Two police officers who were captured on camera swearing and threatening to search a teenager for "being a smartarse" during a routine traffic stop before pulling the passenger roughly from the car have appealed their convictions for assault in the ACT Supreme Court.
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Senior Constable Matthew McVicar, 36, and Constable James Head, 30, were at the tail end of a long Australia Day shift in 2017 when they pulled over a teenager for driving through the Civic bus interchange in Canberra, where cars are prohibited.
Once the driver had pulled into the car park opposite Mooseheads, the two officers approached the car. At one point the front seat passenger began filming from her seat and captured the moment Head says he would search the back seat passenger for "being a smartarse" before swearing at him to "get the f--k out of the car".
The video shows a scuffle and the court heard one officer had the 19-year-old in a headlock and the other had his arm as they pulled him roughly from the car. The officers are heard to say on the video that they'll arrest the man for resisting arrest, and later told the court the man had tried to stay in the car by moving his legs.
The two officers were charged with assault occasioning actual bodily harm following an internal investigation and pleaded not guilty, arguing they were acting in the execution of their duties.
During the hearing in the ACT Magistrates Court last year, the officers argued there had been an earlier interaction before the one that was filmed in which they had repeatedly warned the teenager they would arrest him for hindering police. They said they were drawn away from the car to arrest another man who they had already given a move on direction but who they had seen sitting on a brick wall in the car park.
But Magistrate Robert Cook found the pair guilty of a lesser charge of common assault, saying the force used was highly excessive.
On Wednesday in the ACT Supreme Court, lawyers for McVicar and Head appealed the conviction arguing a miscarriage of justice, with barrister James Sabharwal saying there was new evidence before the court, that the magistrate had failed to take into account the police officers' earlier warnings and a lack of procedural fairness in that the finding of excessive use of force had not been put to the parties.
The court heard that evidence from a witness to the late-night incident had not previously been disclosed to the defence.
The witness had given evidence of what she saw, though prosecutors noted the events were more than two years ago and she had appeared to conflate the two approaches to the car.
Prosecutor Trent Hickey said it was implausible that the police warned the group five or six times that he was going to arrest one of them for hinder, and then go to arrest another person without warning those in the car to stay put.
He said in the second interaction, the one filmed, there was no reference to the earlier warnings and instead some of the first words from the officer were a question about the age of the back seat passenger.
The court heard there were two options available to the judge and they were to either uphold the appeal and remit the case for another trial in the magistrates court or dismiss the appeal.
Justice David Mossop reserved his decision.
