Allen Ball died on the floor of a cell in Hawera Police Station on June 1, 2019. Photo / Supplied
Hawera police officers had two hours to call for an ambulance to save the life of an unresponsive man but instead they showed a lack of concern or care and left him alone in the cell.
In her closing statement to the jury of four men and seven women in the High Court at New Plymouth, Crown prosecutor Cherie Clarke said the three accused officers - who all have name suppression - were more than inattentive that night, they showed indifference as they joked and attended other jobs as 55-year-old Allen Ball slowly lost consciousness and ultimately died on the floor.
An ambulance was called at 2.23am, after Officer C, who had checked on him 30 minutes earlier, checked on Ball again.
Clarke said if the officers had made that call before 1.53am, "Mr Ball would have survived".
Andrew Laurenson, counsel for Officer C, said his client's view was simple – he never had actual care or charge of Ball that night.
Instead, that fell to Officer B who was the arresting officer and also the watch house keeper.
"Yes, he was present at the arrest, but so we were the others, so was Constable Patterson, so was Constable Gous … he was in the car but so was Constable Patterson."
His client had checked on Ball - as had others.
"The [police] manual says that it's the arresting officer that has charge, then it's the custody area staff, in the case of a hub, or a senior officer and he did not assume actual care of charge."
He said it couldn't come down to seniority as it was unknown the length of service between his client and others.
Laurenson said the station was understaffed that night and required to cover the whole south Taranaki district; with six officers in Hawera and one in Stratford.
"You have seven police officers who are required to obtain law and in order in the whole south Taranaki.
"They had at least three family harm incidents that night … they have to do everything they are required to do with three sections which Senior Sergeant [Kyle] Davie agreed was less than optimal.
"Not only do they not get training, they were understaffed."
Laurenson said the level of training around custodial management was a four-hour course at police college.
"So what does that tell the recruits? They do a four-hour course where they will not be examined on ... if this topic was so important wouldn't you think that they would examine it at the end of the course?
"All they do after that is a 10 to 20-minute module online which is mostly dealing with the prevention of suicide and that's every two years."
As for the pop-up alerts – which happen as the arresting officer inputs information into NIA – Laurenson said it remained unclear if his client saw one that night; however he hadn't come across a pop-up prior to that.
"Twenty-20 hindsight makes everything so easy … they were not afforded that.
"This was a drunk middle-aged man who [had] a litre of rum … he was alert, that he was able to answer questions, he tripped over a wire but was able to right himself.
"He agreed to be arrested and he hopped in a police car and fell asleep."
A medical expert might have the expertise to diagnose Ball's condition, but the accused didn't.
"They believed him to be a sleeping drunk … there was nothing that they saw that would shift them out of that mind frame, that paradigm."
Laurenson said Ball intended to take his own life that night and that was a decision that he made himself.
"They didn't make that decision, they did all they reasonably could that night … to give him the best care that they were able to do in the circumstances as they found them to be; in a grotty old police station, understaffed, undertrained, ill-equipped.
"Was [Officer C] behaviour so bad that you think that amounts to a crime? No, it's not.
"There's only one reasonable and humane verdict in this trial and that is not guilty."
In her closing statement to the jury, counsel for Officer A, Susan Hughes QC said her client honestly believed Ball was a "sleeping drunk" that night.
"She accepts that she and her colleagues saw a sleeping drunk, not knowing that Ball had taken a gigantic quantity of tramadol and codeine, intending to take his own life that night."
The amount of codeine was between seven and 50 times greater than had previously caused a death by codeine alone.
A mistake did not amount to a major departure from duty, she said.
"What advantage did she derive from not calling [an ambulance] … there's just nothing in it for her not to have rung for an ambulance if that was necessary she knew that was only five minutes away."
There was a mistake in assuming he was a sleeping drunk but that assumption was not a major departure from their legal obligations to provide him with necessaries of life.
The years of experience showed the officer that he was likely sleeping off a hangover, but all she had dealt with ended up getting up the next morning.
"Many drunk people sleep and sleep deeply and many overweight middle-aged men snore … someone sleeping and snoring is someone presumed by most to simply be asleep.
"She saw Mr Ball as no different."
Officer A had many years experience in the job, along with the respect of the community and regularly dealt with people under the influence of alcohol, drugs or both and always treated them with compassion and care, Hughes said.
Ball was known to drink regularly, and drink large amounts, but he did not have a history of self-harm and denied he had that night.
She said the patrol car Ball got in the back of that night was warm and comfortable, and no doubt helped lead to their assumption that he had simply fallen asleep due to his level of intoxication.
"It doesn't look like a collapse, it looks like a man going to sleep. With the benefit of hindsight, what should they have done? They should have roused him to satisfy themselves he was sleeping and not unconscious. But from that point on they behave in a way ... not to wake him."
As for the decisions made by Officers B and C in filing out the NIA system, Officer A was unaware of the pop-up alerts advising of hospital treatment.
Hughes said her client was not perfect and accepted a mistake was made that night but there would be no one judging themselves more harshly than her client.
"Remember that good people make bad mistakes. We do not expect perfection of our officers.
"[Officer A] let Mr Ball down, [Officer A] didn't catch him when he needed a safety net.
"You have seen [officer A] on CCTV. There's nothing to show anything other than treating Mr Ball as a sleeping drunk. [Officer A] directed that he be put in the recovery position. The officers are calm … good humoured … not unkind."
However, Clarke said the trio were guilty of manslaughter by gross negligence by as early as 12.30am on June 1, 2019.
She told the jury that the three failed in their duty of care to provide Ball with immediate and "obvious medical assistance he required".
She said the officers also failed under S23 of the Bill of Rights Act by not treating him with humanity and dignity.
As for Ball's snoring, Crown expert witnesses had testified that officers were warned about the risks of snoring during first aid training at police college because "some people think that it's okay to snore".
As soon as Ball was arrested by Officer B at his home, he was a vulnerable adult and all of the officers involved owed him a duty of care.
"Mr Ball only had these police officers to rely on for the necessaries [of life]."
They should have also been more alert to the various risk factors because of the large amount of alcohol he had consumed and his earlier threat to his own life at home.
She said these factors would have shown any other "reasonable police officer" he was a "very vulnerable adult".
"When Mr Ball closed his eyes in that police car and started to snore, he snored all the way back to the police station."
Officer B and C spent four and a half minutes trying to wake Ball and it should have been then that, instead of being treated as a joke, he should have been taken to Hawera Hospital, a five-minute drive from the station.
Ball never responded to any pain response techniques applied by Officer B and C in the back of the car, including shaking him, pinching his ear and poking a finger into his shoulder blade.
"Instead of doing what a reasonable police officer would have done, these guys decided to move the car and for some unknown reason take Mr Ball from it."
Experts had also given evidence about Ball's comatose state. Dr Paul Quigley described Ball as a "dead weight" in the back of the patrol car and that he had no ability to control himself, falling forward.
Clarke said Officer B and C were in the "best position" to assess Ball's vulnerability and to learn how unresponsive he was.
Officer A told the other cops to lay Ball in the recovery position.
"A reasonable police officer with first aid training … would have called for an ambulance.
"You don't put someone in the recovery position unless they are seriously unwell.
"All three have shown a lack of care and concern at this point in time and it just got worse."
It was about 12.30am before Officer A checked on him and even then just nudged his foot and didn't ask for an update on his condition, Clarke said.
When questioned after Ball's death about why there was no call for an ambulance, the officer told Detective Claire Adkins that it wasn't needed.
"I just didn't deem him to require the medical intervention at that stage."
Clarke said Officer B was guilty as he was the arresting officer and also the watch house keeper, charged with looking after Ball. He also entered Ball's details into the Police National Intelligence Application (NIA), including initially recovering him as "unresponsive" before shortly afterwards changing it to "partially responsive".
Medical assistance was required and subsequently advised, respectively, either way.
Clarke said the pop-up alerts were not a recommendation, but an instruction, a safeguard against any subconscious bias.
She said Officer B at the time even recognised the frailty of his actions by saying on CCTV that he might get "a little bit crucified" for not having Ball constantly monitored given his intoxicated state.
"It's a police safeguard that should have worked on the morning of 1 June but it didn't work. They took a risk, from this point in time, with Mr Ball's health."
Officer B entered Ball's cell four times between 12.04am and the last time at 1.35am, which Clarke said "was not frequent monitoring".
He also never carried out a "proper" health check on Ball at any time as he lay on the concrete floor of the cell.
Officer C was also liable as he was beside Officer B as he went through the NIA evaluation form, which was later signed by Officer A, she told the jury.
His unresponsiveness should have again been noticed when Officer B's iPhone fell out of his vest and onto Ball's head - he never flinched.
However, by the time Ball was checked on for the last time - at 2.23am by Officer C - Ball was already dead.
Clarke said there was no way the officers had any intention to contribute to Ball's death, they were unaware that Ball had taken a lethal cocktail of pills and alcohol.
However, the officers still had to discharge a duty of care given his state, which was slowly deteriorating and Officer A also mentioned Ball would get assessed by a mental health "crisis team" the following morning.
She said Constables Ben Patterson and Rocco Gous were not charged as they were not involved in the custody or care of Ball after helping lift him into the cell.
Susan Hughes QC - for Officer A - will deliver her closing this afternoon.
Stool and goods fly as pair fight at Pakuranga night market on Saturday. Video / Supplied