Two police officers have had appeals against their guilty findings dismissed by a judge, who ruled the pair unlawfully assaulted a disability pensioner in a use of force that was disproportionate and unnecessary.

Senior constables Brad McLeod and Florian Hilgart were last year found guilty by a magistrate of a combined four charges of unlawful assault for punching, using capsicum spray and hosing the pensioner, John, outside his Preston home on September 19, 2017.

Police officers restrain John outside his Preston home on September 19, 2017.

The officers challenged the magistrate’s findings in the County Court but on Wednesday judge Claire Quin found the charges proven and dismissed their appeals.

She re-imposed the same penalties as magistrate Cathy Lamble did in July: good behaviour bonds without convictions and orders Senior Constable McLeod pay $3500 to the court fund and Senior Constable Hilgart pay $1000.

The officers and four colleagues attended John’s home for a welfare check after the man’s psychologist rang triple zero with concerns over his health. John, who was 36 at the time and withdrawing from opioids, initially refused to leave his house when police arrived and had his arms raised at Senior Constable McLeod when he finally emerged.

While on the ground being restrained, John had his leg struck with a baton, was punched, had capsicum spray used on him from close range and had his head stood on. Later, when seated on the ground and handcuffed, he had water blasted in his face with a hose.

Police officers Florian Hilgart (left), John Edney and Brad McLeod outside court in 2019.Credit:Eddie Jim

Senior Constable McLeod told the appeal he was fearful John posed a “suicide by cop” risk, was a big man who was a potential danger and could reach for a “gun grab”, and so punched him and used capsicum spray to distract the disability pensioner while on the ground so colleagues could apply handcuffs.

But Judge Quin rejected the officer’s evidence and ruled although John was aggressive, threatening and behaving in a violent manner before he was dragged to the ground, the situation had changed significantly and John was distressed as the six officers restrained him.

She found John did not pose a threat while being restrained, and that Senior Constable McLeod’s actions were disproportionate and unjustified. The officer’s abusive and demeaning language – at one point he called John “a f—ing idiot” and said of the capsicum spray, “Smells good, doesn’t it?” – illustrated the officer no longer feared the man.

Senior Constable Hilgart was found guilty for spraying a hose in John’s face and Senior Constable McLeod was found to have encouraged his colleague to do so.

Senior Constable Hilgart told the appeal he sprayed John with the hose three times to wash the capsicum spray from his face, while Senior Constable McLeod said he wanted to film the hosing with his mobile phone to prove John received after-arrest care.

Judge Quin found there was no evidence John consented to the third hosing – prosecutors acknowledged the first two sprays were lawful – and said Senior Constable Hilgart never explained what he was doing.

CCTV footage showed Senior Constable McLeod smiling and gesturing to his colleague to hose John, Judge Quin said, and was satisfied the sole purpose for the third hosing “was for nothing other than the entertainment or humorous enjoyment of Mr McLeod”.

The judge acknowledged police often had to act and make decisions under pressure but found both officers guilty on their combined four charges.

A third officer, Senior Constable John Edney, was found guilty last year of two counts of unlawful assault, related to him striking John with the baton and standing on his head. He chose not to appeal against the magistrate’s original verdict and penalty.

The three officers were prosecuted by Victoria’s anti-corruption investigator after The Age reported about the incident. The other three officers were not charged.

Victoria Police said the officers were suspended with pay during their appeals but their positions were now being reviewed.

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