Client sprayed with OC Spray Receives Costs
Notwithstanding that his matter took almost four months to conclude, our client has had the satisfaction today of a dismissal on the basis that the Police Prosecutor offered no evidence.
Our client was with his brother in the city, when the police acting on information observed on City Safe CCTV intercepted them outside the Treasure Casino. While it is clear that his brother was angry and even verbally abusive, our client was guilty only of trying to calm his brother down. The Police did need to talk to our client’s brother, based on an interaction that had occurred a little earlier, but the manner of the exchange demonstrated a lack of de-escalation techniques and a concerning readiness to use excessive force.
Ultimately our client, who was not detained or arrested was sprayed in the face with OC spray. His behaviour did not warrant this, he was not resisting or obstructing, even though he may have been under the influence of alcohol. Aggression and argumentativeness do not qualify as resistance or obstruction, and pre-emptive force is not appropriate. The use of OC spray so readily demonstrates a worrying trend in our view, and the public should be concerned about this for reasons of public policy. The police are charged with a difficult job. We know this having been a police officer ourselves. But the police also have accoutrements that can cause significant injury and death, and are trained to exercise discretion and judgment.
Body worn footage is a welcomed initiative that should remove the tendency for police to re-write the facts after the event to suit their actions. Unfortunately, in this case, notwithstanding that the body worn camera was clear, the facts alleged were at odds with what happened. It was clear from the body worn footage, that very soon after alighting the vehicle, the police officer has drawn capsicum spray, broken the seal, and commenced activating it by shaking it. This is a serious act of force, and only appropriate where other options are not available.
The closest that our client came to being detained was when he has asked what he is being detained for. The police officer does not say he is detained, but rather says, “you are both being looked at, at the moment for an offence”. Even if they had uttered the words, there was no basis to detain our client, as at most he had been involved in a nuisance earlier, not an indictable offence. Using the phrase, you are both being looked at, is not the same as detaining him, and he is certainly not arrested. Whereas, the word ‘detained’ is clearly said to his brother, and directed at his brother, by another officer. This officer is also not using de-escalation strategies.
The power for a police officer to detain a person under the Police Powers and Responsibilities Act (PPRA) is strictly limited. It did not apply in this case.
Subsequently a heated exchange occurs between the other police and our client’s brother. Our client, who has done nothing other than verbally encourage his brother to calm down and be quiet, is pulled away by one police officer, and while being pulled away, is sprayed in the direction of his head. He immediately falls to the ground. At no time is he representing a threatening posture to any of the police. He was not resisting or obstructing, even if he had been lawfully in detention. But he is charged with obstruct police and commit public nuisance. Arguably laying these charges was to attempt to clothe the assault on our client with some legitimacy.
Consistent with the Court of Appeal decision of Rowe v Kemper, as he was neither arrested nor detained lawfully at the time, the use of force upon him, is an assault.