24 Mar 2020

Police officer unjustified in pepper-spraying Balclutha man, IPCA rules

1:45 pm on 24 March 2020

A police officer has been disciplined for unjustifiably pepper-spraying a Balclutha man.

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Photo: RNZ / Patrice Allen

The man was going to feed his horses after finishing work late on 17 November 2017, and drove along Glasgow Street, Balclutha.

He noticed headlights down a side street which he believed to from boy racers' vehicle, but which were from the police officer's patrol car.

The policeman, only as Officer A, was patrolling the area due to recent criminal activity in the area.

"He said Mr X stopped, sat and looked at him, then accelerated heavily as he drove off again," the Independent Police Conduct Authority (IPCA) report said.

"Officer A considered this suspicious, so he activated his flashing lights and called Officer B for back up, saying he had a 'driver doing a runner'.

"Mr X denied stopping his ute and said that he only noticed the police car when he got out to unlock the gate to the horse paddock, just over 400m down the road.

"Officer A parked behind Mr X and got out of his vehicle. He saw Mr X in front of his ute but was not sure what he was doing. He did not realise there was a gate there and wondered if Mr X was stashing something. He told Mr X he wanted to talk to him about failing to stop.

"Mr X said he thought Officer A was a local officer so he got into his ute and told him to follow him through the gates where he would talk to him.

"Officer A reached in for the keys and turned the ute off. Mr X said at this point, Officer A told him he was under arrest for failing to stop. Mr X leaned towards the centre console, which made Officer A think he may be reaching for a weapon. Officer A said Mr X pushed the door open with his foot and got out of the ute with clenched fists. Officer A pepper-sprayed him, causing Mr X immense pain.

"Officer B arrived and assisted Officer A in arresting Mr X for failing to stop and obstruction. They took Mr X to the Balclutha Police station. The decontaminant spray used to treat Mr X was ineffective, and he remained in pain for an hour and a half. Mr X alleged that while he was at the station, Officer A pushed him into a wall, which Officer A denies.

"Police became aware Mr X was diabetic and had a restriction on his driver's licence regarding low blood sugars. He was taken to a medical centre where it was found his blood sugar levels were not low."

The man was charged with obstruction and a bail condition preventing him from driving was imposed.

He was transferred to Dunedin and spent the night in Dunedin Police Station as officers feared he would breach the condition and reoffend.

The charges against him were dismissed in court in May 2018.

The IPCA found the officer was unjustified in pepper-spraying the man.

The officer, while justified in signalling the man's vehicle to stop, did not follow police policy when pursuing him.

The officer was justified in arresting the man for suspicion of failing to stop, but unjustified in arresting him for obstruction, and his decision to arrest him without making further inquiry was "unnecessary and unreasonable", the report said.

The authority said there was insufficient evidence to make a finding on whether the officer deliberately pushed the man into the wall.

"Officers attempted to provide appropriate aftercare for Mr X regarding the pepper-spray, however, this was unsatisfactory due to the lack of effective decontamination spray, which should have been available.

"Officers provided appropriate medical care concerning Mr X's diabetes."

The imposition of a bail condition preventing the man from driving was unreasonable and his overnight detention was "not justified or reasonable".

Police should have attempted to locate Mr X's lawyer, the authority said.

Otago Coastal area commander Inspector Marty Gray said the police acknowledged the report.

"Police conducted an employment investigation into the matter and action was taken in accordance with the disciplinary process under the New Zealand Police Code of Conduct," Gray said.

"Police will continue to reinforce education and training for officers, utilising the TENR risk assessment framework to enhance the best service delivery as a result of the Authority's findings."