R v DAVID ANDREW MACHIN No. SCCRM 96/106 Judgment No. 5814 Number of pages - 23 Criminal law - [1996] SASC 5814 - SASC 1996 case summary

R v DAVID ANDREW MACHIN No. SCCRM 96/106 Judgment No. 5814 Number of pages - 23 Criminal law - [1996] SASC 5814 - SASC 1996 case summary — Zoe

[30]

In cross examination, the following dialogue occurred:- "Q. You obviously lied to the police about dropping Barry Hudson off that Friday night. A. Yes. Q. You lied to the police about that because you didn�t want to get blamed for what you�d done. A. Yes. Q. You wanted to avoid responsibility.,A. Yes. Q. You agreed to be videoed when you spoke to the police. A. Agreed to be videoed?Q. Yes. A. Yes. Q. You were quite happy to tell them this lie. A. Yes. Q. In fact, you wanted to tell them, didn�t you. A. I didn�t want to be arrested. Q. So you thought if you lied to the police, and said that you had dropped him off, there was a chance that you wouldn�t be blamed for it, and so you wouldn�t be arrested. A. Yes. Q. On the video, they showed you, as we can see, a street directory plan. A. Yes. Q. That plan had already been marked in an area where you had said that you dropped Barry Hudson off. A. I�m not sure. Q. In any event, when they showed you the plan, while the video was operating, you, in fact, looked at it, and said �The streets don�t look quite right�, and you altered the position. A. Yes. Q. You said �Oh, really, that�s not the position I dropped him off in. It was a bit further down the road.� That�s correct. A. Yes. Q. You pointed to a new position, or a different position. A. Yes. Q. You had circled it, and signed it, or put a cross on it, and signed it. A. Yes. Q. That was all to make it look realistic, was it. A. No, because I was asked questions before, I told them roughly the street and everything, and it was different on the map. Q. But it was all a lie. A. Yes. Q. Why did you bother to correct whether it was one street corner or the corner further down; was that to make it look realistic. A. Well, they would have caught me for lying. Q. You even, when asked by the police towards the end of the conversation whether there is anything else you would care to tell them concerning the death of Barry Hudson that may assist them, you even suggested that there was somebody that didn�t like him. You suggested a man by his first name, at least, who didn�t like him. A. Yes. Q. That was to get the heat or attention off you. A. No, this guy didn�t like him. Q. But he didn�t do the killing, did he. A. No. Q. But you were quite prepared to dob that man in to the police. A. Not really dob him in. Q. You told them his first name was Graham. A. Yes. Q. You said you didn�t know where he lived but you thought it was Edwardstown somewhere. A. Yes. Q. And that your sister - when asked could anyone tell them where he lived - you suggested your sister Lenora could do that. A. Yes. Q. So you are really giving the police information about a man that you know didn�t do the killing, that�s correct. A. Correct. Q. In the hope they will investigate someone else, not you. A. Well, ask him questions."

[32]

He was here, of course, referring to the first incident in the motor vehicle. He was asked about his state of mind at this point and, during cross examination on that aspect, the following exchanges occurred:- "Q. The police asked you about whether that (i.e. what he had been saying about the appellant�s sister) was upsetting, what he was saying. A. Yes, I believe so. Q. And you said �No. I just didn�t want him to go off more, you know, because it annoyed me the tone of voice and that I thought "Yeah, he is going to go off again. So get out of the car, get him out of the car", this is what I thought.� Do you remember being asked that question and giving that answer to the police. A. Sort of, yes. Q. The police asked if what Barry Hudson had said had annoyed you and you said �No, it didn�t.�A. Correct. Q. Why didn�t you say it did. A. Because they would have got into it more, more detail, would have kept asking. Q. What would the problem of that have been. A. I would have had to repeat what he actually did say. I don�t like the idea of saying things about my sister, you know, having to repeat them. Q. So you decided to lie to the police about that. A. Yes. Q. You have agreed that you lied to the police so as to get yourself out of trouble, that�s right. A. Virtually, yes. Q. To avoid the responsibility for what you had done. A. Virtually, yes. Q. I suggest quite clearly you knew what you were doing when you struck Barry Hudson over the head with a rock - that when you struck him you intended to cause him grievous bodily harm or kill him. A. No. Q. Didn�t think you would cause him grievous bodily harm at least. A. No. Q. You didn�t even think he was seriously injured. A. I didn�t believe he was badly hurt, no. Q. And you were too scared to go back there. A. I don�t know - after, I panicked. Q. But you still didn�t think he was badly hurt. A. I wasn�t sure at that stage. I just didn�t know. Q. Not lying to avoid responsibility again, are you. A. No. Q. You thought hitting him over the head with that big rock wouldn�t cause much damage. A. I never knocked him out, bruised him. Q. You didn�t think there would be much damage by hitting him with the other rock either. A. Not permanent damage, no. Q. You said that you threw the rock off the roadway in an attempt to cover up what had happened. A. Sort of, yes. I didn�t know what I was doing at that stage. I was in a panic. Q. Correct me if I am wrong, you said earlier that one of the reasons you threw the rock was to cover up. A. Sort of, yes, and I said that, yes. Q. What do you mean by �sort of�. A. Sort of cover it up. I wasn�t sure what I was thinking at that point in time. Q. You were thinking enough to cover up. A. Basically. Q. You have told us you took the clothes off Mr Hudson so he could walk home naked. A. Yes. Q. But you agree that the clothes were left in the vicinity of Mr�Hudson. A. Yes, I am not sure - while I was taking them off or putting them in the same spot or what area. Q. You were trying to make the killing look like a certain type of killing by leaving him stripped. A. No. Q. Not at all. A. Not really, no. Q. You told us you were sort of covering up by the time you threw the rock, that�s correct. A. Yes. Q. You knew he was somewhere in the vegetation at the time you left him. A. Yes. Q. You made no effort at all to go back and check on him. A. No. Q. You say the first thing you did was clean your clothes really, try and clean your clothes. A. After I ended up at the park area, yes. Q. Because you wanted to get rid of any evidence about that. A. Not really evidence. I had blood on my hands. I couldn�t go into Dennis�s place with blood. Q. Because Dennis would have asked �What happened?�A. Yes. Q. And you wanted to hid (sic) it. A. I didn�t want anybody to know. I didn�t know if he was going to live, die, what happened. Q. You didn�t care though. A. I didn�t want him to die. Q. But you didn�t go and get help or help him. A. No. Q. Or even look for him next day. A. No. Q. I suggest you did intend for him to be extremely seriously injured, if not die. A. No."

[91]

In the instant case, complaint is made that, in the concluding stages of his summing up, the learned trial judge both promoted what was tantamount to a personal view and destroyed the balance of the overall summing up in an impermissible manner when he said:- "May I just end, ladies and gentlemen, with a few remarks of my own. As I said earlier, it is your understanding of the facts that matters, not mine, so these remarks are offered for your assistance, but you must just take them or leave them as it seems proper to you.It does seem to me that the accused�s answer to the murder charge faces a couple of substantial difficulties. There is the matter of his intention, and that involves the inter-related question of alcohol and also the second line defence, as one might call it, of provocation.So far as his intention goes, I just make one remark, because I don�t think anything has been said about it, and draw your attention to the kicks to the body. We know there were those repeated blows to the head, there is no dispute about that; and the kicks to the body, of course, did not contribute to the man�s death. I do mention them for that reason, but you remember that the accused admitted that he kicked the man in the body and he must have done it pretty forcefully because the spleen and the pancreas were both injured and there was internal bleeding, and he stamped on the body; and while, as I say, they are not the injuries which have led to the murder charge, you may think they give you some assistance in reckoning the intention of the accused when, a little time earlier, he struck those blows to the head. Did he strike those blows to the head with the intention, at least, of causing really serious harm? Now, one think obviously that could cloud his realisation and understanding and intention, and there has been a lot of emphasis quite properly put on it, is the subject of alcohol. We know that he had been drinking, but how drunk was he? Because you have to use your experience, your judgment, in relating the question of alcohol to the states of mind, the realisations and intentions, that are essential to the prosecution case.Well, he had been driving a car for about an hour and a half, not only through the streets of Christies Beach or Port Noarlunga, this area, but around that informal dirt track, speedway, or whatever it was, behind the refinery, and, presumably, he coped satisfactorily with that, and you may think, of course, with a degree of skill - one can only generalise because we don�t know the details of it. True enough, he had been drinking while he was doing that, so the blood alcohol level would be going up perhaps rather than down; but, ladies and gentlemen, he was also driving after the events that led to Barry Hudson�s death, and there is no suggestion that he wasn�t driving competently; and he certainly acted purposefully, you may think, immediately after he left the scene. He had thought he was covered with blood, he cleaned himself up in the lavatory, washed his face. And the things that he did about disposing of blood stains in the car and his own clothes. And you may think it interesting that he appears to have a pretty detailed recollection of what happened at the scene, the sequence of events and precisely what he did and what the man did. So he is certainly not the example of the drunk who is so drunk that he doesn�t know what he is doing and cannot remember things. Of course, the defence does not say he was that drunk, but they are things you can take into account in considering the impact of alcohol on this man�s intention, possible intention, at the scene of the death that night.Is it a reasonable possibility, do you think, that he did not intend, at least, to cause Hudson really serious bodily harm? If you do not think that is a reasonable possibility, then the only thing that stands between the accused and a verdict of guilty of murder is this question of provocation"

R v DAVID ANDREW MACHIN No. SCCRM 96/106 Judgment No. 5814 Number of pages - 23 Criminal law

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Judgment (108 paragraphs)

R v DAVID ANDREW MACHIN No. SCCRM 96/106 Judgment No. 5814 Number of pages - 23 Criminal law (1996) 68 SASR 526 [1996] SASC 5814 (20 September 1996)

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Cases Cited (7)