Climate protesters have won a class action against Victoria Police over their use of capsicum spray during an anti-mining demonstration in Melbourne.
The first class action against Victoria Police over alleged overuse of oleoresin capsicum (OC) spray was heard in the state Supreme Court earlier this year, with a decision handed down on Friday.
The trial before Judge Claire Harris was led by protester Jordan Brown, who was hit twice with OC spray as he protested outside the International Mining and Resources Conference (IMARC) in October 2019.
Harris found on Friday that Brown had been unlawfully punished by police and awarded him $54,000 in damages.
“The batteries both caused physical injury to the plaintiff and were a significant contributor to the plaintiff’s psychological injuries,” Harris said.
She said the injuries were deliberately caused by police.
Brown said during the trial that “it is the most excruciating pain I have ever experienced.
“I checked out my body for a long time.”
Although police admitted that OC spray was deployed, they argued that its use was legal.
Brown’s lawyers argued that the spraying violated Victoria Police’s internal policies and procedures, Victoria’s Crimes Act and the state’s charter of human rights, and was “an unreasonable, unlawful and disproportionate use of force amounting to assault and battery”.
They said the trial could set a precedent for how police use OC spray, but Harris stated otherwise on Friday, saying her ruling only related to how police used it in this case.
Her judgment has yet to be published, but Harris said it was not for the court to make statements about the alleged violations of the human rights charter.
She awarded Brown $40,000 in general damages, $4,000 in special damages and $10,000 in aggravated damages, noting that he had sought more than $200,000 and that the state had argued he was only eligible for nominal damages.
Police and protesters clashed outside the conference on October 30, with officers using OC spray as they tried to arrest two activists who had climbed the Melbourne Exhibition and Convention Centre, the court heard.
Fiona Forsyth KC, representing Brown, had argued that the use of OC spray was “completely unjustified” and left the lead plaintiff with physical and psychological harm.
Forsyth told the court Brown was unarmed when he was sprayed twice by two police officers on October 30, 2019. Brown tried to run away when he was sprayed by the second officer, the court heard.
“He was not aggressive towards anyone, he was not a threat to anyone, he did not interfere with arrests,” she said.
“He was just standing. He was sprayed directly in the head and face with a noxious and excruciatingly painful substance.”
But a lawyer representing the state said the protester was part of a group that “piled up” in an area and blocked their attempts at arrests.
In evidence, police officer Sergeant Nicholas Bolzonello told the court he deployed OC spray because he and his colleagues were in a “stalemate” with protesters and could not move through the crowd to arrest a protester who was climbing a pole.
Bolzonello told the court that “tensions were high” and that he and his colleagues had just emerged from a “hostile environment”.
He called it “an effective crowd dispersal tool that allows us to move through crowds,” according to the court transcript, but the lead prosecutor’s attorney, Stella Gold, suggested to the officer that there was nothing in the police OC manual describing such use.
Bolzonello later clarified that his understanding came from training and how it was referred to “internally.”
Harris will rule on costs in the case next year.
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