Police, prosecutors withheld evidence in police assault case: lawyers
Police or prosecutors withheld potentially crucial evidence from a trial for two police officers who were later found guilty of assault, lawyers for the officers have alleged.
The careers of Senior Constable Matthew McVicar and Constable James Head rest on the outcome of an ACT Supreme Court appeal that alleges there was a miscarriage of justice because the material was not disclosed.
Appeal documents point to a note detailing what a witness - who was not called to give evidence - saw and heard of the Australia Day incident.
After the hearing in the ACT Magistrates Court this year, McVicar, 35, and Head, 29, were found guilty of common assault after the incident late on January 26 last year.
The court heard McVicar and Head had pulled the 19-year-old back seat passenger from the car after Head told him to "get the f--k out of the car" and threatened to search him for "being a smart arse".
The officers denied the allegations of assault. Their lawyers said the pair were acting in the execution of their duties when they arrested the teenager.
In the appeal documents, lawyers Tim Sharman and David Healey say there was a miscarriage of justice after police or prosecutors failed to disclose material that was relevant to issues in the case.
The court has heard McVicar and Head were at the tail end of the Australia Day shift in 2017 when they pulled the car of teenagers over in Civic about 10pm.
The driver had travelled towards London Circuit through the Civic bus interchange, where cars are banned.
The driver did not immediately pull over on seeing the police lights flash, but motioned to the officers through his window that he would pull into the carpark opposite Mooseheads, across the street.
A dramatic video played to the court, filmed by the front seat passenger after the car had stopped, showed Head walk up to the car and demand to see his driver's licence.
"What is your problem, do you not know how to drive?" Head asks the driver.
"I do, sir, sorry," the driver replies.
"So what happens when a police officer puts his lights on behind you?" Head says in the video.
The back seat passenger tries to answer the question, before he is warned that if "you don't shut your mouth I'll pull you out and arrest you for hinder".
After further exchanges between the pair it's alleged one officer had the teenager in a headlock and the other had his arm as they pulled him roughly from the car.
But the allegedly undisclosed note suggests some independent support for the police officers' case, including that the teenager had tried to stay in the car by moving his legs and was resisting the officers.
The allegedly undisclosed note referred to in appeal documents, which is redacted, written in the third person and in truncated form, describes seeing "angry cop" walk over to the car and yell at the people in it.
The person says they thought the guy in the back was being "smart".
The "nice cop walked back and they just ripped him out of the car and slammed him into the ground really hard, it would have hurt".
"Guy was trying to stay in the car, holding the seats and moving his legs," the note says.
"When he hit the ground they were pushing his head into the ground, he was resisting and not complying."
The case is listed in the ACT Supreme Court on June 28.