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November 28, 2021

Officer used ‘grossly unnecessary force’ during teen arrest, commission told

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A police officer who repeatedly struck a naked and mentally disturbed teenager with his baton during a violent arrest in Byron Bay in January could be sacked over the incident, or even face criminal charges.

The possible punishments emerged during a public hearing in Byron Bay on Monday as part of the Law Enforcement Conduct Commission’s ongoing investigation into the arrest, which occurred in the early hours of January 16.

During the incident police tasered and capsicum sprayed the youth, and then hit him with a baton more than 18 times in what they later said was an attempt to subdue him and get him to comply with their orders.

In his closing submission to the hearing on Monday, counsel assisting the commission, Terrence Rowles, said that striking the 16-year-old 18 times had amounted to ‘grossly unnecessary force’.

‘…The Commission should find he [the officer] unjustifiably used grossly unnecessary force on (AO), hitting him as hard as he was physically able, and attempted to mislead the Commission as to the circumstances in which, and the reasons for which he did so,’ Mr Rowles said.

He said the commission should consider removing the officer from his position under section 181D of the Police Act, or taking other disciplinary action.  

Mr Rowles also said that the Commission should seek advice from the NSW Director of Public Prosecutions as to whether ‘proceedings ought to be commenced against this officer for criminal offences’.

Mr Rowles further submitted that the officer’s claims that the multiple baton strikes were necessary so that the youth could be handcuffed was ‘a fabrication’.

‘It is difficult to avoid the conclusion that this account was a fabrication designed to justify by reference to the acceptable use of baton strikes, [that] which was otherwise known to the officer to be unreasonable,’ Mr Rowles said.

The lawyer representing the officer in question chose to make submissions in writing rather than addressing the commission directly on Monday.

However, he did say that his client’s actions fell into a ‘grey area’.

‘Quite obviously, we can all think of examples that fall at the the spectrum of using reasonable force,’ the solicitor said.

‘But there’s a very large grey area. Put simply, the submissions on behalf of (the officer) are that, faced with what he knew of the circumstances, faced with what he was dealing with on this particular occasion, his actions fall within that grey area.’

The commission also heard that the behaviour of the officers had likely been influenced by a disturbing incident two-and-half weeks earlier in the Byron lighthouse car park.

On that occasion, two officers arrived to find a 23-year-old naked male in a disturbed state, threatening to kill himself.

The man, who it later emerged was under the influence of LSD, threw himself head-first into the windshield of the police car, and then jumped on the bonnet of the vehicle and kicked in the windscreen, showering the officers with glass.

He then jumped off the bonnet and proceeded to punch and headbutt the passenger side window.

Mr Rowles said that, while only one of the officers involved in the lighthouse incident was present on January 16, it could be accepted that these officers had been ‘heavily influenced by the apparent similarities’.

However, he said there was one significant difference between the two incidents.

‘There did not appear to be any evidence that [the 16-year-old] represented a threat to the police or anyone else,’ Mr Rowles said.

‘He made no physically aggressive move, save for the alleged punch. His demeanour appeared to be more confused and disorientated rather than aggressive.

‘This appears to be confirmed by the CCTV video recorded at the Byron Bay police station.

He said it had been regrettable that no attempt was made to physically subdue the youth without the use of capsicum spray, a taser or batons.

‘…One of [the most] obvious problems was the failure to have even the most rudimentary plan for what the officer should do, the need for which was made all the more necessary if they were worried that they might be facing a similar reaction to that which had occurred shortly before,’ Mr Rowles said.

‘That was the time for them to come together and coordinate their actions given (AO)’s lack of aggression at that point.’

Nevertheless, Mr Rowles did not recommend that the commission make findings of misconduct against any of the officers involved other than the officer who repeatedly struck the youth with a baton.

The Commission will now consider all of the submissions. It is expected to hand down its findings within weeks.

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  1. That poor policeman. If he’d only been an archbishop he would have just got a slap on the wrist and his job would be secure.

  2. Ridiculous! Hanging this copper out to dry achieves nothing, merely gives young thugs a licence to behave any way they want. I saw his mate smugly defending the young bloke’s actions on the news. They’ll be out having a drink again at the weekend while some copper’s career hits the kerb.

  3. I believe that in general the community appreciates the work our police officers do and are conscious of the difficulties they face.

    Unfortunately, as with any profession there is a 1% or more (or is that OMG’s) who think that can do as they darn well please which in turn brings the rest into disrepute. Attempting to mislead the commission suggests guilt.

    Sending a clear and resounding message that this will not be tolerated is the only answer.

  4. There have, unfortunately, been a number of cases of police using unnnecessary or excessive force, with little or no justification at all. They represent both a failure in the training of police both initially and during their careers, and a culture of cover up that must be addressed. Brave and good police are besmirched by the behaviour of a few of their colleagues. But one issue is what their superiors do about these cases.

  5. I’m sorry but I cannot understand how “poor cop” should be used in this context. They’re here to serve and protect not to act like violent thugs themselves. I understand the pressure of their work yes, but some training to serve and protect in a more courteous manner wouldn’t kill either. They tend to believe they’re above the law just because they wear a uniform allowing them to initimidate regular people and use unnecessary force just because they can. It is time for a general behavioural review to reinstate MUTUAL respect.

  6. Hi Benjamin,

    I took “poor cop” from Robin Harrison to be sarcasm – not sympathy.

    I sympathise with minorities who have mental health or behavioural differences to the average person. Some people too have Tourette’s syndrome or are on the Autistic Spectrum.

    Police need training to be sensitive with these people – who for the most part are not violent.

    Life can already be tough for many people. It is awful that victims of one situation can be subjected to further negative accumulations.


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