A lawyer defending a policeman accused of assaulting a naked 16-year-old in Byron Bay nearly three years ago has criticised the legal processes sparked by the incident, in court.
‘This is such an unfair process,’ defence barrister Brent Haverfield said while Senior Constable Mark Sims, one of four officers involved in detaining the youth, was on a break from giving evidence on Wednesday.
All four officers have earlier given sworn statements about the events in Lateen Lane on January 11, 2018, as part of a Law Enforcement Conduct Commission (LECC) inquiry and both prosecution and defence have regularly referred to those statements in this week’s criminal trial.
But on Wednesday the defence barrister told the court witnesses in the LECC inquiry had been ‘cajoled’ into ‘giving answers’ in the earlier inquiry.
Inconsistencies between statements
Earlier that day the Department of Public Prosecutions (DPP), acting on behalf of the Crown, had sought leave while Senior Constable Matthew Roach, the former police partner of the accused officer, was under cross-examination.
DPP prosecutor Brittany Parker said she’d found three inconsistencies between the officer’s evidence in court and the statements he’d given during the LECC inquiry.
The judge granted leave on two points: one concerning exactly when Sen-Constable Roach thought the boy was ‘under control’ and the other as to when the boy first responded ‘intelligibly’ to police.
No ambulance called to Lateen Lane
On Wednesday the court also heard officers must call an ambulance after capsicum spray is used and must call an ambulance after using a taser.
Sen-Constable Roach said there was no ambulance called to Lateen Lane and instead officers put the boy into the back of a paddy-wagon.
‘The real and only option was containment in the police vehicle,’ he said, ‘get him in a position far more comfortable in the back of the truck’.
He said the boy was ‘screaming the whole time’ during the police interaction, there was a risk he could get ‘out of control’ and agreed when Mr Haverfield said it was the ‘hardest’ detention of his career.
Watching video of alleged assault ‘quite stressful’ says officer
Sen-Constable Roach said officers were shown video footage of the early-morning hours in Lateen Lane that had gone viral on the internet ‘twenty, probably thirty times’ as part of the LECC inquiry.
It was ‘quite stressful watching it,’ he told the court.
Defence barrister Brent Haverfield suggested to the officer his evidence was ‘coloured’ by the LECC investigation.
‘It feels like the video is another witness,’ Sen-Constable Roach replied.
The defence reminded him of how he’d told the LECC inquiry the boy had kicked another officer off during the struggle.
In Lismore court this week, Sen-Constable Roach said he didn’t recall the kick.
The officer then said he thought the first time the boy responded to police by giving his name when asked was after the final baton strikes under scrutiny in this week’s trial.
The prosecution must prove Senior Constable Michial Luke Greenhalgh, 39, used unreasonable force when striking the boy, who cannot be legally named here, a final six times: if so, the officer will be guilty of assault.
Later the prosecutor asked Sen-Constable Greenhalgh’s former police partner if he agreed the young person was under control when the second set of handcuffs was applied, which was before the final six blows.
‘At my end, it looked like he was under control,’ Sen-Constable Roach replied.
When the prosecutor asked whether or not the young person had responded comprehensively ‘I’m not resisting’ when told ‘stop resisting’, as heard on the video footage, the officer said he couldn’t give a yes or no answer.
Officer involved in assault case has brain injury
The legal issue presented by the variations in evidence from witnesses in the LECC inquiry and this weeks’ criminal trial re-emerged during the testimony of Senior Constable Mark Sims on Wednesday afternoon.
But it was avoided in the case of the fourth officer on-scene in January 2018 due to the senior constable having suffered a brain injury since the inquiry.
The injury meant he was unable to give evidence or be cross-examined and so his 100-page transcript of evidence given to the LECC inquiry has been accepted alone.
Officer ‘can’t recall’ details
Sen-Constable Simms mostly said he couldn’t recall when the prosecutor reminded him of statements he’d made to the LECC inquiry and said he hadn’t read over the transcripts prior to giving evidence this week.
He says he didn’t say anything to the boy and the only thing he heard said to him was ‘stop resisting’.
He says he saw Sen-Constable Greenhalgh use a baton a total of four or five times and doesn’t recall hearing any other baton strikes.
During the earlier LECC inquiry, he’d described hearing strikes.
He says the boy was ‘under control’ when the ‘truck pulled up’ and was securely handcuffed when officers put him in the paddy-wagon but can’t say at what point he was securely handcuffed.
The day ended with the defence suggesting the boy was ‘under control -at that point in time’ before hearings were adjourned.
The trial continues on Thursday, with the judge saying it could also continue Friday morning.
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