The Supreme Court of Victoria recently dismissed an application from a Victoria Police sergeant for leave to appeal a decision concerning the unlawful use of pepper spray and other physical force. The case highlights a number of realities about police misconduct of which courts have become aware, namely: the use of pepper spray against unthreatening civilians as a recurring scenario in misconduct cases, the real and serious harms of pepper spray, and the prevalence of police misconduct incidents as the result of habituations to responding violently and unlawfully on the part of members of the police force.
Background to the case
The applicant (‘Sharman’) was a sergeant of police in Sale who was facing one charge of intentionally causing injury, two charges of recklessly causing injury and eight charges of unlawful assault against seven young men.
The charges against the sergeant concerned in particular the sudden and unjustified use of oleoresin capsicum spray (‘OC spray’), commonly known as ‘pepper spray’, and the unjustified use of other physical force. The complainants maintained that the sergeant’s uses of these forms of force were excessive since, in each incident of harm, they were not threatening police or behaving in any other way to warrant the sergeant’s exercises of force.
Sharman disputed the position of the complainants. This particular appeal case concerned Sharman’s application for leave to dispute Gaynor J’s (the primary judge’s) acceptance of evidence concerning the sergeant’s character, reputation, or conduct at other times (broadly called ‘tendency evidence’) as valuable for determining Sharman’s guilt concerning the charges, and as not unfairly disadvantageous to the sergeant.
Gaynor J specifically accepted evidence of Sharman’s use of OC canisters to spray and strike, in several other instances, young men standing on the street and not behaving in a physically aggressive or threatening manner, as valuable for determining whether Sharman had responded similarly and unlawfully as charged.
The provisions relevant for determining the matter can be found under sections 97(1)(a) and 101(2) of the Evidence Act 2008.
Court’s Findings
In hearing the appeal, the court affirmed that the tendency evidence did indeed carry significance for the purposes of determining the guilt of the sergeant (i.e. it carried ‘probative value’ under s 97 of the Evidence Act).
In considering the significance of the evidence, Niall and Whelan JJA firstly highlighted the comparability of the circumstances of the evidence to those of the alleged tendency to use unnecessary force. Striking similarities between the proven and alleged scenarios (young men taunting or verbally challenging police on the street, but clearly not otherwise demonstrating physical violence, when OC spray is used suddenly and without warning) were found to support effectively and strongly the alleged tendency (that the sergeant was in the habit of using OC spray and other unnecessary force against provocative but unthreatening young men).
According to Gaynor J, the value of the evidence was further bolstered by the direct connection between the alleged tendency and the facts making up the charged offences — that Sharman had the tendency to use force unreasonably and without lawful excuse would be a highly relevant factor for the jury in its assessment of the likelihood of the sergeant’s misconduct.
The court also affirmed that the evidence should be accepted insofar as its significance to the case outweighed the risk of any prejudicial effect of the evidence on the applicant’s case (according to s 101(2) of the Act). In doing so, Niall and Whelan JJA emphasised the resonance of key facts in each scenario of the tendency evidence with key facts of the charges as a sign of the evidence’s very high significance or probative value to the case. The judges were also satisfied that court directions to the jury during trial would sufficiently help it avoid unfairly disadvantageous ways of considering the tendency evidence.
Pepper Spray in Police Misconduct Cases
Several comments from the judges on the sergeant’s use of OC spray confirm the court’s recognition of the seriousness of the use of OC spray and the need to assess the propriety of its use as a matter of unlawful police conduct, rather than accept it as an unquestioned practice in police work:
“OC spray is a powerful disabling agent causing immediate painful, physically disabling effects on the recipient, and use of it is necessarily confined to occasions where, according to the relevant Victoria Police manual, there are reasonable grounds to believe it is necessary and proportionate in situations of violence or whether serious physical confrontation is imminent.”
In addition, mere admission to the use of OC spray and other kinds of force does not amount to their sanctioning as proper and lawful conduct:
“Despite the accused’s concession that he deployed the spray and on occasion used physical force, the hotly contested issue for the jury will be whether his actions were unreasonable and without lawful excuse.”
Appeal Outcome and Conclusion
The appeal by the sergeant against the primary judge was dismissed. The court held that they were not persuaded that an error regarding tendency evidence was discernible in Gaynor J’s ruling and that the relevant conclusions her Honour reached were clearly open to her.
The decision highlights an awareness in the courts of the gravity of the use of OC spray as a part of police work, as well as the validity of detecting patterns of behaviour in police conduct as a means of helping to determine misconduct cases.
Authors: Jeremy King and Sophia Baldi.
Police misconduct occurs where police officers act outside of their powers or break the law. Our police misconduct team helps people with civil claims and coronial inquiries. We're also responsible for advocacy work and representing people in criminal matters. Contact our team today for assistance.
How can I learn more?
Jeremy King.
Principal.
- Injury Law & Police Misconduct
- 03 9890 3321
- Email Address: j.king@robinsongill.com.au
Jeremy joined Robinson Gill in 2006 after graduating from Monash University with degrees in Law and Arts. He has a Masters of Law at Utrecht University in the Netherlands specialising in human rights and criminal justice. He is an Accredited Specialist in Personal Injury and the head of the firm’s personal injury law team.
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