An Independent Police Conduct Authority report released today finds the continued use of a Taser during the arrest of Whakatane man Mark Smillie was excessive and contrary to law.
It recommended disciplinary action be taken against the officer involved. However Bay of Plenty police say remedial action has already been taken against the officer and they can't take different action now.
On December 25, 2011 Mr Smillie was signalled by police to pull over as he was travelling along Arawa Rd in Whakatane. Despite the officer activating the patrol car's lights and siren Mr Smillie failed to stop and instead accelerated before turning into his property at high speed.
The officer followed Mr Smillie onto his property and advised him that he was under arrest for failing to stop and that he was required to undertake a breath screening test.
Mr Smillie actively resisted the officer's attempts to subdue him and after being warned that OC (pepper) spray would be used if he kept failing to comply, the officer drew his OC spray and used it against Mr Smillie.
In releasing today's report Independent Police Conduct Authority Chairman, Judge Sir David Carruthers said the Authority accepted that Mr Smillie's behaviour amounted to active resistance and that the officer was entitled to use the OC spray against Mr Smillie in order to arrest him.
"However, the Authority finds that the subsequent force used against Mr Smillie was unjustified," Sir David said.
Despite the use of the spray Mr Smillie failed to calm down and the officer subsequently struck Mr Smillie with a police baton and pushed him against the fence in an effort to apply handcuffs. Following this Mr Smillie fell to the ground.
The officer then retrieved his Taser from his police vehicle and warned Mr Smillie he would be Tasered if he continued to refuse arrest. Taser Cam footage showed that the officer then released the Taser for 13 seconds before attempting to handcuff Mr Smillie. The officer then picked up the Taser and discharged it a second time before handcuffing Mr Smillie and returning to his police car.
"The Authority finds that the deployment of the Taser on two occasions amounted to an excessive use of force and was contrary to the law," Sir David said.
"This was aggravated by the fact that on the first occasion the Taser was used for an extended period of time of 13 seconds.
"The first use of the Taser was not in self-defence, as claimed by the officer and given there were other options open to the officer short of using the Taser, the Authority considers Mr Smillie's arrest could have been effected less forcefully after waiting for the arrival of other police officers."
Following the incident Mr Smillie was charged with assaulting police, possession of an offensive weapon, refusing to accompany and failing to stop. On 19 July 2012, at the Whakatane District Court, police withdrew the charges of assault and possession of an offensive weapon and Mr Smillie pleaded guilty to the charges of refusing to comply and failing to stop.
"The Authority recommends that police take disciplinary action against the officer in light of its findings detailed in this report," Sir David said.
Bay of Plenty police responded to the findings in a statement released today.
It said following the incident police conducted a criminal investigation and sought legal advice in regard to the actions of the officer.
The decision not to prosecute was made following that rigorous process, it said.
Police then considered the matter in the employment context, as is usual in such matters.
"We fully accept that the actions of the officer when using the Taser didn't meet the high standards we expect," said Bay of Plenty District Commander Superintendent Glenn Dunbier.
"However we are satisfied his actions were not the result of any ill will or malicious intent.
"Our staff confront incredibly difficult and emotive situations on a daily basis and are making split second judgements and decisions without issue.
"We accept that the officer's judgement on occasion was flawed.
"He has learnt from that situation and responded well to remedial action.
"We note the IPCA's recommendation about disciplinary action.
"However the public rightly expects police to deal with these issues in a timely manner and we initiated remedial action through the employment process some time ago.
"Anyone involved in employment matters will understand that in good faith we cannot take different action now."
Between the national rollout of the Taser on 22 March 2010 and 30 June 2012 (which incorporates the date of the incident in question) Taser was deployed in the Bay of Plenty 192 times.
In 167 (87 per cent) of those incidents the situation was successfully de-escalated without the need to discharge the Taser.