R v Oscar Eduardo Bedoya Machado
[2011] ACTSC 181
•30 September 2011
R v OSCAR EDUARDO BEDOYA MACHADO
[2011] ACTSC 181 (30 September 2011)
EX TEMPORE JUDGMENT
No. SCC 12 of 2011
Judge: Higgins CJ
Supreme Court of the ACT
Date: 30 September 2011
IN THE SUPREME COURT OF THE )
) No. SCC 12 of 2011
AUSTRALIAN CAPITAL TERRITORY )
R
v
OSCAR EDUARDO BEDOYA MACHADO
ORDER
Judge: Higgins CJ
Date: 30 September 2011
Place: Canberra
THE COURT ORDERS THAT:
A verdict of guilty be entered.
This is a trial by judge alone, hence I have to assume the role of the jury as well as that of the trial judge in controlling the proceedings and the evidence that appears before the Court.
There are, of course, the usual rules which apply in the case of a judge alone trial, as much as they apply in any jury trial. They are that the Crown bears the onus of proving this offence, and proving each element of it, to the criminal standard, that is, beyond a reasonable doubt. If there is any doubt it must be resolved in favour of the accused.
The accused comes before this Court presumed innocent until the contrary be proved to that standard. I must evaluate the evidence in accordance with the most favourable light that can be cast upon it, in favour of the accused.
The charge which is brought is that of assaulting Cameron Stack, thereby occasioning to him actual bodily harm. Assault means to apply force to a person (certainly in the context of this case it bears that meaning) without legal justification. There may be many legal justifications, of course, such as self-defence or accident or, indeed, to prevent harm to another. The application of force must be deliberate. It must be done knowingly. It cannot be done accidentally.
So I have to be satisfied, in this case, that Mr Machado applied force to Mr Cameron Stack and that he did so knowingly and deliberately without any justification in law. A justification suggested by Mr Machado was self-defence. Self-defence is available if you believe, on reasonable grounds, that you are being attacked. You may use reasonable means to avert that attack, even if that includes the application of force.
I also note that Mr Machado was not obliged to make any statement to police about this matter. Relevantly, I do not think he really did, but nevertheless he was not obliged to and no adverse inference can be drawn from that.
Secondly, he was not obliged to give evidence in these proceedings, but he did, and in assessing his evidence, I must bear in mind that he was not obliged to do so.
I also note that while Mr Machado clearly, on the evidence, was very drunk, that of itself is not a legal justification for the assault which took place. The mere fact that someone is drunk does not mean they are not criminally responsible for what occurs. In this case it is not suggested that Mr Machado’s mind was so affected by the liquor and drugs that he had consumed that he was unable to form a criminal intent.
The evidence is largely one way in the sense that it starts with Mr Machado entering the Suburban Bar at Dickson. He apparently entered into some kind of dispute over the interpretation of the menu. I infer that it was a combination of his lack of fluency in the English language and his intoxication that led to him being unable to express himself very clearly.
He apparently became aggressive and was asked to leave and both Mr Condi and other staff members proceeded to eject him. Mr Condi says that there were threats uttered by Mr Machado and that there was a scuffle outside the bar premises. He felt obliged to defend himself, so he punched Mr Machado on the nose and it bled.
The other evidence, from other members of staff, Mr Maddigan, Mr Hammond and Mr Escribe, would all tend to support Mr Condi’s evidence, although they saw various parts of that event. Not every witness will see every part of an event and not every witness, of course, sees the same detail as any other witness. Nevertheless, I am satisfied that Mr Condi did indeed eject Mr Machado, that there was a scuffle between them outside the bar and that Mr Condi punched Mr Machado in the nose.
What then happened, it seems to me, is that Mr Stack, who had been in the premises, exited and was approached by Mr Machado who, according to Mr Stack, punched him on the chin causing a laceration on the point of the chin. It is well described in the evidence. I have no doubt that that amounts actual to bodily harm. Mr Stack, of course, says that he gave no cause whatsoever for Mr Machado to punch him.
Before evaluating that evidence I must take account of the other evidence that was given by various police officers and Mr Oliver which, generally speaking, tends to support Mr Stack’s account, although much of the police evidence is not relevant because it has no bearing on what actually happened outside of the Suburban Bar.
Mr Machado’s account of things is that he went to the Suburban Bar. He was there about 5 pm. I do not think he disputes that. He had been drinking since 9 am. He had drunk one cask of wine, he agreed it was 4 litres. He also agreed that he had two marijuana cigarettes, two joints. He also had three cans of whiskey and coke. Now that, even if his recollection is accurate and he only had three cans, is a considerable amount to drink.
As Mr Jackson said, it amounts to about a litre an hour of intoxicating liquor. It may be more than that because one has to bear in mind that it is not always possible for a person who is drinking that amount of liquor to accurately remember what it is they drank. However even accepting that as being reasonably accurate, it is clear that Mr Machado’s sobriety was adversely affected. That is also corroborated, of course, by the witnesses who observed him in and outside the Suburban Bar and indeed by the police who came across him later, so I have no doubt that he was drunk.
Mr Machado has a recollection of Mr Stack punching him. It seems to me that he has confused Mr Condi with Mr Stack in that respect. He was punched by Mr Condi and I think that in his confused and drunken state he believed Mr Stack was the one who had done it and so proceeded, apparently without any provocation from Mr Stack, and indeed there was none, to punch him on the chin.
It seems to me that given the lapse of time there must have been, which while not great was still a significant break, between when Mr Condi punched him and when he punched Mr Stack, it could not be said credibly that there were any grounds for Mr Machado to believe, rationally, that Mr Stack presented any threat to him. Indeed, I think it was only his confused state of mind that led to him to confuse one with the other.
Accordingly, in my view, there is no justification that Mr Machado had in self defence or otherwise for striking Mr Stack as he did. Therefore, I find that the offence of assaulting him occasioning actual bodily harm is made out and I find Mr Machado guilty of that offence.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.
Associate:
Date: 4 November 2011
Counsel for the Crown: Mr T Jackson
Solicitor for the Crown: Director of Public Prosecutions for the ACT
Counsel for the Defendant: Mr J Sabharwal
Solicitor for the Defendant: Legal Aid ACT
Date of hearing: 30 September 2011
Date of judgment: 30 September 2011
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