R v McHenry

The role played by Ms McHenry in how the murder was committed

1. In the present case, the jury's guilty verdict did not implicitly involve acceptance of any particular role being played by Ms McHenry in the murder. [7] Nonetheless, the verdict was inconsistent with Ms McHenry's versions of what occurred given during her recorded interviews with police. In these interviews, Ms McHenry maintained she was not physically involved in the fatal attack on Ms Easey in any way and she did not agree to such an attack by Mr Dilosa.
2. As explained already, in circumstances where factual findings were not necessarily implicit in the jury's verdict, it was proper for me to make findings and to take them into account provided they do not conflict with the jury's verdict. In doing so, any facts found against the offender must be found beyond reasonable doubt whereas facts found in favour of the offender need only be found on the balance of probabilities. [8]
3. Mr Evers of counsel, who appeared for Ms McHenry, submitted that I should, for the purposes of sentencing, find as a fact that "[a]ll the physical acts which caused the death of the deceased were done by Justin Dilosa". This appeared to me to be seeking a factual finding in Ms McHenry's favour.
4. In support of this submission, Mr Evers drew attention to the evidence of Mr Dilosa's destroying the knife and wrapping and disposing of the body as well as evidence of various admissions made by him as to his direct involvement in the murder. In addition, it was submitted that the evidence that Ms McHenry had made admissions of actually participating in the killing should not be accepted because of the significant doubts about the credibility and accuracy of the witnesses who gave that evidence or because the evidence should be understood as relating only to Ms McHenry being a participant in a joint criminal enterprise to murder Ms Easey but not physically participating in the fatal attack.
5. Mr Evers also submitted in effect that before the Court could find beyond reasonable doubt that Ms McHenry did some or all of the physical acts which caused Ms Easey's death, it would first have to be satisfied that it was not a reasonable possibility that Mr Dilosa did those acts and the Court should not be so satisfied. Mr Evers then contended in effect that, if a finding that Ms McHenry physically participated in the attack on Ms Easey could not be made, the Court was required to sentence Ms McHenry on the basis that she did not physically participate in the infliction of the fatal wounds on Ms Easey. Mr Evers' submission was encapsulated in his additional written submissions at par 24 which contended: "In this case, the offender must be sentenced on the basis that she did not participate in the physical acts causing death, in the absence of proof [beyond reasonable doubt] that she did."
6. The Crown submitted that, based on the whole of the evidence and, in particular: the evidence of the admissions of stabbing Ms Easey said to have been made by Ms McHenry to Mr Princehorn, Ms Burnes and Mr Lynch (even though they were said to be "far from ideal witnesses"); the fact that Ms McHenry was "one of 2 persons present in the house when Danielle Easey was killed, and the fact that the deceased was killed with 2 weapons"; Ms McHenry's conduct after the killing and her attempts to conceal it; and, her "occasional animosity" towards Ms Easey prior to the killing, it should be found that Ms McHenry was "actively involved" in the killing.
7. The only direct evidence of what occurred in or near the Narara house between about 4:00 pm and 11:00 pm on 17 August 2019, was that of Ms McHenry given in her recorded interviews with police and the evidence of Mr Dilosa.
8. Ms McHenry gave a number of different versions of what occurred in her recorded interviews but each of those versions involved Ms McHenry playing no part whatsoever in, and having no prior knowledge or awareness of, the attack on Ms Easey which led to her death. In light of the verdict of guilty of murder, the jury cannot have accepted those aspects of her versions of what occurred and it would be inconsistent with the jury's verdict for me to accept both that she played no part in the attack and that she had no prior knowledge or awareness of it. It can be noted that Ms McHenry's case did not include disputing that she was in the house at the time Ms Easey was killed and the evidence as a whole supports a finding beyond reasonable doubt that she was.
9. In addition, in her recorded interviews with police, Ms McHenry in substance maintained that she concealed Ms Easey's death by using her Facebook profile to communicate with Ms Collier and maintaining to Ms Morgan that she had no knowledge of what had happened to Ms Easey because Mr Dilosa told her to do so and she complied as she was afraid of him, having previously been the subject of domestic violence from a former partner and Mr Dilosa having been violent towards her children.
10. On Mr Dilosa's version of what occurred at the Narara house on 17 August 2019, he was not in the house when Ms Easey was killed. This was because when she was still alive he went to his van, which was parked in the cul de sac. He was looking for ice and some cigarettes but fell asleep in the van. When he woke up and returned to the house, Ms McHenry opened the front door and said "We got to go", and indicated that Ms Easey was in bed. According to Mr Dilosa, after putting a bag in the boot, he and Ms McHenry then drove off in the white Commodore heading north to Newcastle and proceeded to stop at the Caltex Wyong Northbound Service Station late on 17 August 2019. A little distance further on, Ms McHenry asked him to stop and Mr Dilosa was shown the contents of the bag, that she had placed in the boot, which included his knife, a hammer and some bloodied material. They then travelled to Mr Princehorn's residence.
11. In addition to their accounts of what occurred, there was evidence that both Ms McHenry and Mr Dilosa made admissions of being involved in the fatal attack on Ms Easey.
12. The admissions said to have been made by Ms McHenry and some of the surrounding circumstances can be adequately summarised as follows: 1. Mr Princehorn gave evidence that, on 19 August 2019, he was with Ms McHenry at her house in Narara along with Mr Dilosa and while they were there, Mr Dilosa showed him the body of Ms Easey, and later, Ms McHenry said "she stabbed her". [9] At times during his evidence, Mr Princehorn said that Mr Dilosa was not present when Ms McHenry made this admission but in his recorded interview he said that Mr Dilosa was present and said "No. No. She didn't stab her. I did". [10] In cross-examination, however Mr Princehorn maintained that he was "probably" in no state to remember what was said to him due to his level of intoxication and lack of sleep. [11] Mr Evers also made submissions as to the inconsistency of Mr Princehorn's evidence, contending that he had motivation to lie due to self-protection and that the "circumstances in which the admission [were] made is implausible". 2. Ms Burnes gave evidence that a few days after Ms McHenry visited her at the hospital on 19 August 2019, Ms McHenry and Mr Dilosa came to her house and while in the loungeroom Ms McHenry said she had stabbed Ms Easey in the back. [12] Ms Burnes suggested Ms McHenry's motive for doing so was because Ms Easey owed Ms McHenry money. [13] Ms Burnes said that Mr Dilosa then said "You shouldn't have told her that" and "she didn't need to know." Ms Burnes also gave further evidence that at some time prior, Ms McHenry told Ms Burnes that Ms Easey had possession of a list of names, which included Ms McHenry's partner, Luke Wallace, and that Ms McHenry said she wanted to "shut her up". [14] 3. Mr Lynch gave evidence he knew Ms McHenry and met her near Warners Bay pub on one occasion and that she was "frantic … a real mess" and eventually explained "We fucked up. We killed this bitch". [15]
13. The evidence of admissions by Mr Dilosa was, in summary as follows: 1. Mr Collins gave evidence that a "a couple of days or a day" after meeting Ms Easey, he and Ms Daly were at Mr Dilosa's flat and Mr Dilosa said, "You know, I love you guys, but I will tell you this before you hear it from anyone else, that chick, she was no good" and that he had killed her. [16] Mr Collins gave further evidence that at a later date, he was at Mr Dilosa's place with Ms McHenry and Ms Daly and he believed that Mr Dilosa: "…said that he had killed her, and he said something about it was all good until the crack ran out, and then said she was going to hurt his friends, and then it happened. That he stabbed her in the head and back, and he would do it again." [17] 1. Ms Daly gave evidence that sometime after 27 August 2019, Mr Dilosa had written on a piece of paper that the police had found the body and "said something like: I did it because she was going to like fuck a lot of people up, or something along those lines". [18] During cross-examination, Ms Daly also agreed that, while at Mr Dilosa's flat, she heard Mr Dilosa say "You know I love you guys, and I want to tell you this before you hear it from anyone else. That chick was no good. She was going to hurt my friends. I killed her, and I would do it again." [19] 2. Mr Princehorn gave evidence that Mr Dilosa said that Ms McHenry did not stab Ms Easey but he did, as previously referred to. In addition, Mr Princehorn thought it sounded right that he had said in his recorded interview that the night after the body had been found, Mr Dilosa said that "he did it, that he killed a girl to protect Carol". [20] 3. In a recorded telephone conversation between Mr Dilosa and Mr Adams on 17 September 2019, Mr Dilosa said: "While the drugs were still there everything was all well and good, but as soon as the drugs started running out … I was at Carol's place with the girl. The drugs ran out. She started to run her mouth off about doing something with a list … I couldn't allow that."
14. In relation to the admissions said to have been made by Ms McHenry, I accept Mr Evers' submissions that the witnesses were highly unsatisfactory. Some of them gave inconsistent evidence. Some had a motive to lie both by way of protection of themselves and Mr Dilosa. Some had previously denied having any knowledge about Ms Easey's death. Some had mental health and drug and alcohol intoxication issues and Ms Burnes had a motive to implicate Ms McHenry falsely, as a result of perceived betrayal. In particular, in relation to Mr Princehorn's evidence, I formed the view that he was attempting to minimise his involvement with what occurred at the house at Narara on the night when he saw the body on the bed and he was exaggerating his level of intoxication and the vagueness of his recall. Nonetheless, I found his evidence of asking Ms McHenry what occurred and her response credible and there did not appear to me to be any sufficient reason to doubt its accuracy, especially as he also gave evidence of Mr Dilosa also making an admission to him. I would have been prepared to accept on the balance of probabilities Mr Princehorn's evidence as to what was said to him by Ms McHenry and Mr Dilosa on that occasion. Notwithstanding that conclusion, his general demeanour and the content of the evidence left me with a reasonable doubt about whether Ms McHenry said what Mr Princehorn recounted in his evidence. Similarly, I was left with a reasonable doubt as to the admissions said to have been made by Ms McHenry to Ms Burnes and Mr Lynch.
15. Accordingly, I concluded that I could not be satisfied beyond reasonable doubt based on the evidence of the admissions said to have been made by Ms McHenry, viewed in light of the evidence as a whole, that Ms McHenry actually carried out the stabbing of Ms Easey as opposed to having some lesser role in Ms Easey's murder.
16. The evidence concerning Mr Dilosa's admissions was different. Mr Dilosa did not deny making admissions that he stabbed Ms Easey attributed to him by Mr Collins, Ms Daly, Mr Princehorn and Mr Adams. Similarly, he did not deny destroying his knife or wrapping and disposing of Ms Easey's body. He did, however, give an explanation for why he made admissions and acted as he did. According to Mr Dilosa, he did so out what can be described as amounting to a misguided, almost quixotic, attempt to protect Ms McHenry and her children, whom he loved, from the consequences of her actions by taking all the responsibility himself.
17. Mr Dilosa's description of his feelings for, and relationship with, Ms McHenry was significantly different from her version which involved him being abusive towards her and her children and her being afraid of him. In my view, the nature of the relationship between Mr Dilosa and Ms McHenry, in about August and September 2019, was strikingly illustrated in the messages Ms McHenry sent to Mr Dilosa on 19 September 2019 and the intercepted telephone conversations between them on 11, 17 and 18 September 2019 (Ex BX). The messages on 19 September 2019 (the day Mr Dilosa and Ms McHenry were arrested) included Ms McHenry messaging Mr Dilosa: "U need to call me ASAP"; "U really need to call me"; and, "Oi this is important fuck ya". The intercepted telephone conversations included, by way of illustration: 1. Mr Dilosa telling Ms McHenry on 11 September 2019: "You know, it doesn't matter what goes on, that I still care about ya and I don't give a fuck what, I don't give a fuck about nothing. I just want you to be all right. So if you need anything …" 1. On 17 September 2019, a conversation about whether Mr Dilosa had been to Narara: "[CMcH] … have you by any chance sorted that shit out down at my house? [JD] No, I haven't, Caz I haven't had permission to. [CMcH] Yeah you have. [JD] Yeah but I haven't spoken to you, I didn't want to upset you in any way. [CMcH] All right. You won't, it needs to be done. [JD] Can you call in for a chat? [CMcH] No. Um, at the moment no. Um, I've got, I'm literally flat out at the moment, trying to get shit sorted for myself. Um …"
18. In my view, the messages and telephone calls, the amount of time spent by Ms McHenry and her young child with Mr Dilosa, including at his flat, the evidence that she gave him a black eye as a result of a disagreement and other evidence of their relationship in August and September 2019, did not support Ms McHenry's contention that she did what she did because she was afraid of Mr Dilosa or that he was violent towards her or her children. Indeed, my assessment of all the evidence as a whole, including that material, was that it supported Mr Dilosa's explanation as to why he made the admissions and did what he did.
19. In my view, Mr Dilosa's evidence was not substantially undermined in cross-examination and was not shown to be inconsistent with the objective evidence in any presently relevant and significant respect. He gave his evidence deliberately and it was suitably qualified where appropriate.
20. In all the circumstances, I accepted that Mr Dilosa's explanation of his admissions and conduct had sufficient plausibility to reduce the evidentiary significance that might otherwise have attached to them and to negative to a substantial extent the inferences that might otherwise have been drawn from his conduct and what he said. Furthermore, if Mr Dilosa's account of what occurred on the evening of 17 August 2019 were accepted, it would follow that Ms McHenry was alone responsible for the attack on Ms Easey and for the infliction of the fatal wounds. If, however, Mr Dilosa was involved in the attack on Ms Easey, he had a very significant motive not to tell the truth in his evidence in that regard. Although Mr Dilosa's evidence had some considerable strength, I was not prepared to find beyond reasonable doubt that he did not play any part in the murder of Ms Easey. Consequently, I was also not satisfied beyond reasonable doubt that Ms McHenry inflicted all or some of the fatal wounds on Ms Easey.
21. In my view, however, it did not follow that, as Mr Evers submitted, I must sentence Ms McHenry on the basis that she did not physically participate in the attack on Ms Easey because the Crown did not prove beyond reasonable doubt that she did. It is well established that there may be situations where no relevant finding can be made one way or the other.
22. In Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14 at [20], Gleeson CJ, McHugh, Gummow and Hayne JJ explained: [21] "The sentencing judge may not be able to make findings about all matters that may go to describe [the] circumstances. In particular, an offender may urge a particular view of the nature and circumstances of the offence, favourable to the offender. The sentencing judge may be unpersuaded that the view urged is, more probably than not, an accurate view of the circumstances. In such a case, it is not correct that the judge is bound to sentence the offender on that favourable basis, unless the prosecution proves the contrary beyond reasonable doubt."
23. This approach was reiterated in Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 (Filippou) in the following terms at [64] (French CJ, Bell, Keane and Nettle JJ): "…Where, therefore, the prosecution fails to prove a fact or circumstance which is adverse to the offender, but the judge is not satisfied on the balance of probabilities of an alternative version more favourable to the offender, the judge is not bound to sentence the offender on a basis which accepts the accuracy of the more favourable version. If the prosecution fails to prove beyond reasonable doubt a possible circumstance of the offending which, if proved, would be adverse to the offender but the offender fails to establish on the balance of probabilities a competing possibility which, if proved, would be favourable to the offender, the judge may proceed to sentence the offender on the basis that neither of the competing possibilities is known."
24. Furthermore, in Filippou at [66], the High Court held that where an offender asserts a fact favourable to the offender and the Crown contests it or the Court is not otherwise disposed to accept it, it is incumbent on the offender to establish the fact on the balance of probabilities.
25. In the present case, the offender asserted that she should be sentenced, on the basis favourable to her, that she did not physically participate in the attack on Ms Easey. Having regard to the evidence as a whole in the present case, including (without being exhaustive): the evidence of admissions said to have been made by Ms McHenry (taking into account the unsatisfactoriness of the witnesses who gave that evidence); the evidence of her activities, conduct and attitudes before and after the killing; the evidence of the length and nature of her relationship with Ms Easey; the nature of her relationship with Mr Dilosa; the evidence of Mr Dilosa of what he did on the evening of 17 August 2019; the fact that Ms McHenry's versions of her complete lack of involvement in the attack on Ms Easey were inconsistent with the jury's verdict and must be rejected; the fact that she was in the house at the time of the killing; and, the fact that two weapons were used, I was not satisfied on the balance of probabilities that Ms McHenry did not participate physically in the fatal attack on Ms Easey.
26. Since, in my view, a finding cannot be made beyond reasonable doubt that Ms McHenry physically attacked the deceased and a finding cannot be made on the balance of probabilities that the offender did not do so, then the offender is to be sentenced on the basis that neither of the competing possibilities was known. This is the approach endorsed by the Court of Criminal Appeal in Martinez v The Queen [2022] NSWCCA 12 (Martinez) at [51] (Beech-Jones CJ at CL, Macfarlan and Brereton JJA agreeing).
27. For these reasons, Ms McHenry is to be sentenced on the basis that her role in the murder involved her being present in the house when Ms Easey was killed but it is not known whether or not she physically participated in attacking Ms Easey. Further, the jury's verdict compels me to find that Ms Henry had, at least, prior awareness of the attack and agreed to it being undertaken.

[2004] HCA 22

(2001) 209 CLR 1

(2015) 256 CLR 47

(2004) 217 CLR 198

(1999) 199 CLR 270

(2003) 212 CLR 629

[2014] NSWCCA 114

[1999] HCA 54

[2001] HCA 67

[2015] HCA 29

[2022] NSWCCA 12

[2019] NSWSC 1815