Justices Jerrard, Holmes, and McMurdo. Justice J.A Fraser — of interest elsewhere on this site — is mentioned in the terminating aftermath.
Qld Supreme Court/Court of Appeal. 2007.. Appeal to set aside convictions.

R v. Pretorius – [ author’s note: an immigrant from South Africa, electrical engineer, moderately taller than average, unremarkable nose, having his share of the sometimes gruff and even frightening features of the boer, honest as the day is long, but unwise in going into heavily peopled, turbulent surf on New Year’s Day, when there was certainty of coming into physical contact with others. He has a hairy back and something akin to blue eyes.]

Outcome: Set aside the convictions, set aside the sentences, set aside the fine, order a re-trial.
[Aftermath of re-trials, near end, below.]

Here are extracts of evidence, emphases added:

Witness [A] gave evidence to the following effect.

On New Year’s Day 2006, she was swimming in “fairly rough” surf at Alexandra Headland when she felt a man, who she had noticed quite close to her, touch her on the back. She looked at him and continued to swim away from the beach. She noticed that he had straight, shortish, sandy hair, blue eyes and a “very distinctive face” with a “squashed nose”. After she had swum about three or four metres, she noticed the same man coming towards her. She swam away from him but felt him touch her down her back with both hands. She said it was the same man. She felt his fingers and palms. She then swam away from him rapidly. Believing that she had swum clear of the man, she looked up and saw that he was on her mother’s back. She “saw frantic splashing” by her mother and observed that the person was the one who had touched her. Her mother swam “frantically” away from the beach and the man then swam back to her. She said: “he .. put his hands around my breasts, rubbed his hands down my body to my waist; put one hand inside my groin and the other on the other side of my thigh and then I was kicking and trying to get away and then he slid his hands down my leg as I was trying to free my leg and held on to my ankle. I turned and look at him in the face and said to him, ‘What are you doing you f– freak’, like to let go of me and he had my ankle. So, you know, I’m kicking, kicking and then I went to swim off and we’re looking at each other and he said, ‘Sorry’ and I heard he had an accent.”

Shortly after this incident she had the following exchange with her mother: “And then I yelled out, ‘Mum’ and then she said, ‘That man just put his hands down my bathers’. And I said, ‘I’m going in to tell the lifeguards.’ I was really angry. So I just caught a wave straight in. She said that although she was wearing goggles, her vision wasn’t obstructed and that she could see her assailant’s face for the whole of the period during which he swam from her mother to her. She noticed that he had a “hairy back” and was “exactly the same man” who had previously touched her. She described his bathers as “blue navy shorts – not long board shorts but just like swimming shorts” with “a bright yellow strip at the very top”. [A] caught a wave into the beach, body surfing as quickly as she could, and spoke to the lifesaver patrol captain, Mr Thornton, whom she located on the wet sand at the water’s edge. She pointed her assailant out to him, remarking that he had an accent. The patrol captain asked her to go back into the water with a junior lifesaver, whom she took to near her assailant so that he could be kept under observation. When she returned, leaving the junior lifesaver in the water, there was another woman, [C], talking to Mr Thornton and a female lifesaver. She overheard [C] complaining to Mr Thornton of something that had happened to her. Her mother was also present. [A] kept her assailant under observation for possibly 30 minutes. During that time, she noticed that: “He was lining up women in the surf, lining, you know, like waiting for a wave, lining up a girl or woman and catching the wave in and feeling – landing on them and feeling them up.” She said that during the 30 minute period he probably made contact with nine females but with no males. She observed the man leave the water in company with a short, bearded man. Mr Thornton approached them, the bearded man left and her assailant remained, speaking to Mr Thornton. When her assailant walked off she then noticed him get into the driver’s seat of a coffee/latte coloured Toyota Camry with a number plate 800-GUG and drive off in it. The bearded man, a woman and two children were already at the car.

[B’s] evidence.

[B’s] evidence was that when swimming with her daughter, she bumped into a man and “felt a brush” on her shoulder. She stood up, had a quick look at him and moved another metre to her right and started to swim. She then felt “a touch – a slide down my side on my left-hand side from under the arm and it went right down my leg as I was swimming”. She saw that the same person was involved in the incident. She caught up with her daughter and noticed the same person hanging around near them. She and her daughter were about five or six metres apart in deep water and she was able to see the man’s face clearly. He was “fair-skinned, he had light-coloured hair and it was short, and he had rather distinguished features; he had a very strong jaw and a long nose”. His hair was straight and his nose “a bit bent, a bit bumpy”. As she went to catch a wave, she felt a hand brush “right down my leg and to my ankle … the next thing I was conscious of was this man was on top of me as I was surfing in”. When the wave lost momentum, the man got off her back and stood up before she did. He was a metre away and she noticed: “That he was tall, that he had dark blue bathers on and ..was the same person ..” She moved away very quickly and caught a few more waves. About 15 minutes later the person came up to her again. She described what then happened: “Well, then I went to get on another wave and I felt this hand slide down the back of my bathers. It was the flat palm of the hand. I was looking in towards the beach and the hand went from the top of where the straps go, across the back, down the back, right down to my buttocks area. It was a slide.” She was horizontal, facing in towards the beach when this incident occurred. Her description continued: “I felt the hand go down my bathers and I absolutely freaked. I was absolutely distraught and I spun around, and as I spun around the hands – two hands then grabbed my right leg and slid all the way down – I’d let the wave go and the two hands held my leg right up high in my groin, on my thigh, and slid all the way down because I was kicking to try and – to get away and actually held my ankle.” She saw the man’s face and recognised him as the man who had touched her previously. [B] swam rapidly to her daughter and said, “That man has just put his hand down my bathers .. He’s touching me up”. Her daughter responded, “We better go and report it. He’s doing the same to me.” [B] then headed for the shore. When she reached the shore she spoke to a female lifesaver and was directed to Mr Thornton who was already speaking to [A]. He asked if she, or they, could point out the person concerned. He was about 20 to 30 metres out in the breakers and she pointed him out. She saw “the dark blue board shorts. They were shortish board shorts, halfway down the leg and they had a yellow flash across the back, just under the elastic band and there were two yellow stripes down the side.” When [A] and [B] were talking to Mr Thornton, another woman, [C], approached and asked, “Are we talking about that sleaze out there?” [B] kept the man under observation for about half an hour, during which she “saw him surfing, catching waves into groups of women”. That happened perhaps eight times. She didn’t notice him collide with any male swimmers but she did see a male shaking his fist at him. When he left the water she identified him as the man who had touched her and he was spoken to by Mr Thornton. After he left Mr Thornton she followed him and saw him throw something into the boot of a Toyota Camry, slam the lid, drop into the driver’s seat and drive off. Its registration number was 800-GUG. There was a female sitting in the front passenger side of the vehicle and two children and the shorter man, who had come out of the water with the assailant, in the back.

[C’s] evidence.

[C] was grabbed around the leg as she was catching a wave in. She stood up, turned around and saw a “tallish” man with a hairy back wearing bathers which were “dark or navy blue with a yellow V at the top at the back and a yellow stripe down the side”. [C] went back out into deeper water with her son, caught another wave and was “grabbed again, around the arm”. She turned around and looked at the man and again noticed his hairy back and that he was wearing “the same togs”. Feeling uncomfortable, she moved towards the northern flag, caught some more waves and was grabbed with both hands around the waist from behind. She saw her assailant’s face and noticed that he was smirking but she didn’t pay much attention to the face. She looked for other features, “the back, the togs” in order to identify the person and to satisfy herself that it was the same man. [C] left the water immediately after this incident and, after sitting on the sand for about five minutes, went up to Mr Thornton to report what had happened. By then [A] and [B] were already talking to him. She watched the man in the surf for about half an hour and noticed that he “was catching waves in and was crashing into women as he did so”. He didn’t crash into any men. She saw the man leave the surf, be spoken to by Mr Thornton and observed that he was wearing the same board shorts as the man who touched her in the water. She said “he was tallish, hairy back, same board shorts. I was definite in my mind it was the same man.” She also followed the man and saw him drive off in a Toyota Camry with the registration number 800-GUG.

Lifesaver Thornton’s evidence.

Mr Thornton gave evidence of his conversations with [A], [B] and [C]. He recalled being told by [A] that the person had an accent which she thought was South African. He recalls the person being pointed out to him in the water. He sent a junior lifesaver out to observe surreptitiously what the man was doing from a distance of around 10 metres or so. He saw the man who had been identified to him, move on four or so occasions, until he was opposite females and “then he would catch a wave in such a way that he crashed into them”. He didn’t observe the person making contact with any men. When the person left the water he spoke to him and accused him of deliberately running into people and informed him of complaints made against him of indecent touching. Asked if the person responded, he replied: “He said it was accidental, and I – and I think that’s when I said, ‘Once, maybe twice, could be possibly accidental, but not’ – not with the ladies, you know, telling me what had happened and the observations I’d made. It was obviously many – sort of many times over. Did he say anything in response to that?– He said, ‘I’m sorry. I’m only here visiting from South Africa’ – he had a South African accent – a strong South African accent –’and I’ll be going back tomorrow. I’m only here on holidays’.”

Other evidence.

Mr Saayman, a former resident of South Africa and friend of the appellant, gave evidence. He said that the appellant went to the beach with him, his wife and two children that day and was wearing olivey-green board shorts with a light coloured stripe down the side. He said that on departure in his car, he drove and the appellant sat in the back.

END of evidence extracts.

Justice JERRARD: The failure to direct in terms of the risks and dangers in relying on identification evidence means there was an error of law made in presenting the case to the jury, and a potential miscarriage of justice has resulted. I would extend the time for appealing, allow the appeal, set aside the convictions, sentences, and the fine, and order a re-trial on all three counts. It is a matter for the Director whether there is one.

Justice HOLMES: I have read the judgment of Jerrard and agree, for the reasons he gives, that the directions in relation to identification were inadequate. I agree also with the proposed orders.

Justice McMURDO: I agree, substantially for the reasons given by Jerrard, with the orders he proposes.

END QUOTES From Supreme Court/Court of Appeal, 2007.

We might note in relation to lifeguard Thornton’s evidence, “going back tomorrow” was back to Emu Park, Queensland, home to a loving wife and family. Pretorius is fluent in several languages, his native tongue not being English, but his English is clear enough to prove that Thornton was totally pre-occupied. He was pre-occupied for good reasons. The official record is of an exceptionally heavily populated beach combined with surf so violent as to keep the lifeguards fully occupied, some rescues being life-threatening. It is certain that the lifeguard was approached by three women, the only women who complained of being attacked. He spoke to Pretorius, the women thus having opportunity to overhear a South African accent. It is also certain that if this lifeguard or any person with swimming experience had been asked whether [A’s] and [B’s] subsequent court testimony was entirely realistic, the response might be in the negative. King Neptune and the mermaids may be well and good, but humans are not King Neptune. The author for one sinks like a stone even with both arms engaged solely in keeping himself afloat — leave alone using them both simultaneously to cuddle mermaids. It would help, of course, if the two mermaids were waiting around for him, and could not swim — which in this case almost appears true?

Mr Saayman, the actual driver of the getaway vehicle, boasted a beard: Pretorius was clean shaven. The one identifying feature upon which all three women were definite – meticulously so – the colourful blue and yellow shorts – is confirmed by no-one barring the three women. If proper police procedure was followed, Saayman and Pretorius at questioning would not have been aware of the women’s choice of colour. A conspiracy between the Saaymans and Pretorius in regard to the colour of swimming shorts fails to attain the starting blocks.

Hundreds of thousands of dollars later, after two more jury re-trials, and monetary claims by two of the women, Pretorius was yet being pronounced guilty, on the exact same evidence which in 2007 was called into question by the Supreme Court. Evidence a ten year old can see is not “beyond reasonable doubt.” The one, the only legally relevant certainty – the three witnesses concurring – the colour of the shorts. The prosecution ran documented dirty tricks and soap opera popularity contests. The level and compassionate queen Victoria, not with these words, effectively observed that boers would not be likely to win popularity contests. Documentation of the dirty tricks was not sufficient for action to be taken against the implicated judiciary and prosecution. As was air pilot Frederick Martens’ trial (elsewhere on this site) so was Pretorius’. Twisted. Evil. So it was back to the Supreme Court for the now impoverished ex South African. Would J.A.Fraser agree with his own Supreme Court on this new occasion? Keane, Muir and Fraser J.A., 2009, dismissed the subsequent appeal. Exact same evidence, very expensive legal representation by the appellant – and no evaluation thereof. In effect, no appeal was heard.

The Australian High Court subsequently displayed a similar hearing disorder.