with the murder of Danielle Easey, on 17 August 2019 at Narara in this State. He was jointly indicted with Carol Marie McHenry, who faces a further count, in the alternative, of accessory after the fact to the murder. By Notice of Motion filed on 9 November 2021 the accused sought an order for his trial to be heard separately to that of the co-accused McHenry.

2. The accused relied upon material largely drawn from the brief of evidence served upon him by the Crown, together with two expert reports that reflect evidence it is anticipated will be led in the case of Ms McHenry. It is the latter which has, the Court was informed, led to the present application being filed. The evidence adduced in support of the Motion is:

1. An affidavit of Adrian Kiely affirmed on 9 November 2021;

2. A copy of the transcript of an electronically recorded interview between police officers and the co-accused McHenry (Ex. NM1);

3. A copy of the transcript of a second such interview between police officers and Ms McHenry (Ex. NM2);

4. A copy of the transcript of an electronically recorded interview between police officers and the accused Dilosa (Ex. NM3);

5. A report of Anne Lucas, forensic psychologist, of 27 October 2021 (Ex. NM4);

6. A report of Dr Andrew Ellis, forensic psychiatrist, of 26 October 2021 (Ex. NM5); and

7. A copy of the Crown case statement against both accused (Ex. NM6).

3. The Crown opposed the application; the co-accused McHenry takes a neutral position.

4. By way of background, all the material other than the expert reports has been available to the accused since soon after his arrest in September 2019. The existence of the expert reports was disclosed to the Crown and the accused on 28 October 2021 when the legal representatives for Ms McHenry filed a Notice pursuant to s 143 of the Criminal Procedure Act 1986 (NSW). The reports themselves were provided to the accused on 2 November 2021.

5. Prior to becoming aware of the contents of the reports the accused accepted that his trial was properly held jointly with that of Ms McHenry. No application for a separate trial had been filed by him or Ms McHenry, despite orders having been made for any such application to be filed by 27 August 2021.

6. It is thus the evidence of the experts which, when taken with Ms McHenry’s accounts of relevant events in her two police interviews, the accused contended requires his trial to be heard separately to that of his co-accused.

7. Having considered the evidence and heard the submissions of the parties, the Court refused the application, and the Notice of Motion was dismissed, on 10 November 2021. Reasons for that order were reserved until today.

The Evidence

8. The evidence is in three categories: evidence of what the co-accused Ms McHenry said to police in her two interviews; evidence of what she said to forensic experts, together with the opinion each thereafter formed; and the evidence summarised by the Crown Case Statement.

The Police Interviews

9. As a general summary, in each of her interviews the co-accused blamed the accused for the murder of Danielle Easey and asserted that she assisted the accused to conceal the crime only because she was frightened of him. Her accounts of events were progressively given, and there are inconsistencies both within and between them.

10. In the interview of 19 September 2019 Ms McHenry gave an account of having been in the company of the accused and Ms Easey in the days leading up to Ms Easey’s death. She initially told investigating officers that she, Ms Easey and the accused had arrived at her home at Narara on 17 September 2019 after some days away consuming “ice” or methylamphetamine, and she and Ms Easey had fallen asleep; she in the lounge room and Ms Easey in the main bedroom. Ms McHenry said that she was later awoken by the accused who told her they had to leave so that they could go to his home and feed his dogs. She said that he told her that Ms Easey had already left.

11. Some days later, on returning to her own home, the co-accused said she observed blood on bedding in her bedroom and contacted the accused to ask what had happened. She later met with Mr Dilosa who told her that he had “taken care of Danielle”, something Ms McHenry said she understood to mean that he had killed her. Ms McHenry said that the accused told her he did it because Ms Easey was intending to have a home invasion committed against Ms McHenry.

12. As the co-accused continued to answer questions from investigating police officers, her account of events developed. She gave some information that she “guessed” concerning the means by which Ms Easey’s body was removed from the Narara house and concealed; and, at Q&A1048 raised for the first time an account of having witnessed part of an altercation between the accused and Ms Easey involving a verbal argument that she had heard.

13. Ms McHenry conceded that she had taken steps to “make sure that people still thought [Ms Easey] was alive” (Q&A1115) but said that she did so at Mr Dilosa’s direction. She used Ms Easey’s mobile telephone and Facebook account to make contact with the deceased’s mother, representing the messages to have been sent by Ms Easey. She said she did that because she “had no choice”, being frightened that the accused would kill her, as she was a witness.

14. Later still the co-accused returned to her account of what had happened at the Narara house, saying that she had woken to the sound of arguing and saw “out of the corner of [her] eye” the accused “hit” the deceased (Q&A1135). Although Ms McHenry initially maintained that she had only seen Mr Dilosa’s hand “come down”, she later said that she had observed him strike Ms Easey with a claw hammer, a hammer that may have been taken from her toolbox.

15. Ms McHenry claimed that she helped the accused conceal the crime because she was frightened of him and did not go to the police and report what she knew for the same reason. She claimed however (at Q&A1391), that she deliberately “set up a trail” to lead police to her so that she could “help”.

16. Although Ms McHenry denied any involvement in concealing Ms Easey’s body, she acknowledged that the items used to wrap the body had come from her house and conceded that she had been at the Narara house when Mr Dilosa had moved Ms Easey’s body into a long cupboard for transport.

17. The co-accused denied any involvement in Ms Easey’s murder. She said of Mr Dilosa:

“He scares me. He’s already hurt me and my kids once” (Q&A1737).

18. A second interview was conducted with the co-accused on 29 October 2019 after her father told police officers that she wished to speak with them. On that occasion Ms McHenry told the interviewing officers that they should “check Jeremy [Princehorn] out” as he had helped the accused move Ms Easey’s body (Q&A47; 50).

19. She reiterated her claim that the accused had “hurt” her before and “hurt” her kids before, although conceding that she had herself hit Mr Dilosa on an occasion, causing him a “black eye” (Q&A60). She went on to give an account of “abuse” by the accused of her children, saying that “apparently” the accused had done things to her children, such as tipping water over them and cutting one child’s hair without permission (Q&A62).

20. Ms McHenry said that, although she could not go into detail on legal advice, she had more information to give police, having “blocked a lot of this out” because of the trauma of it. She referred to her own history of domestic violence as the reason she had blocked out some of what she knew. She said she had a distinct memory of waking in the Narara house on 17 August 2019 to screaming, and hearing Mr Dilosa saying, “You know why this is happening”.

21. She described having seen the accused hit Ms Easey on the head with a hammer, before grabbing a knife from his clothing and stabbing her. Ms McHenry said that she had felt shocked and afraid, and feared that the accused could hurt her or her children. She said her fear was due to the fact that the accused was “an arsehole” (Q&A129).

22. The co-accused provided some information about the destruction of the knife by the accused and Mr Princehorn.

23. Ms McHenry denied having told anyone that it was she who stabbed Ms Easey.

24. The accused’s interview of 19 September 2019 largely consists of him asserting his right to silence. Of Ms McHenry he said only that she was “mentally ill”. He denied murdering Ms Easey or disposing of her body.

The Expert Evidence

25. Anne Lucas is a Consultant Forensic Psychologist holding both a Bachelor and a Master of Arts (Psychology), and some related diplomas. She was asked to see the co-accused and did so for a period of two hours via an audio-visual link, on 20 October 2021. She had been provided with the Indictment, the Crown Case Statement, some medical records, records from the Department of Family and Community Services (“FACS”), material produced by NSW Police under subpoena, and some material relating to the co-accused’s antecedents and charges against her.

26. Ms Lucas took a history from the co-accused and reviewed the documentary material. The documentary material largely related to matters unconnected to the accused, including a police report or other material concerning a sexual assault Ms McHenry reported when she was 17 years of age; records of domestic violence the co-accused suffered at the hands of partners other than Mr Dilosa; and concerns reported by FACS for the welfare of Ms McHenry’s children because of her drug abuse and mental health issues. The only material that appears to refer to the accused related to reports in June 2018 of “physical and psychological harm” to Ms McHenry’s children “as a result of being exposed to domestic violence by” him ^[1] . One of the children was seen to have what appeared to be fingertip bruises on his jawline and complained of the accused having a “gun”, and forcibly restraining the child.

    1. Report of Anne Lucas of 27 October 2021; Ex. NM4, [2].

27. The history given by Ms McHenry included an account of having been the victim of a sexual assault when she was aged 17 years, and also of domestic violence at the hands of former partners. She reported that Mr Dilosa had never been violent towards her but had “undermined her psychologically” ^[2] . She said that he habitually carried a knife, had spoken about hurting [other] people and, later, “become abusive towards her children” ^[3] . Ms McHenry said that the accused had put socks in her child’s mouth, slapped a child, thrown water on her children, cut off the hair of her children, and put a toy gun to one child’s head. It is not clear from the report whether these were things Ms McHenry had witnessed herself, or whether she had become aware of them from others.

    2. Ibid, [26].

    3. Ibid, [27].

28. Although Ms McHenry said she had been involved in a relationship with the accused, he had left the house at her insistence and the relationship ended. Later, after she became involved in another violent relationship, the co-accused told Ms Lucas that she had sought protection from the accused. Thereafter she spent more time with Mr Dilosa, both caught up with him in the acquisition and use of prohibited drugs.

29. In the period leading up to Ms Easey’s death the co-accused reported leading “a chaotic, heavily drug involved lifestyle” ^[4] . After it, she increased her drug use.

    4. Ibid, [47].

30. The co-accused was co-operative with the interview and assessment process, and did not display any signs of thought disorder, delusions, hallucinations or depressive cognition. She was fully oriented. She said she experienced depression from about the commencement of her adolescent years and described symptoms of trauma related anxiety. Ms McHenry referred to Ms Easey’s death as a traumatic event for her, also citing the sexual assault upon her in 2005 and years of domestic violence as leaving her with feelings of anger, horror and guilt. She was mistrustful of others and expressed concerns for her safety.

31. On administering the Personality Assessment Inventory (“PAI”) Ms Lucas concluded that Ms McHenry displayed personality patterns consistent with those of an individual experiencing “marked distress and severe impairment” ^[5] . She endorsed difficulties consistent with depression and the fears and anxieties she expressed were consistent with post-traumatic distress. She has problematic personality traits, including being impulsive and prone to self-destructive and risk-taking behaviours. Ms Lucas suggested that Ms McHenry may have a Borderline Personality Disorder, a Major Depressive Disorder, and a Post-Traumatic Stress Disorder (“PTSD”).

    5. Ibid, [71].

32. Ms McHenry denied any involvement in the murder of Ms Easey, claiming only to have witnessed part of the attack upon the deceased by the accused. She claimed to be fearful of the accused and said that she aided Mr Dilosa to conceal Ms Easey’s murder because she was both numb and frightened. She also referred to the effect upon her of having consumed methylamphetamine during a four-day binge immediately prior to the murder as a factor that had an impact upon her capacity to exercise sound judgment.

33. She explained her failure to notify police of what she had seen by her fear of the accused, and the fact that he never “let her out of his sight” ^[6] .

    6. Ibid, [88].

34. On the basis of the history given to her by Ms McHenry and the results of the PAI, Ms Lucas opined that the co-accused has likely diagnoses of a Borderline Personality Disorder, a Major Depressive Disorder, and PTSD. Her impulsiveness likely placed her at risk of entering violent relationships.

35. Ms Lucas said, at [96] – [97]:

“Whilst she did not describe Mr Dilosa as having been physically violent towards her, she reported that he maintained a persona of threat, he carried a knife with him everywhere and spoke of committing violence towards other people. She described incidents where he was violent towards her children which can also be a form of domestic violence/control and coercion. According to Ms McHenry, she was frightened of Mr Dilosa and in the context of the violence she experienced in other intimate relationships and the trauma symptoms she continues to experience this is understandable.

Ms McHenry has denied any liability for the murder of Ms Easey, however she maintained she had witnessed part of Mr Dilosa’s fatal assault on Ms Easey. She described having felt shock, fear and then ‘numbness’ at what she had seen. The dissociation or psychological distancing she described having experienced at the time was consistent with a psychological defence mechanism in which an individual supresses thoughts and emotional experience to mentally distance themselves from trauma when they believe that physical escape is not possible. Disturbances in time, sense, memory and concentration are reported during such dissociation.” [Footnote omitted]

36. Ms Lucas concluded, at [99]:

“Ms McHenry’s description of her fear of Mr Dilosa in the context of her complex psychological/mental health presentation appeared, by the account she provided, to have played a role in her assisting him to conceal the murder of Ms Easey and her failure to report the event to the police.”

37. Dr Ellis is a forensic psychiatrist who saw the co-accused via audio-visual link on 15 October 2021, at the request of her lawyers. The doctor was provided the same material that Ms Lucas was given.

38. Dr Ellis noted that the co-accused is presently prescribed quetiapine and escitalopram, and her mood is stable. She has in the past been prescribed anti-depressant, anti-psychotic, and anti-convulsant medications. Dr Ellis referred to earlier medical notes which recorded diagnoses of Borderline Personality Disorder and a Major Depressive Disorder (in 2014), and a Bipolar Disorder Type II in 2018. The co-accused gave a history of long years of heavy drug abuse.

39. The co-accused gave Dr Ellis a history of a sexual assault in her teenage years and experiencing domestic violence at the hands of former partners. She said that she began a relationship with Mr Dilosa in 2018 and he lived with her at her home for some months. He was not violent towards her although she said that he slapped her children.

40. Ms McHenry reported feelings of anger directed to the accused and said she was fearful of seeing him. She referred to the accused as having told her she was “crazy”, and that she should not take her medication or look after her children in the way she was used to doing. She said that the accused “pointed a ball bearing gun at her four-year-old child” ^[7] and put socks in the mouth of a four-year-old. The relationship ended and Ms McHenry took up with another man. When that person was violent to her, she sought out the accused to protect her and began seeing him again.

    7. Report of Dr Andrew Ellis of 26 October 2021, Ex. NM5, at p 4.

41. Ms McHenry told Dr Ellis that, after four days of bingeing on methylamphetamine, she had woken to see the accused hitting Ms Easey on the head and stabbing her with a knife that she saw him pull from his clothing. She said that she “freaked” and became fearful of what the accused might do to her or her children. She said that she did everything he told her to do, “’just trying to keep [her]self alive’” ^[8] . She claimed not to have reported what she had seen to police as she was concerned for her and her family’s safety and did not think the police would protect her as she believed the accused’s father to be a former police officer.

    8. Ibid, p 8.

42. Ms McHenry told Dr Ellis that witnesses who attributed to her admissions of involvement in the murder of Ms Easey had either misheard her or were speaking thus out of fear of Mr Dilosa.

43. On the basis of the history obtained from Ms McHenry and the other information he had been given, Dr Ellis concluded that the co-accused had a substance abuse disorder, PTSD, a personality disorder, and a pathological gambling problem. He thought symptoms previously regarded as indicative of a depressive disorder and Bipolar disorder were more likely to be substance induced mood states.

37. The doctor noted the significant impact of methamphetamine use on Ms McHenry at the time of Ms Easey’s murder, impacts with which the co-accused was well familiar and would have foreseen. He observed that stimulant use generally heightened fear response and worsened impulse control and concentration. Dr Ellis concluded, at p12:

“Overall it is likely that her personality vulnerabilities contributed to decision making that prioritised her safety, her children’s safety (fearing her partner would be violent) and acquisition of stimulant drugs over a responsibility to report a serious crime to police. In a similar fashion a decision to engage in fraudulent behaviour with the victim’s Facebook account would likely have been impacted by her personality style, wishing to placate her partner and exacerbated by drug use. It is not likely that this constellation of symptoms totally deprived her of the ability to control her actions or to judge wrongful or illegal conduct. Her ability to reflect on these decisions and actions was likely more impulsive, and distorted by her relational needs.”

The Crown Case Statement

45. Principally for reasons of shortness of time, it is not proposed to summarise here the contents of the Crown Case Statement. It is enough to observe that the Crown has available to it evidence which places Ms Easey in the company of both accused immediately prior to her death, including closed circuit television footage of the three together. There is evidence of admissions made by both accused to others, in which each separately admitted direct involvement in Ms Easey’s death, including an admission by the co-accused to having stabbed Ms Easey, and an admission by the accused to having killed her. There is a body of forensic evidence to establish that Ms Easey was killed in the main bedroom of Ms McHenry’s home, and that her body was wrapped in items that belonged to the co-accused. Both accused can be forensically linked to various of those items.

46. On the limited information available to the Court at this time there appears to be a reasonably strong case against each accused.

The Submissions of the Parties

47. Mr Webb of Counsel, for the accused, informed the Court that the accused’s case is that it is reasonably possible that he did not murder Ms Easey, but rather that it was Ms McHenry who had caused her death. The accused does not dispute that black plastic sheeting was used to wrap Ms Easey’s body, which was then placed in a (detached) pantry cupboard, the cupboard being loaded into his van. He does not dispute later taking the body to Cockle Creek where it was discovered by a passer-by.

48. The accused acknowledged that the interviews given by Ms McHenry to police were not of themselves enough to require that an order be made for a separate trial for his client. However, he contended that, with the further assertions by Ms McHenry to Ms Lucas and Dr Ellis, there was incurable prejudice because of the credible explanation it could provide of her failure to be truthful with police. There was a prospect that the expert evidence could support the credibility of the account given by the co-accused, one which is prejudicial to the accused. It was argued that the cumulative effect of the repetition of the allegations made by Ms McHenry against Mr Dilosa could include the jury giving her account greater weight than might otherwise have been accorded to it, to the accused’s detriment. He submitted that the history given to the experts may be more likely to be accepted by the jury, with its members concluding that the experts believed Ms McHenry’s account, and thus the accused was a violent individual who had murdered Ms Easey and then intimidated Ms McHenry to force her to conceal his crime. It was argued that no direction the Court might craft could prevent impermissible prejudice flowing to the accused in a joint trial.

49. The Crown expressed some difficulty in properly responding to the application because of the uncertainty surrounding the admissibility of the expert evidence and, if it was admissible, the uncertainty as to the use to which it would be put. Referring to the principles that ordinarily favour a joint trial of accused persons charged with the same offence arising from the same set of circumstances, and in particular where the defence is to be what is known as a “cut-throat defence”, the Crown submitted that there was no prejudice that could not be addressed by directions to the jury.

The Relevant Legal Principles

50. The legal principles that govern the determination such as that now before the Court are well-known, and recognised by s 29 of the Criminal Procedure Act 1986 (NSW), which (relevantly) provides:

29 When more than one offence may be heard at the same time

(1) […]

(2) A court may hear and determine together proceedings related to offences alleged to have been committed by 2 or more accused persons in any of the following circumstances—

(a) the accused persons and the prosecutor consent,

(b) the offences arise out of the same set of circumstances,

(c) the offences form or are part of a series of offences of the same or a similar character.

(3) Proceedings related to 2 or more offences or 2 or more accused persons may not be heard together if the court is of the opinion that the matters ought to be heard and determined separately in the interests of justice.

51. In R v Annakin (1988) 17 NSWLR 202; (1988) 37 A Crim R 131, the Court of Criminal Appeal observed:

“The circumstances appropriate to a joint trial were considered in R v Assim [1966] 2 QB 249 where the court stated (at 261):

As a general rule it is, of course, no more proper to have tried by the same jury several offenders on charges of committing individual offences that have nothing to do with each other than it is to try before the same jury offences committed by the same person that have nothing to do with each other. Where, however, the matters which constitute the individual offences of the several offenders are upon the available evidence so related, whether in time or by other factors, that the interests of justice are best served by their being tried together, then they can properly be the subject of counts in one indictment and can, subject always to the discretion of the court, be tried together. Such a rule, of course, includes cases where there is evidence that several offenders acted in concert but is not limited to such cases.”

52. The statement made in Assim at 262 was also cited in Annakin, it being in these terms:

“[…] it is the interests of justice as a whole that must be the governing factor and that among those interests are those of the accused”.

53. In R v Middis (Supreme Court (NSW), Hunt J, 27 March 1991, unrep) Hunt J set out the circumstances in which it will be appropriate to order separate trials. His Honour said at p 4:

“Briefly, the relevant principles are that:

1. Where the evidence against an applicant for a separate trial is significantly weaker than and different to that admissible against another or the other accused to be jointly tried with him; and

2. Where the evidence against those other accused contains material highly prejudicial to the applicant although not admissible against him; and

3. Where there is a real risk that the weaker Crown case against the applicant will be immeasurably stronger by reason of the prejudicial material, a separate trial will usually be ordered in relation to the charges against the applicant. The applicant must show that positive injustice would be caused to him in a joint trial.” [Emphasis added]

54. Middis has been cited with approval repeatedly over the years by the Court of Criminal Appeal, including in R v Baartman (Court of Criminal Appeal (NSW), 6 October 1994, unrep); R v Chami (2002) 128 A Crim R 428; [2002] NSWCCA 136 at [12]; Symss v R [2003] NSWCCA 77 at [69]; Trotter v R [2016] NSWCCA 57 at [26] – [27]; and, recently, Caleo v R [2021] NSWCCA 179 at [137].

55. The principles applicable to a “cut-throat defence” were discussed in Webb v The Queen; Hay v The Queen (1994) 181 CLR 41; [1994] HCA 30, where Toohey J said, with the concurrence of Mason CJ and McHugh J, at 88 – 89:

"King CJ dealt with this ground by pointing out that there are 'strong reasons of principle and policy why persons charged with committing an offence jointly ought to be tried together. That is particularly so where each seeks to cast the blame on the other'. What King CJ referred to as 'strong reasons of principle and policy' were discussed by his Honour in Regina v Collie (1991) 56 SASR 302 at 307-311. I respectfully agree with that discussion which emphasises that when accused are charged with committing a crime jointly, prime facie there should be a joint trial. There are administrative factors pointing in that direction but, more importantly, consideration by the same jury at the same trial is likely to avoid inconsistent verdicts, particularly when each accused tries to cast the blame on the other or others. There are of course dangers for an accused in a joint trial by reason of the admission of evidence which would not be admitted at the trial of one accused. That risk must be obviated by express and careful directions to the jury as to the use they may make of the evidence so far as it concerns each accused."

56. The point was cited in R v Fernando and Anor [1999] NSWCCA 66, and the desirability of one jury making a fully informed assessment of such defences by both being considered at a joint trial was affirmed. Citing R v Grondkowski (1946) 1 KB 369, the Court of Criminal Appeal observed, at [203] – [205]:

“Grondkowski was a case involving cut-throat defences. As we apprehend the passage cited and other passages from the judgment it was considered that cases of that kind are better heard together. The reason for that is the opportunity given to the jury to observe each of the accused and to consider the whole of the relevant facts rather than what may be a misleading portion of them. In Grondkowski it was also said:

"Prima facie it appears to the court that where the essence of the case is that the prisoners were engaged on a common enterprise that it is obviously right and proper that they should be jointly indicted and jointly tried and in some cases it would be as much in the interests of the accused as of the prosecution that they should be."

Grondkowski has been consistently followed by courts in this State including R v Kerekes (1973) WN; R v Flaherty & Ors (1968) 3 NSWLR and R v Merrett 19 A Crim R 363. As was pointed out in the joint judgment of Slattery CJ at CL and Carruthers J in the last mentioned case citing from Grondkowski, it is necessary for the judge to consider the interests of justice as well as the interests of the prisoners. The interests of justice do not mean only the interests of prisoners. There is an additional interest in conserving costs and avoiding inconvenience to witnesses properly to be taken into account: see R v Oliver 57 ALR 543 at 547. Further, there is the undesirable risk the separate trials will lead to verdicts which are inconsistent on the facts: R v Lake 64 Cr App R 172.

To these references we would add the observations of Herron J (as he then was) in R v Beavan 69 WN 141. In that case his Honour pointed out (at pp142-143) "it is in accordance with the ordinary rule that where two are engaged on a common enterprise, it is proper that they should be tried together." His Honour next pointed to the common situation in an alleged joint crime involving common parties that one or more of those charged will endeavour to exculpate himself or herself at the expense of the co-accused, a situation he described as a matter of "human experience presenting as it does a human problem for a jury to deal with as a matter of common sense." His Honour concluded:

"If separate trials were had, very often only one half of the picture could be presented to the jury. In order to do complete justice, juries are entitled to see and hear all those who are alleged to have acted in common purpose, and it is neither a rule of law nor of practice that where an essential part of one accused's defence amounts to an attack on a co-accused there must be separate trials. Cases have occurred and will no doubt continue to occur, in which one accused says that he or she was persuaded by the superior intellect of the other accused to take some part in the enterprise, or that he or she was intimidated by the relationship or threats of that other. It is essential to the proper appreciation of such cases that the jury should see and hear all parties. It is true that statements not on oath can be prejudicial to the one referred to in them, but as they are not statements on oath the jury can be warned by the trial judge to reject those references to the co-accused, and there is no reason to think that a commonsense jury will refuse to follow such advice."”

57. In such instances, co-accused should be tried together unless positive injustice would be occasioned by a joint trial.

Determination

58. As the accused acknowledged, it was the prospect of evidence being led by the co-accused from Ms Lucas and Dr Ellis, consistent with their respective reports, that caused him to make an application for a separate trial. Only if that evidence is before the jury in the form it takes in the report of each expert does the accused contend, he is impermissibly prejudiced by a joint trial.

59. That inevitably leads to the question of whether the evidence will in fact be before the jury in that or any form. The Crown is not presently in a position to advise the Court whether or not it will take objection to any or all of the evidence of Ms Lucas and Dr Ellis because of the uncertainty surrounding the extent of the evidence to be led, and the purpose to which it will be put if it is led.

60. It is not entirely clear on the information presently available what fact in issue the evidence could rationally affect, particularly in circumstances where Ms McHenry has entered a plea of guilty to the alternative charge of accessory after murder (a plea not accepted by the Crown in discharge of the indictment), and acknowledges that she concealed Ms Easey’s murder.

61. What evidence foundational to the opinions of the experts is to be led is also unclear. Counsel for Ms McHenry advised the Court that, whilst it was likely, if not certain, that the co-accused would give evidence in her case, including of those matters she asserted to the experts, decisions are yet to be made about other evidence potentially relevant to the opinions expressed by them. For example, it has not been determined whether the information contained within some of the documentary material that was provided to Ms Lucas and Dr Ellis will be placed before the jury (if admissible) and, if so, what form that evidence will take. It is not clear whether the whole of the claims made by the co-accused concerning the accused, such as the allegations of his supposed abuse of her children, are fundamental to the opinions formed by the experts and will be led in evidence, or not. It is not clear to what extent the co-accused’s disordered personality and heavy drug consumption was causal to her conduct, as opposed to her claimed fear of the accused against a traumatised background.

62. If the expert evidence is not tendered, or if it is rejected as inadmissible, the basis of the accused’s application falls away. If the foundational evidence of the opinions expressed by the experts is not established, or if the expert evidence is led in a limited way, or limitations are placed on the use to which it can be put, the question of the extent of any prejudice to the accused may be effected.

63. Although the most appropriate course would be to determine these issues and then the admissibility of the expert evidence prior to determining the application for a separate trial, it was not possible to take that course because the parties are yet to finalise their respective positions concerning that evidence. Accordingly, and although it is not satisfactory, the Court has proceeded on the basis that the evidence of Ms Lucas and Dr Ellis will be before the jury broadly as it is in the reports.

64. The question is whether that evidence tips the balance in favour of separate trials. Bearing in mind the Court’s obligation to instruct the jury to ensure a fair trial for all parties, I was not persuaded that it did. Properly instructed, and on the basis that the jury will follow directions given to it, in my conclusion the jury will be capable of understanding the use to be made of evidence tendered in the cases brought against each accused respectively, and no impermissible prejudice will be occasioned to the accused.

65. Commencing with the Middis criteria, this is not a matter where the case against the accused is significantly weaker than or different to that against Ms McHenry. On the assumption that witnesses to be called by the Crown give the evidence as summarised in the Crown Case Statement, Ex. NM6, there is what seems to be a considerable amount of evidence against each accused which is capable, if accepted, of establishing their joint participation in Ms Easey’s murder. That evidence includes admissions separately made by both Mr Dilosa and Ms McHenry to friends and associates.

66. Whilst there is evidence in the case relevant to Ms McHenry which is prejudicial to Mr Dilosa, being her assertions to police and experts as to the relevant events, that evidence will not make a weaker case against Mr Dilosa stronger. The evidence can be readily identified, and appropriate and firm directions given to the jury. The Court must proceed on the basis that the jury can and will obey those directions: Gilbert v The Queen (2001) 201 CLR 414; [2000] HCA 15.

67. It must be acknowledged that, where co-accused are tried together, there is frequently some degree of prejudice to each accused person. However, the prospect of such prejudice is routinely addressed in criminal trials by appropriate directions to the jury.

68. The account given by Ms McHenry in the two recorded interviews she had with investigating police is evidence that will be led by the Crown in the case against Ms McHenry only; it is not admissible against the accused. Similarly, the history given by Ms McHenry to Ms Lucas and Dr Ellis, insofar as that history touched upon Mr Dilosa, is not led against him. The evidence is readily identified and compartmentalised, and the jury can be instructed at the time the evidence is tendered and again in the course of summing up that it may not be considered by its members when determining whether the Crown has proved its case against Mr Dilosa. The confined purpose of the tender of the evidence can be made clear by direction.

69. I am not persuaded that the mere repetition of Ms McHenry’s claims concerning the death of Ms Easey and the accused’s role in it makes them any more credible or any more likely to be accepted by the jury than would be the case if the claims had not been repeated to expert witnesses.

70. If Ms McHenry gives evidence in her case, she will be available for cross-examination. There is considerable scope for cross-examination to test the veracity of her claims concerning Mr Dilosa, and as to her own involvement in Ms Easey’s death and its aftermath. Testing of that nature will no doubt be of considerable assistance to the jury in assessing whether the co-accused’s account of relevant events is reasonably possible.

71. Should Ms Lucas and Dr Ellis give evidence, each will also be available for cross-examination. Cross-examination can readily establish that an opinion is given by an expert based upon an assumption that the history provided is accurate; no independent assessment is made by the expert of the truthfulness of the history. That feature of the evidence of experts will be explained to the jury and an appropriate direction given.

72. I do not think there is any real prospect of the jury, properly instructed, concluding that the co-accused’s assertions to the experts must be true and, on that basis, that the accused must have murdered Ms Easey as Ms McHenry asserted.

58. Counsel for the accused expressed a concern that the jury may feel sympathetic towards Ms McHenry in light of the traumatic history – unconnected to Mr Dilosa – that she described to Ms Lucas and Dr Ellis, and that any sympathy in favour of Ms McHenry may lead a jury to be correspondingly unsympathetic to the accused, particularly having regard to her assertions about him. I do not accept that submission. Most criminal trials deal with distressing and emotive events; that is particularly so in a murder trial where an individual has suffered a violent death at the hands of another person or persons. Aspects of the evidence that a jury will hear in such trials are almost always productive of an emotional response. Juries are routinely instructed to set aside considerations of sympathy and emotion and consider the issues to be decided in a rational and unprejudiced way; there is no reason to conclude that the jury to hear the accused’s trial could not comply with a direction of that nature.

59. The balance in this matter in my conclusion favours a joint trial. The evidence to be called against each accused is substantially the same, and most witnesses are common to both cases. The duplication and expense caused and the inconvenience and distress to witnesses occasioned if the trials were held separately would be considerable. The nature of the “cut-throat” defences to be advanced also militates strongly in favour of the same jury hearing and assessing the two cases jointly, so as to be fully informed of all relevant information, thus avoiding the sort of mischief discussed by Herron J in R vBeavan (1952) 69 WN 140.

60. I am confident that the Court can appropriately direct the jury so as to clearly delineate the cases relevant to each accused and ensure that the jury considers only the evidence relevant to the individual case when determining whether the Crown has proved its case against each. I am also confident that directions can be given to the jury that will obviate any emotional response to Ms McHenry’s claims, and any consequential prejudice to Mr Dilosa. It is, in my opinion, well within the capacity of a properly instructed jury to rationally assess only the evidence relevant to each individual case and return verdicts only on the basis of that evidence.

61. For these reasons the application for a separate trial made by the accused Dilosa was refused.

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Endnotes

Decision last updated: 20 September 2024