R v Treloar - [2005] SADC 152

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v TRELOAR
Criminal Trial by Judge Alone
Reasons for the Verdict of Her Honour Judge Shaw
10 November 2005
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON
R v Prasad (1979) 23 SASR 161, applied.

R v TRELOAR
[2005] SADC 152
Preliminary

Michael Roy Treloar was charged before me sitting as a ‘judge alone’ upon his plea of not guilty to the charges of one count of indecent behaviour, two counts of assault occasioning actual bodily harm and one count of robbery with violence.
At the close of the Prosecution case, the Prosecution advised the court that in relation to count four, the evidence did not support the offence of assault occasioning actual bodily harm but only a common assault. At the conclusion of the Prosecution case, Mr Ibbotson, counsel for the accused, made an application that I consider directing myself in accordance with the judgement of the Court of Appeal in R v Prasad (1979) 23 SASR 161, in view of the unsatisfactory nature of the Prosecution case.
Having heard the submissions of counsel, I decided to adopt that course. At the conclusion of those submissions, I advised counsel that I had formed a view that the state of the Prosecution evidence was such that I was in a position to return verdicts forthwith, although I was not in a position to provide detailed reasons. Counsel agreed that I ought to announce the verdicts at that stage. I therefore announced that I found the accused not guilty of counts one, two and four. Those verdicts were entered. It was unnecessary to return a verdict on count three, which was an alternative to count four on the Information. I now publish my reasons.
Particulars of the offences which went to trial are that:
First Count – Indecent Behaviour
Michael Roy Treloar on the 20^th day of July, 2002 at North Adelaide, behaved in an indecent manner in a public place, namely the northern bank of the River Torrens underneath the Adelaide Bridge.
Second Count – Assault Occasioning Actual Bodily Harm
Michael Roy Treloar on the 20^th day of July, 2002 at North Adelaide, assaulted Mark Edward Thamm, thereby occasioning him actual bodily harm.
Third Count – Assault Occasioning Actual Bodily Harm
Michael Roy Treloar on the 20^th day of July, 2002 at North Adelaide, assaulted Rachel Anne Murphy, thereby occasioning her actual bodily harm.
Fourth Count – Robbery with Violence
Michael Roy Treloar on the 20^th day of July, 2002 at North Adelaide, robbed Rachel Anne Murphy of a mobile telephone of the value of about $1,000, and at the time of or immediately before such robbery, used personal violence to the said Rachel Anne Murphy.
The Prosecution explained that count three was an alternative to count four.
Before the accused can be found guilty of any of the offences charged, I must be satisfied beyond reasonable doubt of the proof of each of the following elements in relation to each offence.
In relation to count one, the elements of the offence of indecent behaviour are that the accused behaved indecently, that the behaviour was intentional, and that the behaviour occurred in a public place.
In relation to count two, for the offence of assault occasioning actual bodily harm, the Prosecution must prove four elements of the offence. Those elements are firstly, there must be an application of force to the alleged victim, secondly, the application of force must be deliberate or intentional as opposed to accidental, thirdly, the application of force must be unlawful; that is, without lawful excuse, and finally, that the application of force must result in actual bodily harm; that is, some kind of injury or harm which is more than trivial or fleeting.
In relation to count four, the charge of robbery with violence, the Prosecution must prove the following elements. A person who commits theft is guilty of robbery if – firstly, the person uses force, or threatens to use force, against another in order to commit the theft; and secondly, the force is used, or the threat is made, at the time of, or immediately before or after, the theft.
The elements of the offence of theft are, firstly, that the accused dealt with the property; a person deals with property if the person either takes, obtains or receives the property or retains the property or converts or disposes of the property or deals with the property in any other way. Secondly, the Prosecution must prove that the accused dealt with the property dishonestly; that is, the person acts dishonestly according to the standards of ordinary people and knows that he is so acting.
Prosecution Case
The Prosecution alleged that at about 11.30am on the 20^th of July 2002, Mr Mark Thamm and his wife Rachel Murphy (Mrs Thamm), were walking with three of their children, aged eight, five and nine months, along a path near the northern side of the River Torrens. The evidence of Mrs Thamm was that she was walking ahead of her husband with the eldest child, aged eight, and the youngest in a pram. Mark Thamm, her husband, was lagging behind with the five-year-old.
Mrs Thamm said that she approached the King William Street Bridge and she followed the path as it went beneath the bridge. Near the end of the bridge, she saw a man, who it is agreed, was the accused, initially with his back facing her. As she approached the man, he turned around to face her and she saw that the man’s fly was undone and his erect penis was coming out of his pants. He was rubbing his penis with his hands and gesturing towards it.
Ms Telfer, who appeared for the Prosecution, said, at the close of the Prosecution case, that the Prosecution case in relation to count one, depended essentially upon the evidence of Mrs Thamm that the accused had his hand on his penis and was rubbing it at a time when he was facing her and she was in his vicinity. This was said to be behaviour in a public place in circumstances of indecency.
The Prosecution stated that the second charge of assault occasioning actual bodily harm in relation to Mr Thamm, relates to the conduct of the accused in making contact with Mr Thamm’s chest with his head. The Prosecution case was that Mr Thamm suffered an injury to his lung as described by Dr Cooper, as a result of this alleged conduct by the accused.
In relation to the charge of robbery with violence, the Prosecution accepted that it was required to prove in this case, first, that the accused used force or threats of force to overcome resistance, and secondly, that he did so in order to take property without the consent of the person in possession of the property and, at the time the property was taken, he acted dishonestly, intending to permanently deprive the true owner of the property.
The prosecution accepted that it had to prove that at the time of, or immediately before, or immediately after the robbery, personal violence was used to the victim.
It is alleged, in relation to this offence, that the accused struck Mrs Thamm to the side of the head, grabbed her mobile telephone and subsequently went into the river with her mobile phone. Mrs Thamm said that she last saw the phone in the possession of the accused as he swam across the river and last saw it going towards the bottom of the river. It was alleged that his intent to permanently deprive Mrs Thamm of the telephone was evidenced by him carrying it with him as he swam away on the River Torrens. The Prosecution relied upon the evidence of Mr and Mrs Thamm in relation to their evidence of a struggle that occurred immediately following the taking of the telephone (Transcript page 414). They both gave evidence also of violence before the phone was grabbed. The Prosecution agreed at the close of its case that count three was an alternative to count four but only in respect of the offence of common assault.
Defence Case
The accused was spoken to by the police on that day. He told police in effect that he was urinating and that he had been assaulted. The defence challenged the credibility and reliability of the evidence of the key Prosecution witnesses, Mr and Mrs Thamm.
Prosecution Evidence
I now turn to a summary of the evidence called by the Prosecution. I begin with the evidence of Mrs Thamm. The Prosecution called a number of police officers who attended at the scene of the events of the 20^th of July 2002 and who spoke to Mr and Mrs Thamm on the 20^th of July 2002 and on the 21^st of July 2002. I have carefully considered the evidence of each of these police officers in my assessment of the credibility and reliability of the evidence of Mr and Mrs Thamm.
I found each of the police officers who were involved in the taking of statements from Mr and Mrs Thamm to be impressive witnesses. I formed the view that they conducted themselves in a proper manner. I find that notes were made and statements were signed in such a manner that what Mr and Mrs Thamm said to the police officers was recorded and that Mr and Mrs Thamm were each given the opportunity to make any corrections to what was presented to them for signing.
The evidence of Mr and Mrs Thamm was central to the allegations relating to each of the counts upon the Information. Having observed Mrs Thamm give evidence and having considered her evidence in the light of her cross examination, and the other evidence on the case, I formed the view that her evidence was unsatisfactory and was lacking in credibility and reliability in relation to the matters upon which the Prosecution case depended. I will give a synopsis of her evidence and identify inconsistencies and differences from her first statement to police to which I have had particular regard.
Mrs Thamm said in her evidence in chief that on the 20th of July 2002, she came with her husband and her three children to the River Torrens in order to feed the ducks. At that time her husband was a serving police officer.
As she approached the King William Street bridge, she walked ahead of her husband and daughter Sarah, pushing her younger child Brooke in the pusher and with her daughter Keelan.
As she went under the bridge she saw a person whom she initially thought was a security guard because of how he was dressed. He was standing facing a door with his back to her and she had the impression he was fiddling with the door. She said she was looking at him, he turned around, looked at her and started shuffling towards her. She said in her evidence in chief that he had one hand sort of gesturing down towards his groin while he was using his other hand to masturbate his erect penis which looked shiny.
She said that she heard her daughter Sarah coming towards her. She yelled at her daughter to go back towards her father.
When her husband arrived, she told him that a man had jumped out at her but he was not sighted at that time.
She said she wasn’t sure if she was already telephoning the police on her mobile phone when her husband went to have a look.
She said she saw the man pop his head up.
She said she saw the man jump up back on to the concrete.
She said her husband held up his hands and said “It’s alright mate”.
The man said “I was just having a piss anyway”. She said he put his head down and ran at her husband like a bull.
Her husband went to the ground with the man on top. She said she kneed the man. She said the man said “It’s all right, I wasn’t going to hurt her anyway”.
She said the man surged past her husband, hit her in the side of the head and grabbed the phone. She said that she was pulled towards the river by the arm, her husband had hold of her and the man jumped into the river.
She said she saw the man swimming across the river and that she could still see the phone for a period of time. She said she did not see the man get out of the river. She walked across War Memorial Drive to the car park area and saw what transpired was the accused’s car. She looked inside the car and saw the items that are shown in Exhibit P1, Photo 8.
As a result of this incident, she said that she suffered a small cut on her face, a very sore ear and she had bruising on her knees and on her upper arm.
Mrs Thamm was cross examined about differences between her evidence and what she had told the police on the 20^th of July which was reduced to a declaration statement which she signed on the 21^st of July.
She said for example, that it was a poorly taken statement and contained omissions and lack of detail.
Mrs Thamm stated that she had signed it as accurate. She said that she had been a police officer for ten years but had resigned from the police force about two years prior to these events.
She had subsequently prepared her own detailed statement dated the 30^th of July 2002, which was also signed by her after it was reproduced in declaration form. That too, was the subject of cross examination in relation to alleged inconsistencies with her evidence.
I consider that there were significant differences and demonstrated inconsistencies between what she said in her evidence and what she said in her signed statement. I will refer to only some of them.
For example, in evidence she described the man shuffling towards her like a penguin. In her first statement she did not describe the man shuffling towards her at all.
Her description in her first statement of her first observations of the man was that he put his arms down to his side with his palms up without suggesting any gesturing to the penis or holding of the penis, or masturbation of the penis. The Prosecution submitted that this misdescription could be explained by a lack of detail. However, Mrs Thamm’s description of the accused’s conduct in her first statement is consistent with the general description she gave to the police during her phone call on the 20^th of July 2002, from the scene of the events. The accuracy of this description is central to count one in view of the way in which the Prosecution has pitched its case on this count.
She said in evidence that she saw the mobile phone as the accused swam across the river. In her first statement she described seeing the man swim across the river, get out on the other side and go up stairs, but she did not say she saw the accused holding the mobile phone.
She agreed that the only report in that statement of the loss of the mobile phone related to the time at which the man had grabbed the phone whilst she was holding it.
Although in her first statement she described the man’s penis as very large, 14 inches long and red in colour, she did not state, as she said in evidence, that it was shiny.
Her explanation was that this was an omission by the police officer who took her statement, although she agreed that she, Mrs Thamm, was an experienced former police officer. At various times in her evidence she agreed that she read the statement through and signed it as being accurate. I also bear in mind her explanations in re-examination.
She described in her initial statement that the accused jumped in the river without any reference to him holding her as he went towards the river. (Mr Thamm in his evidence also described the man holding his wife as he went towards the River Torrens.)
She agreed that there was no mention in her first statement of the man dragging her towards the River Torrens, or her husband preventing her from being dragged into the River Torrens.
She agreed that she did not state in her first statement that she saw the man pop his head up, and that the man spoke to her husband. She agreed that in her first statement she described the man punching her husband in the stomach. In her evidence she described the man as hitting her husband in the chest with his head. Her attempts to explain this inconsistency were unconvincing. Her description of the alleged assault upon her husband was central to the act alleged against the accused in relation to count two.
The description by Mrs Thamm in her evidence of the man going with his head into her husband’s chest was similar to her husband’s account in evidence.
In relation to some of the inconsistencies, she said that her first statement was incorrect. For example, she said that it was not correct that her husband was approaching from ten metres away, but it was further.
Mrs Thamm said in her first statement that whilst the man was on top of her husband, she stood on the man’s right arm and held onto the back of his belt. In her evidence, she said that description was incorrect. Although she had described in her first statement that the man punched her in the stomach, she said that her recollection in evidence was that this was incorrect. She said that she believed that blow to her stomach was accidental.
Mrs Thamm provided explanations for those inconsistencies as they were pointed out to her. In re-examination, Mrs Thamm was asked if there were any other explanations for the discrepancies between her statements of the 21^st July and the 9^th October and her evidence. Her explanation included that the police officer who took the statement was inexperienced and uninterested, that she was under a lot of stress and that when she signed it the next day she would have signed anything just to get the police to go away.
I have taken into account those explanations in relation to my consideration of the significance of the various inconsistencies.
She commented on her second statement. She said that her memory was not very good and it blanks with time and due to illness.
There were differences between Mr and Mrs Thamm in relation to the question of whether they had seen each other’s statements or discussed their statements.
Mrs Thamm said that her husband typed his own statement, which she read. It was in the same form as the statement she, herself, prepared on the home computer after her initial statement given to the police. Her husband was unable to recall preparing any such statement and denied discussing any statements with his wife.
Mrs Thamm denied that reading her husband’s statement and talking to her husband had any effect on the evidence she had given in court.
The Prosecution also called her husband, Mark Edward Thamm. Having observed Mr Thamm give evidence and having heard the other evidence in the case, I formed the view that Mr Thamm’s evidence was unsatisfactory. When viewed in the light of his cross examination and the other evidence in the case, I formed the view that it was lacking in credibility and reliability in relation to the matters upon which the Prosecution case rested. I will give a synopsis of his evidence and identify inconsistencies and differences from his earlier statement to which I had particular regard.
Mr Thamm described the family approaching the bridge and the events under the bridge. When he arrived under the bridge, Mr Thamm said that his wife had told him that there was a man here with his penis out and that he was approaching her. He said that he did not see a man. He looked over the ledge and saw a man crouching there. He saw the man stand up and get up onto the riverbank.
Mr Thamm said that the man walked towards him. Mr Thamm said he told the man that the police had been called. The man said: “I was just having a piss”.
He described what the man did. He said that from two meters away, the man went into a hip and shoulder football-like stance and then ran into his chest and knocked him to the ground.
Mr Thamm said that he rolled on top of the man and held him to the ground. He was holding him at the face and neck area.
He said that the man said words like “I give up, I wasn’t going to hurt her, I will stop”.
He said he could hear pain towards the chest area and was quite breathless. He said he couldn’t restrain the man further. He said that the man ran towards his wife who was talking on the telephone and punched her in the side of the face and began to struggle with her. He could see his wife being pulled around the upper body and arms. He went over and tried to pull the man off. He says he told his wife to let him go. She replied that the man had hold of her. He took hold of his wife around the stomach area and the back of her pants.

The man jumped in the water and swam across to the other side.
He did not see the telephone when the man was in the river. This contrasts with his wife’s observations. Mr Thamm walked up to War Memorial Drive and saw a vehicle, which was unlocked and still warmish.
As a result of these events, he said he had a pain in his chest, and shortness of breath. He said his clothing was damaged.
In cross-examination, Mr Thamm said that he could not recall whether his wife was a serving police officer at the time of the incident and could not recall when she had resigned. He said at the time of the incident he had been a serving police officer for 20 years and had served in the STAR Division for eight years.
He denied he had any discussions with his wife about her evidence or about any statement either of them had made to the police. He denied reading a statement prepared by her. He denied they had looked at each other’s statements after his wife had prepared her own statement. This evidence appeared to be different from what his wife had said.
He agreed that there were discrepancies between his first statement and his evidence. He said he remembered it differently now. He suggested that the statement which he signed the following day, was taken hurriedly. However, Constable Carr gave evidence that on the 20^th of July 2002, he made notes in his notebook at the time that he spoke to Mr Thamm, and that Mr Thamm read over and signed those notes in the notebook after Constable Carr had completed taking the statement. In relation to the signing of the statement in declaration form on the following day, Mr Thamm said he couldn’t recall reading and signing that statement in declaration form, although it was his usual practice to read a statement before signing it. He accepted that he was given an opportunity to read the statement the following day and signed it.
I will not detail all of the inconsistencies and differences between his evidence and his first statement.
He agreed he did not mention in his first statement, that his daughter Sarah ran towards her mother nor did he mention his wife yelling out in his direction.
In his first statement, he had said that his wife said “that was a good flash”. He said that he considered that such a description was consistent with masturbating, as compared to being a reference to an indecent exposure. In his evidence he said his wife also said “that was scary”.
He said that his statement signed on the 21^st of July 2003, contained descriptions of events that did not happen. For example, he described his wife pointing to where the man was and telling Mr Thamm that the man had jumped down. He said this did not happen. He said in his first statement that his wife pointed to the River Torrens but in evidence he said he did not recall that. He said in his first statement that his wife could identify where the man was. In his evidence, he said that was incorrect.
He said in his first statement, that he walked over to the man and spoke to the man. In evidence, he denied that this happened. He said in the first statement that the man took a step and barrelled him up. In his evidence he said the man ran towards him.
He said in his first statement that the man punched and kicked him. He said that he now has no recall of seeing the man punch him. He said he had no explanation for why those statements appear in his first statement. He was taken through his first statement and agreed that what was recorded at various points was different to his evidence.
In his first statement, he had said that this man was involved with two separate struggles with his wife. He explained that apparent difference as against his evidence in chief by describing the event where his wife pushed the man off him as involving a struggle.
In relation to the events critical to proof of count four, Mr Thamm did not mention in his first statement, that the man ran at his wife and struck her to the head while she was holding the phone.The only reference that he had made in his statement to the man striking his wife related to when the man was punching and kicking his wife as part of a struggle, not when she was standing up a few meters away. In his evidence, he said that the only blow which he saw inflicted during the entirety of the events in relation to either of them, was the blow to his wife whilst she was holding the phone.
He said that in relation to his wife receiving the blow to her ear, he couldn’t see any injury to her ear. He said that a couple of hours later he noticed it was red. Dr Cooper gave evidence from medical notes that Mrs Thamm attended on the 21^st of July 2002, and complained of an assault. There was nothing in the notes about Mrs Thamm’s ear.
He agreed that his description in his first statement, of events before the man went into the river was different to his evidence. He could not explain that difference.
He recalled speaking to a police officer at the scene. He said he could not recall signing the first statement the next day. He agreed that an arrangement was made with the police to meet at the Parklands when the statements were signed. However, he could not recall whether he spoke to the police. He was uncertain whether the meeting was for the purpose of he and his wife signing the statements. His wife gave evidence that it was at the Parklands that she signed the statement. Constable Strawbridge confirmed that he and Probationary Constable Perry (as she then was) attended at the Parklands for the purpose of facilitating the signing of the statements of Mr and Mrs Thamm.
Mr Thamm had no memory of handing to the Prosecution in October 2002 a statement which was reproduced in declaration form and signed by him.
He said he had blood on him, several scrapes, but no gashes or nicks. There were no photographs taken of any injuries.
I will not refer to all of the inconsistencies between the evidence of Mr and Mrs Thamm. I refer for example to what each of them describe in relation to the location of the accused and their respective locations when Mr Thamm was approaching under the bridge. Mrs Thamm stated in evidence that she first saw Mr Thamm’s legs approaching her position after her daughter Sarah had gone off after the other children.
In contrast, Mr Thamm said that when he approached his wife, she was at the far end of the area at the other end of the bridge as shown in photograph 3. On Mrs Thamm’s evidence, she had yelled for Sarah to go back to her father. At that point in time, Mrs Thamm described the man as being located near the grass. If Mr Thamm’s evidence is accurate, then it is difficult to explain why Mr Thamm did not see the man. Mr Thamm described his wife as being located under the bridge when he first saw his wife. However Mrs Thamm described her position as being in the place she indicated on photograph number four near the fence. She said at that location, she was unable to see the accaused.
This conflict becomes even more significant in relation to the credibility of Mrs Thamm, when she denied the accuracy of what is recorded in her first statement to the police, namely that she saw the man jump down on to the ledge and pointed in that direction (for her husband’s benefit) when he arrived. I do not consider that this can be explained as simply an omission in the first statement by Mrs Thamm. It is an event that she said in evidence just did not occur.
I note that the police took photographs in areas that appeared to coincide with the description given by Mrs Thamm in her first statement.
I now turn to the evidence of the other witnesses called by the Prosecution.
Ms Scoines gave evidence about certain observations that she made. She said that she was visiting Adelaide with her friend on the 20^th of July 2002.
At the back of the Festival Theatre, she saw a man who was all wet and who had blood on the side of his face. She asked him what he had been up to.
In cross-examination she agreed that in her statement of 17 August 2004, she recalled that it was a weekday, namely the 21^st of July. She had described the man as being in his mid to late 20’s, not in his late 30’s. She did not remember seeing a mobile phone in his hands.
Constable Sanders gave evidence that he was a crime scene examiner who attended at the River Torrens on 20 July 2002. He examined the car belonging to the accused. He located a clear oil on the driver’s side door handle and on the steering wheel and in the front driver’s side area of the car. There was a bottle of olive oil on the seat of the car. He took fingernail scrapings from Mark Thamm. On 26 July 2002, he lodged that exhibit at the Forensic Centre.
On 17 October 2002, he obtained a buccal swab from Mr Thamm.
In cross-examination he explained that he took the photographs numbered four and five because it was indicated to him that a scuffle had occurred in each of the areas photographed.
He said he did not notice any substance on the ground at the time nor was he directed to any substance.
He did not notice any injuries to Mr Thamm and no complaint was made about injuries.
He could not recall the towel found in the car having had any oily substance on it.
He did not notice any oil stains on the seat.
He said it looked like a well maintained car. He did not recall whether the keys were in the car.
The prosecution called Dr Cooper, a medical practitioner, who has been working in general practice for about twelve years. Counsel agreed that the evidence given by Dr Cooper based upon the notes made by other doctors at his surgery in relation to attendances upon Mr and Mrs Thamm could be received as business records. He gave evidence from the notes of Dr Johns in relation to the attendance of Mr Thamm on the 23^rd of July 2002. The notes recorded that Mr Thamm was complaining of a painful chest and that there was tenderness in the rib area.
On the 24^th of July 2002, Mr Thamm attended to see Dr Cooper with a chest X-ray.
He viewed the X-ray and concluded that there was an appearance on the X-ray consistent with having been caused by a trauma.
He said that any application of pressure to the rib cage could cause that injury, including a fall. He said that the cause of the pressure is not able to be determined.
He said there was an entry in the notes relating to the 21^st of July relating to Mrs Thamm made by Dr Hearn. Although there was a note recording a complaint of a sore shoulder, back and bruised arm, there was no reference to a sore ear.
Constable Lapin gave evidence that he was a police officer attached to the Police Transit Services on the 20^th of July 2002, when he spoke to the accused who was soaking wet. Constable Lapin observed several small scratches on his face. He was in company with Constable Swift. They were both in police uniform. The accused was walking towards the police when Constable Lapin asked the accused where he had just come from.
The accused said he had just come from the River Torrens and that he had just been assaulted. Constable Lapin said that the accused began to tell him about the assault – but he told the accused to wait until the other police officers arrived a few minutes later. He said the accused was wearing a purple T-shirt.
Constable Strawbridge gave evidence that on the 20^th of July 2002, he was on uniform mobile patrol and was tasked to an incident which was said to have occurred on the River Torrens. He arrived at the Transit Services Office at approximately 12.18pm. The man was wearing a maroon T-shirt and dark pants. He had black boots, which the man was not wearing at the time. The man had scratches and blood on his right cheek.
The man said: “I have been attacked and thrown in the river. What are you going to do about it”.
In the holding cell, the accused asked for some clothes.
The accused said: “I was taking a piss and I was assaulted and thrown in the river. Do you have the bloke who did that”?
Constable Strawbridge said that the boots and clothing were transported to where the accused was held in custody. The boots were seized. The accused was not in possession of a set of car keys, a mobile phone or a bottle of oil.
Constable Strawbridge said that on the following day, he attended at the West Parklands with Probationary Constable Perry in order to enable Mr and Mrs Thamm to read and sign each of their statements and to provide Victim Impact Statements to be completed. He said that he would have adopted his usual practice in relation to the signing of the statements, namely giving Mr Thamm the opportunity to read the statement through and to make any changes if he wished. He said that Mr and Mrs Thamm were co-operative in this process. He said that he would not have discouraged the making of any changes to the statement. He appeared to have a good recall of his attendance. For example, he recalled a speed boat causing a distraction.
Constable Carr gave evidence that on the 20^th day of July 2002 he was in the company of Constable Ambagtsheer when he attended at War Memorial Drive. He saw the accused’s car. He seized a bottle from the car (Exhibit P7). At about 12.25pm, he spoke to Mr Thamm after he had first searched the vehicle.
Mr Thamm appeared to be in a distressed manner talking to the State duty officer. Mr Carr took his statement in a notebook. Mr Thamm read the notes (Exhibit D8) and signed the notebook as being accurate. Constable Carr advised Mr Thamm to make any changes if there were any errors. Constable Carr typed up Mr Thamm’s statement which was signed on the 21^st of July 2002 (Exhibit D9).
Constable Perry gave evidence that she was in company with Constable Strawbridge.
She saw the accused in the interview room at the transit centre with wet clothes. He was not wearing his boots. On the 21^st of July 2002, Probationary Constable Perry (as she then was) attended with Constable Strawbridge at Bonython Park near a duck pond.
They attended for the signing of the statements by Mr and Mrs Thamm and to deliver the Victim Impact Statements.
Mrs Thamm was given her statement to read. She appeared to read it and signed it. Constable Perry said that her practice is to tell a witness that the witness can make changes and she would have adopted that practice on this occasion. Constable Perry signed as a witness to the statement.
She said that if a witness said that she wanted to give further information, she would have taken her back to take a further statement.
Constable Ambagtsheer gave evidence that she attended at War Memorial Drive. She spoke to Mrs Thamm who appeared upset and very shaken up. She saw a piece of cloth on the ground and she saw wet patches on the concrete area. She also saw a bottle of vegetable oil in the car.
She spoke to Mrs Thamm for about fifteen minutes about where the incident happened and the Constable took notes. She typed up a statement from her notes. She made no note of any substance on the ground.
She recorded that Mrs Thamm had said that the man smacked the phone out of her hands.
Some of the matters, which were the subject of the Constable’s cross-examination were not the subject of cross-examination of Mrs Thamm. I accept the submission of the Prosecution as to the approach that I ought to take to alleged inconsistencies, which have not been specifically raised with a witness. The Constable said that she had nine years experience and that she was interested in the job that she was doing on the 20^th of July 2002.
This is to be compared with the evidence of Mrs Thamm who in effect, described the police as disinterested and inexperienced, in the course of giving explanations for statements appearing in her first signed statement, which she said in evidence, were incorrect or evidence that she gave in court which was not part of her first signed statement.
Conclusion
Having heard the submissions of counsel and applying the principles in R v Prasad (1979) 23 SASR 161, 163, I concluded that although there is evidence upon which the accused could lawfully be convicted, “the evidence is so lacking in weight and reliability that no reasonable tribunal could safely act upon it.”
I make it plain that for the purpose of considering the credibility and reliability of the evidence of each of Mr and Mrs Thamm, I have not used any prior statements made by one in the absence of the other where those prior statements were introduced for the purpose of undermining the credibility and/or reliability of the maker of the statement. I have limited the use that I make of those prior statements in accordance with the evidentiary principles governing the use that is able to be made of out of court statements of a witness.
I have set out in some detail the inconsistencies between the evidence of Mr and Mrs Thamm in this court, as compared with their respective first signed statements, inconsistencies between their evidence in this court, and inconsistencies between their evidence and the evidence of the police officers who attended on the 20^th of July 2002, and on the following day to take their respective statements. I formed the view that each of the witnesses Constable Strawbridge, Constable Carr, Constable Perry and Constable Ambagtsheer were honest and reliable. I found that the explanations given by Mr and Mrs Thamm for the inconsistencies and differences identified during their cross examination, insofar as each of them criticised the circumstances of the statement taking process and the signing of their respective statements were unconvincing.
I have had regard to all of the Prosecution submissions. In particular, I have had regard to the Prosecution submission that there is evidence capable of supporting the evidence of Mr and Mrs Thamm.
I have taken into account the evidence of a bottle of oil in the car and wet patches near the scene, which were relied upon by the Prosecution as supporting Mrs Thamm’s account, of the events. However, I have formed the view that Mrs Thamm’s evidence is lacking in credibility and reliability and in my view, this evidence does not take the matter any further.
I note that the Prosecution relied upon the evidence of an injury to Mr Thamm as supporting his account of the alleged assault upon him. However, the evidence of Dr Cooper was that the injury was consistent with pressure being applied to the chest, not necessarily as a result of the contact alleged by the Prosecution. Indeed, the account of both Mr and Mrs Thamm included Mr Thamm being involved in a struggle on the ground. However, having taken that evidence of Mr Thamm’s injury into account, I find that both Mr and Mrs Thamm’s account in this court of the accused hitting Mr Thamm in the chest with his head as lacking in credibility for the reasons that I have already explained. At the end of the day I could not be satisfied beyond reasonable doubt of the proof of any of the charges before me upon the basis of the acceptance of the credibility or reliability of either Mr or Mrs Thamm or both of them. Therefore, I announced that I was left with a reasonable doubt about the proof of each of the offences upon the information before me.
For the reasons I publish, I directed that a verdict of not guilty be entered in relation to counts one, two and four. Count three was an alternative charge to count four. In view of the verdict entered in relation to count four, count three is dismissed.