toy gun
© / GODONG / Pascal Deloche
An Australian man and woman are suing the state of Victoria after police burst into a swingers club party and shot the pair, despite being told that the gun the man was carrying was a mere prop.

Dale Ewins, then 35, and his former girlfriend Zita Sukys had donned detailed costumes for a 'Saints and Sinners' ball in Melbourne on July 8, 2017. The pair say they were engaged in a sex act at the back of the club when they were suddenly surrounded by heavily-armed police who opened fire on them with non-lethal bullets.

A patron called the cops after seeing Ewins with a gun tucked into his trousers, but security staff told officers when they arrived that they had handled the gun and were sure it was just a toy.

Ewins, who claims the gun was "obviously fake", suffered serious internal injuries after being shot twice in the back and tasered three times by the police, while Sukys was shot in the leg.

The pair have also spoken out about struggling mentally and physically in the wake of the shooting.

On Monday, the opening day of the Supreme Court trial, the court heard that police are adamant that Ewins brandished the 'weapon' at them when confronted, a claim he vehemently denies.

Ewins also had a fake tattoo across his forehead as part of his costume, but police said they believed it was real and indicated he was a serious criminal.

"If it wasn't so serious, it'd be farcical," Ewin's lawyer Jonathan Brett QC reportedly told the court on Monday.