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Supreme Court 29 June 2023

R v Dilosa

[2023] NSWSC 959

Homicide

Citation: R v Dilosa [2023] NSWSC 959
Court: Supreme Court of NSW
Date: 29 June 2023
Judge: Sweeney J

Background

The accused was arraigned on an indictment containing two counts. Count 1 charged him with murder. Count 2, framed as an alternative to Count 1, charged him as an accessory after the fact, alleging he received, harboured, maintained and assisted another person knowing she had committed the murder.

When arraigned before the jury panel, the accused pleaded not guilty to Count 1 and guilty to Count 2. The Crown did not accept the plea of guilty to Count 2 as satisfaction of the indictment. Counsel for the accused confirmed the guilty plea remained on foot and was not withdrawn.

After the jury was empanelled, the court put the accused in charge of the jury on Count 1 only. A procedural question then arose: should the accused also have been put in charge of the jury on Count 2, the count to which he had pleaded guilty?

  • Where an indictment contains two counts and an accused pleads guilty to the alternative count but not guilty to the primary count, and the Crown does not accept the guilty plea, must the accused be put in charge of the jury on both counts or only the count to which he pleaded not guilty?
  • Does s 154 of the Criminal Procedure Act 1986 (NSW), which provides that a plea of not guilty puts the accused on trial by jury, govern the situation?
  • Does the absence of any specific statutory provision addressing this two-count scenario affect the answer?

Decision

Sweeney J observed that s 154 of the Criminal Procedure Act provides that a plea of not guilty puts an accused on trial by jury. Section 153, which addresses pleas of guilty to offences not charged in the indictment, addresses a different scenario where there is only one count. Neither provision specifically covers the situation where two counts appear on the indictment and the accused pleads not guilty to one and guilty to the other.

Her Honour reviewed a consistent line of English, South Australian and NSW authority, including R v Cole [1965] 2 QB 388, R v Hazeltine [1967] 2 QB 857, R v Murphy (1988) 52 SASR 186, R v Thompson (NSW Court of Criminal Appeal, 1976), R v Adam Orlowsky [2008] NSWDC 368, and R v Tailford [2021] NSWSC 248. That body of authority establishes a clear and consistent practice: where the Crown does not accept the guilty plea to the alternative count, only the count to which the accused pleaded not guilty goes to the jury.

The court noted that placing an accused in charge of the jury on a count to which he has already pleaded guilty would, as a matter of logic and statutory interpretation, leave nothing for the jury to determine. Her Honour also distinguished the common scenario of murder and manslaughter on a single indictment, observing that the alternative charge in this trial alleged a qualitatively different act, not merely a lesser degree of the same act.

Sweeney J confirmed that the course taken at the time of empanelment was correct. The accused would be tried by the jury on Count 1 only. If acquitted on Count 1, the court could then deal with the guilty plea on Count 2. If convicted on Count 1, the appropriate course would be for Count 2 to remain on the file without further proceeding.

Orders Made

• Mr Dilosa is to be tried by jury in respect of count 1 on the indictment only
• Count 2, to which Mr Dilosa pleaded guilty, is not to go to the jury

Key Takeaways

  • Where an indictment contains a primary count and an alternative count, and the accused pleads not guilty to the primary count but guilty to the alternative, and the Crown does not accept the guilty plea, the established NSW practice is that only the primary count is placed before the jury.
  • A consistent line of English, South Australian and NSW authority supports this approach, and no contrary NSW authority was identified by either party.
  • Under s 154 of the Criminal Procedure Act 1986 (NSW), a plea of not guilty places an accused on trial by jury; as a matter of logic, an accused cannot simultaneously be put on trial for an offence to which he has already pleaded guilty.
  • The unaccepted guilty plea to the alternative count is not extinguished. It remains available to be acted upon if the accused is acquitted on the primary count, while a conviction on the primary count would ordinarily see the alternative count left on the file.
  • The murder/manslaughter analogy was distinguished in this case because the alternative charge alleged a different act altogether, not simply a lesser degree of the same conduct.

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986 (NSW), ss 153, 154

Cases
- R v Cole [1965] 2 QB 388
- R v Hazeltine [1967] 2 QB 857
- R v Murphy (1988) 52 SASR 186
- R v Thompson (NSW Court of Criminal Appeal, Street CJ, O'Brien and Cantor JJ, 24 June 1976)
- R v Adam Orlowsky [2008] NSWDC 368
- R v Tailford [2021] NSWSC 248