A jury in a trial involving a Warrnambool police officer allegedly assaulting a man he was trying to arrest has been discharged.
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Serving Warrnambool police officer Leading Senior Constable David MacPhail, 65, pleaded not guilty in the Warrnambool County Court on Tuesday to charges of recklessly causing injury and the alternate charge of assault.
Judge John Smallwood was informed a juror realised she knew one of the people involved in the trial after the opening addresses.
The judge said there was no option but to discharge the jury and empanel again, hopefully on Wednesday.
In an opening address, crown prosecutor Richard Pirrie said key evidence in the case would be two lots of police body-worn camera footage.
He said there was also audio from D24 police communications which went for about one hour and the body-worn camera footage took about the same time to view.
![Jury discharged in police officer assault case Jury discharged in police officer assault case](/images/transform/v1/crop/frm/4MhkJ8SfhCqb4cUfcgRRmJ/3ce51b8a-7f55-489c-922e-0f5eb16dda40.jpg/r0_270_5184_3186_w1200_h678_fmax.jpg)
Mr Pirrie said the complainant Kurwin Clarke, 28, suffered from autism and Asperger's and was living with his mother in Warrnambool on June 9, 2020.
Emergency services were called to the address by Mr Clarke at 10.58pm that night who requested an ambulance as he believed his mother had self-harmed.
Mr Clarke made a second call minutes later to repeat his concerns and he took instructions from Triple-0 to assist his mother to stop bleeding injuries to an arm.
Senior Constable MacPhail and colleague Constable Damon Mounsey were tasked to attend the address, which was flagged for weapons, violence and self-harm.
The police officers arrived at 11.23pm and activated their body-worn cameras.
![Warrnambool Senior Constable David MacPhail has pleaded not guilty to assault charges. Warrnambool Senior Constable David MacPhail has pleaded not guilty to assault charges.](/images/transform/v1/crop/frm/4MhkJ8SfhCqb4cUfcgRRmJ/a988aab3-13cf-4aef-b156-644f76f9d427.jpg/r0_656_3456_4426_w1200_h678_fmax.jpg)
They were let in by Mr Clarke and located his mother in her bedroom bleeding on the floor.
There were knives located on the floor which were removed from the bedroom and the woman told Constable Mounsey her son was not responsible for her injuries.
Two paramedics also attended but they had to wait out the front of the home as the address was flagged for violence and weapons.
The court was told they waited before being let in and went to assist and treated the woman for her injuries.
At one stage Sergeant Rob McKellar sought clarification about what was going on at the scene and Senior Constable MacPhail told him the woman had suffered a major haemorrhage from a stab wound which could become critical.
Sergeant McKellar instructed Mr Clarke should be handcuffed.
At that time Mr Clarke was in the hallway using a phone and the two officers approached him to perform the arrest.
The prosecution alleged he immediately resisted, and Constable Mounsey said he had done nothing wrong and that his mother had said she had inflicted the wounds herself.
Senior Constable MacPhail got hold of Mr Clarke's arms while he resisted arrest and the three of them moved into the kitchen.
He did not let go of Mr Clarke during a struggle, Mr Clarke was advised to stop resisting and to get down on the ground.
He did not comply and Constable Mounsey deployed OC spray which did not appear to have any effect.
Senior Constable MacPhail removed his handcuffs while struggling with Mr Clarke and attempted to kick or trip Mr Clarke to stop him resisting.
While holding the handcuffs in his right hand the police officer is alleged to have struck Mr Clarke to the head, with the handcuffs striking Mr Clarke and causing two small lacerations.
"That's the crux of it," Mr Pirrie said, adding that Mr Clarke was then taken to ground and Senior Constable MacPhail deployed his own OC spray before the man was handcuffed.
The prosecutor told the court Senior Constable MacPhail using the handcuffs to strike Mr Clarke was the subject of the charges.
He said Mr Clarke's mother was taken to hospital with critical injuries.
Body-worn camera footage showed ongoing discussions between the police officers with Senior Constable MacPhail saying he once punched Mr Clarke - describing him as a "strong bugger" - and kicked him a few times.
Mr Clarke was also taken to hospital and his two lacerations treated, the largest being a two centimetre long cut near his hairline.
The incident was followed by an Independent Broad-based Anti-corruption Commission investigation which led to Senior Constable MacPhail being charged on summons.
Barrister David Cronin told the court his client, Senior Constable MacPhail, denied both charges.
He said when the police officers arrived at the home that was flagged for weapons, violence and self-harm, they found "things that were a bit off".
Mr Cronin said his client was directed to arrest Mr Clarke, who resisted and there was a struggle.
The barrister said the key question was about the amount of force used to effect the arrest.
Mr Cronin said ultimately the case rested on the reasonableness of Senior Constable MacPhail's actions.
He requested the jury members to look at the footage.
The barrister said there was no issue that Mr Clarke was resisting, there was a struggle, capsicum spray was deployed that did not work, there were kicks which had no effect and then the attempted strike before Mr Clarke was pepper sprayed again and placed in handcuffs.
Mr Cronin claimed Senior Constable MacPhail had done what was reasonably necessary to effect the arrest.
A second jury is expected to be empanelled on Wednesday, when the trial is likely to re-start.
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