An Ethiopian teenager is appealing against a decision not to set up
an independent investigation into an incident where police officers
allegedly smashed his teeth against a gutter, capsicum-sprayed him while
he was handcuffed, kicked him in the ribs and racially abused him.
Nassir Bare successfully applied for a Protective Costs Order in the Court of Appeal, meaning if he loses his appeal the maximum he will have to pay in legal costs is $5000.
The Court of Appeal's Justices Hartley Hansen and Pamela Tate on Friday said Mr Bare had complained to the now defunct Office of Police Integrity in 2010 claiming he had been assaulted by two police officers.
Outlining the allegations made by Mr Bare, the judges said he was 17 when police stopped the car in which he was travelling on February 16, 2009.
"An officer then handcuffed him and kicked his legs, causing him to fall," the judges said.
"As he lay on the ground, the officer pushed his head repeatedly into the gutter and four or five of his teeth were chipped in the process.
"His jaw was cut, with resultant scarring.
"The officer sprayed him in the face with 'OC' (capsicum) spray several times, forcibly raising his head to do so. This caused him difficulty in breathing.
"The applicant (Mr Bare) claimed that during the assault the officer said words to the effect: 'You black people think you can come to this country and steal cars. We give you a second chance and you come and steal cars'.
"A second police officer kicked him in the ribs, while he was on the ground. Mr Bare suffered pain and humiliation as a result of this alleged serious assault."
On February 3, 2010, Mr Bare's lawyer from the Young People's Legal Rights Centre wrote to the Office of Police Integrity complaining about the assault, arguing it would be in the public interest for the OPI to investigate Mr Bare's complaint.
The OPI, which has since been abolished and replaced by the Independent Broad-based Anti-corruption Commission (IBAC), decided not to investigate the case.
Mr Bare took the case to the Supreme Court claiming the OPI decision had violated his human rights but lost the case and now plans to go to the Court of Appeal.
He lodged an application with the Court of Appeal for a Protective Costs Order before the appeal was heard so he would not have to pay excessive legal fees if he lost.
The judges on Friday said Mr Bare gave evidence that if his application for a PCO was to fail, he would discontinue his appeal.
"He is 21 years of age, unemployed and with very limited financial means.
"He has no savings and no assets exceeding a value of $200. He lives in a share house arrangement and after paying for expenses has about $40 at his disposal per fortnight. He has no spare income to cover debt repayments.
"If he were unsuccessful in the appeal and an adverse costs order was made against him it is likely he would become bankrupt."
The judges said Mr Bare's claims were "arguable and are not frivolous or vexatious" and agreed to limit any costs to $5000 if he lost his appeal.
"It suffices to say that, as this proceeding has the quality of a 'test case' about it, fairness dictates here that the recoverable costs should be limited for all parties."
The parties named in the appeal include IBAC, the Victorian Equal Opportunity and Human Rights Commission and the Attorney-General.
Nassir Bare successfully applied for a Protective Costs Order in the Court of Appeal, meaning if he loses his appeal the maximum he will have to pay in legal costs is $5000.
The Court of Appeal's Justices Hartley Hansen and Pamela Tate on Friday said Mr Bare had complained to the now defunct Office of Police Integrity in 2010 claiming he had been assaulted by two police officers.
Outlining the allegations made by Mr Bare, the judges said he was 17 when police stopped the car in which he was travelling on February 16, 2009.
"An officer then handcuffed him and kicked his legs, causing him to fall," the judges said.
"As he lay on the ground, the officer pushed his head repeatedly into the gutter and four or five of his teeth were chipped in the process.
"His jaw was cut, with resultant scarring.
"The officer sprayed him in the face with 'OC' (capsicum) spray several times, forcibly raising his head to do so. This caused him difficulty in breathing.
"The applicant (Mr Bare) claimed that during the assault the officer said words to the effect: 'You black people think you can come to this country and steal cars. We give you a second chance and you come and steal cars'.
"A second police officer kicked him in the ribs, while he was on the ground. Mr Bare suffered pain and humiliation as a result of this alleged serious assault."
On February 3, 2010, Mr Bare's lawyer from the Young People's Legal Rights Centre wrote to the Office of Police Integrity complaining about the assault, arguing it would be in the public interest for the OPI to investigate Mr Bare's complaint.
The OPI, which has since been abolished and replaced by the Independent Broad-based Anti-corruption Commission (IBAC), decided not to investigate the case.
Mr Bare took the case to the Supreme Court claiming the OPI decision had violated his human rights but lost the case and now plans to go to the Court of Appeal.
He lodged an application with the Court of Appeal for a Protective Costs Order before the appeal was heard so he would not have to pay excessive legal fees if he lost.
The judges on Friday said Mr Bare gave evidence that if his application for a PCO was to fail, he would discontinue his appeal.
"He is 21 years of age, unemployed and with very limited financial means.
"He has no savings and no assets exceeding a value of $200. He lives in a share house arrangement and after paying for expenses has about $40 at his disposal per fortnight. He has no spare income to cover debt repayments.
"If he were unsuccessful in the appeal and an adverse costs order was made against him it is likely he would become bankrupt."
The judges said Mr Bare's claims were "arguable and are not frivolous or vexatious" and agreed to limit any costs to $5000 if he lost his appeal.
"It suffices to say that, as this proceeding has the quality of a 'test case' about it, fairness dictates here that the recoverable costs should be limited for all parties."
The parties named in the appeal include IBAC, the Victorian Equal Opportunity and Human Rights Commission and the Attorney-General.
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