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03 April 2012 - Seven recommendations for improvements to Police procedure have been made following an investigation into the fatal shooting of Auckland courier driver Halatau Ki’anamanu Naitoko.
A member of the Armed Offenders Squad (AOS) shot and killed Mr Naitoko on Friday 23 January 2009, as he was driving on the North Western Motorway. The AOS member, Officer 84, wounded another driver, Richard Stephen Neville, and shot at and wounded a fleeing offender, Stephen Hohepa McDonald.
The shootings occurred at the conclusion of a three-phase police pursuit of McDonald, who was armed and posing an extreme risk to Police officers and members of the public. During phase 1 of the pursuit McDonald was a passenger in the fleeing vehicle, and during phases 2 and 3 he was the driver of vehicles he had stolen at gunpoint.
The Independent Police Conduct Authority investigation has found the death of Halatau Naitoko was the tragic outcome of a rare combination of events.
Stephen McDonald committed serious offences whilst armed and under the influence of drugs. His one objective was to evade arrest by any means, including entering homes and demanding vehicles. He had pointed a firearm at Police and members of the public; fired at Police; and driven in a manner that showed total disregard for his own safety and for that of others.
The Authority has concluded that two AOS members, Officers 81 and 84, were justified in shooting at McDonald, however their shooting was not accurate or safe, as demonstrated by the outcomes.
It has also concluded the overall operation to apprehend McDonald lacked effective command and control by the Northern Communications Centre; and that it was undesirable for the AOS Commander to dismantle officers’ weapons after the incident.
The Authority Chair Justice Lowell Goddard said the investigation was one of the most intricate and complex undertaken by the Authority. The Authority interviewed Police officers and non-sworn staff, examined forensic material and ESR reconstructions of the event, reviewed Police policies and relevant legislation, and sought advice from independent scientists and medical experts.
“The loss of Halatau Naitoko remains a source of huge grief for his family,” she said.
An Executive Summary of the Authority’s public report follows.
The overall operation
The overall operation lacked effective command and control. The responsibility for communicating clear tactical decisions to achieve a specific objective rested with the shift commander at the Northern Communications Centre (NorthComms).
In fairness to the shift commander, he was under significant pressure. However this raises questions around whether there was sufficient readily-available support for the commander; and whether command and control training, resources and systems for dealing with events of this nature are adequate in Police communications centres.
The lack of tactical control was exemplified in the area of Pine Street, New Lynn, where there was a potential opportunity to contain McDonald. This opportunity was not taken because NorthComms was not aware of the resources available, nobody was clearly in command, and there was an expectation of an ultimate AOS resolution.
As well as failures by field units contributing to poor control of resources; other contributing factors were the lack of a clear understanding of the role of the Police helicopter Eagle with regard to field command, and the AOS deployment of resources without adequate communications within the squad itself or to NorthComms.
The pursuit phases of the operation were testing for Police command and control. Police breached their pursuit policy and greater control should have been exercised by NorthComms.
NorthComms’ ability to exercise command and control was compromised by the actions of some officers in the field. In particular, no doubt with the intention of being tactically positioned when Stephen McDonald was finally stopped, many patrols joined the pursuit – often without NorthComms’ knowledge. Additionally, there was radio indiscipline at times, and a poor flow of sound tactical information from ground units.
Given the intensity of the situation, those problems were to be expected and should have been anticipated and better managed. Nevertheless, with those reservations, the pursuit phases were adequately handled.
The AOS role
In addition to being compromised by communication difficulties, the AOS turnout of seven (including the commander and a dog handler) was insufficient for an incident of this nature.
The Authority notes that in the course of this operation a number of officers, without concern for their personal safety, took initiatives which placed them in danger. Others demonstrated sound tactical thinking, for example by attempting to restrict McDonald’s movement by blocking roads and traffic; by trying to organise armed officers into close cordon points in Pine Street, and by setting up a moving block behind Stephen McDonald on the motorway.
The Authority is satisfied that, on the motorway, Officers 81 and 84 properly took immediate action in the face of the threat presented by Stephen McDonald. Their actions in confronting him were commendable.
Taking into account:
• that Stephen McDonald, the vehicles and the officers were all moving;
• the immediacy of Officers 81 and 84’s decision-making;
• the high-stress circumstances; and
• that the officers were not intensively trained in the type of shooting required;
in the Authority’s view, the actions of Officer 81 and 84 were reasonable and justified in law.
Stephen McDonald created a situation on the North Western Motorway that was dangerous to all involved, and Officers 81 and 84 found themselves having to take immediate action. While the environment was challenging and the officers were under considerable stress, having never before been in such a situation, the shots fired by Officers 81 and 84 were not accurate or safe.
The failure to shoot accurately and, in Officer 84’s case, to identify the risk beyond the target, does raise concerns about the depth and degree of their weapons training, including experience in ‘shoot, don’t shoot’ decision-making. The officers had a responsibility not only to hit the target but to ensure that the line of fire beyond the target was clear when their shots were fired.
Given the environment in which AOS officers may be required to perform, there is an onus on police to ensure that the selection and training of AOS members is such that the risks of their failing to perform to the highest standard when under stress are negated as far as practicable.
The actions of Officers 81 and 84, in firing at Stephen McDonald, were justified and therefore not contrary to law.
However, the following were undesirable:
• NorthComms did not establish and maintain firm command and control over the police operation;
• the AOS tactical response was compromised by limited communications and by the number of members available;
• Officers 81 and 84’s shooting was inaccurate and therefore unsafe;
• the failure by Officer 84 to identify risks in the line of fire;
• the AOS commander’s dismantling of the weapons of Officers 81 and 84; and
• the post-incident process was neither well coordinated nor sufficiently robust.
The Authority recommends that the New Zealand Police:
1. reinforce the requirement that all responding units log into the communications system, and adhere to radio protocols and pursuit policy;
2. review command training for communications centre shift commanders, and support for them during critical incidents;
3. provide access to AOS radio communications by communication centres;
4. review Auckland AOS planning with regard to the number of members available to respond to incidents;
5. clarify the role of Eagle in critical incidents and develop its capability as a command and control platform;
6. review the efficacy of the AOS weapons training; and
7. develop a more structured, transparent and comprehensive post critical incident policy.