Two Byron Bay men, who were teenage school leavers when a brief ruckus broke out in Apex Park on the night of January 20 last year, have received good behaviour bonds after being convicted in Byron Bay local court last week of assaulting police officers.
Tom Robinson and Kai Cleary pleaded not guilty.
According to CCTV vision of the incident, supplied by Byron Shire Council, the entire fracas lasted no more than two minutes.
The two police involved, senior constables Huckle and Greenup, were in plain clothes and part of a drug dog team at the time. They were stationed at Tweed Heads and therefore not known to the Byron Bay teenagers.
At issue was when the two teenagers, Robinson and Cleary, became aware that Huckle and Greenup were police officers.
Tom Robinson told the court he had spent the evening with friends at YAC (Youth Activities Centre) and later at the Beach Hotel where they had one drink before buying kebabs and heading to the park at around 11.30pm to eat them.
There he noticed his friend Jayden Simki, who was with his girlfriend Kahlia and another friend Maddy. By Jayden’s admission Kahlia was drunk and was shouting obscenities at another fellow student Ava, while he and Maddy tried to calm her down.
Jayden told the court he took Kahlia away from the group, onto Bay Street, in an effort to calm her down.
Tom told the court he saw Ava leave and followed her to make sure she was okay before heading back to the group.
Claims police were aggressive
It was then he saw ‘two big guys about 10 metres in front of me’ approaching the couple, who were by this stage hugging on the road, with Kahlia still ‘crying a bit’.
‘One walked between Jayden and Kahlia and pushed them away from each other,’ he told the court.
‘Jayden was standing his ground. Kahlia ran off.’
The two officers say they were at pains to identify themselves.
According to Snr Const Greenup’s statement, ‘Upon reaching the couple I removed my official police ID from my pants pocket and held it out and upright at chest height towards the couple. I observed Snr Const Huckle do the same thing.
‘I said “Hey there guys, it’s the police. Can you jump off the road for me please.’
These are not the words that Tom Robinson recalled.
‘They said to Jayden “get the fuck out of here”,’ he told the court.
‘[Jayden] said “I’m a local, that’s my girlfriend, I’m not hurting her”.
‘I also said, “yeah that’s his girlfriend, calm down”.
‘I got pushed in the chest by one of the big guys who told me to “fuck off”.
‘I saw it was still escalating between Jayden and one of the big guys [and] said “I’m filming it”.
‘One [of the two plain clothes officers] came over and tried to grab my phone off me. Then he grabbed me with two hands around my shoulder area and threw me. It was a forceful throw. I went through the air and hit my head on the concrete. I was a bit dizzy, got up, picked up my phone.’
Police relay a different version of events
Snr const Greenup has a rather different version of events in his statement.
‘I observed Robinson get very close to the face of snr const Huckle while… screaming at him aggressively.
‘I observed snr const Huckle take a hold of Robinson… and push him towards Apex Park. When Robinson got near the gutter he tripped over backwards and landed on his bottom.
‘Robinson threw a right-handed closed fist at the face of snr const Huckle… struck the left side of [Huckle’s] face. I saw Huckle’s] head whiplash backwards.’
Greenup’s statement continues that he took hold of Tom around the neck, yelling ‘you’re under arrest’. He said Tom told him to ‘fuck off’ while physically resisting. He said he placed Tom in a choke hold and walked him backwards through the park ‘to use as a shield’.
He also admitted throwing Tom from ‘hip height into the ground in an attempt to make him stop resisting me’.
He picked him up and placed him in a choke hold again and again threw him to the ground, at which time Greenup’s Glock pistol fell out onto the ground. At this point he managed to cuff Tom who, by police accounts became ‘compliant’.
Police gun returned
The gun was returned by a bystander.
Tom admitted throwing the punch at Huckle, saying it was because Huckle had already placed Jayden in a choke hold, causing him to turn red. The police denied this.
Tom told the court, ‘It was a light punch to the side of the head,’ but enough for Huckle to release his grip.
‘He said “I’m a fucking cop, you dickhead. What are you doing?”’
This is the first time, Tom says, he heard any reference to police.
‘Once I realised he was an undercover police officer, I did what I was told from then on.’
Tom’s counsel, John Weller, asked ‘At any time at all did you see those big men produce any badges? When was the first time you heard them say they were police?’.
‘When I was grabbed,’ Tom responded.
‘Did you believe him at that stage?’
‘No, it was hard to believe because of the way they acted,’ Tom told the court.
Kai Cleary’s involvement came when he saw what he believed was his friend Tom being attacked by two large men.
He told the court that at no stage during the tussle was he aware that either man was a police officer.
‘Once you’ve run up to the group, what happened then?’ asked his counsel, Kate Brody.
‘Tom was getting up out of the gutter and one of the men told me to fuck off and pushed me with two hands. I got up straight away and asked him what was going on.
‘[Huckle] grabbed me by the collar and jammed his fist in my neck [then] hit me on the lip with his right hand.
‘I grabbed him with my left hand on his shirt, just to keep him at a distance, and then he swung me onto the road – pulled me by my shirt. I was trying to get him off me. I swung my hand and the side of his face connected with my hand.
‘Were you intending to hit him?’ asked Ms Brody.
‘No I was just trying to get him off me.’
‘While I was being swung around [my shirt] was being ripped off and then I was in the middle of the road and it came right off.
‘I saw Jayden trying to pull [Huckle] off me and next thing I was free from his grip.
Kai made a run for it and headed for the dunes behind the surf club, where he told the court he collapsed.
According to Huckle’s statement, ‘Cleary… ran towards me violently before throwing a number of punches in my direction. I attempted to restrain Cleary but was unable to at this time, based on about three or four males intervening.
He added that Kai ‘kept coming towards me’ and ‘ripped my shirt’.
Huckle said it is at this time he uttered the words ‘I’m the fucking cops, you dickhead, what are you doing?’
He said that he ‘pushed myself away as Cleary held my shirt, at which time my shirt was taken from me.’
When police back-up arrived Huckle said he ran to the beach and searched the dunes for Kai, assisted by the drug dog handler, snr const Barrenger.
Kai says that once on the beach, hearing the barking of the police dog, it dawned on him that the people pursuing him were police ‘because the way it was barking was aggressive’.
Next thing he knew, ‘one of the officers was kneeing and elbowing me in my stomach. Then they picked me up and just pushed me head first through the vegetation’.
Huckle said in his statement, ‘I used police approved distraction techniques, namely hammer and forearm strikes to his abdomen to subdue Cleary, who was continuing to resist the arrest. His hands were clenched and he was resisting by not placing his hands behind his back.’
Kai said that his manhandling continued even after he had been put in the paddy wagon.
‘They pulled over because my friend Finn was upset.’
‘Were you kicking?’ asked Ms Brody
‘No. Maybe Finn was.
‘Snr const Kyle-Robinson [who was in the paddy wagon] pulled my pants down, pulled out my phone stood on it and struck me in the stomach with his baton and pushed me back in the wagon with my pants around my ankles.
‘He said, “Next time you do this I’ll skull-drag you back to the station”.’
Kyle-Robinson told the court he did strike Kai ‘using reasonable force to get him into the truck’ at Apex Park.
But he denies stopping the truck on the way to the station, ordering Kai to get out, hitting him in the stomach, standing on his phone or pulling down his pants.
‘No. Once someone’s in the truck you don’t want to get them out again,’ he told the court.
He does remember telling Kai and Finn to ‘calm the fuck down’ or words to that effect.
He added he had not noticed injuries on Cleary at the time.
Footage potentially removed from phones
A further matter raised by Mr Weller was the issue of two phones that were taken by police, allegedly containing footage of the incident. One belonged to Tom and the other to another youth at the park, Byron Grieves.
Byron’s mother Rosina, a school teacher, told the court of the tortuous process she went through to get her son’s phone returned.
After numerous phone calls to Byron Bay police station she was told the phone had been sent to Tweed and after several phone calls to Tweed was told it had been returned to Byron Bay. Eventually a ‘very terse’ snr const Kyle-Robinson returned the phone to them at home.
Tom’s phone was mailed back to him three months later without so much as a with compliments slip. ‘It wasn’t working properly,’ he added.
Neither of the phones contained any footage of the event, although both owners said there was nothing else missing.
Mr Weller in his summing up made much of this, saying potentially crucial footage might have been deleted.
‘The Officer In Charge didn’t even know one of the phones was confiscated; neither were put through the system. It was months before they were returned, one in the post!’
In his judgement, magistrate Linton said he said he was satisfied that police did produce their badges and satisfied that there was evidence proven that Cleary resisted in the dunes
‘CCTV footage shows one of the officers reaching into his pants; this is when it is said both officers removed their badges and showed them to the group,’ magistrate Linton said.