Yesterday the Crown presented an indictment against Justin Kent Dilosa, which charged him, in count 1, with an offence of murder and in count 2, in the alternative to count 1, that another person committed a murder and that he received, harboured, maintained and assisted that person knowing she had murdered Danielle Easey, which is a charge referred to as an "accessory after the fact" charge.
When Mr Dilosa was arraigned before the jury panel he pleaded not guilty to count 1 and guilty to count 2.
After the jury was empanelled I had the accused put in charge of the jury in respect of count 1 only. Later in the day, after the jury had been sent away and we were discussing some procedural issues, an issue arose as to whether the accused should have been put in charge of the jury in respect of count 2, to which he pleaded guilty.
I note that the transcript records, and my recollection is, when Mr Dilosa entered his plea of guilty to the alternative count, count 2, the Crown Prosecutor said "The plea to the alternative is not accepted by the Crown in full satisfaction." The plea was not withdrawn and today Mr Webb, counsel for Mr Dilosa, says the plea has not been withdrawn and remains on foot. So, the situation arises for consideration whether Mr Dilosa should be put in charge of the jury in respect of count 2, the alternative count to which he pleaded guilty.
Today Mr Crown says that based on the authorities, which he has considered, he is of the view that the course taken yesterday is the appropriate course. Mr Webb, for Mr Dilosa, seems uncertain that the position is as crystal clear as the Crown submitted.
The relevant parts of the Criminal Procedure Act, which seem to me to apply, or in one sense do not apply, are ss 153 and 154. S 153 says:
(1) If an accused person -
(a) is arraigned on an indictment for an offence, and
(b) can lawfully be convicted on the indictment of some other offence not charged in the indictment,
he or she may plead "not guilty" of the offence charged in the indictment, but "guilty" of the other offence.
(2) The Crown may elect to accept the plea of "guilty" or may require the trial to proceed on the charge on which the accused person is arraigned.
That is a situation that seems to be different, where there is only one count in the indictment.
S 154 of the Criminal Procedure Act says:
If an accused person arraigned on an indictment pleads "not guilty", the accused person is taken to have put himself or herself on the country for trial, and the court is to order a jury for trial accordingly.
There is no provision of the Criminal Procedure Act which deals specifically with the situation in this trial where there are two counts on the indictment and the accused pleads not guilty to the first count and guilty to the second charged in the alternative.
There are a number of cases which have referred to this situation. It appears from those cases that there is a difference of practice in Victoria from that which has been adopted in England and New South Wales and, it seems, South Australia. It may be there were different statutory provisions in Victoria. In a decision of R v Hazeltine [1967] 2 QB 857 in the English Court of Appeal, that was a situation where a person was arraigned on a count on an indictment and pleaded guilty to a statutory alternative which was not on the indictment. In the course of that decision on appeal Salmon LJ referred to the decision of R v Cole [1965] 2 QB 388. He said:
"A case such as this is quite different from a case such as Reg. v. Cole, where there were two counts in the indictment, one charging a serious offence, one a lesser offence. That case lays down the correct procedure to be followed where a prisoner pleads guilty to the count charging the lesser offence and not guilty to the count charging the more serious offence. If the plea to the less serious offence is not accepted, the prisoner will then be put in the charge of the jury only on the more serious count. If he is acquitted on that count he will then be sentenced on the count to which he has pleaded guilty. If, on the other hand, he is convicted on the more serious count, the proper course is for the judge to allow the count to which he has pleaded guilty to remain on the file and not to proceed to sentence him on that count. In the present case, however, there was but one count which is indivisible and the only effective plea to that count in respect of which the appellant was put in charge of the jury was the plea of not guilty."
It seems that that procedure was referred to in a decision of the Supreme Court of South Australia in R v Murphy (1988) 52 SASR 186 where there were two counts on the indictment. The accused pleaded not guilty to the first count, guilty to the alternative, but then the point of that appeal was that he sought that the judge leave to the jury a statutory alternative not on the indictment, which the judge refused to do. In that case, White J referred to the decision of R v Cole and stated, as the Court did in Hazeltine, that the procedure to be followed if a person pleads guilty to the second alternative count is that he is put on trial for the first offence to which he pleaded not guilty.
There is a short note of a decision of the NSW Court of Criminal Appeal of R v Thompson in June 1976. I could not find a longer report. The note says:
The appellant was charged on indictment on a count of assault with intent to rape and a second count of common assault, the victim of the common assault being the victim named in the first count. He pleaded not guilty to the first charge and guilty to the second. The plea of guilty was rejected by the Crown, and counsel for the accused allowed that plea to remain unwithdrawn. Ultimately, the trial judge left to the jury for its consideration the greater charge only. He refused to leave the lesser as an available charge upon which to convict should the jury be minded to acquit on the greater. On appeal,
Held: In such a situation, the approach taken by the trial judge was correct.
There was then a decision of R v Adam Orlowsky [2008] NSWDC 368, a decision of Judge Cogswell SC, where in that trial the indictment charged an aggravated sexual assault and, in the alternative, an assault occasioning actual bodily harm. When he was arraigned the accused in that trial pleaded not guilty to count 1 and guilty to count 2.
The Crown did not accept the plea of guilty to the second count and suggested that the second count was therefore at large before the jury, and the jury was, accordingly, sworn to try both matters.
His Honour then went on to say that the Bench Book, at that stage in 2008, said the practice would be that which is followed in England: that the only count which goes to the jury is in the count in respect of which there has been a plea of not guilty, and the second count should effectively sit and wait. If the accused is acquitted on the first count, he can then be sentenced on the second count. That followed the decision of R v Cole.
Then there was a decision of Rothman J in R v Tailford [2021] NSWSC 248 where there was an indictment to which the accused pleaded not guilty to the charge of murder and guilty to the charge of manslaughter which, as Rothman J said, was, unusually, on the indictment. The Crown did not accept the plea of guilty to manslaughter. The accused asked the Court to leave only the charge of murder to the jury, and if there was a verdict of not guilty to that charge for the Court to deal with the manslaughter charge on the basis of the plea of guilty. The Crown agreed and asked the judge to take that approach. Rothman J then reviewed the authorities, being those to which I have referred. He acceded to the course which the Crown and counsel for the accused in that trial asked him to take. He noted the different practice in Victoria. At the end of his judgment his Honour set out, in paragraph [67], a number of principles, the law as he summarised it.
Mr Webb has relied on some of those paragraphs to submit that he does not think the position is clear cut. The Crown has relied on other paragraphs to submit that the course which he advocates, and which was the course taken yesterday, is the appropriate course; that is, where there are two counts on the indictment, the alternative count is on the indictment, and an accused pleads not guilty to the first count and guilty to the alternative count, then the accused is to be put on trial for the count to which he pleaded not guilty. Mr Webb cannot identify any prejudice that Mr Dilosa would suffer if that course was maintained.
I have discussed with counsel what seems to me to follow from s 154 of the Criminal Procedure Act and logic, that a person cannot be put on trial for an offence to which he has pleaded guilty. It would seem there would be nothing for the jury to do in any real sense.
I am quite confident that there are, and have been, two procedures adopted in the two different situations, one where the second count is on the indictment and not just an available alternative.
Mr Webb has made submissions about the procedure usually adopted in respect of murder charges and in the alternative manslaughter charges. I think that there is a difference between that situation where the one person is charged with the one act of doing an act which causes the death of someone, and the situation in this trial where the alternative charge alleges something different. So I think that the situation of a charge of murder and a charge of manslaughter does not provide a direct analogy in this trial.
Having regard to the authorities to which I have referred and the provisions, particularly s 154, of the Criminal Procedure Act, I am of the view that the appropriate procedure to adopt in this trial is that which was adopted yesterday, which is that Mr Dilosa is in charge of the jury in respect of count 1 on the indictment only. His trial proceeds on count 1 and there is no need for him to be put in charge of the jury in respect of count 2, to which he pleaded guilty.
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Decision last updated: 15 August 2023