R v Ali Alkan

R v Ali Alkan - [2010] NSWLC 1 - NSWLC 2010 case summary — Zoe

[11]

6 Each item of police evidence was tendered without objection, and without cross-examination. The result is that the evidence of the police is accepted subject to two important qualifications. There is CCTV of the incident, which was captured by City of Sydney surveillance cameras. This is crucial, as the recording devices integrated into the Taser gun were obscured by McDevitt and were unable to be utilized. Mr Terracini described this as "unfortunate", "suspicious" and "extraordinary". Nevertheless, the first qualification is that where the recollected evidence of police is in conflict with the clear uncontested "hard" evidence of the CCTV then the latter is to be preferred. 7 The second qualification is that the evidence of the principal witness, the informant Sergeant McDevitt, is significantly different in some respects in his statement made some two and a half months after the incident, and the notes he made about an hour later. Where there are differences, particularly as to his state of mind, I have commented on those differences and preferred the contemporaneous notes. 8 The key portion of evidence is the eight to ten seconds prior to the defendant being Tased. There is a significant amount of evidence leading up to that point which I will deal with briefly. 9 Exhibit One is a statement by Sergeant Timothy McDevitt. It is made with reference to contemporaneous notes made at the scene, notes made in a police notebook, and the CCTV provided by Sydney City Council. His evidence is of two types - firstly, a statement of what occurred, and secondly his thoughts and impressions included to justify the use of the Taser. 10 At about 2.35am on the 29 March 2009, McDevitt sees the defendant walking north along Riley Street at Surry Hills. He describes the defendant as being about 185cm tall and of Middle Eastern appearance. He was not wearing a shirt. He was walking in the middle of the road waving his arms about. A second person was telling him to get off the road. McDevitt told him twice in a loud voice "Police, get off the road". The defendant did not respond. The defendant then walked onto Oxford Street, causing a car to stop suddenly. The defendant then walked in a westerly direction along Oxford Street straying once (according to the diagram) into lane two. He then walked in a straight line. McDevitt followed him along the road attempting to communicate with other police. Near the intersection of Pelican and Oxford Street contact with other police was made. As the defendant approached a pedestrian crossing 50m west of Pelican Street McDevitt placed himself two metres behind the defendant and yelled loudly at the accused "Hey you, get off the road". The defendant turned and looked in his general direction, contorted his face and grunted. McDevitt then said "Get off the road now" and pointed to the southern curb at the pedestrian crossing. 11 The defendant turned away and began walking toward the curb with his bare back toward McDevitt. According to this statement at paragraph 14 "He then began a running motion"

[19]

23 The defendant first comes into view at the 30-second mark (s30). He is walking in a westerly direction, swinging his arms and hands. He is in lane one of Oxford Street heading west. Lane one has parked cars in it, so the defendant is walking in the gap between the parked cars and lane two. The gap is very wide, far wider than a normal lane. From s30 to s45 he continues walking. There are also others walking or standing in that gap area. Traffic is seen going past unimpeded. The officer is in close proximity, about two metres from the defendant. He removes the Taser device from his belt and puts it in his right hand at s35. By s45 the officer is seen with his hand on his radio, and there is a police officer in blue overalls running up from behind. From s47 to s53 the officer is seen to direct the defendant onto the footpath with his left hand in a pointing motion. 24 The defendant turns and faces the officer momentarily, before turning and walking jauntily in the direction the officer had pointed, off the road and toward the footpath. From s53 to s57 the defendant is walking in the direction of the footpath, and by s56 he is halfway across the taxi parked in lane one. 25 There are police officers on either side of the defendant, between him and McDevitt. The officer standing with his back to camera is Inspector Barlow, having passed behind the defendant. The officer facing the camera behind the pole is McIntosh. By s57 he has been Tased, and it is clear that this occurs as he gets to and steps onto the footpath. He spins around and drops heavily from the footpath to the road by s58/9. He can be seen spinning around after the Tasing at s58. 26 He is on the ground thrashing about and then rises hesitantly to standing from s1.09 to s1.10. He is standing for one second before being Tased a second time. 27 There are at least four other police there when he is Tased the first time, two in front of the defendant on the footpath, and two behind the officer on the road. They are even closer for the second Tasing.

[25]

"Male appeared not to know where he was - possibly intellectually disable (sic) or drug effected" (Exhibit Two) Decision to use the Taser "I formed a belief in my mind at this time, that as I had no support from other police, I would use my Taser device to protect the life of the accused and the pedestrians that he was approaching. I chose the Taser device as my tactical option to gain control of the accused in the present circumstances and to reduce the likelihood of a rapid escalation toward violence. I also believed that the accused was affected by a drug and would be less likely to respond to any pain stimulus that I could lawfully apply and effectively placing myself in danger. I chose not to use my police baton or Oleoresin Capsicum defensive spray for this reason and the increased risk of injury to the accused through lack of response or compliance" (Exhibit One - paragraph 10) Just prior to the final direction to leave the roadway "I strongly believed at this time that the accused was affected by a drug and that I had very little control over his behaviour. I became increasingly concerned that if I confronted him he would knock a pedestrian into the path of a moving vehicle or put himself in front of a moving vehicle as he had done a short time earlier. (Exhibit One - paragraph 12) After the defendant turned and moved toward the footpath "At this time I could not predict what the accused would do next or if the danger to himself or others would escalate further" (Exhibit One - paragraph 13) After becoming aware of the presence of Inspector Barlow "I chose to proceed with this tactical option as control of the accused needed to be gained quickly and safely. Should I have employed another option I believe the risks to the safety of the accused, Police and pedestrians would have been significantly increased". (Exhibit One - paragraph 14) "Criteria for use 1.1 protection or immanent confrontation." (Exhibit Two) After the first five second burst when the defendant rose to his feet "I had fears that the accused would launch himself at me or attempt to run past me back into traffic on Oxford Street. I determined that a second burst from the Taser device would provide a safe option to gain control of the accused" (Exhibit One - paragraph 15)

[35]

50 However, police may be confronted with situations of danger where an offence has not been committed, yet the arrest of persons is necessary to ensure that the danger is reduced. I struggle to accept the proposition that parliament would have intended to remove any residual power to arrest or detain in such circumstances. The circumstances of Gribble would be an example where the police need that residual power to protect by detention or arrest, although it is likely that Gribble was committing an offence. Another circumstance would be a person seeking to enter a burning building. It must be the case that police have the power to detain to prevent harm in such a case. Perhaps the better view is that where there is an arrest for an offence, s99 applies, and where the police are acting to stop injury or danger, then the common law residual powers apply. 51 However, as interesting as this debate is, in this case it is not necessary to resolve the issue, because on either test, the arrest or detention of the person must be necessary, and the test for that necessity is objective as well as subjective. 52 Returning to Gribble, the court made the following relevant findings beginning at 23 (emphasis added) It was submitted that the legislative history and the current Section 6 of the Police Act extended the duty of a police officer beyond the preservation and investigation of crime so as to include actions reasonably necessary for the protection of persons from injury or death, and property from damage, regardless of whether the need for those services arises from any criminal act. It seems to me that this is the intent of the legislation and that the submissions should be accepted. This approach is consistent with common law… Cosgrove J said this in the Supreme Court of Tasmania in Innes v Weate [1984] Tas R 14 at 21 There are two difficulties in this concept of duty. One is that it cannot be stated in other than general terms… The other is that the existence and nature of the duty depends upon a reasonable assessment by the constable of any given situation. That assessment may be examined in the courts and held to be right or wrong…It is important that a constable should have a wide discretion to act swiftly and decisively; It is equally important that the exercise of that discretion should be subject to scrutiny and control.

[56]

· The age of the suspect · Their physical condition · The emotional state · The overall tactical situation · The involvement of mental illness, drugs and alcohol · The risk to the public · The risk to the police · The risk to the subject · The availability of appropriate medical support · The public perception in the circumstances · The availability of any appropriate alternatives to the use of the Taser · The availability of sufficient personnel to take custody without the need for less -lethal tactics 79 Applying the tests it is apparent from the CCTV that, on any objective assessment, there were other means available to McDevitt to apprehend the defendant, and there was no reasonable basis for the opinion that violent confrontation was imminent. The defendant's behaviour prior to the ten seconds leading up to the use of the Taser was reprehensible. His conduct in the last ten seconds was not. There was no reasonable basis for the view that there was a risk to human life neither at the time the Taser was used, nor in the approximately ten seconds beforehand. There was no reasonable risk to the officer being overpowered, and there were, to McDevitt's knowledge, three police present when the defendant was Tased. The defendant was, on any objective view, compliant and non-threatening. He was not armed, had not raised his fist, behaved aggressively or even verbally threatened any persons. There was, in the officer's mind, at least the possibility of drugs, and also the possibility of mental illness. The public perception, I should imagine, would be one of shock and horror at a person being Tased, thrashing about, rising to his feet, and being shocked again. 80 It was not reasonable to deploy the Taser when one considers a number of factors in clause six, including the overall tactical situation, the risk to the public, police and the defendant. Further there were many other options available. There were sufficient police personnel to take the defendant into custody or to search him without any need for Tasering. There was a police station only metres away. 81 For these reasons, I am satisfied that the use of the Taser was improper in that it was unnecessary, unreasonable and failed to properly comply with the operating procedures.

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