Police were justified shooting at man 12 times - IPCA

11:26 am on 28 November 2019

The Independent Police Conduct Authority has found that two officers were legally justified in fatally shooting at a man 12 times on an Auckland motorway.

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Photo: RNZ / Patrice Allen

Jerrim Toms was shot dead by police after his car was stopped with road spikes on State Highway 1, north of Wellsford, on March 31 2018.

At the time, the 29-year-old's family told RNZ four of those shots hit Mr Toms.

Jerrim Toms

Jerrim Toms Photo: Supplied / Toms family

The authority said Mr Toms was wielding a machete when he advanced at the police - and found there was "inadequate communication, control and command of the incident as a whole".

It also found that while the shooting was legally justified, the officers should have turned their minds to co-ordinating a response capable of bringing the incident to a safe conclusion rather than putting themselves into a position of immediate danger, and some officers breached policy by failing to notify police communications and not wearing ballistic body armour.

A shift commander was also criticised by the authority chair, Judge Colin Doherty.

"The Shift Commander was not proactive in ensuring that there was a proper plan in place. In the absence of any communication between them, each unit operated independently, leading to an uncoordinated response that meant the potential range of tactical options available to police was not known or used," he said.

In its decision, the authority said an officer encountered Mr Toms in a Subaru parked on State Highway 1 north of Wellsford. His car was partially blocking a lane, and when the officer stopped to speak with him, Mr Toms got out with a machete in his hand.

The officer reversed away, called for backup and then followed Mr Toms when he drove off.

Jerrim Toms

Jerrim Toms Photo: Supplied / Toms family

Police pursued Mr Toms for the next 40 minutes, using road spikes on three occasions.

At times, the authority said, Mr Toms would stop and interact with police before driving off again.

Eventually Mr Toms - and the seven patrol cars which had been following him at a distance - stopped about a kilometre north of the Johnstones Hill Tunnel.

Mr Toms got out of the Subaru and approached one of the two closest officers, who also got out of their vehicle. He was still carrying the machete and ignored the officer's shouted commands to stop, drop his weapon and get on the ground.

When he got to within about 1.5 metres, that officer and his partner both began firing shots at him: a total of 12 within about four seconds.

The initial four shots caused two fatal injuries, the authority found.

It determined that although eight of the 12 shots were fired after Mr Toms had turned and started running away from the officers, they were all legally justified as the officers were acting in self-defence and defence of others.

One officer honestly believed he had fired all his shots before Mr Toms turned away - while the other officer believed Mr Toms had still posed a threat.

"The latter officer's actions need to be assessed in light of the fact that he was making instant decisions in a highly stressful situation; he did not know other police were in the immediate vicinity; and he thought that members of the public might have been at the scene," the Authority Chair, Judge Doherty, said.

"Given Mr Toms' prior actions, it is therefore understandable that the officer's mind was focused on neutralising the threat that he believed he posed. As soon as Mr Toms dropped his weapon, the officer stopped firing."

Police investigation

The police launched a criminal investigation, which found the officers acted in self-defence.

The decision not to lay charges was reviewed by a Crown Solicitor who agreed with the outcome of the police investigation.

In a statement, police said a significant number of community members came forward to say they had witnessed Mr Toms' erratic driving and behaviour, and "we also know he had gone to a service station earlier in the evening where he threatened to kill the sole attendant".

Police also said they knew "that Mr Toms was under the influence of methamphetamine, cannabis and alcohol".

Waitematā District Commander Superintendent Naila Hassan said their job was to keep the community safe and the officers were left with no other options.

"These officers showed immense bravery in a high-risk situation dealing with an offender who was on methamphetamine and highly agitated. I really want to take this opportunity to acknowledge the two officers involved," she said.

"Police officers every day selflessly put themselves into dangerous and often life-threatening positions like on this occasion and they do this because they care about our community.

"We wish that every situation could be resolved without incident but policing can be unpredictable and the situations are often complex.

"My sympathies are also with Mr Toms' family who continue to grieve the loss of a much loved family member.

"Police acknowledge the comments by the IPCA that the overall communications and co-ordination of the incident could have been better but our officers were working with the best intentions in a highly fluid situation."

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