Backpacker sues NSW Police accusing force of cover-up over alleged bashing

A backpacker who was prosecuted for a petty offence after allegedly being the victim of a serious assault is suing New South Wales Police, accusing the force of an institutional cover-up over the failure to investigate or discipline an off-duty officer involved.

English backpacker Liam Monte claims he was unlawfully imprisoned in 2013 following a fight in the Sydney CBD which broke out after a heavily intoxicated police constable pulled out a police badge and attempted to arrest him at a McDonald's restaurant.

Mr Monte was pursued down George Street by the off-duty officer and his friends following the McDonald's incident, and a witness to the fight said Mr Monte was repeatedly kicked and bashed while he lay on the ground.

According to a magistrate, police initially investigated Mr Monte for assault of the off-duty officer. However, when the evidence indicated Mr Monte had in fact been the victim of an assault, officers charged the backpacker with stealing the constable's police badge.

Mr Monte is now suing the police for damages including assault and battery, misfeasance in public office, unlawful imprisonment and collateral abuse of process.

He said he was pursuing the civil claim against the police because he believed he had been the victim of an injustice.

"I've lost a lot of faith in the police," he said. "I felt like they're meant to be there to protect us, and I didn't feel like they protected me on that night."

How the fight unfolded

The altercation between Liam Monte and off-duty police officer Osvaldo Painemilla began when Mr Monte objected to the behaviour of the off-duty officer and his friends who were dining at a McDonald's restaurant in George Street in Sydney's CBD.

In a judgment delivered in 2014, local court magistrate Michael Barnes said Mr Monte threw a chip at the men, who then pursued him out of the restaurant when Mr Monte went to leave.

At the exit of the McDonald's, Mr Painemilla, who admitted in court to having consumed 16 drinks, produced a police badge and said to Mr Monte: "I'm a cop and you're under arrest."

Mr Monte, who said he did not believe the badge was real, grabbed the badge and exited the restaurant.

According to evidence accepted by the magistrate, Mr Painemilla's friends then dragged Mr Monte backwards out of a cab and chased him up George Street. Mr Monte threw the police badge back, but one of Mr Painemilla's friends continued to pursue him. He tackled Mr Monte to the ground on a footpath, allegedly punching and kicking him repeatedly.

According to the statement of a bus driver who witnessed the assault tendered to the local court, Mr Monte was "punched approximately 10 times to the face as he lay on the ground".

Mr Painemilla and his friends denied the claims and disputed Mr Monte's version of events.

Following the fight on April 19, 2013, Mr Monte was taken to hospital by ambulance with severe facial bruising and a suspected fractured eye socket.

Monte charged over stealing officer's badge

Shortly after he was discharged from hospital, detectives from The Rocks police station in central Sydney arrived at his backpacker's hostel and arrested him.

The case against Mr Monte for stealing proceeded to a full prosecution in 2014, and at the time, the magistrate hearing the case, Michael Barnes, described it as an abuse of process.

Magistrate Barnes said it was difficult not to conclude that police had brought the prosecution in an attempt to "somehow negate the suggestion that the force applied to Mr Monte was otherwise completely unjustifiable". Mr Barnes said Mr Painemilla had abused his powers of arrest.

"In my view abuse of the power of arrest goes far beyond being merely undesirable," Mr Barnes said.

"When the officer purporting to exercise the power is very drunk and in the company of others who have provoked the confrontation leading to its exercise, the arrest can readily be classified as unnecessary and improper."

Mr Barnes found that the facts that supported the police's charging of Mr Monte for stealing a police badge were proven, but he did not convict Mr Monte of the offence, instead giving him a Section 10 bond.

Mr Monte's statement of claim argues that the NSW Police is vicariously liable for Mr Painemilla's actions and that the police officers investigating the 2014 incident failed in their duties.

The claim argues Mr Monte suffered "extreme fear and substantial pain" during the assault, "embarrassment and distress" during his subsequent arrest, and "a strong sense of ongoing injustice" over the failure to investigate Mr Painemilla's behaviour.

"Two things shocked me, first of all that I was arrested on that night, and then that I was handcuffed while I was clearly concussed and had taken a severe beating," Mr Monte said.

"It was clear as day that they had assaulted me and it was a three-on-one situation which was a group beating. So I was incredibly shocked that they weren't arrested at that point."

NSW Police are yet to file a defence in the case. When contacted about the case, a spokesperson said NSW Police would not be making any comment as the matter was before the courts.

Last month, lawyers acting for the NSW Police applied to the NSW District Court for security of costs.

In that application, NSW Police asked the court to order Mr Monte to pay $60,000 upfront to cover the costs of the court case in case he lost the case and was ordered to pay the police's costs. The application failed.

Stephen Blanks, president of the NSW Council of Civil Liberties, said he was disturbed by the legal tactic.

"The police attempted to shut this case down by using litigation tactics of a kind that normally only happens in the big commercial courts," Mr Blanks said. "And they were using it against a victim of their own violence."

"What we need in the NSW Police force is a culture of intolerance of wrongdoing, an intolerance of violence by police against innocent members of the public, an intolerance of using the courts to prosecute cases that ought not to be prosecuted.

<a href="http://www.abc.net.au/news/2016-08-24/backpacker-sues-nsw-police-accusing-force-of-cover-up-over-fight/7779562">SOURCE</a>