Senior Constable Jay Maleckas gives evidence over alleged assault of Steven McIvor at Castle Hill

A senior policeman accused of assault during an arrest outside a northwest Sydney shopping mall has said the tussle could have been “catastrophic” if the man got a hold of his gun.

Senior Constable Jay Maleckas has defended his alleged assault of Steven McIvor at Castle Hill two years ago, telling a court he feared the then 44-year-old could have harmed the children he was complaining about at the metro station.

The Sen Constable is accused of assaulting Mr McIvor on Saturday September 5, 2020, after police failed to respond to several of his phone calls to defuse a problem with youths at Castle Hill metro station before 4.30pm.

Mr McIvor was charged with assaulting police and resisting arrest but the charges were dropped.

Sen Constable Maleckas has pleaded not guilty to assault occasioning actual bodily harm and common assault.

The court heard after having lunch and “two or three schooners” at the Hillside Tavern, Mr McIvor confronted the young people about jay walking and being rude to drivers.

He alleges they threatened him with violence on the station platform and he called Castle Hill cops several times but when they did not respond, he walked to the police station to report it and complain about the police response.

On his way there, Constable Lilly-Ann Keating told Parramatta Local Court that he yelled to police “you pigs you don’t do your job” before they got out of the car and approached Mr McIvor.

He filmed his encounter with police at Castle St on his mobile phone after the court heard he yelled about the “kids on the f---ing way to Rouse Hill”.

“I’ve got a problem with the eshays that just threatened me,’’ he told the three police, who were filming on body-worn cameras.

“I don’t like police at the best of times.’’ He said he was threatened by “about 50 little kids” and the police sergeant was laughing at him.

At court on Friday, Sen Constable Maleckas, who joined the police force in 2001 and was a lecturer at Western Sydney University, denied his actions were “over the top”.

Mr McIvor asked if he was under arrest, Probationary Constable Sanjeet Senchury BK said no but Sen Constable quickly said he was under arrest for breaching the peace.

He told the court Constable BK was inexperienced after weeks in the job and he thought Mr McIvor did not have the temperament to stay calm if he saw the children from the station again.

“I could see he was excited and agitated,’’ he told the court.

“He was loud. He stamped his foot, he was ranting. He wasn’t listening to BK. When he got close to me I could smell it (alcohol) really strongly.

“He hadn’t lost his balance and I suspected he was at least slightly affected because of his behaviour.

“I believe children could enter his path. I was concerned the same children at the metro might have encountered Mr McIvor.”

Steven McIvor.

Senior Constable Jay Maleckas.

The court heard Sen Constable Maleckas chose not to follow Mr McIvor to the police station despite its proximity because “100m is a long way with an angry, uncooperative man”.

“I had fears his offending and his behaviour would continue and resume and I needed to protect the public.’’

Vision replayed to the court showed him grabbing Mr McIvor by the shirt after he started walking towards him, pulling him to the ground while a child watched and throwing nine punches, some which ended on the footpath with the cop injuring his knuckles.

Mr McIvor suffered bleeding to his head and soreness to his legs and elbows.

Sen Constable told the court that Mr McIvor was touching the area around his wrist, baton and vest but there was no footage of it.

“I recognise the likelihood of him getting the firearm out of the holster was low,’’ Sen Constable Maleckas said.

“I also realise the consequence if he did would be catastrophic.

“I was successfully trying to gain control.’’

He pulled out the capsicum spray and sprayed Mr McIvor twice.

He said it worried him that he was losing control because he lost control of his baton in 2008 and his taser in 2015.

“To say the least they left physical and emotional scars that have given me foresight and caution,’’ he said.

But DPP solicitor Andrew Charleston told Sen Constable Maleckas he was an angry man that day when he allegedly swore at Mr McIvor for biting his leg.

“Don’t you bite me don’t you bite me you c---,’’ Sen-Constable Maleckas allegedly told Mr McIvor.

Sen Constable Maleckas conceded he should have communicated better but does not regret punching the alleged victim.

“I wasn’t out of control, I decided to punch him,’’ Sen Constable Maleckas said.

“I punched him until he stopped biting me.’’

He denied that he provided a “sanitised” fact sheet to put himself in a favourable light because he omitted using capsicum spray on Mr McIvor.

Mr Charleston told the court Sen Constable Maleckas greatly exaggerated a description of Mr McIvor’s bites, saying they caused his flesh to be torn.

Sen Constable Maleckas later told the court that did not happen but at the time it felt like the bite was that serious.

However, Mr Charleston insisted that the cop’s actions were not necessary.

“Your actions were disgraceful,’’ he said.

“It was not necessary to force him to the ground. At very close range you then sprayed his face twice with capsicum spray and one of those you used your hand to open his eyelid.

“You punched someone in the way you did … it was over the top wasn’t it? You were punching so much that at the end you didn’t know what you were punching.

“You know very well your response was not reasonable.

“You went well beyond taking control of the situation and you took it out on Mr McIvor didn’t you?’’

Sen Constable Maleckas denied his actions were unreasonable and that he also acted to protect a child who was nearby and was recorded yelling at the police not to shoot the man.

“I have been on the receiving end of a lot of force,’’ Sen Constable Maleckas said.

“I have many times (sustained injuries).’’

The matter will return to the court on August 26 when Magistrate Mark Whelan is due to deliver the verdict.