More than 300 mourners attended the funeral of Taranaki "Ardie" Fuimaono, a Head Hunters gang member who died shortly after being taken into police custody almost a week ago.
Taranaki Fuimaono, 43, died in police custody in June 2021.
The Head Hunter’s led to WorkSafe New Zealand prosecuting the New Zealand Police for an alleged breach of health and safety.
The charge was withdrawn on the eve of the trial, although investigations by the Independent Police Conduct Authority and the Coroner are ongoing.
The unprecedented prosecution of the New Zealand Police for alleged breaches of health and safety laws over the death of a senior gang member in custody has been dropped on the eve of the trial.
Taranaki Fuimaono, known as Ardie, had been taken by his family to Auckland City Hospitalon a Friday night in June 2021, complaining of severe abdominal pain and in an agitated state.
He was placed into an induced coma overnight and medical staff who treated him found a bag of methamphetamine in his underwear.
The following day, Fuimaono was discharged from hospital and arrested by police before being taken into custody about 6pm.
More than 300 mourners attended the funeral of Taranaki 'Ardie' Fuimaono, inset, a Head Hunters gang member who died in police custody in June 2021. Image / NZME
Six hours later, the 43-year-old was found unresponsive in a cell at the Auckland police custody unit.
Efforts to resuscitate Fuimaono were unsuccessful and he died in hospital a short time later.
At the time of his death, he was a senior member of the Head Hunters motorcycle gang and about to stand trial on serious methamphetamine charges.
His funeral in Grey Lynn was attended by hundreds of family members and friends, including mourners from rival gangs, and made headlines because of the convoy of motorcycles riding across Auckland.
Fuimaono’s death was investigated by police, the government health and safety regulator WorkSafe New Zealand, the Independent Police Conduct Authority (IPCA) and the Coroner.
One year later, WorkSafe laid charges against the New Zealand Police last month for alleged breaches of the Health and Safety at Work Act 2015.
The prosecution was against the New Zealand Police as an organisation - not the individual officers involved - as the police are considered a Person Conducting a Business or Undertaking (PCBU) under the legislation.
Better known as Ardie, Taranaki Fuimaono was 43 when he died in June 2021. Photo / Supplied
In the first prosecution of its kind, the charges alleged the police failed in their primary duty of care to ensure the health and safety of others, and in doing so exposed an individual to risk of death or serious injury or illness.
If convicted, the maximum penalty is a fine of $1.5 million.
The police organisation pleaded not guilty and a three-week trial in the Auckland District Court was scheduled for September.
But three weeks before the trial was due to start, WorkSafe New Zealand pulled the prosecution.
When the Herald asked Worksafe why the charge was withdrawn so late, a spokesperson said the Solicitor-General’s prosecution guidelines require WorkSafe to periodically review whether to continue a prosecution.
“In this case, the guidelines are no longer satisfied. We have met with the whānau to update them on this decision.
“Over the next year, WorkSafe will review the ongoing improvements made by Police in response to this incident, to ensure they continue to meet their health and safety obligations.”
The WorkSafe spokesperson said the IPCA was expected to soon release an investigation report into Fuimaono’s death, and a coronial inquiry was also open.
Further questions to WorkSafe about why the prosecution guidelines were “no longer satisfied” were treated as an Official Information Act request and declined, on the grounds of the ongoing coronial hearing.
However, Coroner Matthew Bates did release a WorkSafe document to the Herald which explains why the prosecution was dropped.
The memorandum written by former Deputy Police Commissioner Rob Pope, who is now in charge of WorkSafe inspectors, said the investigation into Fuimaono’s death was thorough and the decision to charge police was made after seeking legal advice from barrister Ian Brookie.
But Pope no longer believed the prosecution was in the public interest, one of the grounds in the Solicitor-General guidelines, for a number of reasons.
More than 300 mourners attended the funeral of Taranaki "Ardie" Fuimaono, who was a member of the Head Hunters motorcycle gang, in Grey Lynn, Auckland. Photo / Alex Burton
There had been developments in case law which, although different to the circumstances of Fuimaono’s death, Pope said, showed “considerable variation” in how district court judges interpret the law.
As yet, there was no guidance for judges from the appeal courts.
There was also a weakness in WorkSafe’s case, Pope said, which was proving the police caused Fuimaono’s death.
The post-mortem examination revealed Fuimaono died because of the combined effects of obesity, hypertension and obstructive sleep apnoea, against a background of methamphetamine and tramadol use.
“As Mr Brookie advises, there is uncertainty as to whether the steps WorkSafe allege the police should have taken, namely increased supervision and involvement of the police doctor, would have prevented Mr Fuimaono’s death,” Pope said.
“While this is not relevant to proving the charge, it is relevant to reparation.”
Pope said the “ultimate purpose” of a prosecution is to achieve better health and safety outcomes for workers and other people, and he noted the police had already made “considerable changes” to the care and management of detainees in their custody following Fuimaono’s death.
Another factor was that WorkSafe had recently adopted a new strategy where investigators would not focus on areas where other agencies already influence improvements to health and safety.
In this case, the IPCA holds the mandate to investigate deaths in custody and also monitors police detention to ensure human rights are met.
The cost of the trial and potential distress to Fuimaono’s family from a public hearing, given the litigation risk, were the other reasons considered by Pope.
The combination of those factors led Pope to believe there was no longer a public interest in prosecution, although WorkSafe would monitor the changes made to management of custody units for the next 12 months.
The Herald was unable to reach the family of Taranaki Fuimaono this week to comment on the WorkSafe decision.
Previously, his brother said he believed Fuimaono’s membership of the Head Hunters and criminal history might have created unconscious bias among the police and hospital staff.
“We’re pleased that the police are being held to account, especially if it means another family doesn’t have to go through this,” said the brother, when WorkSafe laid the charge in 2022.
The actions of police will now be scrutinised by the IPCA and a coronial hearing.
A spokesperson for Coroner Bates was unable to give a timeframe on when his findings would be released, while the IPCA was also unable to confirm when its investigation would be completed.
Superintendent Dave Greig, director of operational capability, said the police had a duty of care for all people in their custody.
Each year, more than 120,000 people are taken into custody which Greig said was an environment that could be “extremely challenging and complex at times”.
There had been a number of developments in recent years to improve custody procedures, Greig said, including the creation of a National Custody Team (NCT) which provides national oversight of the policy, practice and training for all staff.
Other changes implemented after the WorkSafe prosecution were enhanced electronic management tools, better training, and upgraded custody facilities.
“Police continues to work with all relevant stakeholders including WorkSafe, and the IPCA to look for opportunities to constantly improve our approach to the custody of people detained by police,” Greig said.
“Custody will continue to be treated as a critical risk by Police, overseen directly by Police’s Executive Leadership Team.”
The risks of holding intoxicated people in police custody are well known.
All prisoners in police custody are supposed to be checked at the start and end of each shift, and at least every two hours during the shift.
People assessed as in “need of care” must be checked at least five times per hour at irregular intervals, while heavily intoxicated people in “need of care and constant monitoring” must be directly observed without interruption.
But while police officers are trained in first aid and custodial management, the level of care required of intoxicated people and those with mental health conditions often exceeds their expertise.
In 2012, the IPCA reviewed each of the 27 deaths in custody over the previous 10 years.
The number one issue identified was “the extent to which the detainees were affected by alcohol and drugs”, followed by their mental health.
Nearly 50 per cent were affected by alcohol, and 33 per cent involved drugs.
In the 10 years following the IPCA report, another 14 people died in custody, according to police figures released under the Official Information Act.
Ten of those deaths involved drugs and alcohol.
One was Allen Ball. The 55-year-old died in the Hawera police station in May 2019 after drinking a large quantity of alcohol and taking painkillers.
Three police officers were charged with manslaughter for failing to provide medical assistance for two hours, but were acquitted after a trial in the High Court at New Plymouth in 2021. year.
For several years prior, the Police Association had been raising concerns about staffing levels and training in the custody suites.
Jared Savage covers crime and justice issues, with a particular interest in organised crime. He joined the Herald in 2006 and has won a dozen journalism awards in that time, including twice being named Reporter of the Year. He is also the author of Gangland and Gangster’s Paradise.
