By Paul Gregoire and Ugur Nedim
The 2022 NSW Police Use of Force Manual opens by advising that when engaging in physical confrontation officers shouldn’t be concerned with future criticism, but instead ensure that no more force than reasonably necessary is applied when carrying out duties safely and effectively.
The sole NSW police oversight body, the Law Enforcement Conduct Commission (the LECC), released the document in May 2023, responding to calls, including that of the Redfern Legal Centre, for a probe of state law enforcement’s use of force, and for the release of documents outlining what is permissible.
RLC published the manual the day following a second civilian having been killed via the use of force by a NSW police officer in May. This saw a 41-year-old man shot in a North Willoughby street, which occurred the day after a 95-year-old woman died as a result of being tasered by an officer.
The latter incident made global headlines due to its callousness, as it involved nursing home staff calling police late night regarding Clare Nowland, a great-grandmother suffering dementia, and, as she approached a senior constable holding a knife using the aid of a walking frame, she was tasered.
And last week saw further developments, as NSW Supreme Court Justice Robert Beech-Jones released the details of prosecution’s damning case against the officer, whilst two other officers tasered and then shot dead another man in Sydney’s Glebe, during a welfare check.
So, Sydney Criminal Lawyers thought it an opportune time to take a closer look at what’s permitted on the ground whilst bobbies are out on the beat.
Paying off any excess
According to the NSW Police Force manual, the use of force involves, but is not limited to, the use of firearms, including draw and cover, using handcuffs during arrest and detention, as well as the use of tasers and capsicum spray, even if they’re just drawn, along with batons and weaponless control.
Published internally on 1 August last year, the manual outlines that the Tactical Options Model is key for officers in deciding whether force should be applied to a situation, with its central tenet being “safety first: assess and reassess”.
The document also advises that the use of force is not instantly lawful because it is an approved tactical option, as it’s the circumstances that establish the intervention that’s warranted, and, on the flipside, just because a tactic applied when using force isn’t approved doesn’t mean it’s illegal.
Officers need to engage in “dynamic risk assessment” in terms of whether to apply force to an incident. And in doing so, officers are encouraged to use the STOPAR model, which consists of stopping, thinking, observing, planning, acting and reviewing any situation that arises in the field.
The manual further underscores that it’s “not uncommon for complaints or civil claims” to be made against the NSWPF, and that’s why officers should be keeping detailed records of each use of force incident, so actions can later be explained.
However, the LECC released a report in February, assessing the method the NSWPF uses in recording use of force incidents and compliance with it, and found grave inconsistencies in the way this is being utilised by officers.
So, a tool that could be used to improve use of force incidents is being employed to gloss over them.
And now Greens Senator David Shoebridge uncovered in late 2020 that over the last financial year, NSW police had paid out $24 million in compensation for misconduct issues, which indicates that rather than improve performance, abuses of the use of force are just paid off at taxpayers’ expense.
The powers that be
The Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), which is commonly referred to as the LEPRA, contains laws providing police with specific powers, including use of force in general, under section 230, during arrest in 231 and when entering and searching a premises in section 70.
In these cases, officers are permitted to use such force “as reasonably necessary”. And in using the correct amount, the 7,600-odd NSW police officers must use their judgement and be able to explain why their actions were “reasonable, appropriate and proportionate” under the circumstances.
In the incident involving senior constable Kristian White tasering an elderly woman approaching with a walking frame, which led to her death, the officer did deliberate on whether to use his weapon and he warned Nowland, but then prior to pulling the trigger, he remarked, “Stop, just… nah, bugger it”.
On pausing, White should have been considering what’s set out in the manual, which includes the threat to self regarding any weapons, the age of the other person, the number of persons and officers present, whether the person is suffering a mental illness, as well as their size and gender.
The manual sets out that officers are able to use force in circumstances that aren’t expressly stated in the LEPRA. And these circumstances include during a person search, when someone is interfering with a crime scene, an intoxicated person behaving disorderly and to prevent a breach of the peace.
Officers may also use “reasonable force” when dealing with situations at mental health facilities, as well as in cases of self-defence. At common law, an officer can use force that’s “reasonably necessary”, however if that force becomes excessive, there is no defence for such actions.
The document outlines that officers have been trained to deescalate situations, even if force has already commenced being applied. It further underscores that force cannot be applied as punishment and each officer is responsible for their own actions.
And the document ends by underscoring the importance of keeping a detailed record and the immediate reporting of any injuries to supervisors.
A force unto itself
Unlike the 2019 published NSWPF Personal Search Manual, which described strip search techniques that went beyond the scope of the protocols contained in the LEPRA, what’s outlined in the instructional document on the use of force doesn’t authorise anything beyond what’s legislated.
However, this does not mean that the excessive use of force by NSW police officers is unproblematic in the field, as recent events have shown.
Indeed, three civilians have recently been killed after the force was called upon to assist in three separate incidents that all appeared to involve persons suffering mental health episodes.
As Shoebridge found when requesting the overall compensation figure the NSWPF paid over one financial year, and the LECC did when it inquired into the system of recording use of force incidents in the COPS database, no one is collating the information on use of force with a view to improving it.
In terms of the civilians that are seeking compensation after a police use of force incident, management is not keeping an eye on which behaviours or individual officers are causing problems, and the self-reporting system has shown to be heavily flawed in keeping track of such statistics.
So, it’s this lack of oversight and accountability that leaves undertrained officers doing what they “think” is the right, or, at worst, not even bothering about whether they’re following correct procedures, which is harming the community, especially its most vulnerable members.