However, the authority found that police used justified force shortly afterwards in tasering the man and shooting him with sponge rounds to subdue him, because by then they feared he might hurt himself.
Seven armed police officers
On the evening of July 17, 2024, seven police officers including a dog handler went to the house where the man, identified in the IPCA report as Mr Z, was confined on electronically monitored bail.
The Electronically Monitored Bail Team at Corrections had told them that the man had breached bail by leaving the house earlier in the day.
At the time, the man was facing several criminal charges, which included presenting a firearm, assaulting and resisting police, injuring with intent to injure, and wilful damage.
Mr Z had previously resisted and assaulted officers, and was known for carrying weapons. He had a history of mental health issues.
Each police officer carried a Glock pistol, a taser and pepper spray. One officer also took a sponge round weapon, used to incapacitate someone temporarily.
Three of the officers walked to the front door, where they informed Mr Z he was under arrest for breaching bail.
Mr Z denied he had breached bail and tried to shut the front door, leading officers to try to push it open. Glass in two of the lower door panels broke.
One of the officers reached around the partially opened door and pepper-sprayed Mr Z in the face.
He then retreated and barricaded himself into a bedroom, where officers appealed through a window for him to surrender.
Held glass to neck
Mr Z, highly agitated, then returned to the front door and picked up a shard of glass, holding it to his neck and yelling: “You just want me to f***ing kill myself.”
One of the officers fired the sponge round weapon to distract him from hurting himself. The projectile went through the glass door and struck Mr Z in the groin.
Mr Z ran back to the bedroom. Officers went to the bedroom window and, concerned that he might hurt himself, broke the glass.
Mr Z threw a full drink can, narrowly missing one officer and striking another on the hip.
The officer with the sponge weapon fired again at the same time as another policeman fired his taser through the broken bedroom window.
Mr Z was incapacitated and officers were able to enter the bedroom, handcuff him and take him into custody.
Mr Z’s mother, who returned home later to find her house damaged, complained to the IPCA about what had happened.
The IPCA found that the police had no authority to take Mr Z into custody because they did not have an arrest warrant, Mr Z was inside his home, and police could not enter the house lawfully because breach of bail did not meet the condition of being an imprisonable offence.
“Mr Z was not in a public place. He was inside the house,” the IPCA said.
“There is no implied licence for the officer to enter a house to effect an arrest,” the report said.
“In short, at the time the officers purported to arrest Mr Z at the front door, they did not have the ability to lawfully physically take Mr Z into custody, because they had no lawful basis for entering the house.
“There was, therefore, no arrest.”
‘Widespread misunderstanding’
The IPCA report released today said there was “widespread misunderstanding” among police officers about their powers of arrest available under Section 7 of the Search and Surveillance Act 2012.
That section allows police to enter a property without a warrant to arrest a person who is “unlawfully at large”.
Police in the Flaxmere case mistakenly believed that they were authorised under that section of the law to enter the house.
Eastern District Commander Superintendent Jeanette Park said today that the police accepted that officers were not correct in their interpretation of the law in this instance.
“We acknowledge this and are working to ensure our staff understand their obligations.”
The police also acknowledged the IPCA’s finding that the initial use of force against the man was unjustified, given the entry was not lawful.
However, the IPCA said the later use of force, involving the sponge rounds and taser, was justified because they believed Mr Z was at “imminent risk of self-harming”.
The IPCA recommended more training for police on arrest powers and finding a way to obtain arrest warrants outside court hours.
Acting Assistant Commissioner Keith Borrell said the force would now “consider the practicality and the organisational impact” of implementing the recommendations.
Sixteen months after the confrontation, the damaged front door of the house remained unrepaired.
The IPCA said the police should fix it, as it was damaged when police officers were unlawfully entering the property.
Park said police had spoken directly with the family and were making arrangements to repair the damage.
Ric Stevens spent many years working for the former New Zealand Press Association news agency, including as a political reporter at Parliament, before holding senior positions at various daily newspapers. He joined NZME’s Open Justice team in 2022 and is based in Hawke’s Bay.