A Ballarat magistrate has dismissed an assault charge against a police sergeant who admitted to chasing his former neighbour from his house and punching her in the face.
- David Berry has been acquitted of assault charges
- Mr Berry said he struck Samantha Mitchell because she was trespassing on his property
- Magistrate Frank Jones said the credibility of Ms Mitchell was an issue
Off-duty sergeant David Berry was wearing a dressing gown when he chased Samantha Mitchell down a darkened street in 2017 and punched her.
Mr Berry, 57, was charged with common assault last year and pleaded not guilty, arguing that he struck the woman in self-defence.
At a court hearing in Ballarat this morning, Magistrate Frank Jones said the credibility of the complainant was an issue.
The magistrate said Ms Mitchell was “loose with the truth” and had “a serious drinking problem” and “a pathological hatred of Ballarat police”.
He said Sergeant Berry had “no axe to grind” with Ms Mitchell and that his response, “as he perceived it, as [she] raised her arms”, on his approach in the darkened street, was “reasonable in the circumstances.”
“I found his evidence believable, in contrast with Samantha Mitchell,” the magistrate said.
In evidence given as part of a contested hearing last month, Mr Berry said he was not aiming at “any specific area” when he hit her.
Ms Mitchell fell after she was punched and her nose was broken in two places
She ultimately required surgery to fix it, with bruising to her head and eye.
She told the court she had knocked on the officer’s door during a dispute with her partner on the night but fled from the property when Mr Berry reacted angrily and swore at her.
“I wasn’t furious, I’d just woken up,” Mr Berry said.
Off-duty officer chased neighbour to ‘arrest her’
The pair’s account of what happened next differed.
Ms Mitchell gave evidence that she was punched to the back of the head as she ran down the street away from the off-duty officer.
Mr Berry said he punched her to the side of the head face-on, when she stopped running and “lunged at him”.
“Why did you chase her?” the prosecutor asked.
“I wanted to know what was going on,” Mr Berry said.
“My intention was to apprehend or arrest her.”
Mr Berry acknowledged he had no legal grounds for making a citizen’s arrest, given there was no risk to public safety or order, but said he “had every right” to find out why Ms Mitchell had been “trespassing” on his property.
“It never got to that point, because she attacked me,” said Mr Berry.
Ms Mitchell, 34, is a former police officer from Queensland and is now studying law.
The defence had argued Ms Mitchell had “absolutely no credibility” as a witness and questioned her over a series of prior convictions, including for breaches of family violence intervention orders and assault.
The prosecution told the court Mr Berry’s decision to chase, approach and strike Ms Mitchell, with a level of force that caused her to fall to the ground, went “far beyond a reasonable response to the circumstances”.
Ms Mitchell sobbed inconsolably at different points while giving evidence in April and said that she was in “tremendous pain” as a result of the punch.
“It’s a powerless situation and it’s devastating to be in,” she said in her evidence.