Video: Nathan Cross was knocked out inside Victor Harbor Police Station – then charged with assault and ultimately cleared
This man was handcuffed and surrounded by four SA Police officers when he “jutted his chin”. What happened next left him bleeding, unconscious and charged with assaulting police. But now he’s been cleared and is planning to sue.
Police & Courts
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A man who was barefoot, handcuffed and surrounded by four police officers when he was pushed toward and struck his head on a police station charge counter has been acquitted of assault.
On Wednesday, the Victor Harbor Magistrates Court found Nathan Cross had performed no act that would arouse fear in the officers that he was about to spit at or headbutt them before he was knocked unconscious.
In her verdict, Magistrate Sue O’Connor said police had failed to prove their allegations against Mr Cross beyond reasonable doubt.
“There is no evidence to establish that Cross formed an intention to headbutt or spit or wanted to make (police) fearful that an assault would occur,” she said.
Mr Cross, 43, of McCracken, pleaded not guilty to one aggravated count of assault, which carries a maximum three-year prison term.
At trial, police alleged the offence occurred inside the Victor Harbor Police Station on February 4, 2017, while Cross was barefoot, handcuffed and surrounded by four officers.
Three of those officers, the trial heard, were standing around him in front of the station’s charging counter, which was being manned by the fourth officer.
Police alleged that, while being searched, Mr Cross “jutted his chin” toward Senior Constable Ben Higgins, who was standing to his left.
That motion, they alleged, caused Senior Constable Higgins – who had previously served as a police officer in both London and Elizabeth – to “fear he was going to be spat at”.
They further alleged Mr Cross told Senior Constable Higgins to “f--- off”, causing the officer to push him away, only for Mr Cross to “come back in a fluid motion” and abuse him a second time.
Higgins told the court he feared being “headbutted” by Mr Cross and so pushed him away a second time “using my open right palm”.
“I pushed him away to prevent him from assaulting me; he fell forwards towards the charge counter,” he said in his evidence.
“He’s folded at the waist, rather than moving forward straightforward in an upright position … he’s folded at the waist and his head’s connected with the charge counter.”
Senior Constable Higgins’ account was corroborated by the other officers, who said Mr Cross “fell” after their colleague pushed him away and “unavoidably hit his head”.
They said they did not keep detailed notes of the incident because it had been captured by the station’s CCTV cameras.
The court also heard that, when the officers called for an ambulance, they said they had an “aggressive” prisoner who “tried to fight us, and he was then taken down”.
Mr Cross’s counsel, Julienne Murray, conceded her client had been “mouthy and downright annoying” but said there was no proof he intended to, nor succeeded in, committing any physical act.
Senior Constable Higgins, she said, “propelled” Mr Cross forward and “slammed” his head into the edge of the charge counter, impacting upon his frontal lobe and rendering him unconscious.
She claimed the charge was “without basis”, resulting in a “malicious” prosecution that had been “pursued in bad faith and for an improper purpose”.
Ms Murray said it was “not plausible” that an officer of Senior Constable Higgins’ experience who had “full control” of a “handcuffed, drunk, off-balanced and flanked” man would fear being assaulted.
She told the court the trial was “a case of a heavy-handed police officer justifying his heavy-handed, violent behaviour to deflect responsibility”.
Any fear Senior Constable Higgins experienced that day, she asserted, was the fear of “being charged himself with assault”.
In her verdict on Wednesday, Ms O’Connor said Senior Constable Higgins “was not candid” in his statement about the incident but conceded in court that “he had pushed” Mr Cross.
She said only one of the other police officers had been a “candid, helpful witness who gave thoughtful, plausible evidence”.
The others, she said, had given opinions “as unreliable as their evidence”, and made “misleading” statements “that place Higgins in the best possible light and blame Mr Cross for what happened to him”.
She said there was nothing in evidence to support the idea that an experienced officer such as Senior Constable Higgins would have “felt an arousal of fear” due to Mr Cross’ behaviour.
She said it was understandable the officers may have interpreted the head jut as an attempt to spit “to explain why Cross received his head injury”.
Outside court, Ms Murray said her client was happy with the result and the case should never have proceeded.
“This incident is not reflective of the police force as a whole,” she said.
“Unfortunately, there are some that will behave in such a manner.”
Solicitor Andrew Carpenter said he would represent Mr Cross in a civil lawsuit against the state of SA because of his injuries and the allegedly malicious prosecution.
“If it was an ordinary member of the public that did this (to Mr Cross) it’s something that should be investigated,” he said.
“It’s not in the community’s best interests to see police officers engaged in such acts and remain on duty.
“What I’m seeing as an ongoing trend is individuals being charged with an offence as a way of attempting to justify the use of force against them.
“In this case, that was as clear as day … this matter should never have gone this far and Mr Cross should never have been charged.”
SA Police released a statement saying the judgment was under review, and the matter was the subject of an ongoing internal inquiry.