Supreme Court New South Wales Medium Neutral Citation: R v Dacey, Ian; R v Dacey, Lee [2014] NSWSC 1201 Hearing dates: 11 - 26 August 2014 Decision date: 29 August 2014 Before: R A Hulme J Decision: Ian Dacey: Not Guilty to murder; Guilty to causing grievous bodily harm with intent Lee Dacey: Not Guilty to murder; Not guilty to causing grievous bodily harm with intent Catchwords: CRIMINAL LAW - murder - grievous bodily harm with intent - previous trial but no verdicts reached - trial by judge alone - causation - reasonable possibility that stab wounds inflicted by Ian Dacey did not substantially or significantly contribute to death of deceased - common ground that grievous bodily harm was caused - satisfied beyond reasonable doubt that grievous bodily harm was intentionally caused - satisfied beyond reasonable doubt that Ian Dacey did not believe it was necessary in order to defend brother - joint criminal enterprise to assault but no foresight of grievous bodily harm Legislation Cited: Criminal Procedure Act 1986 (NSW) Evidence Act 1995 (NSW) Category: Principal judgment Parties: Regina Ian Dacey Lee Dacey Representation: Counsel: Mr L Carr (Crown) Mr T Hoyle SC (Ian Dacey) Ms A Moen (Lee Dacey) Solicitors: Solicitor for Public Prosecutions Armstrongs Solicitors Pty Ltd Mandy Hull & Associates File Number(s): 2011/333188; 2011/356716 Judgment 1R A HULME J: On 11 August 2014 the two accused, Ian Dacey and Lee Dacey, were arraigned before me and pleaded not guilty to both counts in the indictment: murder and causing grievous bodily harm with intent to do so. 2They had previously been tried before Button J and a jury but for some reason no verdicts were reached. 3Each of the accused elected that their retrial be conducted by judge-alone. The Crown agreed to this. I was satisfied that all of the statutory pre-conditions had been met which left me with no discretion but to make a trial by judge order: ss 132-132A Criminal Procedure Act 1986 (NSW). 4At both trials the accused Ian Dacey was represented by Mr Hoyle SC. Lee Dacey was represented by Ms Yehia SC at the first trial and by Ms Moen at this trial. Overview of the Crown case 5The incident with which the case is concerned occurred at the unit block where the deceased, Mr Peter Dent, lived. It was on Glebe Road at Hamilton South and appears to have been one of a number of blocks in a complex. The accused attended the deceased's home on the afternoon of 9 August 2011. They then travelled with him in a taxi to the home of the accuseds' mother at Newcastle East in the early evening. It seems that Mr Dent was on friendly terms with their mother. 6It was apparent to the taxi driver that the accused were under the influence of something (drugs). Mr Dent somehow made his way back to his home. The accused returned by taxi at about 2.30am. An argument (verbal and physical) developed at about 6.00am. The accused left the scene. An ambulance arrived at about 6.30am to find Mr Dent had been stabbed. He was taken to hospital where he received emergency treatment and was admitted. He was making a relatively successful recovery but a cardiac event occurred at about 2.35pm on 14 August 2011 and life was pronounced extinct at 3.15pm. 7The Crown alleges that Ian Dacey is liable to be found guilty of murder on the basis that it was he who stabbed Mr Dent; the injury sustained as a consequence of the stabbing caused or substantially contributed to his death; and the act of stabbing was accompanied by an intention to kill or inflict grievous bodily harm. 8The Crown alleges that Lee Dacey is liable to be found guilty of murder on the basis that he was a party to a joint criminal enterprise with Ian Dacey to kill or inflict grievous bodily harm upon Mr Dent. Alternatively, the Crown alleges that he was a party to a joint criminal enterprise with Ian Dacey to assault Mr Dent and he contemplated the possibility that Ian Dacey would intentionally inflict grievous bodily harm. 9The Crown contends that if I was not satisfied of the relevant intention I could return a verdict of guilty to manslaughter. Alternatively, if I was not satisfied that death was caused, or substantially contributed to, by the stabbing, I could return a verdict of guilty to causing grievous bodily harm with intent. Overview of the defence cases 10There is no dispute that Ian Dacey stabbed Mr Dent. But it is an issue as to whether he did so with an intention to kill or inflict grievous bodily harm. There is also an issue about whether he was acting in self-defence; more specifically, in defence of his brother Lee. 11There is a more fundamental issue in relation to the charge of murder: whether the injury caused by the stabbing of the deceased was the cause of death. 12In relation to the accused Lee Dacey, there is also a dispute as to whether he was a party to either of the joint criminal enterprises the Crown alleges. And he denies that he was directly involved in any physical assault upon Mr Dent. Principles of law 13It is a necessary requirement of a judgment such as this to set out the principles of law that are to be applied. I will do so with as much brevity as is possible. Onus and standard of proof 14First and foremost, the onus of proof is upon the Crown and the standard of proof is beyond reasonable doubt. The accused are presumed to be innocent. One aspect of this is that no adverse inference may be drawn from the fact that an accused declines to be interviewed by police or elects not to give evidence at trial. Causation in homicide 15Homicide in the form of both murder and manslaughter can only be established if it is proved that the act of stabbing Mr Dent caused injuries which ultimately were the cause of his death, or substantially or significantly contributed to his death. This issue is decisive and so there is no need to refer to the other essential elements. Alternative count of causing grievous bodily harm with intent 16I am only required to return a verdict on the second count in the indictment if I return a verdict of not guilty on the first count. 17The essential elements the Crown is required to prove to establish such a charge are that there was a deliberate act of the accused that caused grievous bodily harm and that when committing that act the accused had an intention to cause such harm. 18The Crown alleges that the accused Ian Dacey was the principal offender in that it was he who stabbed the deceased and he intended thereby to cause grievous bodily harm which in fact resulted. 19As I have mentioned, the Crown alleges that the liability of the accused Lee Dacey arises on a joint criminal enterprise, or an extended joint criminal enterprise, basis. He would be liable on the first of those bases if it was established that he was party to an agreement with Ian Dacey that grievous bodily harm be inflicted upon Mr Dent; that such harm was in fact inflicted by Ian Dacey; and that Lee Dacey was present when it occurred. He would be liable on the second of those bases if it was established that he was a party to an agreement with Ian Dacey that Mr Dent would be assaulted but he foresaw the possibility that grievous bodily harm might be inflicted; such harm was in fact inflicted by Ian Dacey; and that Lee Dacey was present when it occurred. 20The issue of causation that arises in relation to count one does not arise in relation to count two as it is only concerned with death having occurred. All that needs to be established for count two is that grievous bodily harm was caused and there does not appear to be any dispute about that. 21The Crown Prosecutor alluded to the offence of recklessly causing grievous bodily harm as being an alternative available where the tribunal of fact is not satisfied of an intention to cause grievous bodily harm. I will say more about this if necessary. Self-defence 22Self-defence is an issue that the Crown must disprove beyond reasonable doubt. The Crown can prove that an accused's acts were not done in self-defence by establishing either that the accused did not believe that it was necessary to do what was done in defence of him or herself or another person, or that what he or she did was not a reasonable response in the circumstances as they were perceived. Intoxication 23Intoxication (if it is established) is a relevant matter in considering whether an accused formed an intention to achieve a specific result (in this case, death or grievous bodily harm). It is also relevant to self-defence in determining whether an accused believed that it was necessary to do what he or she did. It is also relevant in relation to the second aspect of self-defence in determining what the circumstances were that the accused perceived. It is not relevant to whether the response was a reasonable one in whatever those circumstances were. Other legal principles 24I should mention some other legal principles that I am required to apply in my determination of this case. One is that I must give separate consideration to the cases concerning each accused. It may be that I could find one accused guilty and the other not; or I could find both guilty; or both not guilty. 25Another matter I must bear in mind relates to the expert evidence I have heard during the course of the trial. Some of it has not been disputed: for example, the crime scene examiner and the forensic biologist gave expert opinion evidence that was not challenged. That being the case, I would have to have a very good reason not to accept such undisputed expert evidence. 26On the other hand, there has been a very lively dispute between the expert evidence of Professor Lyons and Dr Cala for the Crown and Dr Baron for the defence on the causation issue. In resolving that dispute I must bear in mind that it is not simply a matter of choice as to which I prefer. I must bear very much in mind that the Crown has the onus of proof and that the accused are not required to prove anything. Causation - the evidence as to the manner and cause of death 27Ambulance officer Kenneth Isles and his partner arrived at the scene at about 6.30am. Mr Isles found Mr Dent sitting on the bottom landing. He established that there was a puncture wound to the left side of the chest. There was decreased air in the left lung and he was concerned that it may have been lacerated, causing it to deflate. This, coupled with the fact of the proximity to the heart, led to Mr Dent being promptly evacuated to the John Hunter Hospital where he arrived at about 7.00am. 28It was quickly identified in the Emergency Department that Mr Dent was suffering from a left hemopneumothorax as a result of the stab wound. An intercostal catheter was inserted and about 400ml of blood was drained. There was concern about the possibility of bleeding in the pericardium (the sac containing the heart). This condition is referred to as "pericardial effusion". The expert medical evidence in the trial was to the effect that this could be a dangerous condition as if the volume of blood increased it could place pressure on the heart, thereby compromising its ability to function. A CT scan, and two echocardiograms were carried out whilst Mr Dent was in the Emergency Department but they revealed no evidence of pericardial effusion. 29Mr Dent was transferred to the High Dependency Unit (HDU) at 3.50pm and then the following day to a general ward. He was given various medications including analgesics for pain. The records indicate that he was progressing well in his recovery. In notes made in the hospital records on 12 August he was described as ambulant, independent and self-caring. He even walked out of the ward that evening. On 13 August he was anxious to be permitted to go home. On the morning of 14 August he again left the ward. He was noted to be still experiencing pain and was given appropriate medication. At 2.00pm a nurse noted that his observations remained stable. Dr Dinesh Sinnaduray, who was involved with the deceased whilst he was in the HDU, was taken through the medical records and he agreed that as at 2.00pm on 14 August Mr Dent appeared to be making "a very positive recovery from his injury". 30Mr Dent left the ward sometime after 2.00pm. At about 2.35pm a buzzer went off alerting nursing staff. Mr Dent was found on his bed with his left arm jerking and his head tilted back. There was no pulse and he was not breathing. Cardio Pulmonary Resuscitation (CPR) was commenced and the Rapid Response Team soon arrived. CPR continued. At about 3.12pm an Intensive Care Unit consultant attended and carried out an echocardiogram. No pericardial effusion was seen. Life was pronounced extinct at 3.15pm. 31In a Report of Death of a Patient to the Coroner (Exh P at p 2), Dr Mohammadi said as to the cause of death: "Difficult to ascertain as at the time no cause for the pulseless electrical activity was found. This included echo, looking for tamponade which was negative". 32Professor Timothy Lyons, a very experienced forensic pathologist, carried out an autopsy on 16 August 2011. He identified six stab wounds but only one was serious; the one to the left side of the chest. There were also some abrasions. He determined that the serious wound had entered the seventh intercostal space, transected the intercostal artery and intercostal vein and entered the lung causing the initial hemopneumothorax. It continued into the pericardium and to the surface of the heart where it partially transected a small vessel on the surface of the heart, namely a branch off the left anterior descending coronary artery. 33Of significance, Professor Lyons found that the pericardial sac was distended by 340ml of well-formed blood clot. This was a pericardial tamponade. The source of the bleeding was the partially severed vessel on the heart surface. 34Professor Lyons said that it was possible for the partial transection of the vessel not to be detected by the x-ray, CT scan or echocardiograms performed upon the deceased's admission to the hospital on 10 August. This was because Mr Dent's blood pressure would have been reduced as a result of the hemopneumothorax and in such a situation, small blood vessels can clamp so as to prevent bleeding. He considered that a blood clot would have formed at the site. It was a small defect and he did not consider that the resolution of the CT and echocardiogram would pick it up. 35The next question was why a re-bleed started and resulted in the pericardial effusion, leading to the tamponade. Professor Lyons likened it to the risk of re-bleeding after surgery. He gave the following evidence in the first trial (and in this, and other transcript extracts, I have taken the liberty of making punctuation corrections): "[P]ost-operative bleeding is a very common problem and that may occur for a number of reasons. It may occur ... if blood vessels clamp down and then subsequently when the body is returned ... to normal blood pressure and pulse, the vessels relax and it started bleeding. But more probably what happens is a small blood clot forms and the body responds to a cut, that you get a degree of inflammation around that cut and you may get some cell and tissue death, so that the clot can just break off. ... [I]n my opinion, you can liken the injury on the surface of the heart to a nick from a surgeon's scalpel. It's an incised wound which cut into a small blood vessel; [a] clot has formed on it; the body has responded by causing inflammation and some cell death to the heart muscle; and subsequently that clot has broken away and that sac around the heart is filled with blood. ... [I]n simple terms the heart is a pump, so ... if you increase the pressure by filling the cavity around the heart with blood it will stop pumping, it can't work. ... Q. Are you able to express an opinion as to what it may have been that caused, if it occurred in the way that you suggested, the blood clot falling away and the bleeding starting? A. I think it's impossible to answer that question. ... A clot can break away like this with someone lying in bed who ... has a normal blood pressure and pulse because the body's natural processes have caused some inflammation and cell death and it's just simply broken away. ... [In my report] I talked about this man becoming ambulatory so I think by implication I have suggested that if he is up and about and walking about, that that may increase his heart rate and pulse and maybe that's ... a factor that could be involved in this. But I mean ultimately there was an injury [that] occurred on day 1 and on day 4 clot's broken away from the same injury that's led to his death." (T1 - 382) 36As to the cause of death Professor Lyons said: "Q. What do you say then was the cause of death of this man? A. Well, ... to be crystal clear, I put the cause of death out as stab wound to chest. Q. Did you want to say something else? A. No. And then I chose to elaborate in the body of the report as to the actual pathophysiological mechanism of death so I mean that's why I haven't put cardiac tamponade as the cause of death primarily because I believe the primary - the overall mechanism that led to death was a stab wound to the chest. Q. What was the mechanism of death? A. Well, I mean ultimately - bleeding around the heart, a pericardial tamponade, stops the heart pumping. So effectively the mechanism of death is a cardiac arrest because simply the heart can't operate normally. Q. How quickly can that happen? A. Well, once you start developing a pericardial tamponade, with reasonable rapidity. Q. What do you mean by that, are you able to put a time on it? A. I think once this blood clot's come off even from a blood vessel within, inside the heart, given even a fraction of a ml of - a very small amount of blood coming out of a vessel with the heart pumping, I think this is something that has happened over a number of minutes, but I couldn't say one minute, two minutes or five minutes. That's a - can I say that's as opposed to the situation we commonly see this in which is from someone who has ... had a cardiac infarct where the heart muscle has ruptured, so there's a big hole formed in the heart and that's effectively caused the death immediately." (T1 - 382-3) 37Professor Lyons put it more succinctly a little later in his evidence: "Q. So what do you say was responsible for his collapse at the hospital on 14 August? A. Well I, my opinion is that the original insult led to transection of a small blood vessel that has, that initially became covered with blood clot and that the body's processes have led to inflammation and some cell death and that's led to breaking down of the clot that's broken off leading to bleeding around the heart that's led to death." (T1 - 398) 38Professor Lyons firmly rejected a proposition that it was the CPR that caused the clot to break off and the bleeding to start: see, for example, T1 - 398.20; 411.40. 39If it was the formation of the pericardial tamponade that led to the deceased's collapse at around 2.35pm on 14 August 2011, then it can be readily concluded that the stabbing substantially or significantly contributed to his death. But why was such a relatively large accumulation of blood in the pericardium not seen when the echocardiogram was performed a few minutes before life was pronounced extinct? 40Professor Lyons said "you would not necessarily expect to see it on an echocardiogram"; but that "it's possible that it could have been visible" (T1 - 419.39). He offered the explanation that there must have been "diagnostic error". He said: "I'm suggesting that this may have been missed or that because there was - because this man had recently had a reinflated lung, that the appearance - and at the time of the final CPR were misleading and led the ultra-sonographer to think that there wasn't a tamponade, which there clearly was." (T1 - 419) 41He agreed that there was no evidence of a tamponade having been missed; but he relied upon his findings on autopsy to support an inference that it had been. (T1 - 420) 42Dr Alan Cala was called to give evidence in the trial before me. He was not brought into the case until a second opinion was sought by the Crown after the first trial. He, like Professor Lyons, is a very well qualified and experienced forensic pathologist. He reviewed all of the relevant materials in order to formulate his opinion as to the cause of death. He agreed with Professor Lyons. 43A significant feature in Dr Cala's consideration was the fact that the bleeding into the pericardium was found by Professor Lyons to have formed a "well-formed clot". If the majority of the bleeding had occurred in the minutes before life was pronounced extinct it would have appeared post mortem as liquid, not as a clot (T2- 99. 40; 112.12; 117.27). So, for a clot to have formed, it must have occurred not just minutes before life was pronounced extinct. Dr Cala said that blood coagulates during life to form clots and when it solidifies after death it congeals. The processes are different and the appearance is different. 44On a photograph of the "well-formed clot" (Exhibit R), Dr Cala identified what seemed to me to be a speckled appearance of some areas on the surface as being the fibrin protein that is involved in the clotting process (T2 - 85-88). He conceded, however, that there was really no way of testing his opinion on this; that Professor Lyons had not commented about it in his post mortem report; and that the professor would have been in a better position to see it (T2 - 119). The Crown Prosecutor accepted during his closing address that there was no evidence of Professor Lyons seeing what Dr Cala claimed to have detected on the photographs (T2 - 263). 45Dr Cala did not believe that CPR would have been the cause of the tamponade. One of his principal reasons for that was his understanding that there would be little if any blood flowing through the coronary arteries during CPR. In other words, there would not be enough blood flow to cause a collection of 340ml in the pericardium in a relatively short time. (T2 - 91-93; 147). 46Dr Cala considered that the partially severed artery had commenced to re-bleed but, in contrast to Professor Lyons, he referred to it bleeding slowly (T2 - 95.36). He considered the time frame for the collection of the 340ml in the pericardium would have been in the order of hours and possibly up to a day, although he conceded that this estimate was in the nature of "quite a guess" (T2 - 96.20). Professor Lyons spoke of it happening rapidly, in a matter of minutes. In any event, they were both of the view that the tamponade had formed by the time the deceased collapsed at 2.35pm on 14 August 2011. 47Dr Cala was of the view that 340ml of blood in the pericardium should have been picked up on the echocardiogram carried out at about 3.12pm on 14 August, if it was there (T2 - 109.29; 138.40; 141.43; 154.8), but he added: "I accept that during the activity of resus it may have been the case that the scan wasn't able to pick up that blood for whatever reason." (T2 - 109) 48He later offered that "there may well be technical and other reasons as to why it may not have been seen" (T2 - 141.44). He agreed, however, that there was "no evidence that there was any problem with the sonar or the operator" (T2 - 142.5). 49In re-examination he was asked whether he had any experience of seeing something on autopsy that had not been detected by an echocardiogram: "I've been involved in several cases over the years not just here but interstate and when I was in Sydney where these types of scans had been done and they have failed to show what's been present at autopsy." (T155.21) 50Mention should also be made of the evidence of Dr Sinnaduray. He was involved in the attempt to resuscitate Mr Dent. He agreed that if Mr Dent had a clot in the vicinity of 340ml of blood inside the pericardial sac then that is something he would expect the echocardiogram to pick up (T278). 51Dr David Baron was called in the defence case at the first trial and again in this trial. He is an eminent specialist in interventional cardiology. He is currently a senior staff cardiologist at St Vincent's Hospital. He had reviewed all of the relevant materials and the evidence that had been given by the other experts with the exception of that of Dr Cala (because of time constraints). 52Dr Baron disagreed with the opinions of both Professor Lyons and Dr Cala as to the cause of death. He also disagreed with various aspects of their reasoning towards their conclusions. It is unnecessary to deal with each area of dispute. I will confine myself to the two essential aspects: whether the tamponade was present at the time the deceased collapsed at about 2.35pm on 14 August 2011 and, if it was present, why it was not detected by the echocardiogram carried out at about 3.12pm. 53Before referring to his evidence on those matters I should mention that it was Dr Baron's opinion that the cause of Mr Dent's collapse at 2.35pm was respiratory arrest and then a total cardio-respiratory arrest. (T2 - 204) 54Dr Baron was of the view that the clot on the relevant cardiac artery did not spontaneously dislodge. He gave a number of reasons for this but, in essence, it was his view that the damage would have been well along the way to healing on the fifth day; the danger period for spontaneous dislodgement would be more in the first day or two. One factor he took into account in relation to this was that the hospital records showed that Mr Dent's blood pressure had been relatively stable. He considered that what was more likely was that the CPR, carried out with the necessary vigour for it to be potentially effective, caused the clot to dislodge. It was possible that this did not occur until after the echocardiogram was conducted at about 3.12pm. It was possible for 340ml of blood to be ejected into the pericardium during the subsequent few minutes of CPR. 55In cross-examination he was asked, if the clot was dislodged by CPR, why it was not dislodged until after the echocardiogram was carried out which was about half an hour after the CPR had started. He replied: "You can push on a door for 20 minutes, but it may not necessarily open until the last three minutes. There's no doubt in my mind that the vigorous massage dislodged the clot, but it may not have done it on the first compression or indeed the first ten minutes. It may have only been towards the end when it's all a bit squashed if you like, that it became dislodged." (T1 - 962) 56Dr Baron was asked about the echocardiogram not detecting any sign of pericardial effusion or tamponade. In the first trial he said: "If the tamponade caused the patient to have a cardiac arrest it should be really obvious. The reason I say that is we know the dimensions of the left ventricle from before [namely, from the full echocardiogram carried out on 10 August 2011]. To get a 340 mls tamponade you'd probably have about 2 centimetres or 20 millimetres around the heart. It would be ... really obvious. The whole heart itself was only 30 millimetres. If you can see the heart you would certainly see the pericardium and there was no reported, at that time, pericardial effusion." (T1 - 957) 57He was asked about Professor Lyons suggesting that "diagnostic error" occurred. His response included: "I think it occurred post death myself but I suppose you would have to ask the Professor how many echocardiograms he's done and his real life experience. I can't vouch for that but to [me] it is inconceivable that a person could miss something almost as big as the heart." (T1 - 958) 58A little later in his evidence he said the possibility of the tamponade being there but not being picked up by the echocardiogram was "very unlikely" (T1 - 962.50). To cause death, the tamponade "would have to be so big that I think you can't miss it" (T1 - 963.5). The fact that CPR was being performed would not have impeded the ability of the operator to detect a tamponade if it existed. And if the operator was not getting a clear enough picture the operator would have said so rather than stating unequivocally that there was no pericardial effusion: "It's inconceivable that a person would say there's no pericardial effusion and have no picture" (T1 - 963.26). 59The Crown Prosecutor in the first trial cross-examined Dr Baron as to his level of certainty about this: "Q. But dealing with this particular case you can't be sure can you? A. I'm fairly sure. Q. You can't be sure, you can't be positive about it can you? A. Well I am sure. I am positive. I'm as positive that I'm not having a dream at the moment." (T1 - 963) 60Dr Baron was equally adamant in this trial. For example: "It is inconceivable to miss a haematoma or blood in the pericardium which is as big as the heart, that's like saying you can't see the heart. To me it's - it doesn't ring true." (T2 - 209.35) "I think it would have been really obvious [to the sonar operator if Mr Dent's collapse had been due to tamponade]". (T2 - 211.23) 61He was invited to comment on the opinions of Professor Lyons and Dr Cala about a tamponade being present but not being picked up by the echocardiogram and he said, "I just don't think that's correct ... that's making the things fit ... the thesis". (T211.30) 62Dr Baron contradicted one of the bases for Dr Cala's opinion that CPR would not have caused the tamponade, namely that there would be minimal, if any, blood flow through the coronary arteries during CPR. For example, he gave this evidence: "Q. ... [G]iven the CPR was going on, you gave evidence last time that blood will find the point of least resistance and in this case do you adhere to the opinion that you gave then that the compressions were sufficient to cause the blood to flow down the LAD [the left anterior descending coronary artery] and into this acute branch of the LAD within that period of a few minutes? A. Yes. I mean myocardial blood flow is about 500 mls a minute. Cardiac massage is meant to simulate that and if it's effective it will and the patient will survive. 40% goes down the LAD so 40% of that volume of 500 mls and where there's a hole it will choose to go there rather than go through the tiny capillaries where the resistance is greater so it's very conceivable with cardiac massage and a hole in the coronary artery that it will dislodge the plug and as long as the massage is going on blood will be squirted out through that hole." (T2 - 214-5) 63He also contradicted Dr Cala's evidence about blood clotting before, but not after, death. He was asked whether he would expect the tamponade to be seen on autopsy as a clot if the blood entered the pericardium "after he was effectively ... moribund" and he replied that he would (T2 - 231.25). Counsel drew my attention to the fact that Professor Lyons had also contradicted Dr Cala on this aspect when he said, "are you asking me can blood clot after death, the answer's yes it can" (T1 - 415.3). Causation - determination 64There were many issues raised in the medical evidence in this and the first trial. For example, there was much time spent exploring the fact that the deceased had a combination of drugs, including illicit drugs, found in his post mortem blood samples. It was the defence case that this might provide an explanation for him going into respiratory or cardiac arrest. There is no need to delve into, let alone determine, every one of these issues because I believe the issue of causation can be determined by reference to the two critical issues I have just reviewed. 65For the prosecution to succeed, it needed to establish that the tamponade was what caused Mr Dent's collapse and to provide an explanation for why it was not detected on the echocardiogram conducted shortly before life was pronounced extinct. It was accepted that both of these matters require satisfaction to the level of beyond reasonable doubt (T2 - 243). 66Dr Baron's opinion cannot lightly be dismissed. He is highly qualified in his field and has very considerable experience. His work entails regular involvement with patients who develop pericardial effusion and need emergency intervention (T2 - 208.10). It was his opinion that Mr Dent's demise commenced with his collapse as a result of respiratory arrest and that the tamponade only developed as a result of vigorous CPR in the last few minutes before life was pronounced extinct. The overall effect of the evidence was that by that stage, death was inevitable in any event. 67The Crown Prosecutor questioned Dr Baron's opinion that 340ml of blood could have accumulated in the pericardium in a short period of time after the clot had been dislodged towards the end of the CPR process. But Dr Baron had said that it depended upon the size of the cut in the artery (something about which there was no evidence). With that qualification, he estimated that there could be half to one millilitre per compression so with a compression rate of 100 per minute, 340ml could accumulate, he said, in "probably three to five minutes" (T1 - 957.10). The doctor's mathematics are obviously inaccurate but he was giving a spontaneous answer in the witness box. And he did say he was "speculating a little bit" and there was the qualification about the size of the cut. I do not believe that Dr Baron's opinion can be rejected on this account. 68The Crown Prosecutor drew attention to Dr Baron's evidence that he could not provide an unequivocal explanation for why Mr Dent might have suffered a respiratory arrest. He suggested that the recent ingestion of illicit drugs might have been a cause but he hastened to add that he was not a toxicologist (T2 - 219.36 - 220.21). The Crown referred to the evidence of Dr Allender, a toxicologist, who said that it was the opioid drugs that acted to depress respiration; amphetamine type drugs (the type found in Mr Dent's system) were stimulants, one effect of which was to increase respiration (e.g. T1 - 302.49; T2 - 174.35). (See also Dr Sinnaduray at T2 - 50.50). Be that as it may, Dr Baron was basing his opinion on what he read in the hospital records: that Mr Dent was found to be not breathing (T2 - 205.2). The fact that Dr Baron was not able to state a precise reason why there was respiratory arrest does not, in my view, mean it is not a reasonable possibility that there was. 69I accept the Crown's submission that there were various features in the evidence that stood in support of the opinions expressed by Professor Lyons and Dr Cala. What I am more concerned about is the critical issue as to whether Dr Baron's opinion may be completely rejected, as it must be for the Crown to succeed on the issue of causation. 70The Crown Prosecutor addressed the question of why the tamponade that Professor Lyons and Dr Cala believed caused Mr Dent's collapse at about 2.35pm was not seen on the echocardiogram at about 3.12pm. Reference was made to Professor Lyons' evidence that "it is possible that it could have been visible" but that he had experience of things seen on autopsy that had been missed during radiological investigations. Reference was also made to Dr Baron accepting that diagnostic tools such as echocardiograms are not infallible (T1 - 960.14). That concession was made at the beginning of the then Crown Prosecutor's cross-examination at the first trial. What was not referred to was the subsequent evidence the doctor gave in which he could not accept that a 340ml tamponade was missed. (I have referred to this evidence earlier.) 71Dr Baron has considerable experience with echocardiograms. Among his many qualifications is a Diploma in Diagnostic Ultrasound. He was a foundation member of the Australian Society of Ultrasound in Medicine. Between 1981 and 1987 he was Director of Echocardiography at St Vincent's Hospital. 72Two of the three experts agreed that if a tamponade did exist at 2.35pm and caused Mr Dent's demise, it should have been seen on the echocardiogram at about 3.12pm. Professor Lyons said it was "possible that it could have been visible". The best that could be said to explain why it was not seen was that there must have been some form of "diagnostic error". There was no direct evidence that there was such an error. (The ICU consultant who carried out the echocardiogram was not called.) It was a theory to explain something that was otherwise inexplicable. In effect, I am being asked to draw the same inference as Professor Lyons drew. But on such a critical matter, I can only draw that inference if there is no other rational explanation for a tamponade existing but not being detected. Another rational inference is to be found in the evidence of Dr Baron. 73I stress that I have not come to the view that the evidence of Professor Lyons and Dr Cala must be rejected. To the contrary, there are many reasons why it should be accepted. But Dr Baron's opinions were also logical and evidence based. They raise a reasonable doubt. There is a reasonable possibility that the deceased died as a result of respiratory and/or cardiac arrest and that the injuries he sustained as a result of being stabbed did not substantially or significantly contribute to his demise. 74Both accused must be acquitted of the charge of murder because the Crown is unable to prove beyond reasonable doubt an essential element of both murder and manslaughter. Issues in relation to count 2 (causing grievous bodily harm with intent) 75The starting point for a consideration of the alternative charge of causing grievous bodily harm with intent is to note that it is common ground that the deceased was stabbed by the accused Ian Dacey. It is also common ground that grievous bodily harm was caused. 76The issues for determination are: Did Ian Dacey intend to cause grievous bodily harm? Was Ian Dacey acting in self-defence? Was Lee Dacey a party to a joint criminal enterprise with Ian Dacey to inflict grievous bodily harm upon Mr Dent? Alternatively, was Lee Dacey a party to a joint criminal enterprise with Ian Dacey to assault Mr Dent but with foresight of the possibility that grievous bodily harm might be caused? 77Determination of these issues requires a more detailed review of the other evidence in the trial. The crime scene 78Detective Sergeant Kylie Phillips was the crime scene examiner. She attended at about 7.30am on 10 August 2011. She found that the block in which Mr Dent lived was comprised of two storeys with six units on each floor and external stairs at either end. The block was rectangular in shape with the longest sides facing north and south. The units on the lower level were numbered one to six, with number one at the western end, and the units on the upper level were numbered seven to twelve, with number seven at the western end. There was a landing with a railing that ran the full length of both the top and bottom levels. Immediately opposite the railing on the bottom landing was a narrow garden bed and then an area of lawn and they were about 0.5m below the level of the landing. 79The upper and lower level landings were about 1.5m wide. The garden bed extended out about 1.2m before the grassed area which extended about a further 4.5m before meeting a wall. The garden bed and lawn ran along the full length of the building. 80Mr Dent lived in unit number 10. It was in the nature of a bed-sitter. No bloodstains were detected inside the unit or on the upper level landing. A black handled knife (Exh C) was found immediately outside the unit on the landing. It was later examined and found to be 240mm long by 25mm wide. The blade was 130mm long and 24mm wide. It was submitted for analysis to the New South Wales Forensic and Analytical Science Service and Ms Viviene Beilby, senior forensic biologist, gave evidence that it revealed on both the handle and the blade a positive result on screening for blood and a mixture of DNA with the major component being consistent with that of the deceased. Both accused were excluded from having contributed the minor component. 81Professor Lyons was shown this knife and asked if it could have inflicted the most serious of the wounds. He said: "It strikes me that the knife is possibly a little broader than I would imagine a knife that had inflicted that pattern of injuries but it, given the elasticity of the skin and the variance in the way that you see different injury patterns, it's not inconsistent that a knife such [as] this could have been used." (T1 - 379.45) 82There were apparent bloodstains on the railing going down the eastern stairs and on the bottom landing leading to an area outside unit 3 (that is a little more than half way along the landing). Subsequent analysis revealed that a stain on the railing of the stairway and four of those along the bottom landing contained a DNA profile consistent with that of the accused Ian Dacey. 83A blue striped sports jersey was found on the ground in the vicinity of the door to unit 5. It was apparently blood stained. It was common ground that this had been worn by the deceased and had been removed by an ambulance officer. On a stained area on the upper left chest, which was positive for blood, there was a DNA mixture recovered with the major component having a profile consistent with the accused Ian Dacey. 84A metal Leatherman multi tool was found on the landing in the vicinity of unit 4 (Exhibit D). It was apparently bloodstained. Its tools comprised pliers, a saw blade, a file, a screwdriver, a small blade, a can opener, a serrated blade and a knife. Analysis at the laboratory revealed that it showed positive for blood on the plier head and a section of handle. No blood was detected on the knife blade section. Both accused were excluded from the DNA profiles recovered from the plier head section. Mr Dent was the major contributor to DNA material recovered from the handle; the minor contributors could not be identified. 85The Crown does not positively assert that either the knife found on the upper landing or the multi-tool device found on the lower landing were used in the stabbing of Mr Dent (T2 - 23.44). 86Medical paraphernalia and bloodstaining found on the bottom landing in the vicinity of units 3 and 4 indicate that to be the location where the ambulance officers found Mr Dent and treated him before taking him away to hospital. An area of apparent bloodstaining nearby (Marker P) and another not far away (Marker R) were swabbed and later were found to contain a DNA profile consistent with that of the accused Ian Dacey. 87A black baseball style cap was found in the garden bed adjacent to the bottom landing (Marker V) opposite unit 4 (immediately below Mr Dent's unit). The laboratory later found DNA on it in the form of a mixture with the major component bearing a profile consistent with that of the accused Lee Dacey. That was found on the inside sweatband. There was another stain on the outer surface of the cap at the front above a logo which contained a mixture of DNA. The major component was of the same profile as the deceased and the minor component had the same profile as the accused Lee Dacey. There were traces of DNA from at least one other individual but at levels too low to determine a profile. 88It was confirmed in cross-examination that there was no apparent blood staining on the first floor landing, tending to indicate (although not conclusively) that the stabbing did not occur there. 89The apparent bloodstains on the stairwell handrail were in the nature of transfer stains, consistent with someone who had blood on their hand holding the railing as they used the stairs. 90Another matter of potential significance given the eyewitness testimony was that there was no apparent damage to any chairs that were found on the bottom landing. Analysis of items later seized by police 91Police subsequently came into possession of a jacket which had been worn by Ian Dacey on 10 August 2011. It had apparent bloodstains on the right wrist cuff and outside lower left from each of which was recovered DNA consistent with the deceased. 92A pair of joggers was seized when Lee Dacey was arrested on 8 November 2011. It seems to be accepted that he was wearing them on the occasion in question. On the tongue of the right shoe there was a stain which screened positive for blood and contained a DNA mixture, the major component of which was consistent with the profile of the deceased. The factual issues 93At this point it is appropriate to mention the main factual issues to be determined. 94The cases for the accused were to the effect that Ian Dacey stabbed Mr Dent when they were upstairs. He did so in a perceived need to defend Lee Dacey from a threatened knife attack by Mr Dent. After the stabbing they each came downstairs. There was some interaction between Mr Dent and Ian Dacey before Lee Dacey called out to him to leave and they both then departed. 95The Crown Prosecutor submitted that it was an available inference that the stabbing occurred downstairs and it was accompanied by, or preceded by, a joint assault by both accused upon Mr Dent both upstairs and downstairs. Mr Hoyle conceded that if it was determined that the stabbing occurred downstairs, self-defence would be negated. Significance of the crime scene and DNA evidence 96The lack of blood staining in Mr Dent's unit or on the upper landing tends to support (but not definitively prove) the proposition that the stabbing did not occur upstairs. 97The finding of the knife on the landing just outside the door to Mr Dent's unit bearing his, but not the accused's, DNA tends to support the defence case that he produced a knife. (It is curious, however, that the knife was found under the wheel of a bicycle - see photos 10-11 in Exh B). There is also support for this in the finding of a bloodstain with Ian Dacey's DNA on the stair railing and further bloodstains on the lower landing which indicate that he had been cut somehow when upstairs. 98Ms Moen submitted that the fact that there was blood on both the handle and blade of this knife supported an inference that the stabbing had occurred upstairs. That was a reference to presumptive testing at the laboratory. Detective Phillips also performed a presumptive test and it was negative. Photographs of the knife in situ and when later examined indicate that if there was blood on it then it was in a minute quantity. If Mr Dent had been stabbed upstairs and his blood got onto this knife, I would expect it would have been in more obvious quantity. 99The findings of Ian Dacey's DNA on the guernsey worn by Mr Dent, and Mr Dent's DNA on the jacket worn by Ian Dacey, tend to confirm contact between the pair in some fashion. Given the acceptance that Ian Dacey stabbed Mr Dent, this is unremarkable. And the location of bloodstains with his DNA confirms he was in the vicinity of Mr Dent on the bottom landing. 100The Leatherman multi-tool found on the lower landing can be excluded as the instrument used to stab Mr Dent. The longest blade is not long enough. There was no physical evidence found to link it to either accused. DNA material consistent with Mr Dent's profile was found on the handle but it is unclear whether this was from him handling the object or from his blood having gotten on to it when it was nearby. 101The finding of Mr Dent's DNA on Lee Dacey's joggers and cap is neutral. There is no evidence as to what bodily material of Mr Dent was on the cap (that is, whether it was blood, saliva or skin cells). There is evidence that the material on the joggers was, presumptively, blood. In both cases it is a matter of speculation as to how and when the material got there beyond saying that the material on the joggers tends to suggest he was in close proximity to Mr Dent when he was bleeding. Movements of the accused prior to the event 102Mr Warren Curtis is a taxi driver. He gave evidence of picking up the two accused and the deceased at around 6.30pm on 9 August 2011 near the deceased's home and taking them to Newcastle. He said that Mr Dent appeared to be sober but the two accused were definitely affected by either alcohol or drugs; they had trouble getting into the taxi and were "nodding off" in the back seat. Mr Dent explained to Mr Curtis, "One of the boys has been celebrating all day. That's why they're the way they are, they're brothers". 103There is no direct evidence of it but it is common ground that Mr Dent returned home at some stage of the evening. 104Mr Marcus Groh is also a taxi driver. He said that he picked up the two accused at around 2.25am near Newcastle railway station and took them to Hamilton. They smelt of alcohol and their speech was slurred. CCTV footage (Exh L) recorded in the vicinity of the railway station showed Lee Dacey walking normally but Ian Dacey staggering around. 105Mr Groh said that one of the men was taller than the other by at least 5cm. (That estimate was not challenged.) When the men had alighted from the taxi he noticed that the taller one (Lee Dacey is taller than his brother) who had been sitting in the back had left something on the seat. He called out, "Oi, you've dropped something". The man reached back in and grabbed the object. Mr Groh's description of it and a sketch he drew (Exh G) are consistent with it being a Leatherman multi-tool device, similar to the one later found at the crime scene. 106It was suggested in cross-examination that it was the shorter of the two men (Ian Dacey) who had been seated in the rear but he insisted that it was the taller man. Ms Moen submitted that it made sense that her client sat in the front seat, given he was less intoxicated that Ian Dacey. I do not think that their relative degrees of intoxication would make that more likely. 107The Crown Prosecutor invited me to accept Mr Groh's evidence. Alternatively, he submitted that which ever accused was the passenger in the back seat, Mr Groh calling out and the passenger reaching back in to retrieve the object rendered it likely that both accused would have been aware that one of them had the object. As I understood the submission, the fact that one was bringing such an object to Mr Dent's home supported the Crown case that there was a joint criminal enterprise. 108I am minded to accept Mr Groh, notwithstanding the contrary evidence given by Lee Dacey to which I shall refer shortly. Mr Groh's evidence was clear. He said that when he spoke with the police on 30 August 2011 he had a reason to remember this particular fare because of the knife left on the back seat. When it was suggested to him by the cross-examiner that the taller man sat in the front he maintained his position. He committed his recollection to writing only 20 days after the event. It was not suggested he had said anything inconsistent about the seating arrangements in that statement. 109I also accept the force of the Crown Prosecutor's submission that given the front seat passenger was still in close proximity to the taxi when Mr Groh called out and the rear seat passenger lent back in to retrieve the object, it is likely both brothers were aware that one of them had this implement. But I am doubtful that it supports the proposition of there being a joint criminal enterprise to cause harm to Mr Dent in existence at this time. The incident 110A number of neighbours gave evidence of hearing and seeing things relating to, and leading up to, the stabbing. I will refer to their evidence shortly but it is appropriate to first refer to the evidence given by Lee Dacey in the first trial. It may be taken that it was embraced by Ian Dacey from the fact that, although he was cross-examined, there was no challenge to any material aspect of his version. Lee Dacey 111Lee Dacey said that he had known Mr Dent for nearly 10 years as he was a friend of Lee Dacey's mother. He and his brother went to Mr Dent's home at around dusk on 9 August 2011. They were there for an hour or two. They purchased for $350 a half a gram of speed which the three then shared but otherwise they occupied the time chatting "like friends do". They then travelled by taxi to the home in Newcastle East where Lee Dacey lived with his mother. There they chatted and watched television. Mr Dent left after a couple of hours. 112At about 2.30am, the two brothers caught a taxi near Newcastle railway station to Mr Dent's home. He maintained that he sat in the front seat. He did not have a multi-tool and he was not aware of his brother having any weapon. He did not hear any conversation with Mr Groh about an item left on the back seat. 113They went to Mr Dent's home. Their purpose was "to score more speed". He was awake when they arrived. He told them that they would have to hang around for a while because he could not go to his supplier at such an hour of the morning. In the meantime they watched television, chatted and had a laugh. 114Mr Dent did not leave until "at least half past 5". Lee Dacey gave him $350 for the purchase, either by handing it to him or putting it on the table. Mr Dent was gone for no longer than half an hour. While he was gone the brothers dozed off. 115When Mr Dent returned he tapped Lee Dacey on the shoulder. He woke up straight away and asked, "Did you get it?" Mr Dent said that he had but when Lee Dacey asked him for it, Mr Dent claimed that he had not been given the money yet. They debated this. Mr Dacey said that he woke his brother up so that he could verify that the money had been provided earlier. He said to Ian, "He's trying to rip us off". He then turned and continued his argument with Mr Dent. It continued with the pair moving out onto the landing where the following occurred: "I said, 'We give you the money'. [Mr Dent responded] 'Youse aren't getting fucking nothing' and he pulled a knife out, a kitchen knife out of, with his right hand out of the back part of his belt, like his pants just there." (T1 - 972.30) 116He was shown a photograph of the knife later found on the landing outside Mr Dent's unit and said it either was the knife or "it's very very similar". 117Lee Dacey claimed that Mr Dent also said, "Youse aren't getting fucking nothing, I'm going to fucking stab you". He said he walked backwards because "it was a shock to me. I didn't want to get cut or stabbed." He backed up towards the railing as Mr Dent was facing him. He said that Ian Dacey was behind him (which sounds impossible if Lee Dacey was backed up towards the railing, particularly given the landing was only about 1.5m wide). He said his brother intervened. There was a fight between Ian Dacey and Mr Dent involving scuffling and punching. It reached a point when Mr Dent's back was "on the railing sort of just arched over a bit". Lee Dacey said he told them to "stop it, just stop it" and he broke them apart. He held on to his brother and Mr Dent proceeded downstairs. It was when he was trying to break the pair up that his cap got knocked off and fell to the ground below. 118Lee Dacey said that he did not have any weapon and he did not punch Mr Dent. All he did was break them apart to stop the fighting and hold on to his brother. He denied a number of matters; in effect denying that there was any joint criminal enterprise. He said it all happened very quickly; "like in a minute, two minutes, if that". 119He was asked if he realised that Mr Dent had been stabbed. He replied, "No I didn't at that time". In cross-examination he said that he did not see a knife in his brother's hand up on the top landing. He was not aware his brother had a knife at all. They did not later discuss where he got a knife from. 120Mr Dent went down the stairs followed by Ian Dacey. He proceeded to follow after them. When he arrived at the ground level he went out onto the grassed area and his brother "was walking with me". Mr Dent called out, "You fucking stabbed me you cunt". He claimed that up to that time he did not know that Mr Dent had been stabbed. He turned and saw his brother over in the garden at the railing to the bottom landing. He called out, "Come on Ian, let's go". Ian Dacey came over to him and they left. 121Lee Dacey denied going near the bottom landing; denied punching Mr Dent; and denied having any agreement or understanding with his brother to assault Mr Dent. He said it was only when they were on their way to Rachel Caldwell's home that his brother told him that he had stabbed Mr Dent. He responded, "Oh fuck, you stabbed him" and "that's all I basically said about it and I was, yeah, I was a bit shocked". 122Lee Dacey said that when Mr Dent approached him with the knife it was "very unexpected, he was my friend"; "I was scared for my life". He denied any intention to hurt Mr Dent. He was angry with him for "trying to rip us off" but never wanted to hurt him. 123I turn to the evidence of the neighbours. Robert West 124Mr Robert West lived in unit 4 which was directly underneath number 10. He woke on the morning of 10 August at around 3 or 4am. He could hear male voices upstairs. He recognised Mr Dent's voice but not the others. He went back to sleep but woke again at around 5.00 or 5.30am. The voices were a bit louder; it sounded like an argument. He next heard footsteps outside proceeding towards, then down, the stairs at the eastern end. First there was one set, like one person running, and sometime later they were followed by a couple more sets of footsteps. 125Mr West next heard Mr Dent knocking on the door of unit 3 which was occupied by Ty Lee. Mr West opened his door and saw Mr Dent calling out "Mr Lee, Mr Lee". He did not see any other people on the bottom landing at that time. He later saw two males on the bottom landing; they were jostling. They came down the stairs towards Mr Dent and grabbed him with both hands around the torso. At this point Mr Dent was directly outside Mr West's door calling out, "Robert help me". Mr West closed the door, put some clothes on and returned to the door. He had been away from the door for about 30 seconds. Mr Dent was still just outside and the two males were on the bottom landing. He said they appeared to be angry. One of them picked up a chair and threw it and it hit Mr Dent. The men then ran off. Mr West said that Mr Dent said something about having been stabbed. 126Mr West conceded a number of matters that were raised in cross-examination. He had previously suffered a head injury and experienced lapses in both short and long term memory. He agreed that he might be confused about some of the things he claimed to remember. He agreed that the lighting was not very good; he could not make out much more than just silhouettes. But he denied that the taller man (Lee Dacey) was on the grassed area in front of the bottom landing as opposed to being on the landing itself. 127Mr West's conceded memory difficulties call for some circumspection in accepting his evidence where it is not otherwise supported. Brian Leary 128Mr Brian Leary's evidence given on a prior occasion was read to the jury at the first trial. He lived next door to Mr Dent in unit 11. He woke on the morning of 10 August at around 6.00am, had a shower and walked to a local shop. On his way out he heard a voice coming from Mr Dent's unit: "We left the money on the table" and then heard Mr Dent say, "There was no money on the table". That was all he heard and he proceeded to the shop. When he returned he saw that there were ambulance and police officers present. Jeffrey Sawyer 129Mr Jeffrey Sawyer lived in unit 5 on the ground floor. On the morning of 10 August he was woken by the sound of voices upstairs. He heard someone say, "I've only got $35 to my name". Mr Dent called out, "and I need some furniture and stuff". He then heard various banging and clanging noises and the sound of Mr Dent coming downstairs. Mr Sawyer got up and went to his door and saw Mr Dent sitting at the door of his neighbour, Mr West. He was bleeding. He said two men came down from Mr Dent's unit via the eastern stairs. One of them continued in a westerly direction on the grassed area. The other one stopped and had words and a scuffle with Mr Dent. Mr Dent called out, "You stabbed me you cunt". Both men were on the grassed area but there was a scuffle involving Mr Dent and one of them over the railing. The two men then left and an ambulance was called. Arthur Tovey 130Mr Arthur Tovey lived in unit 12. He woke early as he usually did and at about 6.00am he heard Mr Dent out on the landing speaking on the phone, saying "You better come over and get him, he's been here all night and he's driving me crazy". Then he said, "Your mum wants to talk to you on the phone". He did not hear anything in response and assumed that Mr Dent must have gone inside his unit. 131Mr Tovey next heard someone running past his door; this was at about 6.15am. He did not pay any attention and remained inside his unit until 9.00am when a police officer knocked on the door. David James 132Mr David James lived in unit 6. He rose early and went to the local newsagent to get the paper. When he returned he heard some commotion; an argument of some sort; loud voices. As he proceeded along the bottom landing towards his unit he saw two men coming quickly down the eastern stairs. Mr Dent was first and there was someone behind him. Mr James hurried to get inside his unit. The man behind Mr Dent was giving him a push. Another man (who I accept was Lee Dacey) came down the stairs in a hurry; as he came past (presumably past Mr James on the landing) he lashed out at nothing with his foot. Mr James went into his unit and closed the door. He did not hear anything more. At 7.00am he became aware of the presence of police officers. In cross-examination, Mr James denied a proposition that the second man did not continue from the stairs onto the landing but went out onto the grassed area. Leonie Burns 133Ms Leonie Burns lived in a unit block that overlooked the block Mr Dent lived in. She woke just after 6.00am to sounds that included three male voices yelling. She went to her window and saw three men fighting. She said they were in a location that was inconsistent with all of the other evidence, namely near a laundry block and clothesline. With the use of the scale plan (Exh A) and a photograph (Exh 9) I estimate that this was some 10-12 metres away from Mr Dent's unit block. She was asked whether it was possible that the men were on the bottom landing of the building but said they were not. She said the men were wrestling and punching and Mr Dent was falling to the ground and trying to get up. She did not see anything in the hands of any of the men. She said they were all yelling but could not make out what was being said. She conceded that the lighting was "not the best". 134In cross-examination, Ms Burns was somewhat uncertain that there were three voices yelling as opposed to two. She also conceded she was distracted by her infant children. She made other concessions, including that she could not make out the features of the men; they had their backs to her; the lighting was not good; and she was looking through a window that was foggy and wet. But she remained insistent that she saw three men together. 135Given the location where she said the men were, I am compelled to regard Ms Burns' evidence as unreliable. She said she did not realise it was Mr Dent who was involved in the incident she saw. She agreed that fights were not unusual in the area. There must be a real possibility that she had merged memories of this incident with another one. Emilie Davis 136Ms Emilie Davis was staying in the same unit block in which Ms Burns resided. She woke to the sound of fighting, yelling and screaming. She got out of bed, opened the window and saw three men fighting and yelling; they were "huddled together". They were on the upper landing of Mr Dent's unit block. She yelled out something to the effect that they should be quiet. Ms Davis attended to her infant son but she could still hear the yelling and screaming. She looked out from another window and saw three men still on the upper landing. The shorter one (Ian Dacey) was fighting with Mr Dent over the railing while the taller one (Lee Dacey) briefly went back into Mr Dent's unit. Mr Dent broke free and ran to the eastern stairs and proceeded down them. The shorter man (Ian Dacey) followed him and then so too did the taller man (Lee Dacey). 137Ms Davis said that once they were downstairs, Mr Dent proceeded to the west along the lower landing, but the two men caught up to him around the first flat (unit 6); they grabbed him and threw him up against the wall and then made actions consistent with punching. Mr Dent managed to escape after about a minute, but he ended up on the ground and the taller man (Lee Dacey) picked up a plastic outdoor chair and threw it at him. The two men then left, proceeding west along the landing. The next thing that happened was the arrival of an ambulance. 138In cross-examination, Ms Davis conceded that she did not know Mr Dent at the time. She had subsequently heard his name mentioned as the victim of what had occurred. She was tested as to her ability to have seen what she claimed occurred, given that there was a freestanding laundry building in the way as well as some trees. She maintained that when the men were on the bottom landing she could still see the top half of their bodies. She did not see some things that other witnesses had claimed to have seen. She said she last saw Mr Dent when he was towards the far right hand (western) end of the bottom landing; she was adamant and would not accept she could be wrong. The punching she saw occurred at that end, not outside one of the flats at the eastern end. She denied a proposition that Mr Dent was only involved in a fight with one man at that location. 139Ms Yehia obtained a concession from Ms Davis that when she saw the men on the upper landing it looked like two men fighting with a third man (the taller one) trying to pull one from the other. With reference to a photograph (Exhibit K) she said that Mr Dent was slammed up against the brick wall downstairs towards the eastern end of the bottom landing. She denied a suggestion that the taller man was not involved in that aspect. She denied being confused about which of the two men threw the chair; she had never been confused about that; and, when she was reminded of it, she explained that in saying at the committal hearing that it was the shorter man she must have been confused. Justin Moss 140Justin Moss lived in a nearby unit block and knew the deceased. On the morning of 10 August 2011 he left his unit at 6.15 and was walking towards Glebe Road where a friend was going to pick him to take him to work. As he passed by he heard yelling and swearing and he also heard people calling out from windows to the effect that the people involved should be quiet. He said the lighting was dismal; it was just becoming light. 141As he got closer to Mr Dent's unit block he saw some people who were outside the front door of Mr Sawyer's unit (unit 5). He said one person was standing with his back at the rail which he thought was Mr Sawyer. He saw Mr Dent who he described as "cowering down with his hands up" and there was another man punching him. He said he was sitting on a step at the doorway with his knees to his chest and his hands up over his head. He didn't recognise the man who was punching him. He said that man was about 6' tall and he described his clothing. 142Mr Moss said that there was another man down on the grass, a smaller man who was about 5' 5". He was yelling out, "come on, he's had enough" and, "come on, Ian, let's go". 143The man who was punching Mr Dent got up and walked away; he jumped the handrail down off the balcony and walked towards Glebe Road, namely to the west. Mr Moss was in a hurry so he kept going. The last he saw of Mr Dent was when he was sitting on a step. He was making no noise; he was just sitting still in the same position with his knees to his chest. 144In cross-examination by Mr Hoyle, Mr Moss said that whole thing happened quickly. He watched for about 15 or 20 seconds. He did not see a chair being thrown. 145In cross-examination by Ms Yehia, Mr Moss said that the fourth man was somewhere on the grassed area, 20 to 25 feet away from where the three men were on the landing. He was on the western side of where the action was occurring. He was cross-examined about the relative heights of the men in question but nothing turns on this as his evidence that the man on the grass called out, "come on, Ian, let's go" indicates that it must have been Lee Dacey. Edith Lindstrom 146Ms Edith Lindstrom lived in a unit block that overlooked Mr Dent's block. She was in the shower from about 6am when she heard some people yelling. At about 6.15 when she got out of the shower she said the yelling and the commotion was still going on. She looked out of her bathroom window and saw Mr Dent, who she knew. He was at the railing on the bottom landing and a male who was standing on the grass below the railing was trying to pull him over. Mr Dent was resisting. There was a third male who was standing behind the one who was trying to pull Mr Dent over the railing. He was standing a short distance behind on the grass. He said, "that's enough, let's go". With that the first male let go of Mr Dent who then sat down on the concrete landing and leant over. The two males walked away. Findings as to the evidence of neighbours 147It is understandable that the evidence of the neighbours is not completely consistent. In respect of some of them there are remarkable dissimilarities: for example, Ms Burns as to the location where she saw men fighting. I should not be taken to be critical of any of the witnesses; there was no suggestion that anyone was being dishonest or reckless in giving their evidence. This is simply an example of a phenomenon often encountered with eyewitness testimony in relation to an event that is unexpected and occurs fairly quickly. The attention of a witness might be focussed more on one aspect than another. A particular aspect might be more significant to one witness than another and therefore more likely to be recalled. The attention of witnesses might be focussed upon only portions of the incident. The latter is a very real consideration in this case, given some of the witnesses only saw part of the events and were otherwise inside their unit or were distracted by their children. The environmental conditions must also be considered, particularly the lighting and the distance between the witness and the event. The question is whether the evidence of these witnesses may be reconciled. 148The evidence of Messrs Leary and Sawyer supports the proposition that there was an argument in Mr Dent's unit over money. This is something that is consistent with the evidence of Lee Dacey; but it is not inconsistent with the Crown case either. 149Some other evidence needs to be mentioned to put into context Mr Tovey's evidence of overhearing Mr Dent on the phone. What he heard is consistent with Mr Dent speaking to the mother of the accused. There was evidence of a call being made to her at 6.13am. The call for an ambulance was made at 6.19am. So, it seems that at 6.13am, Mr Dent was experiencing a level of frustration with one or the other, or both, of the accused. Ms Moen submitted that there was no suggestion of hostility or violence or anything of that kind in the overheard conversation. Mr Hoyle submitted that, whilst it was not entirely clear, the "problem" may well have only emerged after the phone conversation. If the heated argument about money and drugs had not commenced before then, the argument and the physical actions that ensued must therefore have occurred quite quickly. 150It seems clear enough that there was some fighting on the upper landing outside Mr Dent's unit before Mr Dent went downstairs, closely followed by Ian Dacey and shortly after by Lee Dacey. 151Mr Dent must have been distressed. He called out to Mr Lee and to Mr West for help (although to no avail). 152Mr West and Ms Davis saw two men physically engaged with Mr Dent on the bottom landing. Mr James was insistent that Mr Dent was followed onto the bottom landing by two men. Their evidence is certainly not identical in terms of the detail of what they observed but that is the common thread. It contradicts the assertion of Lee Dacey that he never went on to the bottom landing. His version is also contradicted by the physical evidence in that he claimed that Ian Dacey did not go onto the bottom landing either but his DNA was found in two blood stains towards the middle of that landing. 153Two witnesses, Mr West and Ms Davis, said that they saw a chair being thrown at Mr Dent by one of the two men. I am mindful of the evidence that there was no sign of this upon Detective Phillips' examination. But there was also evidence of people moving in and around the scene before the police examination began. I do not accept Ms Davis' evidence that it was the taller of the two men who did this. The relative difference in the men's height would have been difficult to discern at a distance and in dismal lighting, particularly given the men would not have been standing still. 154Mr Sawyer said he saw Mr Dent sitting at the doorstep to Mr West's unit and he was bleeding. He said that he then saw two men come down the eastern stairs. The effect of what he then described was that both men proceeded out onto the grassed area. This evidence does not sit comfortably with other evidence. I take the view that Mr Sawyer is mistaken. 155I am of the view that the observations of Messrs Sawyer and Moss and Ms Lindstrom of men on the lawn can only be understood to be observations made at a slightly later stage of the events; that is after events occurred on the bottom landing. It is likely that the two accused left the bottom landing and proceeded out on to the lawn and then to the west. But it seems that Ian Dacey engaged in a further scuffle with Mr Dent over the railing. He desisted with this when his brother called out to him to leave. 156There remains a question as to where it was that the stabbing occurred. I will return to this when I deal with the issue of self-defence. Subsequent statements by the deceased 157Nurse Amy Revett was working in the High Dependency Unit at the John Hunter Hospital while Mr Dent was a patient there. She said that a number of telephone calls were received from people asking for Mr Dent. There was one in the early evening in which the caller claimed to be Mr Dent's brother, Tony. Mr Dent agreed to take the call and was given a cordless phone. The conversation was short; he was silent for a little while but then yelled into the phone, "you fucking dogs" and became quite distressed. When he gave the phone back to the nurse he said, "that was not my brother it was the two men that stabbed me, my girlfriend's sons". 158Ms Revett made notes in the hospital records at 7.25pm on 10 August. They record that she heard Mr Dent become abusive to the caller, saying "you fucking dog" and that he later told her that the caller was the man who had stabbed him. 159A short time later she overheard a conversation between Mr Dent and Dr Dinesh Sinnaduray in which he said that it was his girlfriend's two sons who had stabbed him for some drugs and some money. The notes record: "Pt stated when asked by RMO about attacker, that it was his partners 2 sons". 160There was another call on the morning of 11 August in which the caller claimed to be a correctional officer calling from Grafton Gaol on behalf of Mr Dent's brother Tony. After confirming that the call was legitimate, it was put through to Mr Dent. Nurse Revett overheard him saying something very similar to what he had said in the earlier call: "it was my girlfriend's two sons stabbed me in the back for some drugs and money that I had". She said that the deceased was telling his brother that his girlfriend's two sons came to see him at his house and then stabbed him in the back and left him there to die and it concerned drugs and money. According to her statement, "the two sons were asking Mr Dent what drugs he had in his house". 161Dr Sinnaduray gave the following evidence: "Q. And so doing the best you can try and put this conversation in first person, in other words try and use the words you used and whatever his response was if you could tell us what his words were? A. It's very difficult to do that given it was almost two years, its actually longer than two years since I had that conversation. I would have said something like, 'What exactly happened', and he said something along the line of, 'The son's of my girlfriend we were - they tried to borrow money off me and when I refused there was a fight'. That's basically what he said." 162There is obviously a need for care in the assessment of such hearsay representations, particularly when the maker is unavailable to give evidence. The accounts of what Mr Dent said are obviously paraphrased rather than verbatim. If they are accurate, Mr Dent must have been speaking about the overall incident generally without attempting to provide an account of precisely what occurred. I do not regard this evidence as being of any assistance in resolving the issues I must determine. Subsequent statements by the accused Rachel Caldwell 163Ms Rachel Caldwell lived in Steel Street Hamilton which was not far from Glebe Road Hamilton South. She was acquainted with Lee Dacey but said she did not know him well. She did not know Ian Dacey at all. She recalled an occasion which must have been on the morning of 10 August 2011 when she answered the door to the pair at about 7am. Although she was in the process of getting ready to go to work she allowed them to come in. 164She noticed some blood on Ian Dacey's sleeve and later in her bathroom after he had used it to go to the toilet. She asked him whether he was alright as she gathered that he had hurt himself. She said he was hard to comprehend because he was slurring his words and she could not understand his response. She also described him as being "like quite sort of droopy and, and sort of half awake". She made tea and brought cookies and said that the conversation was "fairly trivial". She believed there was mention of them having come from Hamilton South but there was no conversation about what had taken place there. 165The Crown Prosecutor was granted leave pursuant to s 38 of the Evidence Act 1995 (NSW) to question Ms Caldwell as though cross-examining. She agreed that the answers previously given about the nature of the conversation that had occurred were not quite correct. In her statement made in February 2012 when her memory would have been fresher she had said: "Whilst sitting at the table Lee told me that they had been ripped of $300 by a drug dealer in Hamilton South and there had been an altercation with him as a result of that. Lee told me that Easy [Ian Dacey] got into a fight with the drug dealer and Lee had got involved. During the conversation the fact that Easy had blood on his sleeves and Lee told me that Easy had cut himself during the fight with the man at Hamilton South." (T1 - 792) 166Ms Caldwell agreed that she was telling the police the truth when she told them that. She also agreed that she had told the police that Lee Dacey was doing most of the talking. 167The judge at the first trial directed the jury that statements made by one accused were not evidence against the other accused and that is something that I must bear in mind in my assessment of this evidence as well. 168In cross-examination by Mr Hoyle on behalf of Ian Dacey, Ms Caldwell confirmed that he did not speak very much and that he appeared to be affected by something, possibly drugs. 169In cross-examination by Ms Yehia, Ms Caldwell agreed that the words quoted above from her statement were a paraphrase as she could not remember the exact conversation. The word "altercation" was hers, not his. She was asked whether he might have said something about trying to pull two people apart and she replied, "I think that was, might have vaguely been what, I think that was the general impression I got but again it was hard to understand, it was hard to comprehend what they were saying and my memory isn't great". She explained that it was hard to comprehend because he was slurring his speech. She also agreed that at the committal hearing she had given evidence that she had probably consumed cannabis that morning. However, I note that the essence of the conversation according to Ms Caldwell was consistent with that to which Lee Dacey deposed. He said he told her, "We'd just came from Hamilton South", and, "A bloke had just ripped us off $350 and my brother got into a fight with him". He also said that Ian had a cut on his finger and he used the bathroom to clean it up. 170Lee Dacey agreed in cross-examination that he did not mention anything to Ms Caldwell about Mr Dent having produced a knife: "I didn't think she really needed to know". He agreed that it "would be the single most important thing that would have stood out" but he said, "it doesn't mean I have to tell her about it". Simon Westbury 171Mr Simon Westbury lived with his partner in the suburb of Lambton and in August 2011 received a visit one evening from the accused Ian Dacey who was accompanied by a man named Paul Maybury. Mr Westbury told the jury that Ian Dacey said, "Just said that he had to sort a fellow out that had ripped his brother off". He also said that Ian Dacey said, "That he'd stabbed him and he hoped he wouldn't die." He thought that Ian Dacey had said that this had occurred earlier that day. 172In cross-examination it was suggested that this conversation never occurred but Mr Westbury disagreed. He did agree that if it had occurred, he would have told his partner Sarah about it. Sarah Doolan 173Ms Sarah Doolan was Mr Westbury's partner. She had known both accused for a number of years. She recalled an occasion in August 2011 when she was in a car with Ian Dacey when he had said that he was worried he was going to get into trouble for something he did. She said that he did not specify what it was and she did not ask. 174In cross-examination Ms Doolan was asked about the occasion of the visit of Ian Dacey and Paul Maybury to Mr Westbury. She was not present but Mr Westbury told her of the visit when she arrived home. He said that Paul Maybury was claiming that she and Simon owed some money; he did not mention anything about a stabbing. Yvonne Towers 175Ms Yvonne Towers and her daughter were drug users. One evening in August 2011 she and her daughter went to the home of Mr Paul Maybury at Bar Beach. Ian Dacey arrived shortly afterwards and was there for about 10 or 15 minutes before Ms Towers and her daughter left. Ms Towers conceded that she and her daughter were there to obtain a supply of drugs. She had known Ian Dacey for about 10 years and Lee Dacey for even longer. After Ian Dacey arrived she had a conversation with him that involved, on the Crown case, his making admissions. 176Ms Towers said that Ian Dacey said, "I've got myself into a spot of bother". She asked what he had done and he replied, "I've gone and done something wrong". She asked him for clarification and he mentioned Peter Dent. He referred to having been at the deceased's home and she gave the following account of the conversation: "Q. What was the next thing that was said? A. He said that he'd done something wrong with his, him and his brother Lee had done something wrong and I asked him what was it, and he said that Lee had asked for Easy's protection or something to, you know he was saying to him, 'wake up, wake up, Peter's robbing me, Peter's robbing me'. So he was looking for his brother to help him and Easy said that he, this is what Easy said. Easy said he woke up and he said 'I, I just, didn't take any notice and I went back to sleep and then next minute I knew I could hear Lee saying again, 'wake up, wake up, he's robbing me, he's robbing me' and Easy said he woke up then and just more or less said to Lee, 'piss off, leave me alone, I want to sleep' and, and then he said for the third time 'next minute he's waking me up again', and he said 'I was very tired because I'd taken some pills' and he said, 'I woke up again to Lee saying 'he's fucking robbing me, he's, he's fucking taking me money'' and Easy said he put his hand in - do you want me to continue. Q. Yes please. A. Easy said he put his hand in his pocket and had grabbed a knife out of his pocket, and I said, 'what did you do then Easy?' and he said 'I grabbed the knife out of my pocket' and he said, 'I had to stop him and shut him up and I, I just lent over and I just went doof, doof, doof'. Q. All right so now, when you use that expression, "doof, doof, doof", you gestured with your hand, your right hand. What did you mean to convey first of all what did you mean to convey by that gesture with your hand? A. Ian showed, that's what Ian showed me that movement as in he was referring to stabbing him with the knife out of his pocket." 177Ms Towers said that she and her daughter had asked him what he was going to do with himself and he replied that "he and Lee had run away from the situation". She was asked whether there was mention of blood and she said, "He said after he went doof, doof, doof, he said 'and blood squirted out everywhere and blood went all over us'". 178She said that Mr Maybury came over and told Ian Dacey to be quiet and not say anything. She and her daughter left shortly afterwards. 179Ms Towers conceded in cross-examination that drugs were a problem in her life at that time. She thought she was on heroin and she was at Mr Maybury's home on the occasion in question in order to obtain amphetamines. It was suggested to her that the conversation about which she had given evidence did not occur and she replied, "I wish it didn't but it did". She also said that she had tried to forget it, "because I think the world of them boys". 180She conceded that since that time she had found that drugs had affected her short-term memory but her long-term memory was better. She maintained, however, that she had a clear memory of the conversation. She agreed that the words, "spot of bother" were her paraphrase, and that perhaps that particular sentence was wrong, but she maintained a correct recollection of the conversation generally. She denied not liking Ian Dacey; she said, "I like Ian a lot ... I always have liked Ian". She did not like the fact that he had been charged in relation to Mr Dent's death. She knew Mr Dent. It was suggested to her that for that reason she had tried to make it as difficult for Ian Dacey as she could, but she replied, "I tried really hard to get out of this today". Corrective Services officers 181Ian Dacey was remanded in custody after his arrest. He was held at Cessnock Correctional Centre. On 23 October 2011 he approached a senior correctional officer, Mr Timothy Hayes just after he had been on a visit with a female person. Mr Hayes said that he appeared emotional; his eyes were red and glassy. He told Mr Hayes, "I want to tell the truth ... I stabbed him but I might have gone too far, what should I do"? Mr Hayes advised him to speak to his lawyer. 182Mr Hayes contacted his superior, Assistant Superintendent Keith Hague to let him know what occurred and he was told to furnish a report which he did. 183In cross-examination, Mr Hayes, prompted by a transcript of a conversation recorded by way of listening device in the visit area, agreed that Ian Dacey had said, "All I was doing was sticking up for a fucking loved one". He also agreed that he had said, "He fucking pulled a knife on my fucking brother". He said that his girlfriend had told him to tell the truth. He also agreed that Ian Dacey had said, "Maybe I went too far because I was off my head but that's the fucking truth of it". He agreed that Ian Dacey was sober and obviously distressed during this conversation. 184Assistant Superintendent Keith Hague confirmed the report by Officer Hayes about what Ian Dacey had said. He arranged to speak to Ian Dacey in his office. Mr Hague told Ian Dacey that he would have to contact the police but Ian Dacey insisted on speaking to him so he was cautioned (namely he was informed of his right to silence). He said that his girlfriend wanted him to tell the truth but his solicitor had told him not to say anything. 185Ian Dacey told Mr Hague, "It was fucking like this ... we were in Hamilton where we normally hang out, we were smashed". He also said: "We got in a cab and there was a bit of a verbal between Tony Dent and my brother just shit. I had a multi, a multi tool, it was in the cab. When we got back I went to sleep on the lounge. I woke up and my brother was shouting with Tony, fuck, what do you do when you love someone, Mr Hague, and you have got to protect them. Then I see Tony with a knife. He pulled the knife at my brother. Fuck, I love my brother so what do you do. I just stabbed him." 186Mr Hague asked, "Who did you stab?" And Ian Dacey replied: "Tony. He was going to kill my brother. When you love someone you've got to protect them. I didn't mean to kill him. I stabbed him up in the chest I think and one in the guts that's why I stabbed him there because I didn't want to kill him but it was my brother Mr Hague, and I love my brother." 187Mr Hague told him that he needn't say anymore but he replied, "Mr Hague, I just need to tell the truth. I didn't mean to kill him." 188Mr Hague told him to stop there and that he would be speaking to the police about what he had been told. The accused was then returned to his cell. 189It was indicated by Ms Yehia that, by consent, the conversation was admitted in the case against Lee Dacey as well. 190There was no challenge in cross-examination to the accuracy of Mr Hague's account of the conversation. Findings as to subsequent statements by the accused 191The conversation between Lee Dacey and Rachel Caldwell is only available to be considered in the case concerning him. It is notable for the absence of any mention of Mr Dent having produced a knife and of threatening to stab Lee Dacey. He said that this was something that "horrified" him; he was "shocked", "scared" and "in fear for my ...". But all he told Ms Caldwell was that Ian had got into a fight with a drug dealer and, according to her, he had got involved as well. He claimed that he did not tell her about what must have been to him the most striking feature of the whole incident because, in effect, there was no reason to. 192Mr Westbury's account of the conversation he claimed he had with Ian Dacey (admissible only against him) is also notable for the mention of stabbing Mr Dent but the absence of mention of anything relevant to a claim of self-defence. The conversation was disputed but I am inclined to accept Mr Westbury's account. There is nothing in the conversation that Ian Dacey now disputes: he concedes he did stab Mr Dent and I accept that he hoped that Mr Dent would not die. 193Ms Doolan's account of Ian Dacey saying he was worried about getting into trouble about something is so general that it advances no-one's case. 194Ms Towers' account was of the most detailed conversation with Ian Dacey (admissible only against him). It was also disputed. However, doing the best to assess it only from the printed page of the transcript, I am prepared to accept the essential aspects of it. She conceded drug use and memory problems but nothing that would suggest she would fabricate something she did not really recall. She claimed to bear him no ill-feeling; indeed she expressed reluctance in having to give evidence against someone she liked and had known for a long time. 195What Ian Dacey told Ms Towers is consistent with there having been an argument concerning drugs and money; the accused feeling that they were being "robbed"; and Ian Dacey producing a knife from his pocket and stabbing Mr Dent multiple times. There was nothing in the account that is consistent with the stabbing being the product of a perceived need to act in self-defence or defence of another. 196Criticisms were made that her account of what Ian Dacey said did not reflect known facts. It was submitted that the repetition of the word "doof" only three times was inconsistent with five or six wounds being inflicted. But that assumes Ian Dacey was intending to convey to Ms Towers the exact number of stab wounds, which is highly doubtful. It is more likely he was intending to convey that he stabbed Mr Dent multiple times. It was submitted that Ms Towers' account of him having said, "blood squirted out everywhere and blood went all over us" was not reflected in the facts. But Mr Dent did bleed heavily and it is highly likely Ian Dacey got some on him. At the most, I regard this as nothing more than an embellishment, perhaps to make the account sound more dramatic or the situation that he was concerned about sound more serious. 197The account given by Ian Dacey to the prison officers is of dubious reliability. I am mindful that he was said to be emotional and crying at the time. But that could be consistent with a number of alternative interpretations. It might indicate that he was making a genuine, heartfelt, credible confession. But it could also indicate that he had convinced himself of an exculpatory account to the point where he actually believed it. Or it could indicate that he is a good actor. I am in no position to choose. 198The conversations with the officers occurred more than two months after the event and after Ian Dacey had been charged with murder. I accept that it was before the prosecution brief of evidence had been served but Mr Dacey must have appreciated the essential aspects of the case against him. The conversations with the officers are the first known occasion when the claim of Mr Dent having threatened Lee Dacey had been made. There was not a hint of this in his earlier accounts. Mr Hague counselled Ian Dacey to remain silent but he was adamant that he wanted to be heard. In these circumstances I have reservations that this was a version intended to advance his own interests and perhaps also his brother's. In the end, I do not know what to make of it. I do not propose to take it into account. Prior violent conduct by the deceased 199The defence cases sought to rely upon tendency evidence in relation to the deceased. It was asserted that he had a tendency to act spontaneously in an aggressive and violent manner. In addition, a single prior incident was said to establish a tendency to produce a knife from a concealed position about his body and to use it in a threatening manner (T2 - 241). To establish this tendency the following evidence was adduced (Exh 11): In 1998, Mr Dent assaulted a woman and thereby contravened an interim apprehended violence order. In 1999 he committed an offence of assault occasioning actual bodily harm. He went to the home of his ex-defacto in breach of an apprehended violence order, broke a window and threatened to kill the woman and another occupant of the home with a shotgun. In 2003 he assaulted a staff member at a school. The facts in that matter included an account of abusive conduct and violent threats he made towards his 7 year-old daughter. He also threatened the school principal that he was going to go home and return with a gun and kill him. In 2005 there was another offence of assault occasioning actual bodily harm when he assaulted a man at a hotel in Lismore. The victim had offered him pills that the deceased did not want. The victim then referred to him in offensive terms and he reacted by punching him to the face. In 2009 he committed an assault. This involved him abusing some neighbours, kicking a chair and smashing it, pulling a carving knife out from under his jacket and pointing it at them, threatening to stab either one of them through the heart if they came near him. After his arrest he threatened to return to the neighbours and "do them in" if he was granted bail. 200There was also evidence of an event that occurred on 9 August 2011. Mr Leary, the resident of unit 11, agreed in cross-examination that he had a falling out with Mr Dent in relation to an amount of $100 that Mr Dent owed him. He said that Mr Dent assaulted him by striking him 3 or 4 times with a golf club. A golf club was found propped up against a wall of Mr Dent's unit (Det Phillips T145 - Exh B photos 26 & 27). A neighbour, Ms Emilie Davis, witnessed part of this event. 201These events establish that violent conduct by the deceased was not unprecedented. The 2009 event also shows that it was not beyond Mr Dent to produce a knife and make threats to use it. But just because a person reacts with violence in some situations does not render it, necessarily, more likely that they have a tendency to act violently in any situation. Whether Mr Dent acted in an aggressive manner and threatened violence with a knife on the morning of 10 August 2011 is very much dependent upon the evidence directly relating to that event. All that the evidence of the prior events establishes is that it is not improbable or fanciful that he did. Intention to cause grievous bodily harm 202I am satisfied beyond reasonable doubt that Ian Dacey intended to cause grievous bodily harm to Mr Dent. He delivered at least five stabbing blows with a knife (the sixth may have been a defensive wound). One of those blows was delivered with enough force to penetrate through clothing and skin and deep into the chest. Self-defence 203It is necessary to determine whether it is a reasonable possibility that Ian Dacey believed that it was necessary to do what he did in order to defend his brother. 204For a combination of reasons, I am persuaded beyond reasonable doubt that he did not have such a belief. 205I accept that he was affected by drugs in the early evening of 9 August, at about 2.30am on 10 August, and still by about 7.00 that morning. I bear in mind the evidence of Dr Allender about methylamphetamine affecting a user's faculties by altering perceptions and judgment. But he spoke of other effects as well, including aggressive and risk taking behaviour and, after some passage of time, causing fatigue and sleepiness. The observations of Ms Caldwell of Ian Dacey drooling, slurring his words, nodding off and the like are more consistent with him being in that later stage of affectation. At the time of the stabbing, Ian Dacey had not had any drugs for about 12 hours. From what is known about his conduct during and after the event (for example, none of the neighbours saw either of the men stumbling or staggering around), and what he is reported to have said about it, I consider it unlikely that he was experiencing any significant alteration of his faculties of perception and judgment at the relevant time. Moreover, I have no doubt about his capacity to form an intention to achieve a desired result. 206If Ian Dacey was responding to a perceived need to defend his brother from a threatened knife attack by Mr Dent, this would be expected to have been prominent in any account Ian Dacey gave of the event. There was no mention of it in what he conveyed to Mr Westbury, or to Ms Towers. 207The knife found on the landing just outside Mr Dent's unit supports the claim of self-defence (more aptly, defence of another). It bore the DNA of Mr Dent but not that of either accused. This supports the reasonable possibility that Mr Dent did in fact produce a knife. That Ian Dacey deposited blood on the railing of the stairway and on the lower landing supports the proposition that he sustained a cut upstairs. 208The fact that no blood at all was found on the upper level causes doubt about whether Mr Dent was stabbed there. The significant deposits of blood were all downstairs. However, it must be acknowledged that there was no expert evidence as to when bleeding might be expected to occur to a degree that blood would be deposited. All that can be said is that the crime scene examination does not support the proposition that the stabbing occurred upstairs. 209Another relevant factor is that Mr Dent did not complain of being stabbed until near the end of the incident downstairs. I accept that a delayed realisation by a victim of having been stabbed is not unknown. But this is another piece of circumstantial evidence to be considered. 210Finally, for what it is worth (because his credibility is dubious), Lee Dacey was in close proximity to what was occurring on the upper landing and he did not see his brother with a knife, let alone stabbing Mr Dent. 211Putting all of this together, I accept that there was an argument upstairs concerning money and drugs between Mr Dent and Lee Dacey. Ian Dacey was woken from sleep after it had started and sought to intervene. Mr Dent probably produced a knife and there was a physical struggle in which Ian Dacey sustained a cut. But Mr Dent was not winning the fight. The knife was dropped and he quickly fled downstairs. He was pursued to the lower level where both men were involved in assaulting him further. I am satisfied beyond reasonable doubt that in the course of this, Ian Dacey drew his knife and stabbed him multiple times. I am satisfied beyond reasonable doubt that there was no belief that there was a need to do this in defence of either himself or his brother. In any event, if there was, it was not a reasonable response in the circumstances Ian Dacey must by then have perceived. Conclusion as to Ian Dacey 212I am satisfied beyond reasonable doubt that in producing a knife and stabbing Mr Dent multiple times, including to the chest, Ian Dacey intended to cause grievous bodily harm; that grievous bodily harm was in fact caused; and this was something that was not done in self-defence. Joint criminal enterprise 213There is no evidence that Lee Dacey knew or even suspected that his brother was armed with a knife. And I accept Ms Moen's submission that the critical events occurred spontaneously and rapidly. I have come to the following conclusions. 214I am not satisfied beyond reasonable doubt that any joint criminal enterprise to cause physical harm to Mr Dent was on foot when the two accused went to Hamilton South. 215I am not satisfied beyond reasonable doubt that there was at any time a joint criminal enterprise to cause grievous bodily harm to Mr Dent. 216I am satisfied beyond reasonable doubt that there was a spontaneously formed agreement between the two accused to assault Mr Dent. 217I have a reasonable doubt about whether Lee Dacey was aware that his brother had a knife and a reasonable doubt about whether he foresaw the possibility that in the course of the assault upon Mr Dent his brother might inflict grievous bodily harm. Verdicts 218Ian Dacey: Count 1 (Murder): Not Guilty Count 2 (Causing grievous bodily harm with intent): Guilty 219Lee Dacey: Count 1 (Murder): Not Guilty Count 2 (Causing grievous bodily harm with intent): Not Guilty ********** 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: 29 August 2014