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RUBY:

From Schwartz Media, I’m Ruby Jones. This is 7am.

Police use force everyday, but a recent string of incidents have raised the question of who investigates the way they use it, and when it goes too far.

The officer who Tasered a 95-year old woman, Clare Nowland, will see court next month – and he is expected to fight the charges.

While a Queensland police officer who, last week, was caught on video punching someone who’d been in a car crash, will be investigated by an internal police standards body.

Today, contributor to The Monthly and criminal defence lawyer, Russell Marks, on the use of force, and the relationship between the police and the public.

It’s Monday, June 26.

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RUBY:

Russell, not long ago, 95 year old great-grandmother, Clare Nowland died after being Tasered by a police officer. Tell me about what happened to her, and what you thought as you heard details of her story emerge.

RUSSELL:

Well, Clare Nowland, who was 95, was suffering dementia, and had lived at the council- run Yallambee Lodge for five years. And at some time in the early hours of May the 17th, she collected a serrated steak knife from the kitchen, and roamed the corridors until staff called 000. And paramedics spoke to Clare from the doorway of a treatment room she'd wandered into, until two officers — police officers — arrived and took over. And then when Clare began slowly moving towards them, still apparently holding the knife, but supported by a walking frame, the female officer suggested that she simply take the knife from the elderly woman, who weighed about 43 kilograms in reports. They could also presumably have simply backed away or thrown a blanket over her. But the much larger Senior Constable, Kristian White, reportedly said “No, bugger it”, and deployed his Taser, and Clare fell backwards and cracked her skull on the ground, and she was admitted to hospital, and tragically died a week later. Now, police rules prohibit the use of Tasers on elderly and disabled people, or people with small body mass, which has led to White being suspended on full pay, and charged with criminal offences. Now one way, I guess, of looking at this is that it's very much an isolated event. It's not as if police are Tasering 95 year olds every week, and Senior Constable White's actions made global news in part because they were so unusual. But the other way of looking at this is in the context of continuing concerns about the way police officers use the powers given to them by parliaments. Police officers now routinely carry what they call their ‘full accoutrements’, their guns, their Tasers, CS spray, their batons, their handcuffs, even into schools and aged care facilities. And this is a situation that's really crept up on us, in Australia. I work as a criminal defence lawyer, and I find myself constantly shocked by the way some police officers use their powers and wield their weapons. But what's even more scandalous, in my view, is that police don't need to publicly account for each occasion that they use a gun, or a Taser, or pepper spray.

RUBY:

Okay. Well, let's talk a bit more about the way that you've observed that police exercise their powers. Can you tell me about other cases that you've come across in your work as a criminal defence lawyer?

RUSSELL:

There are quite a few. I've seen body-worn video footage in which police have Tasered people in the back, and in which police have emptied cans of CS spray into people's faces while they've been pinned under multiple officers and struggling to breathe. In 2020, a man with a neurological spinal injury who was rushing to catch a train to make a medical appointment, as it turned out, was stopped by New South Wales police, who were acting as ticket inspectors. And the man encouraged the officers to just “walk with me” because he was late for his train. But the officers then grabbed him. They sprayed him, then Tasered him. They charged him with resisting arrest and assaulting police. And as it turned out, the man's Opal card had a balance of nearly $35. So his charges were later thrown out of court.

I guess one of the most egregious examples occurred in 2006 when Sergeant Ben Watson of the Northern Territory Police Tasered an unarmed 12 year old Aboriginal boy in the back. The boy had been a passenger in a stolen car. He ran away when police confronted him and the car's other occupants. Sergeant Watson Tasered him in the back, and then charged the boy with resisting arrest and escaping custody. And this seems to be a fairly common sequence of events in my experience. It's as if police are attempting to retrospectively create the grounds for their improper or illegal use of force. Ultimately, in that case, the boy was found not guilty of those charges because the officer's use of force was deemed improper by the courts.

RUBY:

Right. Okay. And so, if we consider these cases that you're talking about in conjunction with what happened to Clare Nowland, what do these stories say to you about the way in which the police force uses Tasers, and how their use in these cases line up with the rationale for Taser use.

RUSSELL:

Yeah, it’s a great question, and we just don’t know enough. When Australia's police forces added Tasers to their arsenals in the early 2000s, they gave assurances that they'd be used instead of guns, and that the number of fatal police shootings would fall as a result. But what's happened in the two decades since is that police shootings with guns have continued to rise and police are also using Tasers about 600 times every year in New South Wales alone. And the New South Wales Ombudsman has only done one report, to the best of my knowledge, and that was more than a decade ago into Taser use. Given the statistics, there's a real concern that Tasers are being used not as alternatives to guns, but as alternatives to negotiation and de-escalation. It's not just tasers, though. Police officers regularly use illegal force and get away with it.

RUBY:

Okay. Can you tell me a bit more then about what we're talking about when we talk about the use of illegal force?

RUSSELL:

So police officers are allowed to use force. They're given authority to use force by parliament and by internal police rules. But that use of force is limited in particular contexts. When police go above and beyond the use of force that's required in any particular context, that use of force becomes either improper or unlawful. And we did see, coincidentally, five days after Clare Nolan was stun gunned, a New South Wales magistrate found Constable Ryan Barlow guilty of assault occasioning actual bodily harm, after he'd well overstepped the force that was required to deal with what he needed to deal with. That was after, in mid 2020, Barlow and two colleagues began questioning a group of Indigenous teenagers.

Archival tape – News:

“It was footage that was widely shared on social media. A police officer forcefully arresting an indigenous teenager at Surry Hills.”

RUSSELL:

One kid told the officers that the officers shouldn't be swearing. The officers answered back. A 16 year old boy who was frustrated at being questioned by police without cause, told them he’d “crack you across the jaw” and the threat was obviously empty, given the boy's skinny stature and passive demeanour. But a fully armed Constable Barlow strode towards the boy, swept his legs from underneath him.

Archival tape – Constable Barlow:

“What was that? Turn around. Hands behind your back. Get on the ground.”

RUSSELL:

Which resulted in his face being slammed into the ground and caused the boy to chip his tooth.

RUBY:

Okay. So to be clear that in this case, there wasn't a taser used by a police officer, but you're saying that this is an example of the illegal use of force, which is something that it sounds like you're increasingly concerned about?

RUSSELL:

Yeah, I guess the fact that Barlow was found guilty at all makes his case a bit of an outlier. One of the biggest stories around the use of force in Australia is the notorious impunity with which indigenous people are killed in police custody. That says nothing about the assaults that police commit on Indigenous people, and indeed, other people. I've run dozens of summary hearings on behalf of defendants whose charges of assaulting police and resisting arrest are ultimately thrown out of court, because police officers have used force that's unlawful. Yet, to the best of my knowledge, not one of those officers was then charged, or even disciplined, for their use of unlawful force.

RUBY:

We’ll be back in a moment.

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RUBY:

So, Russell, when a police officer is accused of using unlawful force, can you tell me about what tends to happen next? What's the kind of sequence of events here?

RUSSELL:

Well, quite often nothing seems to happen. But if something happens at all, it's that the incident gets flagged as a critical incident, which is then investigated by another department within the same police force. Essentially, you've got a situation where police investigate themselves with the blessing of our democratic governments. And while internal affairs investigators tend to be unpopular among serving officers, the system is increasingly unacceptable, in my view, to a general public, which seems to be demanding greater levels of accountability. Governments have been pretty reticent to impose greater accountability, because public policy tends to be distorted, as we know, by a system of lobbying on behalf of sectional interests, in this case, police interests. So when the New South Wales Government scrapped the Police Integrity Commission because it was unpopular among police officers, and replaced it with the Law Enforcement Conduct Commission in 2017, but the Conduct Commission can't independently investigate allegations of police misconduct. It can only monitor New South Wales Police's own internal investigations. And by 2019, the Conduct Commission said that it only had enough resources to look at about 2% of the complaints it received that year. And last month it was revealed that the Conduct Commission has only ever raised public concerns about a single police investigation in an 80 page report. The Conduct Commission called some of its own powers to investigate police misconduct, quote, “illusory”, end quote. That's hardly reassuring for a public that's being told by its premier, Chris Minns, that the Conduct Commission will be monitoring the internal police investigation into Clare Nowland’s tasering.

RUBY:

Okay. So I suppose that goes to the question of internal accountability, and points to some pretty significant limitations there. But if we were to return to the court system, because, I suppose, that is supposed to be the ultimate check on any kind of illegal activity, including when it might be a police officer who is allegedly breaking the law. So what have you observed about how cases involving police tend to play out within the courts?

RUSSELL:

So police officers tell self-protective lies, at least as often as the rest of us. During the hearing into his assault charge. Constable Ryan Barlow told the court that he felt threatened when the teenager said “crack you across the jaw”, and that the teenager had resisted arrest and attempted to kick Barlow in the groin. What actually happened was captured by one of the teenager's friends on his mobile phone. And we see — and it's publicly available — a fully armed Barlow storm toward the skinny, unarmed boy, who standing passively, gave him practically no opportunity to comply with the request to get on the ground, kick his legs from underneath him while holding his arms behind his back, which meant the boy's head smashed on bricks. There was no resistance. I guess, in my experience, it's remarkable how often police tell blatant lies in court under oath. Even where video evidence clearly contradicts them. Yet in the absence of contradictory video evidence, and even sometimes despite its existence, courts still routinely believe police officers over the people they abuse, assault, and charge. Now, in other parts of the world, there's a presumption that operates in court against police when they don't switch on their body worn cameras. But no such presumption operates here, to the best of my knowledge, anywhere in Australia.

RUBY:

Okay. And the fact that this happens at all, that police do use force and then often would go on to defend its use. What does that say to you about the way that police officers in Australia themselves, see their role and what's expected of them, and the culture within various police forces?

RUSSELL:

Officers, in my experience, are encouraged to see criticism of one member as condemnation of the entire force. And to see courts, parliaments, and inquests and inquiries, not as welcome checks and balances on the powers of state agents, but as hostile attacks on the police nation that must be blindly defended. Personally, I find this attitude a little difficult to understand. I can't imagine leaping to the defence of another lawyer who's brought the profession into disrepute, and there are quite a number of them. So why are police officers seemingly hell bent on trying to protect bad apples?

RUBY:

But given how polarised what you're describing seems, and how persecuted the police might feel when they are criticised, how do you think the relationship between the public and the police is functioning right now? Do you think it's been damaged by recent events? And if trust is eroding, what are the consequences of that?

RUSSELL:

So in important ways things have changed for the better. So the bad old days of the New South Wales Special Branch, for instance, seems to be gone for good. I don't think there are too many Roger Rogersons running around murdering people with impunity. But on the other hand, we do have a real problem. Police command, which is headed by the commissioner in each state and territory, which effectively becomes the conduit between the police forces and the public increasingly finds itself, or the commissioners are finding themselves, trying to placate a kind of radicalised rank and file. And we saw this most recently in the Northern Territory where Commissioner Jamie Chalker was effectively forced out, it seems, because the rank and file was very unhappy that Chalker hadn't tried to protect Zachary Rolfe from being charged and prosecuted after he'd shot Kumanjayi Walker to death in Yuendumu. New South Wales Police Commissioner Karen Webb is similarly in a very difficult position at the moment, which perhaps explains some of her strange public comments following the Tasering and death of Clare Nowland. As a defence lawyer, I've sort of, over the years, seen quite a number of really concerning and disturbing cases involving police overreach, and use of unlawful illegal force by police. But it's taken in Australia, it seems, until the tasering death of a 95 year old dementia patient before we've really started to want to properly grapple with this question. What happens when Australia's protectors don't protect?

RUBY:

Russell, thank you so much for your time.

RUSSELL:

Thank you.

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RUBY:

Also in the news today…

The private military group, Wagner, has called off its attempted insurrection against the Russian Ministry of Defence.

Over the weekend Wagner troops seized control of areas in the southern city of Rostov and Vladimir Putin was forced to declare the action was treason in a televised address.

Wagner’s withdrawal was brokered by the President of Belarus, and involves the dropping of treason charges against Wagner’s leader Yevgeny Prigozhin.

And…

PwC is looking to sell its scandal-plagued government consulting business.

The division makes up about 10% of the total firm and was responsible for 3 billion dollars in revenue last year.

I’m Ruby Jones, this is 7am. See you tomorrow.

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