One of two former police officers charged with assault after telling a man he would be searched "for being a smart arse" has escaped conviction in the ACT Magistrates Court.
Senior Constable Matthew McVicar and Constable James Head were both initially charged with assault causing actual bodily harm after pulling a 19-year-old from a car in Canberra's CBD on Australia Day in 2017 and threatening to arrest him.
But today, Mr McVicar was given a 12-month good behaviour bond by Magistrate Robert Cook, after he found that Mr McVicar's subsequent job loss in 2019 amounted to "extra-curial" punishment.
Magistrate Cook also said he was satisfied the former officer had a low risk of reoffending, and noted there were emerging mental health concerns that had not previously been recognised.
The court heard Mr McVicar had been diagnosed with an adjustment disorder related to anxiety after he was suspended from the force.
He also suffered PTSD-like symptoms related to his time serving with Defence, and from witnessing the death of colleague during a diving training exercise.
Magistrate Cook said he accepted the 2017 incident was out of character and had "stunned" people who knew Mr McVicar.
"It is his only aberration in his nine years with the police force," Magistrate Cook said.
"There is a complete absence of any criminal history until now."
Assault incident caught on mobile phone
The 2017 incident was filmed on a mobile phone by someone else in the car, and showed then-Constable Head walking up to the car and demanding to see the driver's licence, saying: "What is your problem, do you not know how to drive?"
The passenger in the backseat can then be heard speaking, drawing the attention of Mr Head.
"If you don't shut your mouth, I'll pull you out and arrest you for hinder," he can be heard saying.
"I'll be searching you for being a smart-arse."
He asked for the passenger's licence, but the man said he was not carrying identification.
Mr Head made a further verbal warning: "All right, get out of the car. I'll be searching you for being a smart arse."
Moments later, Mr Head and then-Senior Constable McVicar ordered the victim to "get the f*** out of the car right now" before pulling the young man from the vehicle.
The teenager was held face-down on the ground while he was handcuffed.
Ultimately, it was Mr McVicar who made the arrest, which can be seen in the video, when the man is put to the ground and cuffed while he asks what he has done wrong.
In April 2018, Magistrate Robert Cook found Mr Head and Mr McVicar guilty of assault, arguing they had no lawful excuse for their actions.
After watching the video, Magistrate Cook found the man had not been given adequate time to respond.
"The force is highly excessive," he said.
He also noted the man had not struggled in the way the officers had described.
"I am satisfied that there is no resistance on the part of [the victim]," he said.
The officers were charged with assault causing actual bodily harm, but twice appealed that decision.
Mr Head is due to be sentenced next month.
