With this incident, however, there wasn’t time to sweep the issue
under the carpet, prior to some NSW police officers shooting Steven
Pampalian, a North Willoughby man, who was standing on a suburban street
holding two chef knives on 25 May: the day after Nowland passed away in hospital.
Whilst it was uncertain if Pampalian was having a mental health
incident when he was shot four times, this year’s inquest into the 2019 shooting death of Todd McKenzie has shown it was clear officers were aware he was having a schizophrenic episode alone in his home when they shot him.
The excessive use of force by police is by no means limited to lethal incidents, however. And there are numerous examples, including an eyewitness account
of officers kettling a group of protesters into a corner before dousing
them with capsicum spray after a Black Lives Matter rally in June 2020.
Yet, a Law Enforcement Conduct Commission report
released earlier this year, reveals that the NSW Police Force is not
adequately tracking its use of force, which, if it had been, may have
prevented an officer considering that tasering an elderly woman using a
walking frame as appropriate.
Use of force powers
The Law Enforcement (Powers and Responsibilities) Act 2002 (NSW),
commonly known as the LEPRA, is the piece of legislation that contains
state law enforcement policing powers. Part 18 of the LEPRA governs the
use of force.
Section 230
of the LEPRA empowers NSW police officers to “use such force as is
reasonably necessary in exercising a function contained in the
legislation” in general. A function is defined as a “power, authority or
duty”.
The is followed by provisions guiding use of force during an arrest. Under section 231,
it provides that when taking an individual into custody an “officer or
other person who exercises a power to arrest” may “use such force as is
reasonably necessary to make the arrest or to prevent” an escape.
In the February-released LECC report, reference is made to the Use of Force chapter in the NSW Police Handbook 2018, which is not readily available online. However, the 2014 version of the handbook has been posted, and it includes a use of force section.
“To avoid excessive application of force and maintain an effective
incident response, you should use the minimum amount of force that is
appropriate for the safe and effective performance of your duties and
proportionate to the risks you face,” the 2014 manual advises officers.
The document then goes on to inform them that they’re required to
outline instances where use of force has been applied within the NSWPF
Computerised Operational Policing System (COPS) database, with details
of the specific types of force that were deployed.
So, when resistance on the part of a person of interest is recorded
in COPS, this triggers a page that requires officers to tick categories
of use of force used in response, which includes tasers and OC
(capsicum) spray use, defensive kicks or punches and how many officers
were present at an incident.
The data collected from this page of incident reports can then be
used as an indication of how force is being applied in the field.
Widespread inconsistences
The LECC is the sole oversight body
in NSW that deals with police conduct issues. In its report on NSW
police reporting on use of force, the watchdog details its review of 210
use of force incidents, which were identified via complaints and
recorded on COPS over the 12 months to May 2021.
The report outlines that the NSWPF informed the LECC in September
2020 that it has “‘a range of structured quality assurance and
supervisory oversight processes” in operation, which “provide the
opportunity to identify and address any training needs in relation to
use of force”.
However, the police watchdog found “widespread inconsistencies” were
present in the system, which is supposed to be capturing any patterns in
the misuse of force, and the analysis also uncovered instances of
underreporting when it comes to use of force.
Established in 1993, the Australia New Zealand Policing Advisory
Agency (ANZPAA) is an organisation comprised of the current police
commissioners of each jurisdiction within these two countries. And it
has established a set of Use of Force Principles.
The LECC report points out that the ANZPAA principles include the
requirement that police organisations “maintain governance structures to
report, record, monitor and evaluate the use of force to improve public
and police safety”.
Yet, while the COPS reporting system requires supervisors to verify
that force incidents have been detailed correctly, this is not
preventing inaccuracies, which means that any training strategies
resulting from these reported statistics are being developed based on
dodgy data.
And this lack of consistency also hampers any ability that senior
officers have to identify officers who have a problematic track record
of use of force before they get too out of hand.
Habitual underreporting
In terms of its findings, the commission found that 73 percent of 210
cases analysed contained at least one inaccuracy. And further the use
of handcuffs is not a reporting category, which the LECC considers it
should be, and if this is factored in, it translates to a 93 percent
inaccuracy rate.
So, of 144 incidents using handcuffs no use of force record was made.
But in terms of arm restraints and wristlocks, whilst the report
narratives of 90 events mention use of these tactics, only 44 percent of
them were recorded in the section of the report used to monitor use of
force.
And similar discrepancies were found in regard to other types of
force. OC spray use was reported on 22 percent of occasions. Taser use
was detailed only 25 percent of the time. The number of officers present
was noted in 29 percent of cases and only 50 percent of dog use was
detailed.
The LECC considers the underreporting and inaccuracies involved in
the limited instances where a firearm was used to be the most
significant issue it identified, and it recommends further investigation
into firearm use reporting.
Of eight incidents involving firearms, only six recorded their use,
whilst a further two incidents recorded firearm on the use of force
documentation page, when the narratives of these two events failed to
mention any use of guns.
Review, respond, repeat
In response to the LECC review, the NSWPF last September acknowledged
“the inconsistencies in police use of force” in the cases the watchdog
identified. And the organisation further said it would commit to
developing “new policy, guidelines and training on” recording use of
force.
“The NSWPF also developed a Use of Force Manual in response to our
review,” the LECC further explains. “While this document is primarily
about the use of force, it also contains some instructions on recording a
use of force.”
This new manual, however, failed to have any impact on the decision
of NSW police senior constable Kristen White, who, on responding to a
call to deal with Nowland holding a knife in a nursing home, tasered the
elderly woman twice for good measure, once in the chest and again in
the back.
And whilst its promising that the NSWPF has committed to cleaning up
its use of force, this commitment does come over a decade after multiple
officers tasered Brazilian tourist Roberto Curti 14 times in Sydney in 2012, which caused his instant death, all because he stole a packet of biscuits.
But as with many problematic government agencies that are
consistently called out on the same recurring issues, the NSW police
production of a new manual is likely to be more about appearing to
reform the system, whilst permitting officers to continue on with their
regular excessive behaviour.
Sydney Criminal Lawyers