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

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.