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.