Canberra cops accused of torture

A Canberra law firm has lodged unprecedented claims of negligence, systemic abuse and police misconduct on behalf of eight clients sprayed with capsicum foam in separate incidents at Canberra city watch-house in 2006.

Their request for compensation for physical and psychological pain and suffering could cost the government and the former police officers hundreds of thousands of dollars. Each of the men alleges he was assaulted with capsicum foam by former watchhouse sergeant John Arthur Birch or his colleague, Joanne Theta Apostoloff, while detained at the city watch-house for being intoxicated.

The aggrieved men, who include an Aboriginal elder, builders and public servants, say they were tortured and subjected to cruel, inhumane and degrading conduct by the officers and, by extension, the Australian Federal Police and the Commonwealth.

Lawyer Mark Barrow, of Ken Cush & Associates, said a ruling in his clients' favour would be the first finding against the Commonwealth for torturing its citizens and breaching their entitlements under the ACT's Human Rights Act.

But in a document filed in the Supreme Court last week, lawyers for the Commonwealth say the case cannot proceed due to legislation stipulating personal injury claims must be made within three years of an event.

In their defence against one of the men, the lawyers deny their client tortured the man and say the Commonwealth was not liable for the conduct of the AFP or its members. Closed-circuit TV footage of some of the incidents has been filed with the Supreme Court.

In one recording, Birch tells detainee David Helmhout he is being videoed and to "shut up and listen" before spraying him with the foam. Three seconds later, Apostoloff reaches for the can, says "You going to listen now?" and sprays him again. Mr Helmhout, a 53-year-old indigenous man, said the action was unwarranted. "You wouldn't treat an animal in that way," he said. "It was torture. There was no respect. It was criminal."

Another man, 30-year-old builder Dale Reynders, said the officers' behaviour was routine. "They were so sure they would get away with it, they did it right in front of the camera," he said.

Allan Mitchell said he was helping a friend move house in October 2006 when police detained him, sprayed him twice with capsicum spray and repeatedly hit him in the head with the canister. Later, when Mr Mitchell was naked and handcuffed in the watchhouse, Birch allegedly sprayed him in the face.

The lawyer leading the class action said some people who watched footage of the incidents dubbed the city watchhouse "Canberra's Abu Ghraib", in reference to the Baghdad prison where US military personnel abused Iraqi prisoners.

"These eight cases are the tip of the iceberg, and given the findings of the 2007 joint review [of watchhouse operations] by the AFP and the Ombudsman, I expect there are [more] victims of the culture that was allowed to flourish … at the city watchhouse," Mr Barrow said.

Three former members of the AFP have already faced criminal charges over the misuse of the chemical agent and two have been found guilty. Birch, 55, who resigned from the force in 2007, was convicted that year of administering an injurious substance causing pain and discomfort to nine watch-house detainees between February and September 2006.

Birch, who lives in Wamboin in New South Wales, was sentenced on Supreme Court appeal to 500 hours of community service and given a 12-month suspended jail term after initially walking away from the ACT Magistrates Court with a three-month suspended sentence. Four of his victims are plaintiffs in the class action. He said he was defending the lawsuits.

Apostoloff, 31, was found guilty of misusing capsicum spray on a detainee but escaped a conviction for the June 2006 attack. She is no longer a member of the AFP and is believed to be living overseas.

SOURCE