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  • Michael Bott

Police Shooting - Evidential Issues

In April 2020, Hitesh, a Fijian Indian, was carrying a machete which he was using to smash windows and some power lines. He was deeply upset at the loss of a significant sum in an overseas family dispute and had obviously become emotionally distraught. Police were called and warned him to drop the machete, when he advanced on them he was shot by an officer.

I am not saying that this was not a tense or fast moving situation, but are there not other courses of action that you can take before killing someone? What about Tasers or firing a net? These are less than lethal options designed to incapacitate without inflicting a mortal injury. I feel uncomfortable with the ease with which we appear to accept that killing a person in a situation like this is automatically justified. Increasing access to firearms by Police will only mean that these sorts of incidents will become more common.

I have every sympathy for Police. To my mind they are underpaid and resources are stretched. However, the killing of an ordinary person, with no previous criminal history, in these circumstances raises significant questions. It is time that all frontline Police are issued with body cameras that record every use of force interaction, situations leading up to an arrest and tragic outcomes like the decision to discharge a firearm. This technology would assist with understanding the reasonableness of use of force decisions and provide a further piece of evidence in assessing whether the decision to shoot someone was justified.

I became convinced of the need for this technology several years ago, when I was cross examining some officers in a High Court trial that followed after a case in which Police shot a man in the Wellington Region. Police raided a house, armed with Tasers and firearms and my client had holed himself up in a bedroom wardrobe. He had a .22 rifle with him, and was hidden behind the wardrobe door. Long-story short, Police forced there way in to the bedroom and an officer became aware of my client with the rifle hiding behind the door. The officer fired through the wardrobe door and my client was shot. Was my client presenting the rifle in a manner which conveyed an imminent risk of harm to the officer, or was he cowering behind the door frightened at the speed with which events unfolded?

The case made it to trial. From the disclosure and from cross-examination during the trial it emerged that the Police officers who attended the scene during the events leading up to the shooting and its aftermath, were advised by a lawyer from the Police Association that because this was a shooting case they were not to make contemporaneous notes recording what they saw. As one officer disclosed in cross-examination: " the time I got to Palmerston North and met up with other Palmerston North staff, because it's a police investigation and I know we're going to be questioned about the shooting, you seek advice and the advice was not to record anything."

Also the ESR scientists that were tasked with examining the scene, were instructed to do so, solely from the perspective of the officer who fired the rounds. This meant that no contemporary forensic analysis was undertaken from the position of the person who was shot by the officer. The problem with this is that the Police appeared to direct the gathering of forensic evidence, which would later be used as evidence in a Police prosecution, that was based upon instructions to analyse the evidence solely from the perspective of the officer who fired the rounds. There was no analysis from a neutral examination from the perspectives of both parties involved. While the forensic scientists instructed by Police, may be organisationally independent of the Police, the fact is that the bulk of their work comes from the Police, who pay for the scientific services provided by them. This is important because basis principles one might think, in terms of scientific analysis include neutrality and objectivity. A resonating concern with this, in my shooting case is whether Police were being provided with objective and unbiased advice about the crime scene from the scientists; or were they being given opinion based upon instructions given by Police, that fettered the independent forensic analysis of the scene?

Ordinarily, officers will make contemporaneous notes of what they observed. The analysis of these varying perspectives enables a decision maker to gain a fuller understanding of what occurred and it is vital to fair trial rights. While we all like to think Police officers will always be truthful, in my close on two decades of experience at the bar, occasionally the odd officer will lie under oath, or they may unconsciously interpret events in a way the coalesces with their theory of the Police case.

Body cameras would provide a protection against issues of unconscious or actual bias and would provide a neutral record of events in situations such as this and would be one further potentially useful form of evidence. Body cameras are regularly used overseas and it is time they were used here. Failure to instill this common-sense fix leaves it to good defence lawyers to ask the right questions, and the police to give honest answers. Sadly, neither is a given.

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