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Supreme Court 11 November 2021

R v Dilosa; R v McHenry

[2021] NSWSC 1470

Homicide
CR IMINAL PROCEDURE — PRE

Citation: R v Dilosa; R v McHenry [2021] NSWSC 1470
Court: Supreme Court of NSW
Date: 11 November 2021
Judge: Wilson J

Background

An accused charged with murder applied for his trial to be heard separately from that of his co-accused, who faced charges of murder and, in the alternative, accessory after the fact. The alleged murder occurred on 17 August 2019 at Narara, NSW. Both accused had been jointly indicted and, until shortly before trial, the accused had accepted that a joint trial was appropriate.

The application was triggered by the late disclosure of two expert reports from a forensic psychologist and a forensic psychiatrist, filed on behalf of the co-accused. Those reports, together with statements the co-accused had made to police in two electronically recorded interviews, formed the basis of the accused's argument that a joint trial would cause him unfair prejudice.

In her police interviews, the co-accused gave accounts that squarely blamed the accused for the murder. She described witnessing him strike the deceased with a claw hammer and stab her, and claimed she had only assisted in concealing the crime because she feared him. The expert reports were anticipated to support a claim of psychological vulnerability on the co-accused's part, which the accused argued would generate sympathy for her and corresponding prejudice against him.

  • Whether the accounts given by the co-accused to police, and the statements repeated to forensic experts, were so highly prejudicial to the accused that a joint trial would be unfair.
  • Whether any such prejudice could be adequately remedied by directions to the jury.
  • Whether the public interest in holding both trials together could be balanced against any prejudice to the accused.

Decision

Wilson J refused the application and dismissed the Notice of Motion on 10 November 2021, reserving reasons until the following day. Her Honour applied the established principle that separate trials are the exception, not the rule, and that a court must weigh the potential prejudice to an accused against the significant public interest in joint trials, including the avoidance of duplicated evidence, witness inconvenience, and the risk of inconsistent verdicts.

Her Honour accepted that the co-accused's police interviews contained highly prejudicial material, attributing the killing directly to the accused. However, Wilson J found that this prejudice arose from the nature of the "cut-throat" defence being run by the co-accused, not from any new prejudice introduced by the expert reports. The expert evidence was directed to the co-accused's own psychological state and credibility, not to establishing a new or aggravated case against the accused.

On the question of sympathy, Wilson J rejected the submission that a jury would be unable to set aside emotional responses to the co-accused's account and expert evidence. Her Honour noted that murder trials routinely involve distressing and emotive evidence, and that juries are regularly and effectively directed to assess evidence rationally and without sympathy or prejudice. There was no reason to conclude the jury in this case could not follow such directions.

Wilson J also identified a particular risk in holding separate trials in this case. Where two accused each blame the other, the concern identified in R v Beavan (1952) applies: separate juries may each hear only one side of the "cut-throat" narrative, with the risk that each accused is convicted. A single jury, fully informed of both accounts, is better placed to assess the competing cases.

Orders Made

  • The accused Dilosa's application for a separate trial was refused.
  • The Notice of Motion was dismissed.

Key Takeaways

  • Separate trials in joint murder proceedings are the exception rather than the rule; the party seeking separation must demonstrate that prejudice cannot be remedied by appropriate jury directions.
  • Where co-accused run "cut-throat" defences, blaming each other for the offence, the same jury hearing both cases is generally preferable to separate trials, to avoid the risk of inconsistent verdicts and to ensure a fully informed assessment of the competing accounts.
  • Wilson J confirmed that the late emergence of expert psychological evidence supporting a co-accused's credibility does not, of itself, transform a properly joined trial into an unfair one, provided the evidence is directed to the co-accused's case rather than to establishing the guilt of the other accused.
  • Emotional or sympathetic evidence is not a standalone basis for severance; courts presume that a properly directed jury can set aside sympathy and decide the case on the relevant evidence alone.
  • The practical considerations favouring joint trials, including the avoidance of duplicated witnesses, cost, and inconvenience to those witnesses, carry significant weight in the balancing exercise required by the authorities.

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986 (NSW), s 143

Cases
- Caleo v R [2021] NSWCCA 179
- Gilbert v The Queen (2001) 201 CLR 414; [2000] HCA 15
- R v Annakin (1988) 17 NSWLR 202
- R v Baartman (Court of Criminal Appeal (NSW), 6 October 1994, unrep)
- R v Beavan (1952) 69 WN 140
- R v Chami (2002) 128 A Crim R 428; [2002] NSWCCA 136
- R v Fernando and Anor [1999] NSWCCA 66
- R v Grondkowski [1946] 1 KB 369
- R v Middis (Supreme Court (NSW), Hunt J, 27 March 1991, unrep)
- Symss v R [2003] NSWCCA 77
- Trotter v R [2016] NSWCCA 57
- Webb v The Queen; Hay v The Queen (1994) 181 CLR 41; [1994] HCA 30