Capsicum spray feels “like two cigarette butts being jammed into your eyes” and its use on peaceful protesters is unjustified and unlawful, lawyers for a man suing police claim.

Climate activist Jordan Brown’s lawyers opened a class action against Victoria Police today, claiming officers’ use of oleoresin capsicum (OC) spray on him at a mining protest was violent and excessive.

They claim it is the first class action of its kind to be brought in Australia, with the trial expected to last for more than two weeks and Brown and Victoria Police expected to give evidence.

Brown was sprayed twice by two police sergeants while at an environmental and land rights protest outside the International Mining and Resources Conference at the Melbourne Exhibition Centre in October 2019.

His barrister Fiona Forsyth KC said Brown was passive, unarmed, standing still and had his back turned when he was sprayed by the first officer.

“It’s entirely objectively unreasonable to see Mr Brown as a threat in any way,” she told the Supreme Court.

“He wasn’t engaging in any violent conduct.”

Videos played to the court today showed two protesters climbing poles outside the exhibition centre and unfurling a banner, on October 30, before police arrest them.

Brown, who was not one of the climbers, was sprayed by one police sergeant directly in the head and face, as officers decided to spray dozens of protesters and not just those they were arresting, Forsyth said.

He was then sprayed again by a second sergeant while trying to run away from the spray.

“The use of force of any kind on Mr Brown at that time was entirely unnecessary,” Forsyth said.

“He was just standing there, not moving … nothing he was doing was stopping anyone arresting the climbers.”

Police can be heard saying “it had to happen, we weren’t getting anywhere” and “don’t f— with us anymore” after spraying the crowd, in footage played to court.

Officers are also heard saying “anyone affected by spray? No, thank you” and then laughing.

Forsyth said an expert due to be called as a witness would discuss the dangers of using OC spray, which is derived from chilli peppers, and is “100 times stronger” than getting chilli in your eye.

“She refers to quotes from a Victoria Police officer who described the pain as like two cigarette butts being jammed in your eyes,” she told the court.

Forsyth said police’s use of force in deploying OC spray to disperse the crowd, and also “pushing, crushing and grabbing” Brown, was entirely disproportionate and he did not receive any aftercare.

Brown claims to have suffered burning eyes, skin and could not open his eyes, which caused both physical harm and “long-term psychological damage”, his barrister said.

The class action will claim officers at the protest violated Victoria Police procedures, policies, the Crimes Act and the Charter of Human Rights.

Lawyers for Victoria Police are contesting all of Brown’s allegations and will respond to the claims after the plaintiff’s opening. 

Outside court, Brown’s solicitor Grahame Best said the case was the first class action of its kind in Australia, and those signed up include every person sprayed at the protest.

“It will be novel it that sense,” he told reporters.

His lawyers hope the class action will set a precedent for how Victoria Police uses OC spray in the future.

The trial before Justice Claire Harris continues.