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

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.
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:

An affidavit of Adrian Kiely affirmed on 9 November 2021;

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

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.

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Details

Case: [2021] NSWSC 1470
Decision Date: 11 November 2021

CaseChat Overview and Summary

In the matter of R v Dilosa and R v McHenry, the High Court of Australia was asked to determine the admissibility of evidence obtained from one accused, McHenry, that was highly prejudicial to the other accused, Dilosa. The case involved the application for separate trials based on the nature of the evidence that was likely to prejudice the accused. The applicants argued that the evidence obtained from McHenry, which implicated Dilosa in the crime, was so prejudicial that it would unfairly strengthen the prosecution's case against him. The applicants sought separate trials to prevent the prejudice that would result from the admission of this evidence.

The legal issues before the court were whether the evidence was so prejudicial as to render the case against the accused impermissibly stronger and whether the prejudice could be remedied by jury directions. The court also had to consider whether it was possible to balance the public interest in trials being heard together with any prejudice to the co-accused, and whether the prejudice could be ameliorated by appropriate directions to the jury.

The court determined that the evidence in question was highly prejudicial to the accused, but that the prejudice could be ameliorated by appropriate directions to the jury. The court found that it was possible to balance the public interest in trials being heard together with any prejudice to the co-accused, and that the prejudice could be ameliorated by appropriate directions to the jury. The court held that the application for separate trials was refused as the prejudice could be remedied by direction.

In conclusion, the court held that the application for separate trials was refused as the prejudice could be remedied by direction. The court found that the evidence was highly prejudicial, but that the prejudice could be ameliorated by appropriate directions to the jury. The court also found that it was possible to balance the public interest in trials being heard together with any prejudice to the co-accused.

Orders