The policing partner of a senior constable who allegedly assaulted and maliciously prosecuted a tow truck driver said initial conversations were about admiration for a vintage sedan being towed before a search of the driver was conducted "with a sense of hostility".
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The plaintiff, former Calwell man Dylan Yates, was transporting a Ford GT sedan from Shepparton to Canberra in November 2018 as part of his employment when the interaction with NSW Police occurred.
In his statement of claim against the state of NSW, the 28 year old said that when he stopped at a Gundagai petrol station, two police officers - a constable and senior constable - pulled up behind him.
Then senior constable Andrew Murphy allegedly made a comment that implied Mr Yates was a motorcycle gang member, to which he denied, and asked if he had any 13s tattooed on him.
He then allegedly grabbed and twisted both of Mr Yates' arms before being told the two officers would search his truck for guns and drugs.
The senior officer then allegedly pushed Mr Yates onto the road, removed his bum bag from the truck and emptied out his belongings, including $5000 that the plaintiff later realised was missing.
The senior constable then served him a defect notice for this truck, but an inspection four days later in Fyshwick revealed no defect.
Mr Yates alleges the incident amounted to assault, battery and malicious prosecution, which has left him with psychiatric injuries.
During an ACT Supreme Court hearing of the case on Wednesday, Parramatta-based senior constable Michael Smith gave evidence for the defendant, saying the initial conversation between the officers and Mr Yates was mostly about "an admiration for the vintage" vehicle.
The officer, who at the time was the constable at the scene and attached to Strike Force Raptor that targeted outlaw motorcycle gangs, said he remained inside the police car to conduct checks of Mr Yates while senior constable Murphy stepped out to approach the plaintiff.
"He's got a warning for Rebels," senior constable Smith told the court in relation to what the search revealed.
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After relaying the warning to senior constable Murphy, Mr Yates was informed that a search of him would be conducted, triggering him to say that police needed a warrant.
"Soon following, senior constable Murphy commenced physically touching Mr Yates in order to conduct a person search," senior constable Smith said.
He said he got out and moved closer to the pair when the plaintiff again argued for a warrant with the other officer conducting the "search with a sense of hostility".
"Senior constable Murphy moved closer into the personal space of Mr Yates in order to effect the search," senior constable Smith said.
"In doing so, senior constable Murphy said put your hand on the tray [of the tow truck] and turn around."
The officer said a search of Mr Yates pockets was conducted and that he searched the cabin of the tow truck but found nothing illegal.
As for the $5000, the officer said "I've been told about this allegation" and denied seeing the money in the truck.
Shortly after the incident, senior constable Murphy charged Mr Yates with failing or refusing to comply with a search, but that was later withdrawn.
In its amended defence document, the defendant states the search was based on the belief that the plaintiff or his vehicle may have possessed prohibited drugs or weapons.
Further, that senior constable Murphy's suspicion was based on reasonable grounds.
The defence document states that police were entitled to search Mr Yates and his truck and that the plaintiff was non-compliant with requests to search.
The defendant says that at all times, the use of force was reasonably necessary in the circumstances.
The defendant denies that the injuries and out-of-pocket expenses Mr Yates suffered were caused by the police actions and that the plaintiff failed to mitigate his suffering.
Mr Yates' mother, Marion Yates, gave evidence on Tuesday about how her son spiralled psychologically following the incident.
The hearing before Chief Justice Lucy McCallum continues, with the other police officer expected to give evidence.
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