A jury has found a police officer guilty of assaulting a female prisoner while she was face down in the Ballarat police cells in 2015.
The unanimous guilty verdict relates to one of five common law assault charges laid against Victoria Police Senior Constable Steven Repac, 29, over his treatment of Yvonne Berry, 55, while she was in custody overnight for public drunkenness.
The jury was discharged on Monday morning after it was unable to reach a verdict in relation to the officer’s remaining assault charges, as well as one further assault charge relating to his co-accused, Leading Senior Constable Nicole Munro.
Those charges will be dealt with at a later date, after the matter was adjourned by Victorian County Court judge Paul Lacava.
About 20 witnesses were called to give evidence over the course of the two-week trial in the Victorian County Court sitting in Ballarat, including police officers who worked on the night, an emergency room doctor, a GP and a paramedic.
Case centred on whether use of force was lawful
The trial dealt mostly with the circumstances surrounding 82 seconds of CCTV vision inside the Ballarat police cells, which formed the basis of Senior Constable Repac’s assault charge.
The vision, taken after 1.30am on January 15, 2015, showed Ms Berry with her underpants down and bare legs, lying handcuffed with her face to the concrete cell floor.
Another pair of officers were searching and attending to the prisoner when Leading Senior Constable Munro and Senior Constable Repac entered the cell.
Leading Senior Constable Munro then appeared to kick the prisoner in the lower torso with her foot, with Senior Constable Repac following close behind, standing on Ms Berry’s bare ankles before kicking her in the shin.
The court heard Ms Berry was subdued at the time and was not physically resisting.
The prosecution and defence agreed that force was used and was intentional. The case centred on whether it was lawful.
Leading Senior Constable Munro told the court she had used her foot to “nudge” the prisoner to “get her attention”.
“You didn’t even break your stride,” prosecutor Andrew Grant said.
“You came into the cell and walked straight towards Ms Berry on the floor and … can I suggest, that was a kick.”
Senior Constable Munro said there was “nothing malicious or forceful in that action”.
“I didn’t want to put myself at risk,” she said, referring to the fact that Ms Berry was covered in OC foam (capsicum spray) and may have had “diseases” which, considering she was undressed, needed to be considered.
‘No evidence’ Ms Berry posed a risk, prosecution says
But the bulk of the assault charges the jury had to consider related to the actions of Senior Constable Repac, who chose not to give evidence in the trial.
The prosecution argued there was “no evidence” that Ms Berry posed a risk to officers once she was handcuffed and physically subdued on the floor.
“Mr Repac didn’t need to stand with both his feet on both her ankles, and he didn’t need to stomp down heavily on her feet, which were bare,” Mr Grant said in his closing address.
“He certainly didn’t need to kick her to the left shin.
“It just could not be anything other than deliberate … frustration, payback.
“It couldn’t be a lawful, proportionate use of force.”
Woman ‘out of control’, defence argues
Defence counsel Anthony Steward said this assessment was “nonsense”, arguing it was critical the actions of police were seen in the context of the night as a whole – from Ms Berry’s arrest for public drunkenness to her behaviour in the cells.
“You’re not dealing with your average, middle-aged drunk woman when you’re dealing with Yvonne Berry on this night,” he said.
The court heard Ms Berry broke out of her cell when the sergeant in charge of the custody area attended her distress call, and was physically violent with two female officers before being sprayed with OC foam and wandering around the watch house.
“Fluctuating between occasional compliance and defiance and hostility, she wreaked havoc … and was out of control,” Mr Steward said.
“Just another night in paradise at the Ballarat police station.”
Prosecution questions officer’s statement
The prosecution also relied on a statement made by Senior Constable Repac in the days following the assault, in which he claimed he had “pinned Yvonne Berry’s legs down to prevent her from kicking out at members” as she was being handcuffed.
The footage clearly showed that Senior Constable Repac had not yet arrived at the cell when the handcuffs were being placed on Ms Berry.
“That was a lie; he was not present,” Mr Grant told the court, because “he knew if he described his actions accurately, he’d be admitting unlawful use of force”.
“He knew that the way he stomped and kicked Ms Berry was without lawful excuse.”
Senior Constable Repac’s defence counsel told the court the officer merely “got it wrong”, denied the false statement was deliberate, and argued the actions were entirely justifiable in the context of police dealing with a chaotic, drunk and volatile prisoner.
Mr Steward acknowledged to the court that his client’s actions “weren’t textbook”, but asked the jury to consider “what training teaches you to deal with the likes of Yvonne Berry”.
Police laid criminal charges against the officers more than two years after the incident, and only after a review of their internal investigation – police had initially found the actions did not amount to assault.
A parliamentary committee has already asked the Victorian government to consider reforming the way police misconduct complaints are handled in the state, and has criticised the current system, in which 98 per cent of complaints against officers are dealt with by police.
Senior Constable Repac will be sentenced at a later date.