Last week, the South Australian Police Ombudsman called for Constable Matthew Schwarz’s police powers to be revoked in the interests of public safety.
The recommendation was made in a report about the officer’s conduct during a violent assault on 5 December 2012, where he repeatedly struck two homeless men with a baton in Whitmore Square, Adelaide.
The brutal assault was captured on video by a Channel 7 News crew, who happened to be in the area.
Footage of the assault
The footage shows Constable Schwarz forcefully striking Chris Mackie twice with his baton, before turning to hit Shaun Jones three times with the weapon. Both men are lying on the ground when they are repeatedly struck.
After more police officers arrived at the scene, the two homeless men were taken to Adelaide City Watchhouse and charged with assault and resisting arrest. Shortly afterwards, one of the men was rushed to hospital with chest pains.
The case against the homeless men
Jones pleaded not guilty to one count of aggravated assault, one of disorderly behaviour and another count of resisting police. Mackie pleaded not guilty to one count of assaulting police and one of resisting police.
SA police prosecutor Senior Sergeant Fred Wojtasik told the court the incident arose out of an investigation into drug dealing near homeless shelters.
On the day of the incident, Constable Schwarz and his partner Constable Jennifer Clarke approached Jones and Mackie in the park hoping to speak with them as part of their enquires.
The two homeless men refused to speak with the officers, but Schwarz continued to pursue the men, demanding they come back.
Jones was heard to say to Schwarz, ‘F**k off dog c**t, I want nothing to do with you.” He allegedly then took on a boxing-style stance and threw a punch in the officer’s direction.
Constable draws his baton
Much of what transpired in the ensuing scuffle was disputed in court, but it resulted in Schwarz producing his capsicum spray and using it on both men. He then removed his baton from its holster and told them they were under arrest.
Schwarz claims the sprayed men continued to be uncooperative, so he struck one of the men in the jaw with his elbow and then hit him in the face with his closed fist. Schwarz claims that Jones then landed a solid blow on his left calf, kicking him from behind.
It was at this point that Schwarz thought he and his fellow officer “had lost control of the situation,” and he began striking the men with his baton.
Schwarz told the court he repeatedly struck the men, as he’d never used his baton in that fashion before and feared it wasn’t having the desired effect. “I struck a second time and I didn’t feel it was working,” he said, “so I struck a third.”
Also testifying at the hearing, Sergeant Mark Willing said Constable Clarke had expressed dissatisfaction with Schwarz’s method of enforcement, requesting that they no longer work together.
Permitted use of a baton
The sergeant added that batons can be used by police to protect themselves and the public, to stop animal attacks, to prevent serious breaches of the peace and to effect an arrest, but not by striking.
Baton strikes are permitted to the upper and lower arm, the upper and lower leg, as well as to the buttocks, Willing testified.
On 29 May 2014, Magistrate Stefan Metanomski dismissed all charges against both Jones and Mackie. The magistrate found that police had “exceeded their authority” when dealing with the men.
The magistrate found Constable Schwarz’s version of events to be inaccurate and unreliable, finding there was a real possibility the officer was embellishing his story to justify his actions.
His Honour found that Schwarz had acted unlawfully by continuing to pursue Jones and Mackie after they had made it clear they did not wish to speak with police. He noted the officer did not reasonably suspect the men of any crime and therefore had no authority to follow them.
The video footage was inconsistent with Schwarz’s version of events, Metanomski ruled. And in his view, “the three strikes with the baton upon Jones were totally unnecessary.”
The magistrate ordered South Australian police to pay the men $35,000 in legal costs after it was found that Schwarz had attacked them unlawfully.
The homeless men’s lawsuit against police
On 13 August last year, Jones and Mackie lodged a $100,000 excessive force and assault compensation claim against the South Australian Police Force.
In March this year, Chris Mackie received an out-of-court settlement. It was left for Mackie to sign off on the matter, as his lawyer was having difficulty contacting his client.
Mackie left Adelaide for a remote part of the country in 2015, too scared to return to South Australia after the assault.
Shaun Jones has received no money because he went missing in Alice Springs in October last year. The search for Jones had been called off, as he is presumed dead.
An unacceptable delay
Last week’s Police Ombudsman report noted that the Director of Public Prosecutions decided not to bring criminal charges against Constable Schwarz because he was in a fragile and suicidal state of mind.
Instead, he will face trial before the highly secretive South Australian Police Disciplinary Tribunal in January next year.
South Australian shadow police minister Dan van Holst Pellekaan said the delay in dealing with Schwarz was “completely unacceptable.” He pointed out that the officer is now also allegedly “involved in another very serious incident.”
A teenaged P plate driver claims Schwarz made aggressive threats after pulling her over, including making demands while violently thumping on her car window. The internal complaint is expected to be heard next month.
Despite the recommendation of the Police Ombudsman, South Australian Police Commissioner Grant Stevens has refused to revoke Constable Schwarz’s police ID – and he is free to continue working as a police officer.
Image credit: Channel 7 News