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

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.
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.
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…

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 1472
Decision Date: 15 November 2021

CaseChat Overview and Summary

The defendants, Dilosa and McHenry, were on trial for criminal offences in the Supreme Court of Victoria. The nature of the dispute involved the discharge of a jury member, necessitating a ruling on whether the trial could proceed with an incomplete jury. The court was required to decide whether the trial could lawfully commence and continue with a jury of eleven members, given that the original jury consisted of twelve, and one member was discharged after empanelment but before the commencement of the trial.

The legal issues centred around the statutory requirements for jury composition and the implications of discharging a juror post-empanelment but pre-trial commencement. Specifically, the court had to determine whether section 13 of the Supreme Court Act 1986 (Vic) permitted a trial to proceed with eleven jurors when the parties had not consented to such a reduction. The court also considered the impact of discharging a juror under section 11 of the Act on the trial's integrity and the rights of the accused.

The court found that the statutory provisions mandated a full twelve-member jury for a criminal trial. As the parties did not consent to commencing the trial with eleven jurors, the jury was effectively discharged, and the trial could not proceed. The court emphasised the importance of adhering to statutory requirements to ensure the fairness and legality of the proceedings. Consequently, the trial was halted, and the jury was discharged, leading to a retrial being necessary.

Orders