After prosecutors closed their case in a contested hearing in Heidelberg Magistrates Court on Thursday, lawyers for two of the police officers argued their charges could not be proven and called on magistrate Cathy Lamble to strike them out.
Barrister Malcolm Thomas said Senior Constable Hilgart hosed John to wash away capsicum spray, which was causing the man pain and had the potential to cause irritation and breathing difficulties.
CCTV cameras at the front of the house show the officer hosing John in the face from close range.
In his evidence, John described it as “waterboarding” and said he feared he would drown.
But Mr Thomas said the footage also shows John turning his head to the left and into the water, and that at no point did he turn his head away.
“It’s clear from the evidence … that when the hose is first applied to [John’s] face and when it is applied at high pressure he turns his head to the left, into the stream of water of the high-pressure hose,” the lawyer said.
Mr Thomas conceded the footage was “bad optics” and “looks horrendous”, his his client would have been open to criticism had he not used enough water pressure, as “copious” amounts of water were needed to get the sticky spray off people.
“So he’s left with the sword of Damocles. Damned if he does, damned if he doesn’t,” Mr Thomas said.
Senior Constable McLeod is accused of encouraging his colleague to use the hose. His lawyer, Rahmin de Kretser, adopted Mr Thomas’ submission, and also said it made no difference Senior Constable McLeod used a mobile phone to film the hosing.
Mr de Kretser also called for the charge that Senior Constable McLeod punched John in the stomach to be dismissed, as there was no supporting evidence.
He admitted his client punched John in the upper arm or back during the arrest.
Senior Constable McLeod faces a third charge of unlawful assault over the use of the capsicum spray.
Constable Edney faces two charges over striking John’s leg with a baton and allegedly stepping on his head. His lawyer is yet to address the court.
Prosecutor Diana Manova will address the magistrate on Friday.
Adam Cooper joined The Age in 2011 after a decade with AAP. Email or tweet Adam with your news tips.