Supreme Court New South Wales Medium Neutral Citation: R v Ian DACEY; R v Lee DACEY (No 3) [2013] NSWSC 1877 Hearing dates: 26 - 27 November 2013 Decision date: 27 November 2013 Jurisdiction: Common Law - Criminal Before: Button J Decision: The jury will not be directed that the liability of Lee Dacey is dependent upon or derived from negativing self-defence with regard to Ian Dacey Catchwords: CRIMINAL PROCEDURE - joint criminal enterprise - application for direction that liability of co-accused depends on other co-accused - actor principal relies on self-defence - whether non-actor principal can be guilty if actor principal not guilty - liability not derivative - application rejected Cases Cited: Clayton v The Queen [2006] HCA 58; (2006) 168 A Crim R 174 Huynh v The Queen [2013] HCA 6 McAuliffe v The Queen [1995] HCA 37; (1995) 183 CLR 108 Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316 R v Bikic [2002] NSWCCA 227. R v Hawi & ors (No 25) [2011] NSWSC 1671 R v Suteski [2002] NSWCCA 509; (2002) 137 A Crim R 371 Category: Procedural and other rulings Parties: Regina Ian Dacey Lee Dacey Representation: Counsel W Creasey (Regina) T Hoyle SC (Ian Dacey) D Yehia SC (Lee Dacey) Solicitors: Solicitor for Public Prosecutions (Regina) Armstrong Solicitors Pty Ltd (Ian Dacey) Mandy Hull & Associates (Lee Dacey) File Number(s): 201/333188; 2011/356716 Publication restriction: Not to be published until after verdicts ex tempore Judgment 1With regard to the written submissions of senior counsel for the accused Lee Dacey, I do not propose to direct the jury that the liability of Lee Dacey (the alleged "non-actor principal") is dependent upon or derived from negativing self-defence with regard to Ian Dacey (the alleged "actor principal"). It seems to me that such a direction would be contrary to what was said by the High Court in Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316 and Huynh v The Queen [2013] HCA 6, and also what was said by the Court of Criminal Appeal in R v Bikic [2002] NSWCCA 227. And I respectfully do not consider that the evidence in this trial somehow changes the elements of the offence of murder by joint criminal enterprise. 2Secondly, I do not propose to direct the jury with regard to extended joint criminal enterprise that Lee Dacey needed to foresee the possible use of a knife or similar weapon on the part of Ian Dacey. It seems to me that such an approach would be contrary to what was said by the High Court in McAuliffe v The Queen [1995] HCA 37; (1995) 183 CLR 108 and Clayton v The Queen [2006] HCA 58; (2006) 168 A Crim R 174; by the New South Wales Court of Criminal Appeal in R v Suteski [2002] NSWCCA 509; (2002) 137 A Crim R 371, especially at [145] - [159]; and by R A Hume J in R v Hawi & ors (No 25) [2011] NSWSC 1671. 3Thirdly, I do not propose to direct the jury that it is an element of murder by way of joint criminal enterprise that the non-actor principal in the first degree be not only present pursuant to the agreement, and have agreed to the commission of the crime in question, but also participating in some physical sense in the events causing death. It seems to me that that would be contrary to the whole tenor of Osland v The Queen, especially the judgment of McHugh J (to which reference has been repeatedly made since 1998), and also the recent decision of the High Court of Australia in Huynh v The Queen, especially at [36] to [39]. I do not consider that the evidence in the trial somehow alters the elements of the offence. 4Fourthly, it is quite true that a person who has entered into a joint criminal enterprise but who is not the actor principal with regard to the offence is referred to by lawyers and judges as a principal in the first degree. So much has been the case, at the latest, since the judgment of McHugh J in Osland v The Queen in 1998. But it does seem to me conducive to lack of comprehension on the part of the jury for me to say words to the effect that the Crown case against Lee Dacey is that he was a non-actor principal in the first degree by way of joint criminal enterprise. 5I have suggested that some other simple word or phrase such as "accessory" be used in my summing-up and by all relevant parties. It does not seem to me that to refer to Lee Dacey in those circumstances as an alleged accessory occasions any prejudice to the accused, and that it does serve to draw a distinction between the actor principal in the first degree and the non-actor principal in the first degree. 6Having said that, I remain open to senior counsel for Lee Dacey formulating some alternative that finds favour with the Crown and also with me. 7Finally, it could be that these issues should be revisited after the Crown case has been made perfectly clear in the Crown's address. As I say, at this stage I do not consider that I should accede to any of those submissions of senior counsel for Lee Dacey. 8To be clear, my first ruling does not encompass the question of whether self-defence should be left directly with regard to Lee Dacey himself, a topic to which I would now like to turn. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 April 2016