Bee v Police No. Scgrg-98-1482 Judgment No. S25

BEE v POLICE
[1999] SASC 25

Magistrates Appeal: Criminal

MULLIGHAN J The appellant was charged with making a false representation to a member of the police force knowing the representation to be false and that the representation was such as would reasonably call for investigation by the police contrary to s62(1)(a)(i) of the Summary Offences Act, 1953. She denied the charge and pleaded not guilty. After a trial before a learned Magistrate, she was found guilty, convicted of the charge and sentenced to imprisonment for eighteen months with a non-parole period of twelve months which sentence was suspended. She appeals against the conviction.
There are various grounds of appeal which were argued extensively by Ms Shaw QC who appeared for the appellant. During the course of here argument it became obvious that the conviction could not stand. After the conclusion of the hearing, I allowed the appeal, quashed the conviction and declined to order a re-trial. A verdict of not guilty was entered and the complaint was dismissed. I indicated that I would give reasons for that decision at a later time and I now do so.
The alleged offence was said to have been committed on 21st January 1996. The appellant was then aged 35 years and has no previous criminal record. She was, at that time, employed as a nurse’s aide at a hostel for elderly residents. She alleged that late at night whilst carrying out duties in the grounds of the hostel, she was attacked by an intruder. She claimed that he grabbed her from behind and held a knife to her neck, in consequence of which she sustained injuries to her neck and to her right hand. She made a statement to a police officer indicating the circumstances of the alleged attack, her injuries and a description of the assailant. Police officers subsequently investigated her complaint which was treated seriously by them. These investigations were extensive, including the examination of the scene of the alleged crime.
Eventually the police came to regard the complaint as false. It was alleged against the appellant that there had never been an attack and that her injuries were self inflicted. No motive was established. She was charged with the offence on 29th May 1996. S62(1) of the Act provides:
“62(1)Where -
(a).... a person makes a false representation -
(i).... to a member of the police force; or
(ii)to a person who is not a member of the police force knowing that it is likely that the representation will be communicated by that person to a member of the police force,
knowing the representation to be false; and
(b)... the representation is such as would reasonably call for investigation by the police,
the person by whom the representation was made is guilty of an offence.
Penalty: Division 5 fine or division 5 imprisonment.”

It may be seen that the elements of the offence relevant to this matter are that there was a representation to a member of the police force, that the representation was false, that the maker of the representation knew that it was false and that it was such as would reasonably call for an investigation by the police.

The only real issue at the trial was whether the representation that the appellant had been attacked in the circumstances and had sustained the injuries as she represented to the police was false. There was, and could not be, any issue about the other elements of the offence.
On the night in question the appellant went to work at about 10.45 pm. She took her dog with her. She told a security officer that she had permission to have the dog with her because there had been intruders at the hostel and the nearby nursing home. This security officer carried out random patrols of the area on foot and shortly after commencing a patrol at 11.45 pm he found the appellant lying on the ground outside the main door of a building. The dog was inside the door. This security officer called the police. According to him, the appellant appeared to be in shock and he had difficulty in understanding her. She mentioned the words “knife, “man” and “attacked”. He observed a cut on her right arm which was, or had been, bleeding and there was blood on her arm. He saw a trail of some drops of blood from where he found the appellant to a gate leading to the street, a distance of about 37 paces. The appellant was taken to hospital.
In the early hours of the next morning the appellant made the statement to the police which has been mentioned.. For present purposes it is only necessary to mention some matters. She said that whilst doing her rounds she arrived at the front door of the building. Her dog went inside the building and as she was following, the attacker grabbed her hair and pulled back her head and the door was slammed closed. She said that she tried to hit her attacker with the torch she was carrying in her right hand. She swung at him with the torch at which time she felt a sharp pain on her forearm which caused her to drop the torch. She told the police that at this time the man was still standing behind her and holding her hair. She felt what she believed was a knife against the left side of her neck. He told her to get down on the ground and pushed her shoulder thereby turning her on to her back and causing her head to hit a cement path with force. She next remembered the man getting off her and telling her aggressively that he would return. She gave quite a detailed description of the man to the police. The police officer who took this statement noted that she was quiet and that she appeared upset and shaken.
A knife was found just outside the hostel grounds by the gate which has been mentioned. It was a sharp kitchen knife with a single edged blade about 20 centimetres in length and a wooden handle. The width of the blade, apart from the pointed end was about two centimetres. There was blood along almost the entire length of the sharp edge of the blade and on both sides. The other edge was square in profile and about one to one and a half millimetres in width. No fingerprints were found on the knife.
Apart from the drops of blood which have been mentioned, there was some blood in the general vicinity of where the appellant said she was attacked. All of the blood at these locations and on the knife was the blood of the appellant.
The appellant claimed that her upper clothing was damaged in that attack and buttons were torn from the clothing. The police had access to the clothing but carried out no investigation of it.
Photographs of the appellant, and in particular her neck and right arm, were taken by the police at the hospital on 22nd January 1996. It may be seen from these photographs that the appellant had a long line of discolouration running around her neck from under the left ear to below the centre of the chin about 10 to 11 centimetres in length and about half a centimetre in width. For most of this line there were in fact two lines. At one end of this line under the left ear, there was a very narrow and dark red section which appeared to represent a superficial incised wound. Also, it may be seen that she had some cuts on her right arm about half way between the wrist and the elbow and approximately along an imaginary line between the back of the hand and the outer aspect of the elbow.
Detective Allen was assigned to the matter and he saw the appellant at the Hospital on 25th January 1996. He next saw her at her home on 28th February 1998. When asked about her appearance he told the learned Magistrate that she appeared to be genuinely suffering from the alleged attack.
The police sought the assistance of Dr Gilbert, a forensic pathologist and Ms Tridico, a forensic scientist. They gave opinions based upon their observations of the photographs and the knife. They also were given a copy of a statement made by the appellant to the police which contained her story about the alleged attack which I have briefly summarised. They did not see the appellant or her injuries and did not have any information from her treating medical practitioner with respect to the injuries. Their opinions were to the effect that the injuries could not have been caused in the way described by the appellant and that the nature of the spread of blood on the blade of the knife was inconsistent with her story. When questioned by the police, the appellant maintained her story and denied that she had made up the allegations of attack. It is fair to say that these opinions formed the real basis of the prosecution case.
It is appropriate to consider their evidence in some detail. Dr Gilbert expressed the opinion that the superficial incised wound had been caused by something sharp being drawn across the skin but not fully penetrating it. He described the remainder of the mark on the neck as being comprised of two parallel bands of congestion or possibly very superficial bruising without any apparent penetration of the skin. He said he did not see any evidence of bleeding but it was possible that the wound may have oozed a very small amount of blood.
The injury to the arm was comprised of three linear incised wounds which intersected at a common point. There had been penetration of the skin which was indicated by slight bleeding from blood vessels under the skin. Each of these wounds was four to five centimetres in length. He expressed the opinion that three separate applications of a sharp object would have been necessary to cause these wounds.
Dr Gilbert described the blood on the blade of the knife as a thick uniform smear of dried blood along both sides of the entire length of the cutting edge. The smear was consistent in its width and thickness.
Having considered these observations and opinions with the statement made by the appellant to the police as to the circumstances of the claimed attack, Dr Gilbert reached the conclusion that the injuries to the arm and the blood on the knife suggested that they were self inflicted. He did not think that the injuries to the arm could have been caused by a single blow. They were consistent with having been caused by the knife being drawn across the skin three times in the same location at slightly different angles with very little force, assuming there was any force. In his opinion this pattern was consistent with self infliction and was inconsistent with the version given by the appellant to the police. The marks on the neck were not typical of pressure from a sharp knife blade and were more likely to have been caused by a narrow but not necessarily sharp object being pressed firmly against the skin, drawn across the skin or even striking the skin. If a knife was used, it would be expected that the back of the blade was used, not the sharp edge. He concluded the injury to the neck was not so strongly indicative of self infliction as the injury to the forearm. However, he expressed the opinion that if there had been a struggle and a sharp knife was applied to the neck, even carefully, greater injury would be expected.
With regard to the blood on the knife, he expressed the opinion that it was inconsistent with having been caused by the injuries to the arm and the neck. He did not expect any bleeding from the injury to the neck and what he described as a short “light blow” to the arm from the knife as described by the appellant would not have produced uniform thick staining along the whole length of the blade. Also, he doubted if self infliction of the arm injury could have caused the blood staining on the knife. It was his opinion that it was possible that the blood had been deliberately smeared along the blade. He summarised his opinions as follows:
“... it was my belief that both injuries had the appearance of being suspicious of self infliction. In particular, the right forearm wounds were highly suspicious of self infliction due to their multiplicity and superficial nature and they were inconsistent with the circumstances of the alleged assault.”

He went on to say that he could not say how the blood was put on the blade of the knife but it could have occurred by pinching the bleeding injury on the forearm and getting blood between the fingers of one hand and dragging the edge of the knife blade through the fingers or by pooling blood somewhere and dragging the blade through a small pool of blood.

Such was the evidence of Dr Gilbert at the end of cross-examination. It may be seen that he expressed those opinions on the factual basis that the appellant had claimed that her arm came in contact with the knife once when she lost the torch and that the injuries to the neck could not have been caused by the sharp side of the blade of the knife. At no time was she that precise. It will be remembered that what she said was that she swung around to try and hit her attacker and then felt a sharp pain to her right forearm. She said that whilst he was standing behind her he placed what she believed was a knife to her neck which felt very sharp. She made this statement at 1.47 am at the hospital after the attack occurred if, in fact, it did occur. In her written statement prepared later, these words were repeated. When she was questioned later by Detective Allen on 17th April 1996, he began by making the statement that he believed that all of her allegations were false. He also said, incorrectly, that Dr Gilbert had come to the conclusion that her injuries were self inflicted. As has been seen, Dr Gilbert had not gone that far. Later that day she participated in a further interview voluntarily after taking legal advice. During this interview the opinions of Dr Gilbert were put to her accurately. She was asked to explain the injuries to the arm given the opinion that due to the multiplicity and superficiality of the wounds, said to be three, such wounds were inconsistent with her allegations. She said that she did not know. She said she was fighting with the attacker. At no time during this lengthy interview was the basis for Dr Gilbert’s opinion put to her. However, later she was asked by Detective Rowe, who was also present, to describe the incident. She said:
“My head was pulled back and the door was slammed closed. I had a torch in my right hand and I swung around and tried to hit whoever was holding me. I then felt a sharp pain on my right forearm. This caused me to drop the torch. He still had hold of my hair. While he was standing behind me holding my hair, he placed what I believe was a knife against the left side of my neck.”’
He said ‘Now, this sharp pain then that you felt on your arm, you have described it here as if it was one cut or one slash.’
She said ‘Um’.
He said ‘Is that what really actually happened?’
She said ‘No. I was sort of banging out at him like this.’”
Apparently she demonstrated repeated movements of her right arm and hand back to her body to the vicinity of the neck. The significance of this matter is obvious. It provided an explanation for multiple injuries on the arm consistent with the appellant’s version of the attack. Dr Gilbert was unaware of what the appellant had said in this regard.
Ms Tridico was shown the knife by the police. She examined the knife and reached the following conclusions. Apart from the blood on the cutting edge of the blade, the knife was extremely clean. The blood staining on each side of the sharp edge of the blade was similar in appearance. There was a faint indication of blood on the handle. There was no fatty deposit on the blade which, she said, indicates that it had not penetrated the subcutaneous fat in any wound. Using her experience in previous investigations and observations of knives used in trauma, Ms Tridico said she saw no signs of wiping or smearing on the blade and the equal distribution of blood on both sides of the blade and the width of the staining which was three millimetres led her to the opinion that the cutting edge of the blade had been drawn through blood from the base to the tip. She could not say where the blood had been, but it had to be sufficient in quantity enough to leave a thick encrustation on both sides of the blade. She excluded the cause of blood stain as blood dribbling down the blade and said that if that had occurred whilst the knife was being moved little “spines” of blood would have been present in the stains.
These opinions came to be regarded in the prosecution case as evidence inconsistent with the injuries being caused in the manner described by the appellant to the police and as consistent with the injuries being self inflicted.
The other evidence upon which the learned Magistrate relied in reaching the conclusion that the injuries were self inflicted was the evidence of Detective Allen who was permitted to give expert evidence to that effect and also that the complaint of the attack was a fabrication. In my view, this evidence was plainly inadmissible and should not have been received. It was not established that the subject matter of the opinions admitted of expert testimony. These matters were clearly within the area of knowledge or experience of ordinary persons, in the usual sense of that expression, and neither of them were shown to be part of a body of knowledge or experience which is sufficiently organised or recognised to be accepted as a reliable body of knowledge or experience: see The Queen v Bonython (1984) 38 SASR 45 at pp46-47. Indeed, it may even be said that the opinions expressed by Detective Allen went to an ultimate issue to be decided by the learned Magistrate. The evidence of these opinions should be disregarded and it is unnecessary to refer to them in any greater detail.
It appears that the learned Magistrate was inclined to regard the evidence of the other witnesses called by the prosecution as not of much assistance in resolving the issues before him. However, I think this evidence was important. The security officer saw the appellant exhibiting a condition which was consistent with her having been attacked as she alleged. The findings of the crime scene examiners of blood spots and the location of the knife were not inconsistent with an attack as alleged. I have mentioned the observations of Detective Allen of the appellant when he saw her on the first two occasions and her apparent genuineness. Also there is the evidence of damage to her clothing which was not investigated.

These matters are not decisive but they are not unimportant and, in my view, they tend to support the claim of the appellant that she was attacked. There is another matter. The scenario fundamental to the prosecution case required the appellant to wound herself whilst doing her rounds sufficiently to enable blood to be dropped at various locations and in a volume sufficient to create a pool of blood somewhere to permit the blood stain on the knife, deposit the knife outside the front gate and then return to the building, lock her dog inside the building, damage her clothing and lie on the ground and feign the attack. Considerable planning and composure would be required and some good fortune as she was not observed carrying out any of these situations by security staff or anyone else.
It is appropriate to turn to the evidence of Dr Gilbert in cross-examination. He agreed that there may be more than three wounds to the arm. He acknowledged that upon part of a person coming into contact with a sharp object, often pain does not occur immediately, especially with an incised wound or stab wound. Pain may eventuate later. If there was more than one blow to the knife from the forearm, pain would not necessarily be experienced upon the first blow. There may be several blows before pain was experienced. This is clearly a matter of importance because the appellant told the police that she dropped the torch when she felt the pain. The evidence of Dr Gilbert suggests that it is reasonably possible that she did strike out with her arm coming into contact with the sharp edge of the blade of the knife on a number of occasions and that received injuries to her arm in that manner.

Dr Gilbert acknowledged that it may have been the blunt edge of the knife which was pressed against her neck if such an incident occurred. The injuries to the right arm, if self-inflicted, must have involved the knife being held in the left hand. Dr Gilbert has experience with self-inflicted wounds. The appellant is right-handed and Dr Gilbert said that where injuries are self-inflicted the left hand may be used by a right-handed person but more commonly the preferred hand is used. He acknowledged that it is possible that the injuries on the right arm could have been caused by the arm striking the blade of the knife rather than the blade striking the arm. The wounds on the arm were different in direction and were superficial which, according to Dr Gilbert, is a pattern seen on self-inflicted wounds, but it is possible, he said, that they were caused by the arm striking the blade of the knife at least three times. The different directions of the wounds could be caused by different angles of the arm on the knife on the various times of contact.
Dr Gilbert also accepted that the injuries to the neck are consistent with having been caused by an attacker grabbing the appellant’s hair from behind and placing the blunt side of the knife against the left side of her neck with the point of the knife causing a small area of penetration of the skin and pressure from the blunt side of the blade causing the other injuries. His evidence is that these injuries are consistent with having been caused in the manner described by the appellant. It is unnecessary to mention all of his evidence on these matters. He did not say that it was likely that the injuries were caused in the manner described by the appellant but, as I have said, he accepted that it was possible that they were caused in that way.
Also, Dr Gilbert accepted that the various spots of blood found on the ground in the vicinity of where the appellant was found could have come from bleeding from her arm. When he was cross-examined about the blood stains on the blade of the knife, he maintained his opinion that the blood had been deliberately smeared along the sharp side of the blade. However, he did accept that it was possible, although unlikely, that the blood had run along this side of the blade after the attack upon the assailant holding the knife with the blade pointing downwards. Such a theory would only be possible if sufficient blood had pooled in an area where the knife was being held at the time of the attack. Dr Gilbert doubted that there had been sufficient bleeding from the arm injury when in contact with the knife for that to happen, but he said that he could not exclude it as a possibility.
There are limitations about the use to be made of this expert evidence. Dr Gilbert did not make any assessment of the sharpness of the knife. He did not examine the wounds. He was not aware of their depth. His opinions about them were based upon observations of the photographs which had been taken the day after the alleged attack. No evidence was called from the treating doctor about these matters. He acknowledged that he was not an expert in blood stain patterns.
When she was cross-examined, Ms Tridico said that the blood stains were not caused by smearing. She excluded various ways in which the blood could have come to the knife. One of the theories advanced by the appellant’s counsel at the trial was that blood from the arm of the appellant had pooled in the vicinity of the hand of the attacker at the top of the blade and upon his holding the blade downwards after the attack blood ran down both sides of the sharp side of the blade. Ms Tridico rejected that theory because there was very little blood on the handle of the knife and she thought the pattern of the blood stains would have been different had that occurred. However, she acknowledged that she had not carried out any experiments on the knife to see how blood might disperse along the blade.
At the trial the appellant gave evidence and maintained that she had been attacked in the manner which has been mentioned. She called Professor Thomas who is a specialist forensic pathologist and forensic scientist. It is unnecessary to mention his extensive qualifications, training and experience. It is sufficient to say that he was suitably qualified to reach and express the opinion which he gave in evidence. He considered the reports of Dr Gilbert and Ms Tridico. He saw the photographs, the knife and the statement of the crime scene examiner.
Professor Thomas formed the view that the wounds to the neck were made by the back of a knife rather than a sharp edge and that there were probably three separate wounds which indicated changes in direction. He expressed the opinion that the neck injuries were consistent with having been self-inflicted but a more plausible explanation was an attack of the nature described by the appellant, with the victim attempting to remove the hand of the assailant holding the knife. The wounds to the neck were not inconsistent with significant force being applied.
His opinion is that there were more than three wounds to the right arm. He thought there was about seven wounds in that area. He gave the following evidence:
“Q....... If the position is that the Mrs Bee was holding a torch in her right arm and an assailant was behind her holding her ponytail in presumably his left hand, and assuming that the assailant held that particular knife in his right hand, and Mrs Bee was striking back and her arm was hitting a stationary knife being held in a stationary position, those marks that you’ve seen on the photograph and the way you’ve described them, is that consistent with that scenario that I’ve put to you.
AYes. In my opinion, that’s entirely consistent. The marks appear multiple and rather superficial and whilst that raises the possibility of self-infliction, it is merely through the tentative nature of the wound that that supposition is made and I see no reason why similar wounds of a tentative nature cannot be made with a forearm striking the blade rather than the blade primarily striking the forearm and I think your explanation of raising the arm in that fashion would result in wounds which are in the exact position as we see from the photograph, proceeding slightly from the elbow down towards the wrist rather than directly horizontal or vertical. They are slightly diagonal.
Q........ If the arm holding the torch was held up in a vertical stance, could the general direction be described as perhaps a 45 degree angle leading from the elbow to the wrist.
QYes, rather less than that probably but certainly a diagonal direction.”
During his evidence he looked at the scar on the appellant’s arm and said that it ran at approximately 45 degrees from the elbow to the wrist. He went on to say that those injuries were entirely consistent with the appellant’s version of what happened; being held from behind with a knife to her neck with the sharp side of the blade pointing outwards and her arm being swung back a number of times and making contact with the sharp part of the blade. The variations in direction of the wounds could occur by variations in the angle of the appellant’s arm or of the arm of the assailant.
He expressed the view that pain need not be noticed on the occasion of the first wound in the heat of an attack and that the sensation of pain may be delayed. He said it was entirely possible for them to have been six or seven wounds on the arm before the pain was experienced.
Professor Thomas said that in his opinion the version of the appellant as to the cause and circumstances of her injuries was plausible and the favoured explanation.
Having inspected the knife, he said that the blood stains were not even on each side as appears in the photographs and was accepted by Dr Gilbert. The stains on one side were uniform and there was variation on the other side. He carried out an experiment by drawing the blade through a pool of blood. The blood on the knife used in that experiment was thinner than what is seen on the subject knife. Furthermore, he said that if the knife was pulled through a pool of blood, the stains on each side would be uniform. So, it seems, he was inclined to discount the theory of Ms Tridico. He was asked if it would be expected that contact between the arm and the sharp blade would result only in localised areas of blood on the blade. He said:
“A....... Yes, I understand and initially one might expect that to be so, but with any degree of bleeding, I would then expect the trickle of blood to run back down towards the hilt of the knife and perhaps subsequently, if the knife is held in a downwards position, for that blood also to run in the opposite direction and therefore, I would say that it is still conceivable to cover the entire knife by later movement of the arm or the position of the knife.”

He went on to say that it was possible that the knife caused the appellant’s injuries, and that the blood from the injuries to the arm flowed down the blade of the knife. He said that was consistent with his experiment.

If the evidence of Professor Thomas about the injuries is accepted, it must be accepted as a reasonable possibility that the appellant was injured as she asserted. The opinion of Ms Tridico about the circumstances in which the blood came onto the blade of the knife was to some extent inconsistent with the evidence of Dr Gilbert. Standing alone, it could not have justified the conviction. Even without the evidence of Professor Thomas, the conviction could not stand. As I have said, the evidence of opinion of Detective Allen was inadmissible. The learned Magistrate acted upon that evidence and, in my view, he erred in doing so. The allegation against the appellant was of a most serious nature and it could only be proved by reliable, accurate and convincing evidence. The opinions of Detective Allen were necessarily unreliable because they had no sound basis. Even though his evidence was not the subject of objection, the learned Magistrate should not have relied upon it because it was inadmissible and unreliable.
I now turn to particular aspects of the reasons for the decisions of the learned Magistrate. He disregarded the evidence of Professor Thomas. He gave four reasons. The first reason is that although the experiments and “reconstructions” of Professor Thomas were presumably carried out in a controlled, deliberate and careful way, they were not carried out under simulated conditions of a violent struggle and movement. I am unable to see the point of this observation. Professor Thomas undertook an experiment to ascertain what pattern blood would make on the knife if it was held with the blade pointing down. The experiment was appropriate for the purpose it was employed. It may be observed that Dr Gilbert and Ms Tridico did not undertake any experiment of any nature.
The second reason is that Professor Thomas did not see the knife until 11th November 1997 whereas Senior Constable Smith, to be mentioned shortly, saw the knife on 21st January 1996 and Dr Gilbert and Ms Tridico saw it in March 1996. As the blood stains remained on the knife, there could be no basis for rejecting the evidence of Professor Thomas for that reason.
The third reason is that evidence given in rebuttal by Constable Smith negated much of the evidence of Professor Thomas. Constable Smith was employed in the Technical Services Branch of the South Australian Police as a crime scene examiner. He had completed training for that purpose and had undertaken some other courses which are irrelevant for present purposes. He attended at the hostel in the early hours of 22nd January 1996 and found the knife. He placed it in a drying room at Police Headquarters and examined it that night.
He took a sample of blood from the knife by using water on cotton threads. He claimed that the water would have distorted the blood on one side of the knife. He said that he used six cotton threads and acknowledged that any excess water would drop off them before they were applied to the surface of the blade. He commenced to take samples about five centimetres from the tip of the blade but could not say how far along the blade he took the samples.
Constable Smith said that in this process a blood pattern can be distorted considerably but he could not say if that occurred with the blood stains on the knife. He looked at the photographs and said that there appeared to be considerable distortion. It is clear from his evidence that he had no memory of from where the samples were taken and no notes about that matter. He was interpreting the photographs. He did not even have any record of from which side of the blade he had taken the blood.
In my view, the evidence of Constable Smith was unsatisfactory and did not discredit the opinion of Professor Thomas about the possible circumstances of the blood stains in any way. He simply could not remember and was trying to interpret the photographs to say what had happened.
The learned Magistrate said that the fourth reason is that he formed the impression that Professor Thomas’s “views, opinions and hypothesis” were not entirely impartial and independent. He went on to say:
“In this regard I am compelled to agree with the prosecution’s submissions that Professor Thomas was ‘obviously not an unbiased witness’. As a general principle, it should never be overlooked that an expert’s role is to assist the court rather than go into battle for the party which hires his forensic skills. The absence of independence in an expert’s evidence renders it unreliable and unsatisfactory.”

There are very serious findings so far as Professor Thomas is concerned. He is a specialist in his profession and holds senior and important positions at the Flinders Medical Centre and the Forensic Science Centre where he is an honorary senior consultant. He has a long history of working in forensic pathology overseas and in this State. The finding of the learned Magistrate reflects poorly upon him. He gave no reasons for his conclusions. It may be seen that his adverse finding was not based upon a matter of credit or his demeanour in the witness box. It may have been based upon a matter of attitude but that is speculation. Certainly no suggestion of lack of impartiality or independence or bias was put to Professor Thomas during his evidence by the prosecutor or the learned Magistrate. There is no hint of any of these matters in his evidence. His observations and opinions appear to have been recounted in an entirely appropriate manner.

In my view, the learned Magistrate erred in his dismissal of Professor Thomas’ evidence from his consideration. Dr Gilbert agreed that the manner of incurring the injuries to the arm and to the neck as advanced by the defence was possible. Professor Thomas said likewise. It follows that the prosecution could not disprove this theory beyond reasonable doubt. It remained a reasonable possibility and consequently the evidence was insufficient to prove the guilt of the appellant beyond reasonable doubt. Ms Tridico’s evidence was insufficient to prove that the blood stains on the knife occurred by wounds which were self inflicted. It could not disprove the defence theory. Furthermore, the evidence of Professor Thomas afforded an explanation for the blood stains on the knife consistent with the defence theory.
For these reasons I allowed the appeal and quashed the conviction. I entered a verdict of acquittal.
It was unnecessary to consider other grounds of appeal.
I considered that a re-trial of the charge was inappropriate in the circumstances. The circumstances giving rise to the charge occurred on 21st January 1996, over three years ago. There had been much delay in the proving of the charge due to the other court commitments of the learned Magistrate. If there was a retrial, inevitably the same issues will arise and if the same evidence is given, the charge would have to be dismissed.

[1999] SASC 25

29 January 1999