Senior Constable Jay Robert Maleckas loses appeal after assaulting Steven McIvor at Castle Hill

A senior constable found guilty of assaulting a man in front of a traumatised child in The Hills has lost his appeal after a judge described the brutal incident as unlawful.

Jay Maleckas has lost his appeal to overturn his conviction after being found guilty of assault.

A judge has dismissed Senior Constable Jay Maleckas’ bid to appeal his conviction after he was found guilty of assaulting a man at Castle Hill where he repeatedly punched and used capsicum spray on his face in front of a hysterical child.

Maleckas was found guilty in August of assaulting Steven McIvor on September 5, 2020 after he complained about a bunch of “eshays” at Castle Hill metro station.

Maleckas, a cop with 21 years experience, pleaded not guilty to assault occasioning actual bodily harm and two counts of common assault.

Mr McIvor was initially charged with assaulting police and resisting arrest but the charges were withdrawn.

At Parramatta District Court on Monday, Judge Stephen Hanley dismissed the appeal and upheld the decision of Magistrate Mark Whelan from August.

The court heard once again about the horrific attack that was captured on police body-worn cameras just after 4pm when Mr McIvor had left the Hillside Tavern and became upset about an encounter with the “eshays’’ who crossed the road outside the metro station.

Mr McIvor, who was “slightly’’ affected by alcohol and in a “heightened emotional state”, called Castle Hill police after he told them he was threatened with violence on the metro station platform by “about 50 little kids”.

Victim Steven McIvor is ‘relieved’ Jay Maleckas’ appeal was not successful.

Jay Maleckas exits Parramatta District Court.

But when police did not respond, a frustrated Mr McIvor walked to the police station to report the incident and complain about their response.

On the way, Maleckas along with Constable Lilly-Ann Keating and Probationary Constable Sanjeet Senchury BK saw him outside Castle Towers shopping centre on Castle St.

Mr McIvor filmed his encounter with police on his mobile phone – something that “enraged’’ Maleckas.

Mr McIvor told police he had a “problem with the eshays that just threatened me” and “I don’t like police at the best of times’’.

Maleckas told him he was breaching the peace, grabbed Mr McIvor by the shirt, pulled him to the ground and punched him nine times – blows that caused his head to bleed and soreness to his legs and elbows.

The footage played to court during the hearing recorded Maleckas yelling at Mr McIvor: “Don’t you bite me don’t you bite me you c---.’’.

He used the capsicum spray in his face twice. The court heard the third burst was “cruel and gratuitous”.

Judge Hanley found while Mr McIvor was being animated, he was not being aggressive while he yelled. Nor did he threaten the youths at the station with violence.

The judge found the victim was not about to breach the peace because he was so close to the police station where he was seeking help.

He told the court the appellant had no cause to make an arrest or use a “great deal of force” on Mr McIvor.

Referring to body-worn footage played to the court earlier, Judge Hanley told the court the victim said “I never had a chance to comply’’ and “tell me and I’ll do whatever you want’’ to police.

The court heard during the hearing, Maleckas seized opportunities not to answer questions, gave “rehearsed answers” and was “not a completely frank witness’’.

His evidence was “not credible” or supported by Probationary Constable Sanjeet Senchury BK and the victim.

Outside court, an emotional Mr McIvor said he was “just relieved”.

“It’s been three years.’’

Maleckas has not worked in the force since he was charged and must continue his 18-month community correction order until February 2024, and take anger management courses.

He did not comment about the outcome after exiting court.