IPCA rules Tauranga police officer’s decision to taser man three times unjustified despite jury acquittal

A police officer tasered a man detained in court custody three times, Photo / Christine Cornege

A police officer who tasered a man detained in court custody three times and was charged then acquitted over the incident was not justified in his actions, the Independent Police Conduct Authority has found.

The police officer tasered the man in February 2019. The man, who suffered from mental illness, had been taken from Tauranga police station to court cells to wait to appear and was agitated and disruptive throughout the morning, the authority said in its decision released today.

The man attempted to leave the cell, and the officer involved in the incident, together with his colleagues, had to pick him up and force him back into the cell. A Community Magistrate remanded the man in custody, and he needed to be moved back to the custody suite at the police station. He did not want to go and would not co-operate.

After an attempt to persuade him to come voluntarily, the officer entered the cell with a Taser pointed at the man. Another police officer and three corrections officers also entered and tried to restrain the man.

The officer told the authority he believed the man had hit and pushed away two of his colleagues and posed an imminent and serious threat to himself.

The officer said the man threatened to kill him, and he believed he was about to be assaulted. He was extremely wary of the man’s strength and speed and fired the Taser when the man lunged at him to defend himself and his colleagues, he said.

The officer activated the Taser twice more while the man was on the ground. The officer said he believed the man was attempting to get up and was armed with a sharp Taser probe that could cause serious harm to himself and his colleagues who would handcuff the man.

The police officer was charged with assault with a weapon for each Taser discharge and was acquitted by a jury in July last year.

The authority said in its decision it viewed CCTV footage from the cell and footage from the camera mounted on the Taser.

“We spoke to the officers involved as well as the man. We also assessed the evidence from the officer’s jury trial,” the authority stated.

“There is a fundamental contradiction between the threat the officer and some of his colleagues say existed, and which prompted the officer to act, and what can be clearly seen on both pieces of footage.

“We cannot see any evidence of the officer’s colleagues being punched or pushed, or the officer himself in a position of physical threat prior to any of the Taser discharges. Despite what he now says, he simply cannot have perceived an imminent and serious threat at the time.

“We have concluded that the officer honestly believes his version of events. We believe he has constructed this story to fit the events after the fact, and he now believes this version to be true. This version has subsequently been reinforced through repeatedly watching the footage frame-by-frame in preparation for court. In short, his recollection is unreliable, but not dishonest.

“Because the officer did not believe he was facing an imminent and serious threat prior to each Taser discharge, he cannot have fired the Taser to defend himself or others. Rather, we believe he did so to force the man to comply with instructions and make the extraction easier. The officer cannot rely on self-defence to justify his actions.”

While authority chairman Judge Colin Doherty acknowledged a jury had acquitted the police officer of criminal charges, “the authority has considered the evidence using a different lens and employing a civil standard of proof.

“The man did not pose a threat justifying the level of force used against him, and given the reality portrayed on the footage of this incident, the officer cannot have perceived that this was the case at the time. However, I accept he honestly believes a different construction of events.”

The authority finished its investigation in December 2019 but delayed the release of its public report until after court proceedings were over in July 2022.

As well as finding that firing the taser was not justified, the authority decision said some police officers in the Bay of Plenty police district had been carrying tasers in court custody areas which was against police policy.

They wrongly believed they had a judge’s permission to do so.

In 2020, police updated the policy to clarify staff must remove tasers when entering custodial areas.

The authority also ruled that post-incident procedures were “not well managed” by police.

While the tasered man did receive sufficient medical care, “the handling of the exhibits and scene seems less thorough”.

The required process was to preserve and photograph the scene but the officer collected Taser wires and other items from the floor of the cell, bagged them and took them with him to Tauranga Police Station. Once there he told two sergeants about the incident. However, the scene had already been disturbed and therefore could not be properly examined.

The officer did not fill out the evidence documentation and left the bag and uncompleted document at the station. These were eventually thrown away.

In a statement, Bay of Plenty district Commander Superintendent Tim Anderson said police accepted the findings.

Police self-reported this incident to the IPCA and carried out a criminal investigation, he said.

“Police agree with the findings by the IPCA and our decision to charge shows how seriously we treated this matter,” Anderson said.

He said there was an ongoing employment investigation in relation to the incident and the officer was on restricted duties.