Chief Magistrate hears closing submissions in case of cop accused of assaulting a prisoner

Court hears closing arguments in the case of Hobart police officer Benjamin Rhys Fogarty, who is accused of assaulting a prisoner in 2017.

A police officer has pleaded not guilty to assaulting a prisoner while walking him to the Hobart Police Station in November 2017.

A DECISION in the case of a Hobart police officer accused of assaulting a prisoner is expected in May.

Chief Magistrate Catherine Geason this morning heard closing submissions from Constable Benjamin Rhys Fogarty’s lawyer and the prosecution.

Constable Fogarty has pleaded not guilty to one count of common assault.

Hobart Magistrates Court previously heard Constable Fogarty and another officer arrested two men, who appeared to be under the influence of drugs, outside the Royal Hobart Hospital emergency department in the early hours of November 16, 2017.

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The court heard drugs were found on one of the men — Michael Douglas Starling — and more drugs and uncapped syringes were found in his van.

The second man was taken to the Hobart Police Station in a divisional van and Starling was taken on foot.

It was while Starling was being taken to the station that it is alleged Constable Fogarty punched Starling in the back three times and used excessive force.

The allegation was made by another police officer, Constable Joshua Thorpe.

Defence lawyer Kate Cuthbertson today said it was not disputed that Mr Fogarty applied force to Mr Starling but she said there was an “air of unreality” about some of Constable Thorpe’s descriptions of the delivery of blows to Mr Starling.

“You cannot be satisfied beyond reasonable doubt that the force used was not reasonably necessary to overcome the force used by Mr Starling … in resisting his arrest,” Ms Cuthbertson said.

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“On anyone’s version, Constable Fogarty was pinned in a very small space against a fence, having lost his balance, with a person who was under the influence of amphetamines … He needed to maintain custody and prevent further harm to himself.”

“It is a very brief incident, it was quickly controlled but it did require the use of some force.”

Prosecutor Rebecca Lancaster said a defence of self-defence was not open on the evidence because Constable Fogarty already had control of Starling — who was on the ground with his hands cuffed behind his back — before the alleged assault took place.

Ms Lancaster urged Ms Geason to accept Constable Thorpe’s evidence.

“He was impressive as to his recollection of the incident,” she said.

“He was the only eye witness save and except for Constable Tilley who was across the road,”

Ms Lancaster said Constable Thorp told his partner almost immediately after the incident what he had witnessed, and told his supervisor at the end of his shift.

“These are not actions of a man who was perhaps mistaken about what happened … made things up or who exaggerated,” she said.

Magistrate Geason bailed Constable Fogarty to appear for her decision in May.