R v M.D.T. No. Sccrm-00-71

R v M.D.T.
[2000] SASC 352

Criminal
Trial by Judge Alone

1................ KING AJ.......... ............. The accused is charged with murder. The particulars of the offence stated in the Information are that he on or about the 4th day of December 1997 at Port Adelaide or another place, murdered Stanley Thomas Scarman. On being arraigned he pleaded not guilty. The accused had duly elected to be tried by a judge without a jury and the trial took place before me accordingly.

The deceased was last seen alive on the morning of 4th December 1997. His decomposed remains were found on 25th May 1999 in an Industrial Waste Dump site at Wingfield near the Dry Creek railway station. The site is bounded by Magazine Road, Henschke Street, the railway line and the South Road extension.
When found the deceased’s body was totally decomposed leaving only the skeletal remains. The skeleton was intact except that the superior horn of the thyroid cartilage was missing and the lower jaw had fallen away apparently due to gravity. The horn comprises cartilage and gristle and in a man of the deceased’s age would have filled with calcium rendering it brittle and more readily subject to breakage. It is about the thickness of a matchstick. Once fractured completely it would be easily lost from an exposed body as a result of gravity, the action of the elements or the intervention of vermin or some combination of those factors. A fracture of the horn can occur during manual strangulation but it is not necessarily indicative of it. The fracture could easily occur after death. The body was partially clothed. A windcheater top was in place. The trousers were undone at the front. The belt was undone and was not threaded through at least two of the front loops provided on the trousers for the belt. The underpants were off the body and lying near the head. The socks were on both feet. There was a shoe on each foot but the shoes were on the wrong feet. At least one of the shoes was partially laced up. The deceased’s spectacles and the contents of his pockets were scattered about. There was no money in his clothing or on the ground. His wristlet watch was damaged and had stopped according to its dial at 1.48 on the 4th.
Due to the decomposition, the cause of death could not be ascertained. Death could have been caused by strangulation or suffocation as suggested by the prosecution but it could equally have been due to natural causes such as a heart attack or a stroke.
The deceased was a bachelor who lived alone at Sawford Street, Largs Bay. He was aged 76 years and was diabetic. He had become frail in the year or so preceding his death. His mobility was somewhat restricted by arthritis and he occasionally used a stick. Nevertheless he was able to walk reasonable distances and his walking action as disclosed by bank security cameras appeared to be quite normal for a man of his age. His principal interest was sailing and in earlier years baseball. He had been an active member of the Largs Bay Sailing Club although the degree of his involvement had declined with advancing years. Through the Sailing Club he had become friendly with the accused and another young man C.
The accused was 17, almost 18, years of age at the time of the deceased’s disappearance. His involvement with the deceased commenced when he was 13 years of age. C, who is two years older than the accused, became involved with the deceased at about the same time. The accused and C became frequent visitors to the deceased’s house. The accused worked on his boat at those premises. In 1997 the accused used a shed at the deceased’s premises to produce fibre glass fittings for motor cycles as a business proposition with capital provided by the deceased’s brother.
The nature of the relationship between the deceased and these two young men is far from clear. I am sure that I have not been told the full truth about it. However it commenced and developed, there can be no doubt that it degenerated into a means by which these two young men were able to obtain regular funds to finance their respective lifestyles. Over the years they obtained substantial sums of money from the deceased. After his retirement from his employment, the deceased’s income consisted of a Superannuation pension and a part aged pension. At the time of his disappearance the Superannuation pension was $597.47 per fortnight and the aged pension $48.10 per fortnight. Out of that his bank account was regularly debited with $221 for mortgage repayment. The accused and C adopted a practice of accompanying the deceased to the bank on his superannuation pension day and obtaining money from him. It is apparent that the deceased was often left with less than sufficient to live on. He borrowed from his brother and attempted to borrow elsewhere. He was reduced to borrowing small amounts, and even food, from neighbours. Power supplies were temporarily discontinued on two occasions for non payment of accounts. SA Water bills were unpaid after 10th April 1996. He owed his brother a substantial sum. By the date of his disappearance he had apparently decided to sell his house and a real estate agent had an appointment to see him on the day of his disappearance. Despite his obviously straitened financial circumstances he continued to provide money to the accused and C.
Having considered all the evidence and seen C and the accused in the witness box, I am left in no doubt that they were imposing on the deceased in some way. The most benign interpretation of the relationship is that they unscrupulously took advantage of an old man’s misplaced and excessive benevolence towards two young supposed friends. It would be easy to place a more sinister interpretation upon it. Just before his disappearance the deceased told the accused that he would provide no more money and would expect repayment of what he had advanced. The prosecution relies upon that as a motive for the alleged murder.
Thursday 4th December 1997 was Superannuation Pension day. The pension was paid into the deceased’s account at the Commonwealth Bank. The accused arranged to collect the deceased at his home in order to drive him to the bank. The accused says that the deceased agreed to lend him $100. C, however, arrived at the deceased’s home first. He drove the deceased to the Commonwealth Bank at Port Adelaide. The deceased withdrew money from his account and paid C $100. The deceased went back into the bank and C drove off. On Commercial Road Port Adelaide, the accused, on his way to Sawford Street in a small truck or van belonging to his mother’s male friend, saw C’s car. He realized that C had taken the deceased to the bank and obtained money from him. He hailed C who told him that the deceased was waiting for the accused at the bank. Both vehicles proceeded to the bank. As the van pulled up, the deceased emerged from the bank and entered it. The accused says that the deceased gave him $100. Something was said between the accused and C about meeting back at the deceased’s house and both drove off, the deceased in the van driven by the accused.
Neither the accused nor the deceased went back to Sawford Street. C went back there, waited for 15 minutes and left. A Meals on Wheels worker went to the deceased’s residence at 11.50am and there was apparently nobody at home. He left a meal which remained untouched. A neighbour called at 12 noon but could not attract any attention. A real estate agent called by appointment at 1.30 pm but obtained no response.
The accused in fact drove north with the deceased, stopping in the vicinity of the waste dump where the deceased was ultimately found. What occurred thereafter is the central issue in the case.
The accused gave evidence. He said that after driving off from the bank with the deceased in the vehicle, he decided to go to Elizabeth to pay a debt to a man named Lavery who was expecting the money that morning. The deceased expressed a desire to visit his brother in the city and as the accused also desired to see the brother in the city to obtain a further loan he decided to drive the deceased to his brother’s office after paying Lavery. On the way to Elizabeth, the deceased indicated that he had to see his brother before lunch and that he did not wish to go to Elizabeth. On the South Road Extension opposite the waste dump, the deceased alighted from the vehicle for the purpose of walking across the dump to the Dry Creek Railway Station. He appeared to be in good health. The accused drove off and did not see the deceased again. On returning to his home at Pooraka, where he lived with his girlfriend and his mother and her male friend, the accused says that he rang the deceased’s home to discuss some matters relating to the fibre glass activity, but received no answer. Telstra records confirm that there were two unanswered phone calls to the deceased’s number from the accused’s home at 4.44 pm and 4.59 pm respectively. He said that he rang again on the Saturday 6th December with no result. Telstra records show that there were three unanswered phone calls from the accused’s home to the deceased’s number on that date at 1.45 pm, 3.52 pm and 4.35 pm respectively. The accused said that his first knowledge of the deceased’s disappearance came from police officers who called on him on Sunday 7th December.
The accused was an unsatisfactory witness. His demeanour, especially when answering questions on sensitive topics, was quite unconvincing. Many of his explanations were vague, were sometimes contradictory and always failed to carry conviction. He lied consistently to the police and is quite evidently prepared to lie whenever it suits his purpose. I am unable to place any weight upon his evidence except for his admission, against his own interest, that he drove the deceased to the vicinity of the waste dump where the body was found.
But of course lack of credibility of the accused as a witness does not prove the charge against him. It is necessary to examine the circumstances upon which the prosecution relies in order to determine whether they prove the charge beyond reasonable doubt.
When closely analysed the case for the prosecution depends essentially on three elements:
Motive
The accused’s being in the company of deceased shortly before his death near the place where the body was found.
The accused’s lies to the police.
The motive suggested by counsel for the prosecution was anger at the deceased’s intimation that no more money would be forthcoming and that he would expect repayment. Perhaps a further possible motive of robbery is suggested by the accused’s evidence that Lavery was hassling him and expected repayment of his debt that morning. The bank records show that the deceased withdrew $370 that morning. If C and the accused are to be believed that he gave each of them $100, $170 remains unaccounted for. But these factors are very speculative and lack cogency as motives for murder. The deceased had previously threatened to discontinue payments and to seek repayment but had nevertheless been prevailed upon to continue the payments and had done nothing about enforcing repayment. There is no motive to kill the goose while it continues to lay the golden eggs. The robbery motive is rendered very weak by the consideration that any notes in the deceased’s pockets would be likely to have come out with the other contents and could well have been blown away during the long period of exposure. These possible motives might assist in providing an explanation if murder were otherwise proved but they do little or nothing towards proving murder.
The accused was certainly, on his own admission, with the deceased near the place where the body was found. The significance of this is weakened, however, by the inability pathologically to establish a cause of death and in particular to establish that it did not occur from natural causes.
Counsel for the prosecution relied upon the point that the absence, and therefore inferentially the fracture, of the superior horn, is consistent with strangulation. It is, however, equally consistent with death from external causes, the horn being fractured and removed after death by some combination of gravity, the elements and vermin.
The prosecution relied heavily upon the lies which the accused told the police as indicating a consciousness of guilt. He was first approached at home on Sunday 7th December by detectives who told him that the deceased was missing. They did not know, of course, whether he was dead or not. The accused told them that he had not seen the deceased for a fortnight. When next spoken to on 9 December, no doubt having realized that the police would learn from C that he had been with the deceased on the morning of his disappearance, he changed his story and claimed that he had dropped him off at Sawford Street and then driven away. He maintained this story at his subsequent interviews with the police.
Why, the prosecution asks, would he tell these false stories even in the early stages when it was not known that anything untoward had occurred to the deceased, unless the accused had the guilty knowledge that the deceased was dead and that he had killed him? That is certainly a possible and perhaps cogent explanation of his falsehoods. But is it the only rational explanation? I have no doubt that his falsehoods indicate a fear of the truth. But does that necessarily indicate a consciousness of guilt of homicide?
The accused’s explanations in his evidence of those lies were unconvincing and often contradictory. At one stage of the cross examination, however, he said that he lied because he “might have been in a bit of strife” for dropping off this old man to walk across the dump site to the train station.
If the accused had dropped the deceased off as he claims, he must by the Sunday when the police told him of his disappearance and still more by the following Tuesday, have realised that something was seriously wrong. Not only would his conduct in dropping him off in those circumstances come under scrutiny but if it turned out that the deceased had met with foul play he might well be a suspect. They are explanations of the lies which are reasonably open and do not involve a consciousness of guilt of homicide.
The accused’s lies are compromising and give rise to considerable suspicion, but I am not convinced that the only reasonable explanation of them is knowledge on his part that he had killed the deceased.
I do not think that the circumstances relied upon by the prosecution have sufficient cogency to exclude rational explanations of them which are consistent with the innocence of the accused. In particular there is the hypothesis of death from natural causes. The cause of death is unknown and death by heart attack or stroke is consistent with the condition of the skeletal remains. There are, it is true, matters of suspicion additional to the circumstances discussed above, not least the missing money and the fact that this was one of the few occasions if not the only occasion on which the accused used the van which was more suited than a motor car to travelling over the rough terrain at the dump and to transporting a body, but they do not advance the prosecution’s case to the necessary extent.
I should mention, in order to put it aside, one further point relied upon by the prosecution. C gave evidence that while they were in their vehicles at Commercial Road on the morning of 4th December, the accused said that if the deceased did not have his money he would bash him. C was not a credible witness. His demeanour in answering many questions was poor and he had told lies to the police. He realized that he was a suspect and had a motive to lie to inculpate the accused and thereby exculpate himself. There was no reference to the threatening remark in any of C’s several interviews with the police between December 1997 and August 1999. It first saw the light in a statement to the police on 22nd August 1999. I can attach no weight to C’s evidence and I disregard the evidence of the accused’s alleged remark about bashing.
The strange and unexplained state of the deceased’s clothing, moreover, in my opinion militates against a finding that the deceased died by the hand of the accused or indeed as a result of foul play at all. It is clear that the deceased at some stage was undressed and his underpants removed. An attempt was then made to re-dress him. It is difficult to conceive of any circumstance in which an assailant would undress the deceased. The presence of the underpants near the body indicates that their removal is likely to have occurred at the scene. That really places a sexual motive beyond the bounds of reasonable conjuncture. Even if an assailant did undress him, why would he attempt to re-dress him in broad daylight thereby increasing the already existing risk of detection?
I cannot find any intelligible answers to these questions.
The hypothesis which seems best to account for the state of the clothing is that the deceased became ill while crossing the dump site. Dr James considered that heart attack or stroke were among the possible causes of death. The stress on this frail old man walking across this rough site might have produced a heart attack or stroke. Dr James explained that that commonly has the effect of causing the bowels to evacuate. If this occurred the deceased might well have removed his shoes and trousers in order to discard fouled underpants. He might then have attempted to replace the trousers and shoes in order to seek help. His distress might account for the shoes being placed on the wrong feet and for the failure to get the trousers on properly before the final collapse. The contents of the pockets could have fallen out and the spectacles and watch been damaged in this process.
The evidence does not prove beyond reasonable doubt that the accused killed the deceased.
The verdict therefore is not guilty of murder and not guilty of manslaughter and there will be a judgment of acquittal.

[2000] SASC 352

24 October 2000