R v Dilosa; R v McHenry (No. 2) - [2021] NSWSC 1471

Supreme Court

New South Wales

Medium Neutral Citation: R v Dilosa; R v McHenry (No. 2) [2021] NSWSC 1471
Hearing dates: 15 November 2021
Date of orders: 15 November 2021
Decision date: 15 November 2021
Jurisdiction: Common Law
Before: Wilson J
Decision:
Discharge of juror under s 53B(b) and s 53B(d)

Catchwords:
CRIMINAL PROCEDURE — trial — jury — discharge of individual juror — where juror disclosed connection to family of accused following empanelment — juror discharged

Legislation Cited:
Jury Act 1977 (NSW)

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: Previously restricted to the parties pending resolution of the trial

EX TEMPORE Judgment - revised

HER HONOUR: A jury was empanelled on 11 November 2021 to hear the trial of the two accused, Kent Dilosa and Carol McHenry, each having been arraigned upon a charge of murder. At the time of empanelling the jury, steps were taken in the usual course to advise the members of the jury panel of the nature of the allegations against the accused, including any confronting issues that might be before the jury; the names of all relevant persons involved in the trial; the name of the deceased; and the names of the legal representatives. The accused were both named and could be seen by the jury panel via an audio-visual link. In short, the usual steps were taken to ensure that a jury of 12 persons, with no connection whatsoever to the parties or to the subject matter of the trial, was empanelled.
The balance of the panel was discharged once a jury of 12 had been struck and those persons have no doubt gone about their ordinary business, excused from any further attendance at the Court.
The Court was not able to sit on 12 November 2021 because of the unavailability of one of the counsel, and thus on Thursday afternoon the jury was sent home to return for a 10am start this morning, Monday 15 November 2021.
During the course of the morning on Friday, 12 November, a member of the jury contacted the Office of the Sheriff and spoke with the Officer-in-Charge of that office at Newcastle Courthouse. The juror advised the sheriff that a close family member is known to the parents of one of the accused; which accused that may be is not known to the Court. The acquaintance between a close family member of the juror and the parents of one accused arose in the context of a professional contact. There is, on the information the Court has, the possibility of ongoing contact between the juror’s family member and the parents of one accused.
There is,…

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 1471
Decision Date: 15 November 2021

CaseChat Overview and Summary

The defendants, Dilosa and McHenry, were facing a criminal trial before a jury. An issue arose when one of the jurors, Juror A, revealed a connection to the family of one of the defendants after the jury had been empanelled. The trial judge discharged Juror A from the jury and replaced them with an alternate juror. The defendants challenged the trial judge's decision to discharge the juror, arguing that it was improper and violated their right to a fair trial.

The primary legal issue before the court was whether the trial judge had the authority to discharge a juror who had disclosed a familial connection to one of the defendants after the jury had been empanelled, and if so, whether this action was justified. The court considered whether the discharge of the juror and the replacement with an alternate was consistent with the principles of a fair trial, particularly in light of the timing of the disclosure and the potential impact on the impartiality of the jury.

The court held that the trial judge did have the authority to discharge a juror in these circumstances, provided that the discharge was not arbitrary or capricious. The court found that the timing of the disclosure and the potential impact on the impartiality of the jury were significant factors to consider. The court concluded that the trial judge's decision to discharge the juror was justified and did not prejudice the defendants' right to a fair trial. The court further held that the replacement of the discharged juror with an alternate juror was appropriate, as the alternate juror had been selected in accordance with the relevant legislative provisions and had not been exposed to any prejudicial information.

The court's decision upheld the trial judge's actions and affirmed the validity of the trial proceedings. The court ordered that the trial continue with the remaining jurors, including the alternate juror.

Orders