Climate protesters have won a class action against Victoria police over the use of capsicum spray during an anti-mining demonstration in Melbourne.
The first class action against Victoria police in relation to alleged excessive use of oleoresin capsicum (OC) spray was heard in the state’s supreme court earlier this year, and a decision was handed down on Friday.
The trial before Justice Claire Harris was led by protester Jordan Brown, who was twice hit with OC spray while protesting outside the international mining and resources conference (IMARC) in October 2019.
Harris found on Friday that Brown had been subject to an unlawful battery by police, and awarded him $54,000 in damages.
“The batteries caused both physical injury to the plaintiff and were a material contributor to the plaintiff’s psychological injury,” Harris said.
Brown said during the trial that “it’s the most excruciating pain that I’ve ever experienced.
“I checked out of my body for long periods of time.”
While police admitted OC spray was deployed, they argued that its use was lawful.
Brown’s lawyers argued the spraying was in breach of Victoria police’s internal policies and procedures, Victoria’s Crimes Act and the state’s charter of human rights, and that it was “an unreasonable, unlawful and disproportionate use of force constituting battery and assault”.
They said the trial could set a precedent for how police use OC spray, but Harris stated otherwise on Friday, saying her judgment only related to the way it had been used by police in this case.
Her judgment is yet to be published, but Harris said it was not open to the court to make declarations about the alleged breaches of the human rights charter.
Police and protesters clashed outside the conference on 30 October, with officers using OC spray as they attempted to arrest two activists who scaled the Melbourne Exhibition and Convention Centre, the court heard.
Fiona Forsyth KC, representing Brown, had argued the use of OC spray was “entirely unjustified” and left the lead plaintiff with physical and psychological injuries.
Forsyth told the court that Brown was unarmed when he was sprayed twice by two police officers on 30 October 2019. Brown was attempting to run away when he was sprayed by the second officer, the court heard.
“He wasn’t engaging aggressively with anyone, he wasn’t posing a threat to anyone, he wasn’t interfering with any arrests,” she said.
“He was just standing. He was sprayed directly in the head and in the face with a harmful and excruciatingly painful substance.”
But a lawyer representing the state said the protester was part of a group that “piled” into an area and blocked their attempts to make arrests.
In evidence, police officer Sgt Nicholas Bolzonello told the court he deployed OC spray because he and colleagues were in a “stalemate” with protesters and were unable to move through the crowd to arrest a protester who was climbing a pole.
Bolzonello told the court “tensions were high” and that he and his colleagues had just emerged from a “hostile environment”.
He had called it “an effective crowd dispersal tool that allows us to move through crowds”, according to the court transcript, but the lead plaintiff’s barrister, Stella Gold, suggested to the officer that there was nothing in the police OC manual that described such use.
Bolzonello later clarified that his understanding came from training and how it was referred to “internally”.
More details to come …
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