R v Dilosa; R v McHenry (No. 3)

[2021] NSWSC 1472

Supreme Court

New South Wales

Medium Neutral Citation:

R v Dilosa; R v McHenry (No. 3) [2021] NSWSC 1472

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 Jury under s 53C

Catchwords:

CRIMINAL PROCEDURE — trial — jury — discharge of jury — where individual juror discharged following empanelment — where parties did not consent to commence trial with 11 jurors —jury discharged

Legislation Cited:

Jury Act 1977 (NSW)

Cases Cited:

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

Wu v The Queen (1999) 199 CLR 99; [1999] HCA 52

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

1. HER HONOUR: A short time ago the Court made an order discharging a single juror empanelled to hear the trial of Mr Dilosa and Ms McHenry pursuant to s 53B of the Jury Act 1977 (NSW): R v Dilosa; R v McHenry (No. 2) [2021] NSWSC 1471. That decision was made on the basis that the Court had received information that could cast a question over the juror’s ability to give impartial consideration to the case, or otherwise affect the juror’s ability to perform the functions of a juror. The judgment in R v Dilosa; R v McHenry (No. 2) provides the necessary background to this decision.

2. The Court must now consider whether it is possible for the proceedings to continue with a jury constituted by 11 jurors.  Both accused submit that the jury must be discharged; the Crown did not wish to be heard in opposition to that course.

3. Section 22 of the Jury Act (“the Act”) provides a power for the Court to continue with a jury of less than 12.  It provides:

22   Continuation of trial or inquest on death or discharge of juror

Where in the course of any trial or coronial inquest any member of the jury dies or is discharged by the court or coroner under Part 7A, the jury shall be considered as remaining for all the purposes of that trial or inquest properly constituted if—

(a)  in the case of criminal proceedings, the number of its members—

(i)  is not reduced below 10,

(ii)  is reduced below 10 but approval in writing is given to the reduced number of jurors by or on behalf of both the person prosecuting for the Crown and the accused or each of the accused, or

(iii)  is reduced below 10 but not below 8 and the trial has been in progress for at least 2 months,

(b)  […], or

(c)  [..],

and if the court or the coroner, as the case may be, orders that the trial or coronial inquest continue with a reduced number of jurors under Part 7A.

4. Section 22 qualifies s 19 of the Act which provides for criminal trials in the Supreme Court - in ordinary circumstances - to be heard by a jury consisting of 12 jurors. Plainly, the Court has the power to order that the jury of 11 continue and that the trial proceed before a jury of reduced numbers. The exercise of that power, however, must be performed in light of authority and having regard to the circumstances that apply to these proceedings.

5. Historically, the right to trial by a jury of 12 is fundamental to the criminal justice system.  It has been our system of justice both in this jurisdiction since the early days of the colony and in the precedential jurisdiction of England for close to a millennium.  It is a right that has been enshrined in statute and which the High Court and the Court of Criminal Appeal have repeatedly given significant weight to.

6. When the position of the discharged juror became known, the attention of the parties was drawn to a decision of Wu v The Queen (1999) 199 CLR 99; [1999] HCA 52. That decision of the High Court provides that a court sitting in a criminal trial should not lightly take a decision to proceed with a jury of less than 12 persons. The Court must carefully consider whether, having discharged one juror, the whole of the jury should also be discharged.

7. In Wu the High Court emphasised the importance of a jury of 12, tracing the long significance of that body to the common law. McHugh J, referred also to the right of an accused person not to be convicted other than by the decision of 12 unanimous jurors, saying, at [29]:

“The usual reason for exercising the power under s 22 is that the trial has proceeded for some time and it would cause significant expense to begin again with a new jury. No doubt the circumstances of individual trials will throw up other valid reasons and there may be countervailing reasons. It may be a case dealing with matters upon which the opinion of the community is deeply divided. In such a case, despite the time that the trial has already taken, the proper exercise of the discretion may require that the accused be retried before a jury of 12, or the case may be one where the community has strong feelings against the crim in question and the risk of prejudice against the accused may be strong. In such a case, depriving the accused o the chance to obtain the vote of the twelfth juror may be a step that should not be taken.”

8. Since Wu was handed down in 1999 there have been some statutory impositions on the sanctity of a jury of 12. 

9. Provisions which permit a criminal court to take the verdict of a majority of jurors were introduced on 15 May 2006. Section 55F of the Act provides for a verdict from a majority, whether that be 11 jurors from a jury of 12, or ten jurors from a jury of 11. The introduction of that provision, with a suite of amendments to the Act in May 2006, may be seen as a limitation upon the right to trial by 12 jurors. There have been some other events which have further detracted from the primacy of trial by 12 jurors, including the expansion in the numbers of trials heard by a judge sitting alone, as a consequence of the public health emergency in 2020 and this year which, for a period of many months, prevented the courts from conducting trials by jury.

10. The Court at this stage must undertake something of a balancing exercise.  It must be determined whether the interests of justice are in maintaining the accuseds’ right to a trial by a jury of 12, necessarily meaning that this jury is discharged and a fresh trial date fixed, or whether the community’s right to see criminal matters dealt with expeditiously and the right of all of those with a personal interest in this trial to see it resolved as quickly as possible, is of greater significance.  It is, as I have said, a matter of balancing those features. 

11. There is a real question of delay in this matter which must be weighed in the balance. Counsel were advised by my associate on 14 November 2021 that, should the jury not be able to continue, the next available trial date at Newcastle for a trial with about the estimate of this trial is 1 August 2022.  That is a delay of almost 10 months, and it means that the accused will spend almost three years in custody awaiting trial, should there be no application for bail and bail is not granted to them, because of delay.  Three years is a lengthy period for any person to be awaiting trial, particularly when that period or part of it is spent in custody.  It is a lengthy period for those with a personal interest in the proceedings such as the family of the deceased, and it is a lengthy period for the community to see a trial outstanding.  It is a feature which applies to this trial more particularly because of the COVID-19 pandemic and the continuing effects of the public health situation.

12. Prior to the event of the pandemic, the Court could have offered a fresh trial date, probably within about three or four months.  The period has now doubled because of the backlog of criminal trials awaiting disposition.

13. There are also issues of cost to be weighed in the balance.  Ordinarily issues of costs only take on any significance when a trial has proceeded for some considerable period, with a number of witnesses having already given their testimony and been excused. In such matters the costs and the balance of convenience is a matter of significance.  Here, the Court has only empanelled the jury.  The jurors have not even heard yet opening addresses and, of course, no evidence has been taken.  That would ordinarily suggest that issues of cost and convenience are of no moment.

14. It is a little different though, in my view, in the circumstances that currently prevail.  Summoning a jury panel is more difficult and more expensive than was the case prior to the COVID-19 pandemic.  The range of persons who are eligible to serve on a jury is also much narrowed because of the pandemic.  Only persons who have been fully vaccinated, that is twice vaccinated, are now eligible to serve on a jury, where there was no such requirement prior to the pandemic.  Only jurors who have had no contact with any person or other risk factor for COVID-19 can serve.  Those restrictions reduce the number of members of the community who are available to serve. 

15. Because of the need for staff to confirm the vaccination status of potential jurors and to see evidence of that vaccination there is an additional layer of staffing that is attendant upon empanelling a jury. Because of the need to administer rapid antigen testing to jury panel members prior to the commencement of the proceedings there is yet another layer of staffing and administration that is imposed over the process of empanelling a jury. All of those things cost money. All of those things add to the time taken and the inconvenience caused to panel members. They are features to which the Court can, and in my view should, have regard when considering the balancing exercise prior to making an order pursuant to s 22.

16. Of course, the converse also applies in circumstances where there is a pandemic in the community.  The prospect of a jury being affected by that pandemic after empanelment is a live one, and there is always a possibility that the Court would be in a position of having to discharge a juror during the course of the proceedings.  Were the trial to commence with 11 jurors that prospect would be even more concerning. 

17. In the trial proceedings at first instance in the matter of Wu, the trial judge, Flannery DCJ, questioned the need for 12 jurors, asking rhetorically “Where is the magic of 12 anyhow”. Many might ask the same question, and regard the number of 12 jurors, at least to some extent, as an historical survivor from a very different jury system involving village justice, dating back many hundreds of years.  Notwithstanding that prospect, it remains a fundamental feature of our jury system that an accused should not be deprived of the vote of 12 jurors upon his or her trial.  It is a principle of such importance and of such significance that, in my view, if it is to be abrogated it should be by statute rather than by decision of a court.

18. If this had been a matter where the trial had proceeded some way and many witnesses had given their evidence, the situation would be different. It is not. The trial has not even commenced.  In such circumstances as those and despite the features in the landscape of criminal trials which have altered since the decision of Wu was handed down by the High Court, the Court agrees with counsel that it would be wrong for the Court to proceed with less than 12 jurors at such an early stage of the proceedings unless, of course, it was with the consent of all parties. I agree with counsel that the jury must be discharged. 

19. I have had regard to the delay to the accused, the delay to those with a personal interest in the trial, and the delay to the community in seeing this matter finalised, but the principle which must, I think, triumph over all other considerations, is that of the right to trial by a jury of 12.  Accordingly, I propose to discharge the jury.

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Decision last updated: 23 September 2024