Court awards almost $130,000 to man punched by Victoria cop

A BONSAI gardener who was punched in the head by an officer after being arrested has been awarded almost $130,000 from Victoria Police.

Tim Vivoda, 42, launched civil action against Victoria Police after he was punched by Leading Sen-Constable David Kealy as he was being processed to go into Ringwood station's cells in 2008.

Today he was awarded $129,304.50 after a court ruled the “insulting” attack had violated Mr Vivoda’s rights and breached the public’s trust of the police force.

Mr Vivoda had been arrested for being drunk in a public place and claimed he was punched after trying to escape custody to seek medical attention.

During the County Court civil trial, Sen-Constable Kealy, an officer with 17 years' experience, said he punched Mr Vivoda as hard as he could because he feared he had tried to grab his police firearm.

Sen-Constable Kealy said it hadn’t occurred to him that he had already checked the weapon in and instinct had kicked in, in line with Victoria Police training.

Surveillance footage of the incident played in court showed the moment Sen-Constable Kealy stepped back and landed the blow on Mr Vivoda's left cheek, as several other officers looked on.

Delivering his judgment today, County Court judge Chris O’Neill had reservations about the credibility of evidence given by both Sen-Constable Kealy and Mr Vivoda, saying at time it beggared belief.

He rejected claims by Sen-Constable Kealy that he had not discussed the incident with other officers after the event.  “That evidence beggars belief,” he said.

“The incident was dramatic, both in terms of the lunge by Mr Vivoda and even more so, the punch by Mr Kealy.

“To sugest that it was not the subject of any discussion subsequently, particularly with his (police) partner, is incomprehensible.”

Judge O’Neill also rejected claims Sen-Constable Kealy had acted in self defence, believing that Mr Vivoda had lunged at his gun.

“I am satisfied Mr Kealy did not have an honest belief, upon reasonable grounds, that Mr Vivoda was attempting to grab his pistol.

“While Mr Kealy had little time to consider and react, his actions were out of proportion to the threat, and constituted a breach of the trust the public places in the police force.

“The manner in which Mr Vivoda was treated in the custody area of the police station in the aftermath of the punch does, and the force by which the blow was delivered, in my view, constitute conduct of an insulting nature and in contumelious disregard of Mr Vivoda’s rights,” he said.

Mr Vivoda claimed he had been left with thousands of dollars in medical bills, had developed suicidal tendencies, and had been left with permanent injuries.

An application made by lawyers for Mr Vivoda for interest and costs will be heard next month.

http://www.couriermail.com.au/news/opi-didnt-question-key-police-officer-involved-in-the-alleged-assault-of-man-in-custody-tim-vivoda/story-e6freon6-1226587517014