EVIDENCE AND ADVOCACY 3502

Advocacy Exercise #1

R v Alan Ales
Cause harm
Section 24 Criminal Law Consolidation Act 1935

PROSECUTION

Statement of Joe Thivanka

This statement was given to Senior Constable Janice Smith on Friday 24 November 2021
at 5:00am.
I work the graveyard shift at the BP service station on South Terrace in Adelaide. I work
five nights a week, Monday to Friday, from 11pm until 7am. I have been working here for
three years. I moved to Adelaide from Sri Lanka in 2018 to study anthropology at the
University of Adelaide.

It is a good job at BP. I used to work at the family jewellery store back in Sri Lanka and
then Macca’s in Adelaide, but it was too stressful. It’s pretty quiet here, but things have
been bad lately as I have been held up twice in the last two months. Both times the
robbers threatened me with a knife and stole cash and cigarettes. I am starting to get a bit
spooked by it all. It’s all the drugs people take these days. They are all on ice. It makes
them mad and crazy.

I got held up for the third time in my life tonight, that is, the morning of Friday 24
November 2021. We had a quiet night. Thursday nights can get busy, but it slows down
after midnight. I was behind the counter at about 4am on Friday 24 November 2021. The
Australian had just been delivered by Chris and I was reading the paper when I heard the
automatic door open. I would usually lock it after 3am, but I had opened it for Chris a few
moments before.

I saw a man shuffle in. I didn’t really notice much about him at first. He was reading the
magazines and I saw that he was carefully flicking the pages of Motor Vehicles Monthly.
It was odd he was hanging round. He was then hovering near the food warmer with the
pies, pasties and sausage rolls. This is to my left, and I can’t see that area clearly. He then
moved to the chip display. He was looking at the chips. The chips are near the food
warmer. I can’t see them clearly either.
He called out to me and said, ‘Can I have a pie?’ I looked up from my paper and said,
‘Only if you want food poisoning. They’ve been there for days.’ I don’t know why
anyone would want them. They’re vile and disgusting to eat. The man then went to the
fridge. I could see him directly then. It was then that I noticed he was holding a bottle. He
had a swig from it. I think it was a cider bottle. I didn’t say anything about it as being
alone late at night you are vulnerable. The fridge is at the back of the shop, but it is right
in front of me and nothing blocks my view.

He grabbed a tub of organic Barossa Valley artisan yoghurt from the fridge. I know the
type because I usually eat it for breakfast before I finish my shift. It is the best yoghurt.
He then went back to look at the pies, pasties and sausage rolls.

He said again, ‘Can I have a pie?’. But this time he shouted. He sounded angry. I said,
‘Sure, they’re five bucks, but you can have a pie for three.’ I usually knock a few bucks
off the price at this time of night. The next thing I saw was the man ran straight towards
me yelling. He yelled, ‘I want a fucking pie! I’m not fucking paying for it!’ He had a pie.
He was clutching the pie and the yoghurt to his chest with his left hand. He was fumbling
in his pocket with his right hand. Then I saw he had a knife in his right hand. I didn’t see
where it came from. He held it up and I could see it clearly. It was a light colour.

He said, ‘Here’s your fucking pie’ and he threw it at me. It didn’t get very far. It didn’t hit
me. He shouted at me. Then he said, ‘This is a stick up!’ and he waved the knife at me. I
am sure it was a knife. I started yelling back at him. I may have sworn at him, but I can’t
be sure. It all happened so quick. He got even madder. He then came right up to the
counter. He was brandishing the knife in his left hand. I keep a cricket bat behind the
counter in case of trouble and I went to grab it in case I needed to use it in self-defence.
But before I could lift the cricket bat, the man lunged at my face with the knife over the
counter. He aimed at my face. I put up my right hand by reflex to my face to block the
blow and I remember feeling a sudden sharp pain to my right hand. It was a nasty blow. It
was just reflex I stopped it.

The man then walked out of the shop and I didn’t see where he went. I noticed a cut to my
right hand. It was bleeding.

Chris, the newspaper delivery driver, came back in a very short while after the man left. I
said, ‘I’ve just been stabbed.’ She immediately ran out of the shop and chased the man. I
didn’t see her catch the man, but I know she did. I locked the door and called the police
straight away. They arrived within about five minutes.

The man also stole from the servo because you have to pay for food and he didn’t.

I would describe him as about 25-30 years old, about 5’ 8’, wearing black and white
checked trousers, a black jacket and a black Justin Bieber t-shirt. I know that because I
thought how wrong it was that a villain like this could like my favourite singer.
It was when the police came in that I noticed a broken cider bottle by the counter. I don’t
know how it got there but I can only assume it was dropped in the fracas by my attacker.
It wasn’t there before the attack.

I was stressed during the incident, but I am clear about what happened. The bloke
definitely brandished a knife at me. He lunged at me with this. I reckon he wanted to hurt
me bad. It was just my swift reaction he didn’t stab me to the face. I am informed the
police arrested a man outside. I didn’t see the bloke.

I had a 3 cm cut to my right hand. It bled a little. I didn’t go to the hospital. It would be
too much hassle. The wound left a small scar on my palm. But it wholly reovered after six
weeks and you really can’t see it now.

The service station CCTV system was broken. There is no CCTV of either inside or
outside the servo that was working.
Statement of Chris Nguyen

I deliver newspapers to many businesses in Adelaide. One of my regular stops is the BP

service station at South Terrace in Adelaide. I know the night shift console operator, Joe
Thivanka. He is a suave and nice bloke, but a bit nervy. I know he has been held up a few
times lately and I think he’s a bit scared now. Whenever I deliver the papers he always
wants to talk. It feels like he doesn’t want to be alone.

I delivered the papers to the BP service station on Friday 24 November 2021. I dropped
them off at about 4am. As always, Joe grabbed a copy of The Australian and started to
look through it. We chatted for a while and then I left. As I left, I saw a man dressed in
black outside the doors. He was holding an open bottle of cider. He had a swig from it. He
went inside and smiled at me as he did. He smelled strongly of alcohol. I noticed he was
swaying on his feet. I can’t say what he looked like. He was a regular bloke, about 5:10.
Slim dude. I didn’t pay much attention. You see lots of drunks and junkies round South
Terrace.

I went back to my van and when I got in I couldn’t find my mobile phone. I looked
through the front of the van, but I couldn’t find it. I thought I might have left it inside the
servo so I went back in. As I was approaching the door, I heard raised voices. I didn’t
clearly hear what was said. As I got closer, I saw the man I had seen earlier was standing
at the counter. He was holding something in his hand, but I didn’t see clearly what it was.
I did not have my glasses on. Joe picked up a cricket bat. I then heard the sound of
breaking glass. It all happened very swiftly.

The man walked past me on his way out a few second later. It was the same guy I had
seen enter the servo. He had something in one hand like a small tub of ice cream. I
thought it was an odd thing to have. I went into the servo. Joe was in a real state. He was
upset. He said: ‘That dude just held me up, stole some cash, he had a knife, the bastard
stabbed me. I am calling the cops.’ I noticed there was a broken cider bottle by the front
counter. Joe held up his right hand and I saw there was a cut to his right palm. It was
bleeding. I checked to make sure he was OK. He then called the police.

I then walked out after the man I had seen leave the servo. I couldn’t see anyone initially.
I then saw a man wearing a black jacket about 30 metres away on the pavement by South
Terrace. I walked up to him and I saw it was the bloke who I had seen enter and leave the
servo. I tapped him on the shoulder and said, ‘You’re not going anywhere mate – you’ve
just held the servo up and stabbed the cashier.’ I held him by the elbow. I would have
restrained him, but he didn’t try to escape. I wasn’t aggressive, but I was angry and upset
for poor Joe.

The man looked pretty dodgy: skinny and scrawny. He looked like a junkie. But he was
polite. He told me he had no idea what I was talking about and he hadn’t been to the
servo. He said he would wait for police. He sat down outside the doors and ate some
yoghurt. He called someone called Julie Quealy. I would have called the police, but I still
couldn’t find my phone and I knew that Joe had already called them.
The man seemed pretty decent actually. While we were waiting for police, I saw that he
was wearing a Justin Bieber shirt. We talked about music and cars until the police arrived.
They arrested the bloke.
Statement of Constable Rahit Singh

I was on uniformed duty when I attended at the South Terrace BP service station in
Adelaide with PC Dwyer in a marked police vehicle at 4:10am on 24 November 2021.
We had a report of a stabbing at the location.

Upon arrival, the console operator, a Joe Thivanka, alleged that a person I now know to
be Alan Ales had held him up and stabbed him with a knife. Thivanka asserted that Ales
had attacked him with a knife and had caused a wound to his right hand and it was only
by his swift reflexes that he had avoided a serious injury as he had put up his hand to
block a blow with the knife at his face from Ales. Thivanka showed me his right palm. It
had a cut about 2 cm long that was bleeding.

When I arrived, Ales was sitting on the pavement on South Terrace about 30 metres from
the doors of the service station. After speaking to Thivanka, I went over. A person I know
as Chris Nguyen was sitting next to him. Ales was clearly intoxicated. I would rate him as
moderately drunk. He was polite and co-operative. He looked tired.

I arrested Ales for aggravated intentionally causing harm to Thivanka under s 24 of the
Criminal Law Consolidation Act 1935. I gave him his rights. Ales replied: ‘I don’t know
anything about it, I weren’t there. You have got the wrong bloke.’

I searched Ales. He was carrying two knives. I seized them. Each knife had a blade about
20 cm long. I was most concerned that he was carrying knives, especially as the alleged
victim had just been injured with a knife. I did not see any blood on either knife.

Ales demanded to speak to his employer, a Julie Quealy. Ms Quealy later attended and
demanded to speak to Ales. She has a Sligo accent from Ireland. But I would not allow
Ales to speak to her. I considered this to be an operational risk.

My partner, PC Dwyer, took Ales into custody. I went back into the service station and
recovered an empty broken bottle of cider from the floor beside the front counter.
Thivanka said it must have been dropped by his attacker during the fracas.

Thivanka said he didn’t want the bother of going to the Royal Adelaide Hospital.

Ales was conveyed to Adelaide Police station by PC Dwyer and I. We later interviewed
Ales at Adelaide Police Station, but he refused to answer any questions.

We charged Ales with one offence of aggravated intentionally causing harm to Thivanka
under s 24 of the Criminal Law Consolidation Act 1935. Owing to the gravity of the
offence, possible interference with witnesses, Ales’ lack of local ties and the presence and
use of the knife, bail was refused. Ales was kept in custody to be produced at Adelaide
Magistrates Court on Monday 27 November 2021.
Statement of Probationary Constable Jenny Dwyer
I am a probationary constable with the South Australia Police. I have been serving in this
position for about 2 months. At 4:10am on 24 November 2021, I attended the scene with
my supervising officer and field tutor Constable Singh. We had just finished a routine
patrol when we were notified of a disturbance at the BP Service Station on South Terrace.
When we arrived at the scene, I was tasked by my supervising officer to secure the area
and make sure there were no other persons present who may have been hurt or would
pose a risk to the safety of the people present, and to identify if there were any objects of
note in the vicinity of the Service Station. I did not find anything in the surrounding area
except for an empty yoghurt tub and disposable spoon that were lying on the footpath.
I then returned to the police car before going towards the accused, who I now know to be
Alan Ales. After I came up to Ales, I noticed that he was accompanied by another person
who I know to be Chris Nguyen. Nguyen and Ales were talking amicably, and I assessed
the area at that point to be a low risk environment. Chris was well-presented and seemed
like a reliable person. I stayed with Ales while Constable Singh was talking to the
complainant.
When Constable Singh returned from talking with the complainant, he briefly updated me
on the situation, and told me that the alleged complainant had been stabbed with a knife
and had received a wound to his right hand, but it was not life threatening. Constable
Singh then placed Ales under arrest. Ales was adamant that he had not done anything and
that he was unconnected to the events that had transpired.
Constable Singh also confiscated two large knives from Ales’ which were kept inside
Ales’ jacket. I was handed these knives and placed them into our storage units for items
seized on site.
I was then instructed to escort Ales to the patrol vehicle. While I was escorting Ales to the
patrol vehicle, I heard him mutter something about not wanting to lose his job.
Constable Singh returned into the service station to conduct a further check of the area,
and later returned with a broken bottle which he told me the service station worker had
said was dropped during the commotion. I placed the broken bottle in the storage
compartments with the other items seized from the site.
During the drive to Adelaide Police station, I noticed that Ales appeared very tired and
distraught. He refused to answer any questions when we tried to interview him. He
seemed like a lot of junkies we deal with – incoherent and comatosed on meth and unable
to string a sentence together. Drugs are ruining Adelaide which is why I felt called to
become an officer of the law.
I had no further involvement in this matter.
DEFENCE

Instructions of Defendant Alan Ales

I went to the South Terrace BP service station in the early hours of Friday 24 November
2021. I admit that I was a bit drunk. But I didn’t hold the joint up. I am responsible for the
cut to that fool of a cashier’s hand, but it wasn’t a knife and I was only acting in self-
defence. It was all the result of an unfortunate mix up. I told the cops on the night that I
wasn’t even there, but I was just panicking.
I admit that I nicked some food. I took a small tub of Barossa Valley yoghurt. I also took
a pie. I didn’t eat the pie, but I did eat the yoghurt. It was a very nice yoghurt. I threw the
pie at that dumb fuck of a cashier. It didn’t hit him. I did that because he was being a
cockhead. He was carrying on and yelling at me. I got a bit annoyed at him. I know it was
the wrong thing to do, but I didn’t try to hold him up. The cashier was really irrational. He
was shouting about a stick up. I told him it was a mix up, but he wouldn’t listen. He
picked up a cricket bat. I thought he was going to thump me with it so I hit him first in
instinctive self-defence. I forgot I was holding a bottle of cider in my hand and it struck
the cashier’s hand and it broke in the process.
I had been out celebrating that night. I had just finished my second week at a new job and
my boss took me out for a drink after work. I have started work as a cook at a leading
restaurant. It is the Sligo Bar and Grill down on Hindley Street. This job means
everything to me. I worked every day of this week and was working long hours. So, by
Thursday I was very tired. (I wasn’t going to start work on Friday until the afternoon so I
didn’t mind staying out a bit late).
On Thursday, after dinner service I knocked off, about 11pm, and the owner took me out
for a few drinks. Her name is Julie Quealy. She is from Sligo in Ireland. We went to the
Welcome Stranger on Hindley Street. We would have left the pub at about midnight. I
can’t remember how many drinks I had, but it wasn’t too many. I don’t really drink much.
It was steady drinking. My boss knew the owner of the bar and we were trying different
glasses of wine. My boss, Julie, is trying to educate my palate. I think I’m a good cook,
but I don’t know much about wine because I’m not really much of a drinker. I think I
would have had four or five glasses of wine, no more than that. After three glasses I felt
tipsy. By tipsy, I mean I felt light-headed, chatty and a bit silly. I was in a good mood. I
was largely in control of myself, but I wouldn’t have driven.
My boss dropped me home at about 3:45am. I live near the BP servo in South Terrace. I
went inside my house and opened the bottle of cider. I was hungry so I walked down to
the BP, which took me about ten minutes. Nothing else was open at that time. I took my
cider with me. I went inside the BP and said hello to the guy behind the counter. I sort of
recognised him because I have seen him in the servo before. He was reading the paper and
didn’t say anything. I went and looked briefly at the magazines. I glanced at the
magazines and I recall Motor Vehicles Monthly was just out. It is a cool magazine.
I then walked over and looked at the pies and pasties. They looked pretty dry. I suspect
they had been there for a while. I looked at the chips, but I couldn’t find any chicken
Twisties, which are my favourite. I went to the drinks fridge. I wasn’t thirsty, but I saw
some yoghurt. I took a tub of yoghurt out of the fridge. I also took spoon from next to the
yoghurt. I walked back to the pie warmer. I called out to the guy behind the counter and
asked how much the pies were. He said something about the pies might make me sick, or
something. I couldn’t hear what he said so I went up to the front counter and asked again.
I still had my cider, but it was virtually empty by then and I also had a tub of yogurt and a
pie with me.
He seemed startled and said, ‘You’d better pay for that pie.’ I don’t know why he said
that. I said, ‘What if I don’t?’

Then he got really weird and started saying I was holding him up. He was shouting and
hyper-ventilating. He started swearing at me. I yelled at him to calm down. He kept
saying: ‘Don’t hold me up!’ I said ‘this is a mix up. I just want to buy a pie!’ But the
cashier kept on carrying on screaming. I threw the pie at him. I know I shouldn’t have
done that, but he was acting like an idiot. It missed him.
The cashier then grabbed something and suddenly I saw him waving a cricket bat at me.
He was still shouting. I honestly thought he was about to thump me with it so I reacted
instinctively in self-defence. I thought he was going to hit me with the bat so I hit him
first in instinctive self-defence with my right hand. I wasn’t going to be hit by a bloody
cricket bat. But I forgot I was holding the bottle of cider in my right hand. The cashier put
up his hand to ward off my blow and the cider bottle struck the cashier’s hand and the
bottle broke in the process. I never meant to hurt him and it was only in self-defence.
I then walked out. I was walking down South Terrace when someone ran up to me. She
grabbed me by the shoulder and said something like, ‘You’re going nowhere mate’. She
said that I had just robbed the servo and stabbed the cashier. I told her to stop touching
me. She said she would call the police. She was pretty strong and seemed aggressive. I
was scared about being back in trouble so I told her I knew nothing about the servo and I
hadn’t been there.
I waited with her and I called my boss. Julie said to wait there and not run away. She said
she would come down. She also said if the police came I should tell them my name and
address and nothing else. I waited with the person who had grabbed me. When she saw I
wasn’t going to run, she calmed down. I was wearing a Justin Bieber t-shirt, and this
person said she was a big Justin fan and we talked about music and cars.
I ate the yoghurt. I think I threw the rubbish in the bin by the side of the road. The police
arrived and arrested me for wounding with intent. I told them nothing though initially I
said I knew nothing. The police searched me and found two knives. They are chef’s
knives with black handles. They are very sharp so are wrapped in an oilskin case. They
were in the inside pocket of my jacket. I use them for work. I always take them home
from work. The only reason is that I have had knives stolen before. They are very
expensive and I can’t afford to replace them if that happens. I did not get these knives out
during this incident.
I am 30 years old. I am a trained chef. I am 5 foot 4. I am known as The Cookie as I am
short. I am originally from Sydney. My parents and siblings live in Sydney. I have lived
in Adelaide for about six months. I don’t know many people here. I was unemployed for a
few months and lived off my savings. I have no savings anymore, but I don’t have any
debts either.
Thankfully I have a job now and I can just keep my head above water. I rent a very small
place in the city near South Terrace. It is more like a granny flat than a house, but it is all I
need. It is handy to town and my work.
Sometimes I start at 5:30 am and go to the markets with the head chef. I earn about $900 a
week after tax and that covers my expenses. I don’t have much more than $150 left over
every week.
I have never been in trouble with the police in Adelaide. This is all the fault of that
cockhead of a cashier. If he hadn’t overreacted this never would have happened.
Statement of Jingwei Shen
I am an international student studying Environmental and Climate Solutions Engineering
at the University of Adelaide. I stay in a privately rented apartment in the city.
On the morning of Friday 24 November 2021, I was out conducting measurements for my
professor, who I assist as a research assistant. Our current project involved measuring
variations in air density and composition in and around the CBD before and after rush
hour, and I was driving to various locations in the city to take measurements. Living in
the city, the roads and areas get busy with people on their morning routines quite early, so
thought it best to get my first round of work done before the city got too busy.
It was about 3:50am when I took the measurement from the last location. After that, I
noticed that my car was running low on fuel. Checking my phone app, I found the
cheapest fuel prices to be at the BP Service Station on South Terrace, so I drove towards
that direction. The Service Station was not too far from where I was.
I pulled up to the service station and started refueling my car. I was surprised to see that
the fuel pumps at the service station had been outfitted with card payment machines so
that customers could make their payments for fuel without having to go inside to pay.
This was a delight to me, because I had long wondered why this had not been adopted in
Australia while similar systems have been in place for many years already in other
countries.
Nothing seemed out of the ordinary when I arrived. I finished refueling, and tapped my
card to pay for the fuel. As the payment was processing, I looked into the service station
from the fuel pump and saw two people at the counter. It seemed like the two people
inside, one of whom was standing behind the counter, and probably the attendant, were
arguing with each other. Both were behaving aggressively and were waving their hands in
the air. I could not see whether they were holding anything in their hands at that point.
Then, I saw the attendant bring out a long wooden object from behind where he was
standing. The attendant had gripped the object with both hands, but but before he could do
anything else, I saw the other person swing something at the attendant. I was shocked to
see this, and instinctively looked away.
I did not believe it would have been wise nor safe for me to intervene personally at that
point, so I got into my car and left the service station.
I have since learned that the service station’s attendant’s name is Joe Thivanka, and that
the other person’s name is Alan Ales.
I am not sure how I was found by Mr Ales’ lawyers, but when I was contacted, I was
happy to serve as a witness if it meant that it could be of service to the community in
some way. I did not know either of the persons prior to the incident, and did not have any
further interactions with anyone regarding this incident until I was contacted by Mr Ales’
lawyers.
Statement of Julie Quealy

I am the manager at the Sligo Bar and Grill on Hindley Street, Adelaide. I have been
working here for over 7 years. In my capacity as the manager, I supervise Alan Ales, who
had been working for us for about half a month when this incident supposedly occurred.
As the owner and manager, I am responsible for making sure the staff at our business are
properly trained, and are able to work to the best of their ability. Ales is one of our best
staff, and presents with a strong work ethic, dedication to his work, and a desire to keep
achieving bigger and better things. He is an all round top bloke.
Ales had been on the long shift that week, and had been in at work every day. The work
hours in hospitality are very long. Although I only start at 9am, other members of the
team such as the cooking team start especially early. On Thursday 23rd November 2021,
Ales had been tasked to go with out head chef Damien to meet our suppliers who give us
our ingredients for food. Ales had been an upstanding and diligent worker during his first
two weeks, and was already showing great promise. It was for this reason that I wanted
him to go with Damien to begin establishing a relationship with our ingredient suppliers.
Damien has been thinking of stepping down within the next two years, and I have been
eyeing Ales as a potential replacement for him for the head chef role in the future.
When I came in on the Thursday, Ales and Damien were busy preparing the lunch
service. As usual, Ales was working very hard in the kitchen. Despite it being one of the
busiest lunch times we have seen, there was not a word of complaint from Ales and I
received requests from patrons to give their complements to the chefs. Lunch service
continued well into the afternoon. We were meant to have a team meeting at 4pm but this
was cancelled because the cooking team were so busy with preparing for dinner service.
After dinner service, I took Ales to the Welcome Stranger on Hindley Street. This was
partially to help him unwind after a very busy few days, and also to get him connected to
other business owners in the area. We arrived at the bar at around 11:15pm.
Toma, the owner of the bar, greeted us and gave us samples of his best wines. Ales is not
very much of a drinker, but I thought it was a good chance for him to know more about
wines so he could come up with new ideas for dishes that would go well with our drink
offerings at the restaurant. I don’t remember Ales drinking very much that night at all.
I left Ales at the table to talk to Toma about how his business was going so far. During
our conversation I was reminded that I was yet to submit a local licensing document that
business owners were required to submit under some new regulations. This made me
realise I should get home quickly so I could begin working on the submission.
When I returned to the table, Ales was talking to someone he had met at the bar. I felt bad
for cutting his conversation short because I knew that Ales did not have many friends in
Adelaide, but I needed to get going. Ales and I went to my car and I dropped him off at
his home. It would’ve been around 3:30am on the Friday when he got home. When I
dropped him off, Ales was not drunk. He had loosened up a bit after a few drinks, but still
entirely able to hold a conversation during the ride back to his home.
During the time that Ales has been working under me, he has shown himself to be a
diligent and hard worker who takes pride in what he does. Even during busy shifts, he
remains calm and composed, which is exactly the character we would need for someone
to take on the role of head chef in a busy city restaurant like ours. Ales also takes great
care of his property. Despite my advice to him to buy a safe for him to store his knives at
the restaurant, Ales takes his chef knives with him to and from work. He tells me he spent
a fortune to buy them, and I believe him. Ales is not the type of person to get into violent
altercations with others. Instead, I have noticed that he tends to avoid conflict as much as
possible. It is unthinkable to me that he would be someone who would hurt another
person.