‘Already suffering immensely’
On the morning of January 10, last year, the officer, wearing his police uniform, was driving an unmarked patrol car north between Te Awamutu and Ōhaupō.
As he approached the end of a passing lane, he was overtaken by a motorist, causing him to brake and safely pull in behind him.
The officer immediately activated his flashing lights and the car pulled into a cemetery driveway about 500m away.
He approached the car’s passenger window, and the victim wound it down so they could speak.
The officer asked for his driver’s licence, which was given, and he began carrying out various checks before discovering his licence had expired four months earlier.
The victim’s vehicle also had no current registration or Warrant of Fitness (WoF).
The officer told the victim his licence had expired, that he was now forbidden to drive and asked him to hand over his car keys.
The victim said he didn’t understand the reason for handing his keys over and began to question the legitimacy of the demand.
It would later be revealed that the officer’s demand for the keys was unlawful, which in turn made all of his subsequent actions in using force unlawful.
The officer asked the victim “at least four times” for his keys before drawing a can of OC spray and aiming it at his face and telling him he would be sprayed if he didn’t comply or remain stopped.
The victim removed his keys from the ignition and held his hands up in a surrender position, displaying the keys at the same time.
When the officer went to grab them, the victim pulled his hand away, out of reach.
The officer then sprayed him twice in the face, debilitating the victim and causing him irritation, difficulty breathing, a runny nose, pain, a burning sensation and temporary blindness.
As he got out of his car, he dropped his eyeglasses.
The officer then appeared at the front of the car and sprayed the man, who was already suffering “immensely”, a third time.
The officer then took hold of him and placed him front forward over the bonnet of his car and put him in handcuffs, before putting him in his passenger seat.
He was then told he had been arrested for disorderly behaviour.
As the officer called for back-up from the communication centre, the victim could be heard in the background shouting loudly in distress.
The officer then agreed to release the victim from his handcuffs after he asked to use some baby wipes to wipe his eyes.
About half an hour later, the victim was told he had been forbidden to drive with the condition not to drive for another six hours so he could recover from the OC spray.
He was also given a ticket for making an unsafe passing manoeuvre and not displaying a current WoF.
The officer told him he would just get a warning for disorderly behaviour before dropping him off at a bus stop in Te Awamutu.
‘He presented a risk to the travelling public’
In an interview with his superior, the officer thought he could legally request the keys, he felt the victim “presented a risk to the travelling public” and the only tactical option available to him was using OC spray.
The superior considered the officer’s conduct “appropriate”, stating he was “dealing with an aggressive and non-compliant complainant”.
The judge noted that while the officer did not have any previous convictions, he had previously received a Section 106 discharge relating to an assault charge.
‘He was no threat’
Judge Cocurullo said, as he understood it, OC spray was used by police to bring an aggressive or non-compliant person under control.
“Here, there seems to have been no defensive position for you to take in the application of the spray.
“This man had not abused and/or threatened you.
“He had not, from the restricted position in the driver’s seat of the car, attempted to hit you.
“He had complied with some of your requests to stop the car and remove keys.
“It could only be said his non-compliance was that he refused your request to give keys over when you had no basis to do that in any event.”
Judge Cocurullo said it was a “significantly elevated response” to move immediately to a tactical option that was unlawful.
“At the time that originally happened … he was suffering the effects of being sprayed, he had lost his glasses to the ground.
“You then … delivered a third lot of OC spray to him before arresting him for disorderly behaviour.”
The judge said there was no evidence to suggest the victim had been disorderly.
“There was no evidence before me to conclude that the complainant was in any way aggressive.
“He was non-compliant with an unlawful command from you, but otherwise he was compliant.”
In an affidavit to the court, the officer said he was remorseful, had offered to make emotional harm reparation and was keen to attend a restorative justice conference, which the victim declined.
It was also the first time in his police career that he had used OC spray.
Police would finalise their employment proceedings once the criminal prosecution had concluded.
But Judge Cocurullo wasn’t satisfied the grounds for a discharge were made out and convicted him.
“Here, the situation was a significant piece of conduct which I accept had not been planned or premeditated but upon which you got it significantly wrong.
“Moreso, the third delivery of OC spray … but went to an option that simply ought not to have been gone to.”
Judge Cocurullo declined name suppression, but allowed the officer 20 working days to consider an appeal, and ordered suppression continue.
Belinda Feek is an Open Justice reporter based in Waikato. She has worked at NZME for 10 years and has been a journalist for 21.