A disability pensioner who had a gun pulled on her and was shoved to the ground following a low-speed police pursuit in Sydney’s rural southwest has been awarded a six-figure sum.
Lytha Owlstara is set to receive $115,000 after a panel of Supreme Court justices ruled the shocking use of force by Senior Constable Christopher Hurtak was unlawful, saying the woman posed no genuine threat.
Ms Owlstara, then 59, had led the experienced Camden highway patrol officer on a 3km chase in a car full of groceries before driving into her garage in September 2013.
Dashcam footage from Sen-Constable Hurtak’s vehicle showed him running into the garage, his gun already drawn, before pointing it at chest height.
The footage would later show him pushing a handcuffed Ms Owlstara out to the police car, forcing her to the ground and pepper spraying her protective pet dog Max.
The officer threatened to shoot the dog, who had moved to bite him, prompting the helpless woman to reply: “Australian police don‘t behave like this.”
Ms Owlstara, a former nurse, was unlicensed and driving an unregistered vehicle and pleaded guilty in court to those charges but escaped conviction.
She then sued NSW Police – claiming assault, battery and false imprisonment – but the District Court found her to be an unreliable witness and ruled Sen-Constable Hurtak’s actions were justified.
On Tuesday, seven years after the arrest, her appeal against that ruling was upheld, and NSW Police was ordered to pay the costs of her lengthy legal battle.
During a hearing in June her lawyer James Sheller, SC, argued the District Court judgment had rested heavily on a perception the police officer had believed the pensioner was holding a knife.
His client had suffered significant mental health problems in the wake of the incident that had aggravated her underlying PTSD, he said.
In awarding the significant sum, Justice John Basten wrote this week that Sen-Constable Hurtak’s evidence regarding the knife should “not be accepted”.
“In any event, the circumstances did not warrant the pointing of the gun at the appellant’s chest, unless perhaps the officer’s belated claim that he thought she was holding a knife in her hand were to be accepted,” he wrote.
Mr Sheller had told the court NSW Police did not raise the possible threat of a knife as a defence at the previous 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.
Sen-Constable Hurtak said during trial he had seen something “silver” in the woman’s hand as she slowly walked towards him but soon realised she was only holding her car keys, the court heard.
On Tuesday Justice Basten said before the police officer raised his firearm “he did not ask the appellant to stop, ask her what she was holding or instruct her to drop the object”.
“They were alone in the garage. She was a middle-aged woman who was, to say the least, unlikely to present a physical threat to Sen-Constable Hurtak,” he said.
Justice Arthur Emmett said the arrest was unlawful and, accordingly, Ms Owlstara’s claim of false imprisonment was established.
“I also agree that it must follow that her claims of assault and battery, in respect of the pointing of a firearm and handcuffing, are established,” he wrote.