Magistrate Ken Stanton says Senior Constable Thomas Moir should have show restraint

Magistrate Ken Stanton made comments about events leading up to a 23-year-old man swinging an axe and assaulting the officer and his brother four times.

Luke Andrew Krushka, of Prospect Vale, was found guilty of two counts of assault police, two counts of common assault, and a count of possessing a dangerous article in a public place on May 29 2020. He will be sentenced next year.

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The court heard that the fight at the corner of Bathurst and York streets occurred shortly after the officer Senior Constable Thomas Moir made a rude and provocative gesture at Krushka who was revving his utility's engine while they crossed the street.

In his written decision Mr Stanton said Senior Constable Moir directed the gesture, which was not friendly and was "rude and provocative", at the car in general without making eye contact.

"Police officers are charged with upholding the law and keeping the peace," Mr Stanton said.

"Even when on leave rudeness and provocation ill befit the role.

"A moment's sober reflection would have raised the possibility that a provocative and rude action had the potential to lead to further conflict.

"If Senior Constable Moir had exercised some restraint, if he had refrained from 'flipping the bird' as the gesture was referred to in the evidence, it seems likely that none of the violence which ensued would have occurred.

"In that way he bears some responsibility for what followed."

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The court heard that after the gesture Krushka abandoned his right-hand turn and confronted the off-duty officer and three pedestrians.

"The defendant was angry, primed for confrontation," Mr Stanton said.

"There is no benign motive consistent with that act [driving through the intersection to confront the men].

In an angry confrontation Krushka assaulted Senior Constable Moir by punching him to the face numerous times, grabbing him by the throat and by swinging the axe at him.

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Senior Constable Moir suffered a broken nose.

He displayed his badge during the confrontation.

Krushka claimed he was acting in self defence. However, Mr Stanton found otherwise.

"I am left in no doubt that it was the defendant who was the aggressor," he said.

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Mr Stanton also found a comment to Krushka during the brawl "What are you doing with your life?" was ill-advised.

"To an aggressor in a highly charged situation it was likely to be taken as belittling and demeaning," he said.

"With the benefit of hindsight it carried the risk of inflaming the situation and was therefore ill-advised."

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