13 Jun 2014

No action against officer defended

9:13 am on 13 June 2014

Police are defending their decision not to take disciplinary action against an officer over an arrest, despite a recommendation from the Independent Police Conduct Authority.

The Bay of Plenty officer was found to have used unlawful and excessive force while arresting the man.

An IPCA report said the incident happened when Mark Smillie failed to pull over on Christmas Day 2011 in Whakatane and the officer followed him into his own driveway.

The report says that when Mr Smillie resisted arrest he was sprayed with pepper spray and knocked down with a police baton. He was then tasered twice, once for 13 seconds, before being handcuffed.

Judge Sir David Carruthers.

Judge Sir David Carruthers. Photo: RNZ

Authority chair Judge Sir David Carruthers said using the taser twice amounted to an excessive use of force and was contrary to the law. He 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.

Sir David said the first use of the taser was not in self-defence as claimed by the officer, and given there were other options open short of using the taser, the authority considered Mr Smillie's arrest could have been effected less forcefully after waiting for the arrival of other officers

Mr Smillie suffered bruising and swelling from the incident and was later found guilty of failing to stop and resisting arrest.

The report recommended police taking disciplinary action against the officer.

Bay of Plenty police said they accepted that the officer's judgement was flawed and his actions did not meet the high standards expected, but they will not take disciplinary action.

District commander Superintendent Glenn Dunbier said it was more appropriate that he provide the officer with remedial training through the employment process some time ago.

He said anyone involved in employment matters would understand that in good faith he could not take different action now.

"I can see how the authority's come to their conclusion, but we didn't feel it was warranted to pursue a criminal prosecution here against the police officer concerned. That, and there was no ill-will or malice here in what he thought he was doing to effect an arrest."

Mr Dunbier said the officer has received extra taser training.

Bay of Plenty police conducted a criminal investigation and obtained legal advice before it decided not to prosecute.

From the national rollout of tasers on March 2010 to June 2012 the weapons were used 192 times in the Bay of Plenty. In 167 of those incidents the situation was successfully de-escalated without the need to discharge the taser.

Read the IPCA report