A jury in the Dunedin District Court will today be asked to decide whether or not the Crown has proved assault charges against two police officers.
Constables Brenton David Rooney (33) and Duncan Roy Hollebon (37) are accused of kicking a man as he lay face-down on the ground while being restrained by two other officers.
The trial, before Judge Paul Kellar and a jury, now numbering 11 after one juror was discharged, began on Monday. Evidence was completed on Wednesday, and Crown and defence counsel Mary-Jane Thomas, of Invercargill, and Anne Stevens (Hollebon) and John Farrow (Rooney) put their closing arguments to the jury yesterday.
Judge Kellar will sum up today before jury deliberations begin.
Rooney denies alternative charges of intentionally injuring Mosgiel man Daniel Murray Wiel and assaulting him with intent to injure him by kicking him in the right eye.
Hollebon denies assaulting Mr Wiel with intent to injure him by kicking him twice on the right side, and later kicking him once on the right shoulder.
The charges follow statements from Constables Johnathon Dunn and Lachlan McDonald about events early on February 15 last year when they were trying to handcuff Mr Wiel who was face-down on the pavement in Crawford St. He had earlier tried to run away after "dropping" a motorcycle he had been riding at high speed with the police in pursuit.
Constables Dunn and McDonald said they saw the two accused kick Mr Wiel but acknowledged they did not report the incident to any senior officer at the end of their shift. They said they were uncertain what they should do. Both were relatively new to the job while the accused were senior, experienced officers.
And, Const Dunn said he punched Mr Wiel about three times in the left kidney area as a "pain compliance" measure because the offender was resisting being handcuffed.
Hollebon told the investigating officer he used "pain compliance" to try to get Mr Wiel to release his arms because the two other constables were getting nowhere.
Hollebon said he also later placed his foot lightly on Mr Wiel's shoulder to calm him down and acknowledge the fact he was under arrest. He denied assaulting Mr Wiel or using excessive force.
Rooney said his only physical contact with Mr Wiel might have been when he lost his balance and fell as he approached the group.
The only defence witness, forensic pathologist, Emeritus Prof Rex Ferris, whose specialist field is the interpretation of injuries, said Mr Wiel's injuries were inconsistent with the force said to have been applied.
The cut to Mr Wiel's eyelid was consistent with contact with a rounded surface, which could have been the toe of a boot or shoe, but inconsistent with the soccer "kicking for goal" force allegedly applied. If the kick had been as hard as claimed, there would have been fracturing of bones in the eye area, Prof Ferris said.
In her closing, Crown counsel Miss Thomas asked the jurors to put aside "all this, the police environment" and not decide the case on the basis of sympathy for the police, "who do a tough job", or prejudice against Mr Wiel, who "behaved like an idiot".
They should not be swayed by a defence suggestion Const McDonald kicked Mr Wiel, she said. In his evidence, Mr Wiel said he believed "the second officer" was responsible but Miss Thomas suggested Mr Wiel "wasn't in the best position to say who was there".
Const Dunn chased Mr Wiel and brought him to the ground and Const McDonald arrived almost immediately.
Both officers were holding the offender down when Hollebon arrived and, Miss Thomas said, while the defence did not have to prove anything, they had taken the opportunity to say "not only are [Constables] Dunn and McDonald lying, but they are because McDonald was the kicker".
If, as Rooney said, he had made light contact with the complainant, why had he not alerted a senior officer or filled out a tactical options report.
It was also suggested Mr Wiel got his injuries when he fell off the motorbike - although nobody actually saw what happened.
Accidents were "quite different" from deliberate kicks, but both accused said the other constables were lying and Const McDonald was the kicker.
"Well, how unlucky is Mr Wiel: kicked in the head by one officer and accidentally kicked by another," Miss Thomas said.
For Hollebon, Mrs Stevens said that when Crown counsel suggested to Acting Senior Sergeant David Scott he would not be surprised the two probationary officers had not come to him with their concerns, he had agreed. But Miss Thomas had not asked if he would be surprised the two had not gone to their own superior officer.
"If they saw what they said they saw, why would they not make a complaint immediately?" Mrs Stevens asked.
"They said nothing because it didn't happen", she said, suggesting Const Dunn became concerned when he heard Mr Wiel telling hospital staff he had been "bashed" by police.
The evidence of Prof Ferris made it clear the absence of injury was inconsistent with the "hard force" kicks allegedly delivered by Hollebon. How could they find there was an intent to injure if there was no injury, Mrs Stevens asked.
For Rooney, Mr Farrow suggested three possible scenarios for the eye injuries: Rooney was responsible; Const McDonald was, or the injury was accidental, part and parcel ... of the arrest process necessary to bring an unco-operative person under control.
In his statement to Detective Sergeant Bowman, Rooney said he had lost his balance and slipped into the melee. And, Prof Ferris said in evidence that the degree of contact was consistent with the result, although he could not say how the contact occurred.
There was no evidence the two accused "put their heads together and concocted a story", Mr Farrow told the jury. But, it was clear Constables Dunn and McDonald had discussed the matter before they made any statements.
The uncontradicted and impartial evidence of Prof Ferris was if the kick was as alleged, there would be fracturing.
"The Crown can't have their cake and eat it too. They can't say, 'Believe Dunn and McDonald - but not about the force of the kick,"' Mr Farrow said.
