Heavily armed police shot a man and his girlfriend at an erotic Melbourne costume party, despite being told the gun he was toting was a toy.
Dale Ewins and former girlfriend Zita Sukys are suing the state of Victoria after officers fired at them using hollow-point bullets at Inflation nightclub in July, 2017.
Mr Ewins, dressed like punk icon Sid Vicious, and Ms Sukys, decked out as a naughty schoolgirl, were engaged in a sex act at the Saints and Sinners ball when police swarmed and shot them in darkness, the Supreme Court heard on Monday.
Mr Ewins denies having pointed his toy gun at police during the confrontation, but police are adamant he did.
His lawyer Jonathan Brett QC said Mr Ewins had shown his toy gun to two crowd controllers to ensure it was known to be a fake, and to a stripper, who was part of a troupe dressed as police for their performance.
At some stage, however, a concerned witness saw the toy tucked into Mr Ewins' pants and reported it to police.
A critical incident response team was sent to investigate, but a staff member told police he had handled the gun and felt confident it was a toy.
Police were also advised Mr Ewins' tattoo of the word "Rotten" across his forehead - which they thought meant he was a serious criminal - was a fake.
However, officers with a ballistic shield, batons, a semi-automatic gun, Taser and shotgun firing non-lethal bullets, swarmed on Mr Ewins and Ms Sukys.
Mr Ewins was shot twice in the back, tasered three times, beaten and stomped on, while Ms Sukys was shot in the leg.
Mr Brett said Mr Ewins had not produced the toy to police at any stage and accused police of using excessive force and conducting an unlawful arrest.
"They had no reasonable grounds for believing Mr Ewins was guilty of any offence involving a real firearm," he said.
Craig Harrison QC, for Ms Sukys, said she was "collateral damage".
"There's no criticism of her conduct at all," Mr Harrison said.
"It was meant to be a kid-free night, they both having children, which turned out disastrously," he said.
Mr Ewins was shot in his shoulder and his lower back, causing severe internal injuries.
The trained bartender, who could throw bottles in the air like actor Tom Cruise in the movie Cocktail, now had a left shoulder shattered beyond repair, required part of his bowel be removed and had post-traumatic stress disorder.
Chris Blanden QC, for the state of Victoria, said the initial report characterised Mr Ewins as "looking like a bikie with a tattoo on his forehead".
He said police were concerned about who he was and whether his associates were also in the building.
Mr Blanden said an officer was adamant Mr Ewins pointed a pistol at him during the confrontation. He denied police breached their duty.
When confronted, Mr Ewins, who was drug affected, became animated and struggled, he said.
The trial continues on Tuesday.