Charges recommended for Ballina cops over Aboriginal arrest

By Amy McQuire, October 20 2013, Tracker Magazine.

NEW SOUTH WALES: If it were not for CCTV footage, Aboriginal man Corey Barker been would have almost certainly been given an immediate prison sentence if convicted, after he was wrongly accused of assaulting a police officer during an arrest at Ballina police station in 2011.

The assault charges were later dropped after the footage, previously believed to be damaged, was converted to DVD, showing no evidence of the allegation.

The Police Integrity Commission (PIC) recently tabled its report into the incident on January 14 2011 and has recommended criminal charges for six of the officers involved.

Those officers are constables David Hill, Lee Walmsley, Ryan Eckersley and Luke Mewing, who the PIC found had used excessive force against Mr Barker.

The constables also lied about the arrest of Mr Barker (23 at the time), along with Senior Constable Mark Woolven and former sergeant Robert McCubben, who was medically discharged from the force last December.

Commissioner Bruce James found all six officers engaged in misconduct and should be considered for prosecution under the Crimes Act. The PIC report says the treatment of Mr Barker “could be fairly described as violent”.

The NSW Police says it will launch a departmental investigation following the conclusion of any criminal proceedings. Four of the officers involved are on restricted duties, and one has been suspended.

On January 14 2011, Mr Barker was arrested after intervening in an altercation between two of his friends and police. He was originally charged with resisting arrest and assaulting a police officer after being taken to Ballina Police Station, charges which were overturned when the restored footage unveiled a different version of events.

Ballina Local Court Magistrate David Heilpern last year was scathing of police when he overturned the charges and ordered the NSW Police pay Mr Barker’s legal costs. He also referred the case to the PIC.

That report was recently tabled in NSW Parliament and pieces together its own account of events, delivering a damning indictment on the six officers.

Police had originally accused Mr Barker of punching Constable David Hill in the face whilst being held by Constable Hill and Walmsey as he was being transported from the holding cage to the cell.

It was claimed Mr Barker had got his right arm free from the grip of Constable Walmsey and had used it to throw a punch at Constable Hill.

The punch was used by police to justify their next course of action – the officers pushed Mr Barker up against the wall where he was then driven to the ground, hitting a bin in the process.

He was then kicked in the head by Senior Constable Eckersley and kneed to the side by another officer.

The CCTV footage found Mr Barker had not attempted to punch Constable Hill – in fact he had both of his arms pinned behind his back whilst being lead. This came despite the officers involved originally claiming they had seen the assault.

After being cross-examined at the PIC inquiry, Constable Hill said he still believed he was hit by Mr Barker. But other officers conceded it may not have occurred after viewing the footage. 

The PIC report found that none of the police officers had “an actual recollection of having himself observed Barker break or pull free from the grip of a police officer and assault Hill” at the time of making their respective statements.

The PIC heard that it is common practice for a police officer to have access to another police officer’s statement before making his own.
“Consequently, the inclusion in each of the police officers’ statements of (these) assertions… was serious police misconduct.”

The PIC found that if Mr Barker did not assault Hill, there was no justification for the degree of force to which he was subjected.

The report found that “any loss of control of Barker by the police officers was only partial”.

“Both of Barker’s arms continued to be held at all times by police officers. The degree of force to which Barker was subjected was not reasonably required in order for the police to regain or maintain full control of Barker as an arrested person. The degree of force used was excessive,” the report said.

After being driven to the ground, Mr Barker was handcuffed and dragged to the holding cell. Police originally told Ballina Local Court that Mr Barker had refused to get to his feet, but the PIC report found Mr Barker was not directed to do so, and even then was not given the opportunity to stand. One police officer agreed dragging Mr Barker would have been extremely painful.

“The CCTV footage clearly shows that Barker was dragged to the cell. He was not picked up and carried,” the PIC report found.

“In his evidence before the Commission Hill conceded that Barker had not been picked up and carried, as Hill had previously asserted. Barker was dragged to the cells by police officers holding the handcuffs on Barker’s hands, head first, on his stomach, with his arms forced high above his head against the natural inclination of his arms. This method of taking Barker to the cell would have been acutely painful and was brutal.”

After being dragged, he was left in handcuffs in the holding cell for more than 90 minutes. In his original testimony to Ballina Local Court, Constable Hill had claimed Mr Barker was only in handcuffs for about 20 minutes.

The PIC report found there was no justification for Mr Barker to stay in handcuffs for that long, stating he was not a threat to himself or others.

The Police Integrity Commission has stressed the importance of CCTV footage in the investigation stating that without it, Mr Barker would not have been believed.

“If there had been no CCTV footage, the issue of whether Barker had assaulted Hill would have had to be determined by any tribunal on the oral evidence of the witnesses,” the PIC report states.

“It is practically certain that a tribunal would have preferred the virtually unanimous evidence of half a dozen police officers to the evidence of an individual, Barker, who was affected by alcohol, who had engaged in violent and threatening conduct on 14 January 2011, and who, in any event, had only a very limited recollection of what had happened inside the police station.

“As at 14 January 2011, Barker was subject to a suspended prison sentence for an earlier offence of assault. If he had been convicted of assaulting Hill, he would almost certainly have been sentenced to a term of imprisonment involving immediate actual custody.”

The PIC said CCTV within police stations is “an important protection for members of the public”.

It called on clear guidelines to be issued by the NSW Police Force to ensure this.

Mr Barker told ABC this month he was determined to seek justice. He also would like an apology.

“It would show their integrity… for them to realise that they have done wrong and they did try to jeopadise my life, my career, my family’s life,” Mr Barker told the ABC.

“Yes, it would mean a lot.’

Despite this, Mr Barker is getting on with his life.

“I had no other choice,” Mr Barker told the ABC.

“I had just started a beautiful career in the construction industry and I had brothers’ finishing school and graduating and just so much of my life happening that I couldn’t afford to lose over something I didn’t do.

“I was going to lose that if I just took it on the chin.

“I was going to lose all those opportunities that had been handed to me and that I had worked so hard to achieve.”

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