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March 1, 2021

Police misconduct arises from bashing inquiry

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Paul Bibby

It is the early hours of January 11, 2018, and a 16-year-old boy lies naked in the cramped holding area of Byron Bay police station.

He has a fractured right rib, extensive bruising and abrasions, and is soaked with sweat. The youth has not been given water, a blanket or a towel, and lies somewhat awkwardly because the space is too small to stretch his legs out.

About an hour later ambulance officers arrive. They sedate the youth and take him to hospital.

What happened

The circumstances that led this teenager to end up battered and bruised on the police station floor have been the subject of great discussion and debate across the Shire since his violent arrest was broadcast on national television earlier this year.

The disturbed, naked youth was capsicum sprayed, tasered and struck with a baton more than 18 times, including a number of strikes that occurred after he was in handcuffs.

The broadcast led to an investigation by the Law Enforcement Conduct Commission (LECC), which will soon hand down findings.

With all of the evidence now in, the public has the best indication as to what happened that night, and whether the police’s actions were justified.

The arrest

At 2.26am Byron Police received a call from the night manager of the Nomads backpacker hostel saying that there was a naked youth acting inappropriately out the front of the building.

The manager had watched the youth pacing back and forth while repeatedly saying ‘why would you do this to me?’ as he stared up at the sky.

It’s impossible to say with complete certainty what led the youth, referred to as ‘AO’ by the commission, to behave in this way. Five months after the event he was still unable to be interviewed by the commission owing to ‘significant trauma symptoms’.

But one of the treating paramedics said that the youth had told him, ‘I have taken acid’.

Two police cars, each with two officers, responded to the call and arrived at the scene within about 30 seconds of each other. There are different versions of what happened next.

Two of the witnesses, the night manager and a man living in an apartment across the street, gave evidence that AO had not been aggressive toward police.

The neighbour across the street said the police made no effort to calm AO down or to adopt a friendly approach.

The Nomads’ night manager said that on a number of occasions he heard the officers say, ‘get on the ground, c**t’ – it’s something the officers deny.

The second witness – referred to as W2 – said that soon after the teenager was sprayed, another officer struck AO just below the kneecap with his baton three or four times.

W2 said that when this had little or no apparent affect, the police tasered AO.

It was soon after this that W2’s partner started filming the incident on her mobile phone.

Police version

The police officers’ evidence is significantly different.

The first officer to approach AO, referred to as Officer D, said he saw the youth spring up off the ground where he was lying when police arrived and walk towards them while yelling and screaming.

He says he told the youth to calm down, warning him that if he didn’t he would ‘get a gob full of this’ [capsicum spray].

Officer D said the youth had swung a punch at him and that he used the spray because he thought that violent resistance or confrontation was going to occur.

‘He done [sic] the swing at my head and I went, right, okay, that is where this is going, so I sprayed him,’ the officer said.

Another officer, Officer B, said the youth had been ‘like a zombie’ and that he feared he was ‘going to overpower us’.

‘Based on my experience, unfortunate experience with these drugs in Byron Bay at the moment, that’s exactly what I thought,’ the officer said during cross-examination.

‘The minute the clothes come off, you’ve got about [a] 15-minute window before the body overheats and that is the drug peaking.’

The officer who deployed the taser, Officer E, said that it had been necessary because AO was acting in a ‘violent, confrontational and aggressive manner’.

Video evidence

The rest of the incident following the use of the taser was captured on mobile phone video.

The video shows AO lying on his back on the ground being restrained by four officers.

Over the course of two minutes and 49 seconds, AO is struck once with a baton by Officer B and 18 times by Officer E.

At 42 seconds, an officer can be heard saying ‘that’s coming off’, an apparent reference to the youth’s handcuffs.

Once AO is secured, an officer leaves the group and drives the paddy wagon over to his position.

After this has occurred a further six strikes are delivered – apparently at a point where the youth is handcuffed and restrained by three much larger officers.

When asked why he had delivered the first five of his 18 baton blows when he did Officer E said ‘We couldn’t restrain him you see?’

When asked about the overall need for the number of baton strikes, Officer E said that his decision had been based on the fact that AO was very violent and confrontational.

But counsel assisting the commission, Terrence Rowles, submitted to the commission that striking the 16-year-old drug-affected youth 18 times had amounted to ‘grossly unnecessary force’.

He said the commission should consider removing the officer from his position under section 181D of the Police Act, or take 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’.

The solicitor for this officer, Michael Taylor, made a formal submission that his client should not be subjected to any of these penalties.

The commission heard that the behaviour of the officers had likely been influenced by an incident two-and-a-half weeks earlier in the Byron lighthouse carpark when a 23-year-old naked male threw himself head first into the windshield of the police car, and then jumped onto the bonnet of the vehicle and kicked in the windscreen.

No threat to police

However, he said that, unlike that incident, ‘there did not appear to be any evidence that [the 16-year-old] represented a threat to the police or anyone else.’

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…’ Mr Rowles said.

Nevertheless, Mr Rowles did not recommend that the commission make findings of misconduct against any of the officers involved Except Officer E.

The commission is expected to hand down its findings within the next month.

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