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 1. 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. 2. 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. 3. 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. 4. 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. 5. There is, in the circumstances of the particular juror, a possibility that there will be contact between that juror and the family of the accused at some time in the future, on an incidental basis. The Court was advised, through the sheriff, that the juror had, in the past, had such incidental contact with the family of the accused. It seems that such future contact is, at the very least, possible, if not likely. 6. That information was conveyed to counsel by an email from my associate which is now marked for identification 4 and which will be placed with the Court's file. Counsel were advised to obtain instructions from their respective clients and be in a position this morning to advise the Court of their position with respect to the continuation of the relevant juror. Upon the Court convening this morning, each counsel has indicated that the position of their respective client is that the juror should be discharged. The Crown is of the same opinion. That is a position with which the Court agrees. 7. It seems to me that the family connection between a juror and the family of an accused, particularly in circumstances where it could lead to contact between the juror and the accused's family in the future, as the Court understands it has done in the past, is capable of compromising at least the appearance of the integrity of that juror's verdict. There is an additional issue that is of equal concern in my view, and that is that the exposure of that juror, and the prospect that the juror will be readily identified, could lead to the juror's security being compromised. That again in turn informs the possibility of an apprehension of bias that might form in the mind of the reasonable observer with knowledge of all relevant circumstances. 8. The Court has concluded, as counsel have submitted, that the juror should be discharged. The Court has power to discharge a juror pursuant to s 53B of the Jury Act 1977 (NSW), which (relevantly) provides: 53B Discretionary discharge of individual juror The court or coroner may, in the course of any trial or coronial inquest, discharge a juror if— (a) […], or (b) it appears to the court or coroner (from the juror's own statements or from evidence before the court or coroner) that the juror may not be able to give impartial consideration to the case because of the juror's familiarity with the witnesses, parties or legal representatives in the trial or coronial inquest, any reasonable apprehension of bias or conflict of interest on the part of the juror or any similar reason, or (c) […], or (d) it appears to the court or coroner that, for any other reason affecting the juror's ability to perform the functions of a juror, the juror should not continue to act as a juror. 1. Because of those matters which I have identified, the Court is of the view that there is a basis to discharge the juror pursuant to s 53B(b) or, alternatively, s 53B(d) and, accordingly, that juror will be discharged. I make that order.