The trial of Ballarat police officers, Leading Senior Constable Nicole Munro and Senior Constable Steven Repac began on October 24, but the jury of six men and six women were dismissed on November 12 after they could not reach a unanimous or majority verdict.

Repac, 29, was charged with five counts of assault while Munro, 48, was charged with one count of assault.

The charges related to an alleged assault against retired detective, Yvonne Berry, while she was in a Ballarat police cell on January, 15, 2015.  

The jury had found Repac guilty of one count of assault for kicking Ms Berry in the left leg while she lay handcuffed and lying on her stomach.  

But they were unable to reach a verdict on the five remaining charges despite Judge Paul Lacava giving them more time.

The prosecution discontinued the five charges at the County Court in Ballarat on Wednesday.

A plea hearing for Repac will be held in February.

The jury has been dismissed in the long-running trial of two police officers charged with assault.

Leading Senior Constable Nicole Munro was charged with one count of assault and Senior Constable Steven Repac was charged with five counts of assault against retired detective Yvonne Berry on January 15, 2015.

A single guilty verdict against Repac from last week will be recorded, finding him guilty of assault for kicking Ms Berry in the left shin in the early hours of January 15.

The trial began on October 24 and the jury retired on November 6.

The jury of six men and six women had almost immediately returned a verdict of guilty against Repac on one charge of assault but has been unable to reach a unanimous decision on the remaining four charges against Repac and the one charge against Munro.

On Thursday, November 8, the jury was told a majority verdict would be accepted on the remaining five charges.

After deliberating throughout Thursday and until 11.09 am on Monday, November 12, the jury foreman advised they remained “deadlocked” on the remaining five charges.

Asked if more time would allow the jury to reach a conclusion, the jury said it was not possible and that they had “exhausted all considerations.”

Judge Paul Lacava thanked the jury for their service and dismissed them, saying it was a “not an easy task” to pass judgement on other members of the public.

Repac’s defence barrister Andrew Steward said he doubted his client would be in a position to enter a plea at this stage, and it could be “some weeks” until they would be able to obtain medical, psychological and Work cover documentation.

The court will reconvene at 2.15pm when Judge Lacava will decide whether future action and whether the cases will proceed to a retrial.

Judge Lacava said “it does get complicated” but the case had been “around for more than three years” and it “was about time some hard decisions were made”.

A Ballarat jury will return on Monday to continue deliberating the case of two police officers charged with assaulting a fellow officer in custody.

The County Court jury have been deliberating since 11am on Tuesday.

Senior Constable Steven Repac, 29, and  Leading Senior Constable Nicole Munro, 48, are on trial for the alleged assaults against Yvonne Berry on January 15, 2015. The jury will resume deliberations on Monday at 10am.

Earlier this week the jury in the County Court trial of two police officers charged with assault was directed to keep deliberating after they were unable to reach a verdict on five charges against two police officers accused of assault.

The County Court jury in the trial of two police officers charged with assault had returned one guilty verdict just before 3pm on Tuesday but were recalled to the court room at 4.20pm.

Judge Paul Lacava asked the jury foreman if they were close to reaching a verdict on the remaining five charges but was told the jury still had not been able to reach unanimous agreement.

The judge warned the jury not to discuss the case or their deliberations with anyone and dismissed them for evening. They will continue their deliberations at 10am on Wednesday, 7 November.

Senior Constable Steven Repac, 29,  was earlier found guilty of one count of common law assault for kicking Yvonne Berry in the left leg in the early hours of January 15, 2015, while Ms Berry lay handcuffed and lying on her stomach in a police cell.

The jury said they were at a "stalemate" on the other five charges but Judge Lacava directed them to return to the jury room and "calmly continue deliberating" and "weighing up each other's opinions."

He said given more time, juries were often "able to reach agreement."  

The jury in the trial of two police officers accused of assault have retired to consider their verdicts.

The six woman and six man jury vacated the County Court trial room at 11.06am to consider the verdicts against Leading Senior Constable Nicole Munro, who is charged with one count of assault against retired detective Yvonne Berry on 15 January, 2015 and Senior Constable Steven Repac, who is charged with five counts of assault against Yvonne Berry on 15 January 2015.

Munro has pleaded not guilty to kicking Yvonne Berry while she lay on the floor of a Ballarat police cell about 1.30am on January 15, 2015.

Repac, who was on duty with Munro on 14 and 15 January 2015, has pleaded not guilty to five counts of assault, where it is alleged he stomped on both of Ms Berry’s ankles and on her leg, stood on Ms Berry with one foot on each of her ankles and kicked her in the left shin.

Judge Paul Lacava told the jury it was for them "to judge whether witnesses are telling the truth, or their recall is accurate and they must also take into account all the exhibits submitted”.

The prosecution has the burden of proof and must satisfy you beyond reasonable doubt on each charge. The accused do not have to prove a thing," Judge Lacava said.

"Do not guess ... it is not safe to do in a criminal trial," he said and told them to bear in mind, "evidence can come in many forms and can be direct or indirect”.

Judge Lacava directed the jury on several issues, including the need to "take care when drawing conclusions" and also the "deliberate lies" in Repac's statement of 17 January 2015, when Repac said at 1.30am on January 15 he had assisted in handcuffing Ms Berry who was "extremely aggressive and yelling incoherently" by "pinning her legs down". 

"This was a deliberate lie because we know from the CCTV footage that Ms Berry was handcuffed by other police officers and had been taken back to the cells at 1.46am, and that neither Repac nor Munro were present when the handcuffs were applied," Judge Lacava said.

He told the jury not to reason that "just because someone has lied, they are guilty" and said "Repac may have lied in his statement as an attempt to justify the conduct of others; he may have simply made a mistake".  

Judge Lacava drew the jury's attention to the character references for both Munro and Repac, with several witnesses testifying to their good character.

"It is generally believed that a person of good character is less likely to commit an offence," the judge said, "but good character cannot alter proven facts" and that the jury members "must not speculate" or allow "sympathy or preference" to factor in their decision.

Judge Lacava directed the jury that in order to prove the crime of assault, they must be satisfied that:

The accused applied force to the body (came into contact with) of Berry, that the application of force was intentional and that the application of force was without lawful justification or excuse.

He said, while the first two factors were not in dispute, the third factor "was what was in contention.

He said there were actually two trials being run and they were being heard together "for convenience."

"However," Judge Lacava said, "we must be careful not to allow convenience to override justice and each charge must be considered separately."

The jury were directed that they must return a unanimous verdict on each of the six charges.

The Crown prosecution and the defence took the floor in the County Court on Monday to present closing addresses in the ongoing trial of two police officers accused of assaulting a retired detective at Ballarat in January 2015.

Crown prosecutor Andrew Grant said there was “no argument” that police could use force in certain circumstances but that it must be “reasonable and within limits.”

Mr Grant told the jury that members of the Victorian Police force should never use force “out of anger or frustration”, but that officers Leading Senior Constable Nicole Munro and Senior Constable Steven Repac had “stepped over that line.” 

Munro has pleaded not guilty to kicking Yvonne Berry while she lay on the floor of a Ballarat police cell about 1.30am on January 15, 2015.

Repac, who was on duty with Munro on 14 and 15 January 2015, has pleaded not guilty to five counts of assault, where it is alleged he stomped on both of Ms Berry’s ankles and on her leg, stood on Ms Berry with one foot on each of her ankles and kicked her in the left shin.

“Ms Berry was restrained, face down, buttocks exposed, handcuffed with her hands behind her back. She did not pose a risk to the safety of anyone,” Mr Grant said, “and yet, over a short period of time (about one and a half minutes), there have been six applications of force against her.”

Mr Grant said the events before and after this were “less relevant” and that the main issues for the jury to consider were; “were the actions of Munro and Repac “a reasonable response in the circumstances and was the contact (against Ms Berry) an “application of force without lawful justification, or excuse?”

He said the CCTV footage (depicting the officers actions in the cell on January 15) was “the most important piece of evidence” and urged the jury to use their life experience and “not to leave their common sense outside the jury room.”

Previous coverage:

Jury empanelled to begin trial of two police officers

Witnesses give different accounts during trial of police officers charged with assault

It was a nudge, not a kick, police officer tells jury in County Court trial 

Alleged police cell assault victim was ‘too strong’ for police 

Barrister for Munro, Anne Hassan said the accusations were “all nonsense.”

“Ms Munro behaved exactly the same way as her colleagues” and she was “entitled to do what she did in order to protect herself and her colleagues.”

Ms Hassan said Ms Berry “could not accept the lawfulness of her arrest”, that she believed “someone had decided to give her a ‘humbling’ ” and that she believed she was the “victim of a vast police conspiracy.”

“You’ve heard the many lies she told that night,” Ms Hassan said, and went on to tell the jury Ms Berry was “a witness without honesty and without accuracy.”

“Ballarat Police Station is covered by CCTV. The police knew their actions were recorded and potentially may be scrutinised,”she said.

“Ms Munro was using her foot to create space and distance” Ms Hassan said, because of the OC foam (capsicum spray) used on Ms Berry, after she had earlier escaped her cell and evaded two police officers.

Ms Hassan disputed the prosecution’s contention that “Ms Munro was indulging in gratuitous force against Ms Berry because she’d had enough.”

“This was not criminal conduct, members of the jury. In 27 years (of service), Ms Munro has never had any disciplinary action,” Ms Hassan said.

Repac’s barrister, Geoffrey Steward said his client “had some foresight of what she (Berry) was capable of” because he and Munro had attended on the night of January 14, in Brown Hill when she was arrested.”

“He’d seen it all earlier, perhaps he feared what might happen,” Mr Steward said.

”You can’t look at each charge and ignore his (Repac’s)  state of knowledge. He does what he thinks he needs to do to keep himself safe.”

“Aggression, defensiveness, irrationality, using obscene language that would make a wharfie blush … they were her (Yvonne Berry) reactions to the lawful acts of police trying to do their job,” Mr Steward said.  

“Steven Repac was trying to do his job in difficult circumstances,” Mr Steward said. “And unless you are satisfied beyond reasonable doubt, I submit that you should find him not guilty.”

The trial will continue on Tuesday when Judge Paul Lacava will give the 12-person jury final directions.

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