Police officers seek to have convictions quashed

File photo / Bay of Plenty Times

The evidence against two Dunedin police constables convicted of kicking over a motorcyclist did not stand up and their convictions should be quashed, the Court of Appeal was told today.

Constables Brenton David Rooney, 33, and Duncan Roy Hollebon, 37, were found guilty after a jury trial in Dunedin District Court in June last year.

Rooney, who had denied intentionally injuring Daniel Murray Wiel in February 2009, was sentenced to two months' community detention and 100 hours' community work.

Hollebon, who also entered a not guilty plea, received 160 hours' community work for assaulting Mr Wiel with intent to injure him.

Each was ordered to pay $500 reparation to the victim.

But lawyers, John Farrow for Rooney and Anne Stevens for Hollebon, told the Court of Appeal that the jury's verdicts were "unreasonable" and that the serious charges were not borne out by what were minor injuries.

They questioned any intent to injure, saying the actual injuries did not match the allegations of considerable force.

Both lawyers also submitted that jurors should have been cautioned by the trial judge that the prosecution evidence from two other police constables was unreliable.

Constables Johnathon Dunn and Lachlan McDonald contradicted each other on who hit and kicked Mr Wiel and on which part of his body. The pair also described blows as "solid" and "very hard", yet the description of force was inconsistent with the injuries.

On a further ground for appeal, Mr Farrow said Mr McDonald had a conversation with Mr Dunn during a luncheon adjournment at the trial.

At the time, Mr McDonald was still under oath and under cross examination.

Crown lawyer Kate Bicknell said the charge against Rooney was not just based on the force used but the fact that he had, according to the evidence of Mr Dunn, kicked Wiel in the head.

The trial and subsequent appeal arose after Rooney and Hollebon intervened during an arrest by two junior constables -- something the trial judge Paul Kellar said at sentencing was an abuse of authority.

He said what happened involved illegitimate use of force on a suspect and undermined public expectations of the police.

Police had pursued Mr Wiel early on February 15, 2009, after he was seen riding a motorcycle around Dunedin city streets without lights and without a helmet.

Rooney was the acting sergeant and Hollebon was on patrol when they arrived to see the two less experienced officers struggling with Mr Wiel on the ground.

His hands were under his body as he resisted being handcuffed.

Evidence was given at trial that Hollebon went over and kicked Mr Wiel in the rib and shoulder area. Then Rooney arrived and kicked him in the head and face area. Hollebon returned and was seen to kick Mr Wiel again.

Injuries were not serious and included a 2cm laceration to the right eyelid, grazing to the right cheek and a black eye.

Justices Ellen France, Judith Potter and Forrest Miller reserved their decision.

- NZPA