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Constable Michael Theriault, centre, and his brother Christian, left. The brothers are jointly charged with aggravated assault in the Dec. 28, 2016 incident, and separately charged with obstruction of justice over how they portrayed the incident to investigators.

Fred Lum

A police officer called to investigate an incident in Whitby, Ont., nearly three years ago says she now remembers hearing a young black man scream that two men had beaten him and hit him with an object.

Const. Barbara Zabdyr’s testimony today was the first time the officer mentioned Dafonte Miller making those comments, despite speaking to investigators and testifying at a preliminary inquiry in the case.

The constable took the stand in the trial of Michael Theriault, a Toronto police officer, and his brother Christian Theriault, who are accused of brutally beating Miller in the early hours of Dec. 28, 2016.

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The brothers are jointly charged with aggravated assault in the Dec. 28, 2016 incident, and separately charged with obstruction of justice over how they portrayed the incident to investigators. They have pleaded not guilty.

Zabdyr told the court today that when she and her partner arrived at the scene, she saw Miller face down on the ground being restrained by a white, bearded man.

She said Miller was shouting as she approached.

“He was screaming that he was beaten up by the males and that they were hitting him with something,” she told the court.

Under cross-examination, the officer said she only remembered the occurrence a few days after the preliminary inquiry in 2017, but did not mention it to the Crown or investigators before Tuesday because she believed they would tell her to save it for the trial.

Court rules dictate that prosecutors must share their evidence with the defence.

Defence lawyers suggested on Tuesday that Zabdyr did not, in fact, have any such memory, and that she had changed her account after reading news stories on the case and the trial.

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Prosecutors allege Michael Theriault, who was off duty at the time of the incident, and his brother chased Miller and beat him, at times using a metal pipe.

Court has heard the Theriault brothers told investigators they caught the teen breaking into their parents’ truck, and feared for their lives during the encounter.

The trial, which is taking place before a judge alone, began last week. Miller is expected to testify later today or tomorrow.

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