Policeman's Taser use ruled excessive

01:26, Jun 12 2014

A police officer's use of a Taser during an arrest was "excessive and contrary to law", the Independent Police Conduct Authority has found.

On December 25, 2011, Mark Smillie was arrested at his home in Whakatane.

The arresting officer used OC spray, baton strikes and a Taser when Smillie resisted arrest.

He suffered bruising and swelling, and complained to the authority.

In findings released today, the authority found while the officer, who is unnamed, was justified in using the spray, the first and second use of a Taser was excessive and contrary to law.

The authority could not determine whether the officer's use of a baton was in self-defence and therefore justified.

The officer had seen Smillie driving and thought he was "too fast". He activated his lights and sirens, but Smillie failed to stop, and sped to his property.

As Smillie attempted to enter his house, the officer told him he was under arrest for failing to stop and required him to take a breath screening test.

The officer later described Smillie as being "in an unusual heightened state of anger", and was swearing with his fists clenched as he tried to push past to get into the house. He then began swinging his arms around.

Smillie disputed this, and said he resisted the officer's attempts to restrain his wrists and apply handcuffs by pulling his hands away. He denied throwing any punches or striking the officer.

After warning Smillie, the officer used his OC spray, but he continued to lash out.

When he failed to calm down the officer drew his baton to protect himself against "swinging punches", and warned Smillie he would be struck if continued to resist arrest.

The number of times the officer struck Smillie is disputed. The officer said he struck Smillie twice, while Smillie recalled being struck several times, including on the head.

Smillie fell to the ground, and the officer retrieved his Taser and said he would be Tasered if he continued to refuse arrest. The officer said Smillie disregarded the warnings, and "continued to thrash about" on the ground.

Smillie said he was lying on the ground semi-conscious.

The officer discharged the Taser for 13 seconds the first time. A Taser is programmed to discharge for five seconds, the authority said.

He then tried handcuffing Smillie before picking the Taser up and discharging it a second time.

Taser Cam footage showed Smillie denying he hit the officer. Though Smillie resisted the officer, he was not aggressive or assaultive, the authority said.

Smillie was charged with assaulting police, possession of an offensive weapon, refusing to accompany and failing to stop.

Police withdrew charges of assault and possession of an offensive weapon. Smillie pleaded guilty to the remaining charges.

The officer had served 20 years in the police, including 10 years at rank of sergeant.

He said he had bruising to his jaw, a loose tooth, and scabbing inside his mouth as a result of the alleged assault.

On November 1, 2013, a police investigation into the officer's conduct concluded any concerns regarding use of Taser could be addressed through training.

But the authority expressed concerns and asked police to reconsider the matter.

It recommended police take disciplinary action against the officer in light of its findings.

In a statement released today, Bay of Plenty police said it had 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", police said.

Police considered the matter in the context of the officer's employment, and accepted his actions when using the Taser had not met the high standards expected, Bay of Plenty District Commander Superintendent Glenn Dunbier said.

The officer had learnt from the situation and responded well to remedial action which was initiated through the employment process "some time ago", Dunbier said.

The IPCA's recommendation about disciplinary action was noted, but the police could not, in good faith, take different action now because of employment requirements, he said.

The officer's actions were not the result of any ill will or malicious intent, but his judgement was flawed on the occasion, Dunbier said.

"Our staff confront incredibly difficult and emotive situations on a daily basis and are making split second judgements and decisions without issue."