By Zeb Holmes and Ugur Nedim
A serving Victorian policeman has been found not guilty of four assault charges after he smashed his way into a woman’s home together with seven other officers 22 years ago, punched her up to seven times in the face and broke her nose.
Now 49-year old leading senior constable David Laurence Jenkin stormed then 21-year old Corinna Horvath’s home in March 1996.
Mr Jenkin admitted punching Ms Horvath several times but claimed it was in self-defence.
Ms Horvath spent five days in hospital as a result of her injuries, suffering a broken nose, black eyes and facial swelling.
“I remember waking up in the divisional van with my hands behind my back, handcuffed,” she recalled.
“My face was sore, I was wet … I felt my face and it was all sticky. Everyone was yelling and screaming. I was covered in blood.”
On the night before the assault, Ms Horvath had been pulled over by the police for driving an un-roadworthy vehicle. The group of officers saw it necessary to attend her home the following day because on suspicion she and her partner ignored their order not to drive.
Ms Horvath told the officers they could not come in without a warrant. They left and came back later in the night, banging on the door and stating “we want Corinna… we don’t need a fucking warrant’,” she said.
The group of officers then smashed through the door and, according to Ms Horvath, Mr Jenkin repeatedly punched her in the face while arresting her.
A long road
An internal police investigation cleared the officers of any wrongdoing, but Ms Horvath would not let the matter rest and has spent the last 20 years fighting for justice.
In 2001, a civil court ordered that police pay Ms Horvath $315,000 in compensation for the assault.
Her fight led the Independent Broad-Based Anti-Corruption Commission (IBAC) to launch an investigation into the case, which found that Jenkin had indeed engaged in brutality.
In 2014, then Police Commissioner Ken Lay then issued an apology to Ms Horvath, stating:
“I deeply regret what occurred and sincerely apologise for the injuries you suffered as a result,”
Mr Jenkin was charged in November 2016 with intentionally causing serious injury, recklessly causing serious injury, intentionally causing injury and recklessly causing injury.
He pleaded not guilty to all assault charges and the case proceeded to a jury trial in the Victorian County Court.
The crux of Mr Jenkin’s defence was that Mr Horvath had previous convictions for assaulting police, and that Jenkin was therefore fearful of being assaulted at the time.
However, a couple who were present at Ms Horvath’s testified that they saw officer Jenkin kneeling over Horvath and repeatedly punching her to the face while she was on her lounge room floor.
Mr Jenkin exercised his right to silence and did not testify.
His criminal defence lawyers submitted that the prosecution failed to negative the possibility their client had acted in self-defence, and the jury returned verdicts of not guilty accordingly.
For Mr Jenkin to have been found guilty, the prosecution needed to disprove the possibility of self-defence beyond all reasonable doubt once evidence thereof had been raised, whether raised in a tendered police interview or otherwise.
This onus of proof can be difficult to discharge when assault allegations are decades old.
Flemington and Kensington Community Legal Centre issued a statement after the verdict, commending Ms Horvath on her courage to continue with the case.
“Police accountability cases like this are notoriously difficult to prove all around the world,” the statement added.
The Centre has called upon the Victorian government to establish a Police Corruption and Misconduct Division within the IBAC.
Verity Smith, a member of the joint legal effort, has called for a body to ensure that police are not left to police themselves when it comes to allegations of serious crime and misconduct.
‘‘We would be asking for a fully independent, fully resourced body to be able to look into matters of this serious nature”, she stated.
Ms Horvath shook her head while the verdicts were read and told the media she was “gutted”.
Section 231 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) provides that:
“A police officer or other person who exercises a power to arrest another person may use such force as is reasonably necessary to make the arrest or to prevent the escape of the person after arrest.”
Any force above that will amount to an assault under the law.
Self-defence in NSW
Self-defence is a complete defence in NSW.
This means that if you raise some evidence of self-defence in a case, the prosecution must then prove beyond reasonable doubt that you did not act in self-defence – otherwise, you must be found ‘not guilty’.
For example, if you were charged with assault and were able to raise some evidence that you were defending yourself, you would have to be found not-guilty unless the other side could prove that you weren’t acting in self-defence.
Self-defence is much wider than you might expect, as it allows you to claim the defence even if you weren’t just defending yourself.
Under section 418(2) the NSW Crimes Act 1900, a person is not guilty of an offence if they were:
- Defending themselves or someone else
- Preventing or ending unlawful deprivation of liberty of themselves or someone else
- Defending their property from being taken unlawfully, destroyed, damaged or interfered with
- Preventing criminal trespass to any land or to remove a person committing criminal trespass
However, self-defence is not available if the person has either intentionally or recklessly caused death for above reasons three and four.
And even if you are protecting yourself or someone else, the actions you take must a reasonable response to the threat as you perceive it.
This means that:
- You must believe that there is a threat,
- Your belief must be on reasonable grounds, and
- Your response must be reasonable to that threat.
This means that honest and reasonable belief amount to self-defence even if the belief is mistaken.