Two police officers who assaulted a teenager and threatened to search him for "being a smartarse" during a traffic stop had their appeals thrown out of the ACT Supreme Court on Thursday.
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Senior Constable Matthew McVicar, 36, and Constable James Head, 30, were appealing their assault convictions handed down in the ACT Magistrates Court.
McVicar and Head were nearing the end of a shift on Australia Day in 2017 when they pulled over a teenager for driving through the Civic bus interchange.
Instead of immediately pulling over, because turning left onto London Circuit there was a taxi rank immediately to their left, the driver instead drove the short distance into the Mooseheads carpark.
Once pulled over the officers approached the vehicle and Head immediately began aggressively questioning the driver.
The front passenger filmed the altercation on her phone and captured the moment Head says he would search the back seat passenger for "being a smartarse" before swearing at him to "get the f--k out of the car".
The video shows a scuffle and the court previously heard one officer had the 19-year-old in a headlock and the other had his arm as they pulled him roughly from the car.
The officers are heard to say on the video that they've arrested the 19-year-old for resisting arrest, and later told the court he had tried to stay in the car by moving his legs.
The officers forced the passenger to the ground on his stomach and handcuffed him.
The female passenger told the officers, "I feel like you guys are being too aggressive", to which one yelled at her to get back in the car or they would arrest her too.
She can be heard crying on the video after she gets back in the car.
Justice David Mossop, who heard the appeal, described the video as disturbing.
"It shows highly aggressive, loud and ill-mannered police officers interrogating the driver of a motor vehicle who had accidentally driven through the Civic bus interchange and taken longer than the police would have liked to pull over," Justice Mossop said.
"The dramatic disproportion between the officers' conduct and the situation with which they were dealing is readily apparent from the video."
McVicar and Head appealed their convictions handed down by Magistrate Robert Cook based on, among other things, the video not capturing the whole of the incident, missing an earlier interaction, and a lack of procedural fairness.
However, upon reviewing the evidence Justice Mossop determined Magistrate Cook had come to the correct conclusion in convicting the pair.
Justice Mossop determined the officers were not performing a legal arrest and therefore the man could not have been resisting arrest. Ultimately they laid hands on him unlawfully, he said.
He also criticised the pair's evidence as self serving by suggesting the man had resisted much more forcefully than the video evidence depicted.
Case notes created by McVicar included "what might be most benevolently described as a gross overstatement of [the man's] conduct", Justice Mossop said.
It was open for Magistrate Cook to find their evidence "unreliable and driven by a desire to protect themselves", he said.
With the appeal unsuccessful, McVicar and Head's convictions remain in place and they will be sentenced in the Magistrates Court at a later date.
