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 IPCA finds Whakatane Police officer’s use of Taser during arrest unlawful

12 June 2014 - An Independent Police Conduct Authority report released today finds the continued use of a Taser during the arrest of Whakatane man Mark Smillie was excessive and contrary to law. 

On 25 December 2011 Mr Smillie was signalled by Police to pull over as he was travelling along Arawa Road in Whakatane. Despite the officer activating the patrol car’s lights and siren Mr Smillie failed to stop and instead accelerated before turning into his property at high speed.

The officer followed Mr Smillie onto his property and advised him that he was under arrest for failing to stop and that he was required to undertake a breath screening test. 

Mr Smillie actively resisted the officer’s attempts to subdue him and after being warned that OC spray would be used if he kept failing to comply, the officer drew his OC spray and used it against Mr Smillie.

In releasing today’s report Independent Police Conduct Authority Chair, Judge Sir David Carruthers says the Authority accepts that Mr Smillie’s behaviour amounted to active resistance and that the officer was entitled to use the OC spray against Mr Smillie in order to arrest him.

“However, the Authority finds that the subsequent force used against Mr Smillie was unjustified,” Sir David says.

Despite the use of the spray Mr Smillie failed to calm down and the officer subsequently struck Mr Smillie with a Police baton and pushed him against the fence in an effort to apply handcuffs. Following this Mr Smillie fell to the ground. 

The officer then retrieved his Taser from his Police vehicle and warned Mr Smillie he would be Tasered if he continued to refuse arrest. Taser Cam footage showed that the officer then released the Taser for thirteen seconds before attempting to handcuff Mr Smillie. The officer then picked up the Taser and discharged it a second time before handcuffing Mr Smillie and returning to his Police car.

“The Authority finds that the deployment of the Taser on two occasions amounted to an excessive use of force and was contrary to the law,” Sir David says.

“This was aggravated by the fact that on the first occasion the Taser was used for an extended period of time of thirteen seconds. 

“The first use of the Taser was not in self-defence, as claimed by the officer and given there were other options open to the officer short of using the Taser, the Authority considers Mr Smillie’s arrest could have been effected less forcefully after waiting for the arrival of other Police officers.”

Following the incident Mr Smillie was charged with assaulting Police, possession of an offensive weapon, refusing to accompany and failing to stop. On 19 July 2012, at the Whakatane District Court, Police withdrew the charges of assault and possession of an offensive weapon and Mr Smillie pleaded guilty to the charges of refusing to comply and failing to stop.

“The Authority recommends that Police take disciplinary action against the officer in light of its findings detailed in this report,” Sir David says.

 

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