Father of man who was assaulted by Geelong police officer David Magher demands probe re-open

The grief-stricken father of a man who died of a suspected prescription drug overdose a week after a police officer’s assault is calling for further investigation into his treatment in custody.

A Geelong man’s father wants the state’s anti-corruption watchdog to investigate the 30 hour period his son spent in custody after he was assaulted by a senior police officer.

Andrew Birch died of a suspected prescription drug overdose a week after a veteran policeman David Phillip Magher assaulted him at a police station.

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

The man’s father, Garry Birch, said his family had repeatedly sent questions to the independent Broad-based Anti-corruption Commission (IBAC) asking if Andrew Birch was further assaulted while in custody.

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

At a court hearing in February last year, 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.

Video taken in the station’s sally port showed Magher kick Andrew Birch three times.

The first kick was deemed acceptable given the man was struggling and being brought to ground, but the latter two happened 30 seconds later when he was calmer and pinned to the ground by two other officers with his handcuffed arms outstretched above his head.

He was fined $4250 for the two unlawful two kicks but avoided conviction.

It’s understood Magher is no longer employed by Victoria Police.

Mr Birch said his son told family members before his death that he had experienced further assault in custody.

Andrew Birch reshoot

The Geelong Advertiser is not suggesting Andrew Birch was further assaulted in custody, only that the family are seeking answers.

The family has sent 14 questions to IBAC – including if the watch house book at Geelong had a record of any injuries; if Andrew Birch received after-care for OC spray injuries and if the watch-house book had record of Andrew Birch having any additional injuries when he left Corio.

The family have also asked IBAC if Andrew Birch was under “constant video surveillance” at Geelong station and if there were incidents that could explain his rib and facial injuries.

Mr Birch told the Geelong Advertiser that the questions had not been answered.

“You can’t properly mourn – you can’t grieve properly until you’ve got the proof,” Mr Birch said.

He said the lack of answers had caused the family further pain and left them unable to grieve, mourn or move on.

“It’s peace of mind. We want to know what his last hours on this earth were like. Was he criminally assaulted or did he make it up?” he said.

The Addy asked IBAC why it had not responded to the questions emailed to IBAC by Garry Birch on January 7 and whether it would investigate claims Andrew Birch was further assaulted in custody.

The Geelong Advertiser understands that the family was contacted by IBAC in May and told that the matters were high priority for review.

A spokeswoman said: “As a matter of practice and for privacy considerations, IBAC cannot comment on whether it has a specific complaint or investigation before it”.

“In accordance with the IBAC Act, IBAC can only communicate directly with a complainant about the status of their complaint.”

Originally published as Father of man who was assaulted by Geelong police officer David Magher demands probe re-open