A Geelong police officer has been found guilty of assault after kicking a man in custody three times to the side of his body.
Sergeant David Phillip Magher was charged with three counts of assault and suspended in 2018 by Professional Standards Command after kicking Andrew Birch as he was being transferred from a divisional van to a holding cell at Corio Police Station.
After a six-day contested hearing in the Geelong Magistrates' Court, Magistrate John Lesser found Sergeant Magher guilty of two counts of assault and dismissed a third count.
Magistrate Lesser said while in his view the first kick was "unnecessary", he could "not be satisfied beyond reasonable doubt the kicking action was not proportionate and reasonable".
"The second and third kicks stand out as of a completely different character to the first," Magistrate Lesser told the court.
"The level of force inflicted on Mr Birch [was] entirely inconsistent with the other members at the time, who had apparently obtained a measure of control of Mr Birch.
"They stood out as gratuitous and unnecessary and could not be justified as reasonable and proportionate use of force. As a result, there can be no justification for the use of force in those two kicks … which were delivered with considerable force.
"In the heat of the moment, Sergeant Magher crossed the line from the reasonable and proportionate … to the excessive and disproportionate and unjustifiable and therefore unlawful use of force on Mr Birch."
On September 21, 2018, then 36-year-old Mr Birch was arrested outside Corio Village Shopping Centre over a suspected armed robbery involving a knife and taken to Corio Police Station.
Security footage from the police station, played to the court, showed Mr Birch lunging towards Senior Sergeant Ian Kerin as he exited a police divisional van.
Sergeant Magher, who has been a police officer for more than 20 years, then kicked Mr Birch as he and Senior Sergeant Kerin pulled Mr Birch to the ground.
Mr Birch received two more kicks from Sergeant Magher as he was lying on the ground on his stomach with his handcuffed wrists pulled straight out in front of him and legs straight out behind him.
Magistrate Lesser dismissed the first kick on the grounds it could have been used as a tactic to make Mr Birch comply but ruled the two other kicks were excessive and unjustified.
Ten police witnesses were cross-examined during the hearing. All officers involved in Mr Birch's arrest agreed he resisted arrest, spat at officers, and screamed profanities.
Defence lawyer Stewart Bayles argued the kicks were "reasonable" and "proportionate" and were used by Sergeant Magher to protect the officers and himself from Mr Birch kicking out and spitting and to stop him from escaping.
In his closing remarks, Mr Bayles told the court a reasonable use of force "should not be equated with perfect or even best practice".
Crown prosecutor Sarah Thomas argued the kicks were an "excessive use of force that was not needed to seek compliance" and were instead used to punish Mr Birch for resisting arrest.
"When you view the video the inescapable conclusion is that these were three acts of gratuitous violence … toward someone who had given the police officers arresting him a hard time," she told the court.
Ms Thomas argued Mr Birch had stopped struggling "many seconds before" Sergeant Magher kicked him the second and third time.
She said all the officers, including Sergeant Magher, appeared relaxed on the CCTV as they prepared to move Mr Birch to a cell.
"The suggestion Mr Birch was on the ground for a lengthy period of time because he continued to be non-compliant, the suggestion by Mr Magher [Mr Birch] was kicking throughout, that was simply not correct," she said.
The court was told Superintendent Craig Gillard and Acting Inspector Michael Ryan reported Sergeant Magher to Professional Standards Command after Sergeant Magher admitted he used capsicum spray on Mr Birch twice during the arrest and told Acting Inspector Ryan: "I just wish I could delete the CCTV."
Mr Bayles argued his client never said that and accused Acting Inspector Ryan of lying.
Sergeant Magher will return to court later this week for sentencing.
https://www.abc.net.au/news/2021-02-23/geelong-police-officer-found-guilty-of-assault/13183434
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