News
‘Vindication’ for Brunswick man who sued police over pepper spray
Calls for change following Supreme Court judgement
Mark Phillips
A BRUNSWICK East man has been awarded $54,000 in damages after a Supreme Court judge found police acted unlawfully when they sprayed him with capsicum foam at a climate protest six years ago.
Jordan Brown said the judgement in the Supreme Court last Friday was “vindication” of a long and difficult battle for justice after he was sprayed with Oleoresin Capsicum (OC) foam at a protest outside the International Mining and Resources Conference in Melbourne on October 30, 2019.
Brown, 40, was the lead plaintiff in a class action against Victoria Police over their deployment of capsicum spray against protesters.
On Friday, Supreme Court Justice Claire Harris ruled that police had committed assault and battery when they twice sprayed Brown with capsicum foam while he was peacefully protesting.
She dismissed the police argument that officers were acting in self-defence when they sprayed dozens of protesters and said Brown had been subjected to cruel, inhuman or degrading treatment.
Harris found Brown had suffered physical and psychological injury as a result of the attack.
The decision opens the way for further damages payments to other members of the class action and has led to calls for police command to more strictly enforce their rules about the deployment of capsicum spray at protests.
Speaking after the judgement, Brown said it was a vindication that “the police’s conduct was wrong, the system is wrong, and it all needs to change”.
“This decision is a condemnation of serious police violence,” he said.
“And one that I hope reverberates through the corridors of power to stop these weapons from being used against people peacefully exercising their democratic rights, and to change the culture to one that actually tolerates the right of political communication, democratic values, and makes the human rights charter in Victoria ultimately meaningful.”
Brown, 40, a documentary film maker, web designer and musician who lives and works in the Brunswick East area, pursued court action after his initial complaint to police yielded no results.
The class action was lodged in 2022 by Inner Melbourne Community Legal, which runs the Police Accountability Project, and law firm Phi Finney McDonald.
Justice Harris’ judgement follows two weeks of hearings earlier this year during which Brown gave harrowing evidence about the impact of the attack on him. He suffered several days of pain and discomfort and ongoing depression and anxiety after he was sprayed.
He said that being required to appear as a witness in court had forced him to relive the trauma of the attack.
WATCH: the moment Jordan Brown was sprayed by police with capsicum foam
Brown attended the protests at the IMARC conference because of concern about the role mining companies are contributing to climate change and global warming.
He said the protests outside the Melbourne Convention and Exhibition Centre had been peaceful but there had been a clear escalation of police aggression as they progressed, culminating in the attack with capsicum spray on the second day.
That morning, two protesters had climbed poles outside the convention centre to erect a banner bearing the message ‘Blockade IMARC for Climate Justice’.
Police used capsicum spray as they tried to clear protesters out of the way to arrest the two climbers. About 100 people were at the protest.
Justice Harris ruled that the use of capsicum spray by police on protesters like Brown was excessive and not justified by the circumstances.
She said the deliberate deployment of OC foam on Brown constituted cruel, inhuman or degrading treatment.
“It caused severe pain to the plaintiff, even if it was not long lasting, as well as both physical and mental suffering … The OC foam was first deployed on him when he was standing still, creating no risk to police or other persons, in the context of him exercising his rights to protest.”
Read more:
The Victoria Police operations manual says capsicum spray, which is issued to every officer as a non-lethal weapon, must only be used in a manner that is proportionate and necessary, such as in self-defence. It explicitly advises against capsicum spray when a person is passively resisting.
Capsicum spray can cause excruciating eye pain, skin irritation, coughing and respiratory problems. For some people, it can also result in chest pain and loss of consciousness.
Brown told the court he was standing peacefully when he was sprayed in the face by one officer, and again by another officer when he was retreating from the scene. The judge agreed with his evidence that he posed no threat to police.
“Putting up a banner protesting against the expansion of mining companies and technologies that destroy the planet should never be a reason for police to come in and use chemical weapons,” Brown said.
Following the immediate pain, blurry vision and disorientation, Brown suffered the effects of the spray for several days afterwards. More lasting was the psychological trauma.
He lodged a complaint with the police which was investigated but dismissed, prompting him to take civil legal action.
Brown said that even if he had lost the case, it was important to hold the police accountable for their actions.
But he said his experience showed the flaws of a system where police mostly investigate themselves and the need for a dedicated, independent oversight body to investigate allegations of police misconduct.
If such a body had been in place, Brown believes the long, complex and arduous process of civil litigation may have been unnecessary.
Brown’s lawyer, Grahame Best of Phi Finney McDonald, said Brown and other protesters had been subjected to unreasonable, unlawful and disproportionate use of police force.
“This has been an important case to test the boundaries of police powers relating to the use of capsicum spray during protests,” he said.
Michelle Reynolds, director of policy and advocacy at Inner Melbourne Community Legal and the Police Accountability Project, said the case showed that when police failed to follow the rules, there were consequences.
“For the public to have confidence in Victoria Police, it must take heed of this decision by ensuring that there is enforcement of its rules around the use of capsicum spray and the use of force, and this should be underpinned by independent scrutiny,” she said.
Melbourne Activist Legal Support has called for capsicum spray and other weapons to be banned at protests.
In a statement sent to media outlets following the judgement, Victoria Police said: “The public should have confidence our members are highly trained and there are strict rules surrounding the use of OC spray.
“It provides police with a vital tool to safely resolve situations of violence or serious physical confrontation.”
The author of this article is employed by Inner Melbourne Community Legal, which auspices the Police Accountability Project.
If you liked this story, have you thought about supporting our work?
We are an independent, volunteer-run hyperlocal news organisation owned and run by the people in your community. With your support, we can continue to produce unique and valuable local journalism for Brunswick, Coburg and the inner north of Melbourne.
