Lytha Owlstara: Disability pensioner appeals against gunpoint arrest ruling

A pensioner could receive as much as $170,000 in compensation after a police officer aimed a gun to her chest and capsicum sprayed her dog.

A disability pensioner has argued in court a judge made a “major error” in ruling a senior cop was justified in pulling his gun on her as he believed she was holding a knife.

Senior Constable Christopher Hurtak aimed his gun at the chest of Lytha Owlstara, then 59, after she led him on a low-speed pursuit in an unregistered car through Sydney’s rural southwest in September 2013.

He was caught on police dashcam footage pushing and dragging the handcuffed woman out of her garage and forcing her to the ground next to his vehicle, before capsicum spraying her protective pet husky, Max.

Lytha Owlstara’s arrest on September 14, 2013.

Mrs Owlstara later pleaded guilty to not stopping in a police pursuit, and driving while unregistered and uninsured, but was not convicted in court.

She sued NSW Police, claiming physical and psychological injury, but the District Court found her to be unreliable and ruled Snr Const Hurtak’s actions were justified.

That judgment was appealed in the Supreme Court this week.

If successful, Mrs Owlstara could receive a payout of up to $170,000 plus interest for aggravated damages, future costs and medical expenses related to alleged post-traumatic stress from the event.

Senior Constable Christopher Hurtak, gun drawn, runs into the garage.

Her lawyer, James Sheller, SC, argued the judgment had rested heavily on a perception the Camden highway patrol officer believed the pensioner was holding a knife.

He told the court NSW Police did not raise it as a defence at trial, and said the first mention of a knife came in a police statement written months after the incident in the context of a complaint against the officer.

It was “remarkable” no description of the knife was found in police documents filed on the day of Mrs Owlstara’s arrest, Mr Sheller said. He also argued the documents included no mention of a gun being pointed at her.

“The whole issue of the knife was a bit of a bolt out of the blue,” he said.

Senior Constable Christopher Hurtak points his gun about chest height.

Snr Const Hurtak said during the trial he had seen something “silver” in the woman’s hand but soon realised she was only holding her car keys, the court heard.

The appeal hinged on the 19 seconds not caught on police dashcam footage between when Snr Const Hurtak ran into Mrs Owlstara’s garage, his gun drawn by his side, and when he emerged with his weapon pointed at chest height.

During the trial, both parties gave vastly different versions of the events inside the garage.

Mrs Owlstara, a former nurse, said she was inside her car when the officer pointed his gun at the back of her head and warned “I will shoot you”, before dragging her from the car by her hair.

Snr Const Hurtak testified he aimed his gun at her when she got out and began to approach him, while refusing to drop what she was holding.

Mr Sheller laid out three grounds of appeal: that it should have been found Mrs Owlstara was assaulted by the pointing of the gun, Snr Const Hurtak’s actions were not justified, his version of events should not have been accepted, and that the arrest was unlawful.

Senior Constable Hurtak attempts to force the woman to sit down.

NSW Police has launched its own cross-appeal to argue the slated payout, set down by the ruling judge last year should an appeal be successful, was “excessive”.

Mr Sheller said it appeared the officer entered the garage having already decided to arrest his client on suspicion of her being a suspended driver, a suspicion later found to be wrong.

He said the officer knew during the arrest he was dealing with an elderly woman who posed little threat.

Barrister Michael Spartalis said the officer could not have known the identity or intentions of the driver he had pursued for more than 6km.

Mr Spartalis argued the senior patrolman was within his rights to arrest Mrs Owlstara to prevent her from “trying to escape”, attacking him or “fabricating evidence” after driving inside the garage.

The earlier pursuit on Menangle Rd.

Mr Spartalis said it was “hindsight reasoning” to label as “excessive” the officer’s decision to threaten someone with deadly force unless they were holding a weapon, a point Justice John Basten took exception to.

“Not it isn’t, it’s law,” Justice Basten said.

Mrs Owlstara told Picton Local Court in 2014 she did not realise she was being pursued as she was driving under the speed limit at the time.

She was also charged with resisting arrest, which was later withdrawn.

Justices Basten, Anthony Meagher and Acting Justice Arthur Emmett have reserved their judgment.

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