Plaintiff v Defendant

Plaintiff v Defendant - [2019] VSC 574 - VSC 2019 case summary — Zoe

[9]

(a) I accept Mr Cruse's account of the force used by police against him. I find that, after his hands had been cuffed behind his back, a police officer struck him to the left side of his head, causing him to bleed. Police then lifted him to his feet in the hallway and moved him to the kitchen. As they entered the kitchen, a police officer slammed Mr Cruse into the fridge, and then pushed him to the floor. As Mr Cruse lay face down on the kitchen floor, one or more police officers struck him numerous times to his face, head, neck and upper body. While Mr Cruse was still lying on the floor, an officer told him that there was more to come. Two police officers then escorted Mr Cruse out of the house. As they walked out the front door, one of the officers twisted Mr Cruse's wrist and said 'Don't fucking say a word'.

(b) The arrest of Mr Cruse was not lawful under s 3WA of the Crimes Act (Cth). Neither of the arresting officers suspected on reasonable grounds that he had committed or was committing the terrorism offence for which he was arrested. Further, on the evidence before me, there were not reasonable grounds to suspect him of that offence.

(c) The force used by police against Mr Cruse was not necessary and reasonable to effect his arrest. Further, I was not satisfied that the force that the arresting officer admitted using was necessary and reasonable in the circumstances that confronted him.

(d) After Mr Cruse had been struck numerous times and was still lying on the kitchen floor, an officer held him by the hair and said, close to his ear, 'There's more to come' or 'There's more where that came from'. This amounted to an assault.

(e) As a result of the batteries and the assault, Mr Cruse suffered both physical and psychiatric injuries. His physical injuries included concussion, a cut in front of his left ear, and bruising on his face, head, neck and upper body. These injuries soon healed and left no permanent damage. He also has untreated major depression with anxious features, and post-traumatic stress disorder with associated paranoid ideation.

(f) Mr Cruse should be awarded damages for pain and suffering and loss of enjoyment of life in the amount of $200,000, and damages of $20,000 for the cost of future medical treatment.

(g) Aggravated damages should be awarded, in the sum of $80,000.

(h) Exemplary damages should be awarded, in the sum of $100,000.

[113]

(a) When he was told by a police officer to 'Get down', Mr Cruse immediately lay face down on the hallway floor, with his hands flat down on the floor. Another police officer - Operator 27 - identified Mr Cruse in the hallway and secured his hands behind his back using plastic cuffs. He offered no resistance.

(b) I find that, after Mr Cruse's hands had been cuffed behind his back, a police officer struck him to the left side of his head, causing him to bleed from a cut on his face near his left ear. I am unable to determine whether it was Operator 27 or another officer who delivered this blow, or whether the blow was a punch or a kick.

(c) Operator 27 and another officer then lifted Mr Cruse to his feet in the hallway. Operator 27 then took control of him and moved him, rapidly and with some force, into the kitchen. As they entered the kitchen, Operator 27 slammed Mr Cruse into the fridge, smearing blood from the cut on his face onto the freezer door.

(d) Operator 27 then pushed Mr Cruse to the floor, where he lay face down with his head towards the sink. Police then struck Mr Cruse numerous times to his face, head, neck and upper body, including 10 to 15 blows to his head. I am unable to determine whether he was punched, kicked, or struck with an object, or some combination of these. I am satisfied that Operator 27 delivered at least some of these blows, possibly all of them. It is possible that other officers also struck Mr Cruse as he lay on the kitchen floor, although I am unable to determine who or how many others were involved. I find that Operator 127 was in the kitchen during at least some of this time.

(e) While Mr Cruse was still lying on the kitchen floor, an officer held him by the hair and said, close to his ear, 'There's more to come' or 'There's more where that came from'. I am unable to determine who said this.

(f) Operator 205 and Operator 27 lifted Mr Cruse to his feet and escorted him from the kitchen to the front of the house. As they walked out the front door, Operator 27 twisted Mr Cruse's wrist and said 'Don't fucking say a word'.

[123]

(a) His account of moving Mr Cruse from the hallway to the kitchen before identifying and restraining him was implausible. In Operator 27's words, 'it was a high risk search warrant where Eathan Cruse was in a plot to behead and commit heinous crimes against people, so that person is always going to be [a] risk until they are placed under control'. His team's mission was to arrest Mr Cruse. I could not believe that, on finding a man on the hall floor who matched the description of Eathan Cruse, Operator 27's first priority was to clear the hallway. Nor could I believe that, in a situation he believed to be high risk, Operator 27 moved Mr Cruse on his own, without first restraining his hands. My disbelief was reinforced by Operator 27's justification of the force he admitted using against Mr Cruse as he lay on the kitchen floor. He said that Mr Cruse posed a threat to him while he was not fully restrained, that he wouldn't take the chance that he might get his hands into his pants to get a weapon out, that he needed to control his hands, and so he used hammer strikes to his head in order to gain control.

(b) Operator 27 had no basis for his professed belief that Mr Cruse might have a knife. Neither of the briefings he had attended before the raid suggested he might be armed, with a knife or anything else. He agreed that, as he entered the house, it was not in his mind that Eathan Cruse might have a knife on him. The first suggestion that Mr Cruse might have had a knife was made in the notes made by Operator 27 shortly after the raid. I concluded that this note was made in an attempt to justify the force used by Operator 27 during the raid, and was not a truthful or accurate record of what occurred.

(c) I did not accept Operator 27's explanation for his forceful warning to Mr Cruse not to say anything as he was taken from the house. It was about 3:45am. The briefings did not indicate that either Eumemmering or Narre Warren were particularly dangerous areas, for police or more generally. While there were a number of people gathered outside the house, most of them were police. No other witness supported Operator 27's suggestion that there was any risk of a riot on that suburban street in these circumstances.

(d) Operator 127 did not support Operator 27's account of how he struck Mr Cruse to bring him under control. According to Operator 127, when he entered the kitchen Mr Cruse was actively resisting being restrained, was using his left arm to push up the left side of his body and Operator 27 was still trying to pull his right arm from under his body. However, Operator 27 said that, after he struck Mr Cruse, he went limp and stopped fighting him, and Operator 27 was able to gain control of his right arm. It was only then that Operator 127 came into the kitchen to assist. These two accounts of how Mr Cruse was restrained in the kitchen did not align, and I did not accept either of them.

At a glance

Court

Decision date

Before

Source

Judgment (330 paragraphs)

Parties

Legislation Cited (5)

Cases Cited (13)