Family of cop assault victim Andrew Birch sues Victoria Police

The family of a Geelong man who died from a drug overdose a week after he was assaulted by a senior sergeant is suing Victoria Police.

Still of third kick from David Magher. Picture: Supplied

The family of a Geelong man who died from a drug overdose a week after he was assaulted by a senior sergeant is suing Victoria Police.

Andrew Birch suffered a suspected fatal prescription drug overdose days after veteran policeman David Phillip Magher assaulted him at a local police station.

He was no longer in custody when he died, aged 36.

Magher, a 26-year veteran of the force, delivered three kicks to Mr Birch in the station’s sally port on September 21, 2018.

At a court hearing in February 2021, Magistrate John Lesser ruled that the first kick was lawful, but the second two were assault.

“They stood out as gratuitous and unnecessary,” Mr Lesser said.

Magher was fined $4250 for the two unlawful blows, but avoided conviction.

It is understood he no longer works for Victoria Police.

The three executors of Andrew Birch’s estate, including his father Garry Birch, have now issued a statement of claim through the County Court against the State of Victoria pursuant to the Victoria Police Act.

Mr Birch told the Geelong Advertiser the family wanted “truth and justice”.

Garry Birch is seeking answers over his son Andrew's assault. Picture: Alan Barber

“The truth has not been told,” Mr Birch said.

The family’s lawyer, Joseph Ridley of Arnold, Thomas and Becker lawyers, said during his arrest Andrew Birch was allegedly sprayed with capsicum spray three times and not provided with any after-care.

The family also claim Andrew Birch was further assaulted in custody.

“Whilst at the station we also allege that he was handcuffed, pinned to the ground, and kicked by an officer multiple times,” Mr Ridley said.

“As a result of these incidents, the man suffered injury for which we are seeking compensation.

“The shocking nature of the alleged police assault is made worse by how utterly defenceless the victim was.

“We have litigated a number of police assault cases where such batteries have resulted in significant compensation.”

According to legal documents filed by Mr Ridley to the County Court, the proven injuries sustained by Andrew Birch included bruising to the right hip, face, head and ribs; a chest injury; swelling to the face and torso; and an aggravation of a psychiatric injury.

The documents allege his family consequently “sustained injury, loss, and damage and/ or nervous shock”.

It is claimed all the family members have needed, and will likely continue to need, medical treatment

Mr Birch said the family also wanted video footage – which they allege shows their son being attacked – to be publicly released.

“My family and I have seen the video – it was horrific to see our son being attacked. We want this video to be released,” Mr Birch said.

“The police are hiding, but this needs to be shown.

“We were promised a copy of the video after the last court hearing, but we’ve yet to receive it. We hope it has not been wiped.

“We also want to see copies of any video that will have been taken in the cell at Corio – we’ve not seen this, but we know there will be something.

“So far the court case has been a disappointing shambles.”

A Victoria Police spokeswoman said: “Victoria Police can confirm legal action has been served in relation to the death of a man in Corio in 2018.”

“As the matter is before the courts, it would be inappropriate to comment at this time.”

The Birch family’s claims are set for trial in the County Court in May next year.

Andrew Birch left behind a teenage daughter, a girlfriend, two sisters, his parents and grandparents.

Originally published as Family of cop assault victim Andrew Birch sues Victoria Police