Climate protesters win groundbreaking class action against Victoria police over use of pepper spray | Australian police and policing

Climate protesters win class action lawsuit against Victoria Police for using capsicum spray during an anti-landmine protest 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 while protesting outside the International Mines and Resources Conference (IMARC) in October 2019.

Harris found Friday that Brown was the victim of unlawful battery by police and awarded him $54,000 in damages.

“The batteries caused both physical injury to the plaintiff and contributed significantly to the psychological injuries to the plaintiff,” Harris said.

She said the injuries were intentionally caused by police.

_{Subscribe: Email AU Breaking News}

Brown testified during the trial that “this is the most excruciating pain I have ever felt.”

“I left my body for long periods of time.”

Although police acknowledged that pepper spray was deployed, they argued that its use was legal.

Brown’s lawyers argued the spraying was a breach of Victoria Police’s internal policies and procedures, the Victorian Crimes Act and the state’s human rights charter, and that it was an “unreasonable, unlawful and disproportionate use of force amounting to assault and battery”.

They said the lawsuit could set a precedent for how police use OC spray, but Harris said otherwise Friday, saying his ruling only addressed how it was used by police in this case.

His judgment has not yet been published, but Harris said it was not open to the court to make statements about alleged violations of the Charter of Human Rights.

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 that he was eligible for only 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 were scaling the Melbourne Exhibition and Convention Centre, the court heard.

Fiona Forsyth KC, representing Brown, had argued that the use of OC spray was “totally unjustified” and left the main complainant with physical and psychological injuries.

Forsyth told the court Brown was unarmed when he was sprayed twice by two police officers on October 30, 2019. Brown was trying to run away when he was sprayed by the second officer, the court heard.

“He was not aggressive towards anyone, he did not pose a threat to anyone and he did not interfere with any arrests,” she said.

“He was just standing. He was sprayed directly on his 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 had “packed” into an area and blocked their arrest attempts.

In evidence, police officer Sgt Nicholas Bolzonello told the court he used OC spray because he and his colleagues were in a “standoff” with protesters and were unable to move through the crowd to stop 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 had called it “an effective crowd dispersal tool that allows us to move through crowds,” according to court records, but the lead plaintiff’s attorney, Stella Gold, suggested to the officer that nothing in the police CO manual described such use.

Bolzonello later clarified that his understanding came from the training and how it was referred to “internally.”

Harris will make a decision on costs in the case next year.