Police shot a man and his partner at an erotic costume party in a Melbourne nightclub, despite being told the gun he was toting was a plastic toy, a court has heard.
Dale Ewins and Zita Sukys had just been engaged in a sex act at the fancy dress Saints and Sinners ball at Melbourne's Inflation club, when officers surrounded them and opened fire, using hollow-point bullets.
Mr Ewins was toting a toy pistol he bought at a $2 shop and sported a fake tattoo across his forehead, likening him to a serious criminal, the opening day of a Supreme Court trial was told on Monday.
Earlier in the night, he had jokingly pulled the fake gun on the barman in a bid to avoid paying for his drink and video footage played to the court showed laughter ensued.
However, reports of a gunman at the club were made to police and critical incident response officers were diverted to Inflation to investigate.
"The police instruction was there was a man in a nightclub with a gun, which of course was not correct," Mr Ewins' lawyer Jonathan Brett QC said.
A club staff member told officers he had held the gun in question and was confident it was a plastic fake.
However, a group of police, armed with a ballistic shield, batons, a semi-automatic gun, Taser and shotgun firing non-lethal bullets, swarmed on Mr Ewins and Ms Sukys, in the darkness of the club, Mr Brett said.
Mr Ewins was shot twice in the back, tasered three times, beaten and stomped on, while Ms Sukys was shot in the leg.
Mr Ewins had not produced the toy to police at any stage, Mr Brett said.
He accused police of using excessive force and said the arrest was "unlawful in every way".
"If it wasn't so serious, it'd be farcical," he said.
"It must've been completely clear ... the toy was indeed a toy and not a real gun."
Craig Harrison QC, for Ms Sukys, said she seemed to be caught up in the incident as "collateral damage".
"There's no criticism of her conduct at all," Mr Harrison said.
"It was meant to be a kid-free night which turned out to be disastrous.
"Our question, at the end of our submissions, will be, why did this all have to happen?"
Mr Ewins and Ms Sukys are suing the state of Victoria.
The trial before Justice John Dixon is continuing.