A climate protester was unarmed and posed no threat when he was hit with “excruciatingly painful” pepper spray by a Victorian police officer who later remarked “they needed that”, a court has heard.
But a lawyer representing the state – in the first class action against Victoria police in relation to alleged excessive use of oleoresin capsicum (OC) spray – said the protester was part of a group that “piled” into an area and blocked their attempts to make arrests.
The class action trial is being led by protester Jordan Brown, who was hit with OC spray while protesting outside an international mining and resources conference in October 2019. The trial began in the Victorian supreme court on Monday.
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.
In her opening remarks, Fiona Forsyth KC, representing Brown, on Monday argued the use of OC spray was “entirely unjustified” and “unlawful”, and had 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.”
The court was played video footage, where the officer who sprayed Brown for the second time was heard saying “they needed that”, and in a reference to an OC spray can: “mine’s empty”.
Forsyth told the court that since the incident, Brown had experienced mood fluctuations, hypervigilance in crowds and developed a distrust of police.
She said it appeared police used OC spray as a means to disperse protesters and there was no justification for it.
Brown was under a pole that had been scaled by a protester when police entered the crowd, the court heard.
Sam Hay KC, counsel for the state, said Brown was part of a group of protesters who piled into the area, locked arms and stayed there.
He argued the protesters “knew what police were doing” and attempted to resist attempts to apprehend the climber. He used the example of another activist – who scaled a second pole and ran away from the event along the Yarra River – as evidence the protesters knew police would seek to make arrests at the time.
Hay said one officer had lawfully used OC spray on Brown, while a second officer had only sprayed him unintentionally.
But Brown’s legal team will argue 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.
His lawyers said the trial could set a precedent for how police use OC spray.
The trial before Justice Claire Harris continues.
