Lawyers acting for a Victorian policeman say he did not assault a pensioner by spraying him in the face because the man consented to it

This article is more than 7 months old

This article is more than 7 months old

A policeman who sprayed water into the face of a pensioner who had been capsicum sprayed did not assault the man because he consented, the officer’s lawyer has argued.

The Preston man was sprayed with capsicum spray during a welfare check by police in September 2017 after he failed to return messages from a counsellor while withdrawing from opioid medication.

Senior Constable Florian Hilgart is one of three officers charged over the incident and is accused of assaulting the man by spraying him directly in the face with a hose on high pressure.

His lawyer, Malcolm Thomas, told the Heidelberg magistrates court on Thursday that through video footage of the incident, the man complains about the effects of the spray on his eyes.

“One would expect [he] would want something to alleviate that pain. That would be a natural human reaction to do so,” he said.

The man was sprayed a number of times with the hose, but Hilgart is only charged with spraying him once.

Thomas said the first time the man was sprayed he turned his face into the high-pressure water at close range.

He said that amounts to the man’s consent, which is a defence to the assault allegation.

“After this point [the man] through all the occasions the water is applied to his face, does not turn his head away,” he said.

Constable John Edney is accused of assaulting the pensioner with an extendable baton and by stepping on his head.

Senior Constable Brad McLeod allegedly assaulted the man by punching him in the stomach, spraying him in the face with capsicum spray and encouraging another officer to spray the man with a high-pressure hose.

Prosecutors wrapped their case on Thursday after evidence from a number of witnesses including the pensioner.

The man admitted being verbally aggressive toward the officers, telling them to “fuck off”, but has rejected suggestions he was physically aggressive.