Officer guilty of assault over handcuffing

A policewoman who arrested a householder in his driveway after a traffic stop has been found guilty of assault but discharged without conviction after an unusual private prosecution in Christchurch District Court.

Denis McLachlan, who brought the prosecution on behalf of the arrested man, his friend Mark Tonks, said the police would now face a civil claim for wrongful arrest.

Mr Tonks told the court he was handcuffed and taken away in front of his wife and neighbours, and held for eight hours, some of the time in a damp, cold cell with the mattress removed.

He said he had felt helpless as he was arrested. He was now disillusioned with the justice system and had been shocked by the "surreal situation".

Judge John Strettell gave his reserved decision today after a hearing in May and a delay so that the parties could make legal submissions.

He dismissed the charge of trespass against the constable - 35-year-old Rochelle Waru - but found the assault charge had been proved because of the handcuffing and detention of Mr Tonks.

After deciding to discharge her without conviction, on condition that she paid $520 towards the cost of prosecution, he declined to continue the suppression order on the ex-constable's name.

Defence counsel Steve Hembrow said she had been in the police force for 3-1/2 years but had left, citing the stress of the private prosecution as one of the reasons. She had moved to Northland where she has two school-age children and a husband working as an army medic.

He said a conviction would certainly mean she could not rejoin the police force in the future.

Judge Strettell said Waru had made an error in arresting Mr Tonks but it was appropriate that the question of his unlawful detention be dealt with as a civil matter. He was satisfied that the consequences of a conviction would be out of proportion to the gravity of the offence and discharged her.

Waru and her partner were doing a traffic stop in Greers Road when they saw Mr Tonks stop his car and back up a cul-de-sac and into a property. He said at the hearing that he and his wife had returned home because they realised they had forgotten some mail they were going to post.

Waru approached Mr Tonks in his driveway to check his identification under section 114 of the Land Transport Act.

Judge Strettell accepted she had the power to do that and had not committed trespass. Mr Tonks had been unco-operative and initially declined when asked to give his name.

Judge Strettell said Mr Tonks had no obligation to be co-operative in the circumstances.

The courts had held that a driveway was a private area. Section 119 of the Act provided power for the police to enter private property if an officer suspected that the driver had failed to stop when required, or had committed an offence and there had been a fresh pursuit.

He held that without these conditions, the constable had no power to arrest Mr Tonks for failing to provide his details unless he was on a roadway, beach, or a place to which the public had access.

Mr McLachlan told the court it had cost $6100 to bring the private prosecution.

- NZPA