Tuesday, October 06, 2020

In which two NZ judges seem to OK torture

Today's outrage from the Independent Police Conduct Authority: police unjustifiably using a taser and pepper spray on a passenger from a fleeing vehicle:

The incident took place just before midnight on 16 September 2017, when police pursued a fleeing driver through Auckland, according to an IPCA report.

The pursuit ended in the SkyCity carpark when the male driver ran from the scene while the female passenger stayed in the car.

An officer approached the car and aimed his Taser at the woman before pepper spraying her, the IPCA said.

A second officer then dragged her by the leg across the carpark floor where she was restrained by two officers.

One of the officers then used his Taser to intimidate the woman while she lay restrained on the ground. He held it near her head and asked for the identity of the driver.

That last bit is especially disturbing, and legally constitutes an act of torture under New Zealand and international law ("severe pain or suffering, whether physical or mental... intentionally inflicted [for the purpose of] obtaining from that person or some other person information or a confession"; threatening physical torture is itself mental torture), which is a serious crime. Sadly the officer - not named in the article, but identified in the appeal judgement as Sean Matthew Doak - wasn't charged with that. But they were charged with "presenting a restricted weapon", tried, and convicted by a jury. They appealed, on the basis that "the direct and indirect consequences of the conviction, particularly the likelihood he will lose his job, are out of all proportion to the gravity of the offending" [emphasis added]. And the appeal judgement on that is fucking appalling, and reveal that parts of our judiciary are totally OK with police officers threatening torture:
CCTV footage produced at the trial revealed that Constable Doak approached X with a taser in hishand. He leaned down close to her head. It seems likely that he was attempting to obtain information from her regarding the identity and whereabouts of the driver. The Judge was satisfied this information was needed, given the risk the driver might convert another car and escape, thereby placing the public at further risk.
[Emphasis added]

Which is a pretty interesting interpretation of Article 2.2 of the Convention Against Torture ("No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture"), not to mention section 9 of the Bill of Rights Act. What we have here is basicly a judicial approval of a threat to torture, for a fucking traffic case.

It gets worse, because the appeal Judge backs it up, saying "Constable Doak rightly needed to ask who the driver was and where he had gone. That he did so in robust terms cannot be criticised in the circumstances." I wonder how they'd describe the police beating a "confession" out of someone in a cell? Because that is effectively what they've just okayed.

Back to the sentence. The trial judge was of course full of sympathy for the accused, saying that while losing their job was a predictable consequence of conviction, they "expressed the hope that through the exercise of sensible judgement on the part of the District Commander, Constable Doak would remain in the employment of the Police." They convicted him and discharged him without penalty. The appeal judge overturned that and replaced it with a discharge without conviction, on the basis that penalties for the police shouldn't be harsher than those for the public (public trust apparently counting for nothing), and that the employment decision was still one for police. So, a police officer threatens to torture someone, the judiciary is totally OK with that, and ensures they face no penalty whatsoever. Heckuva job they're doing there upholding the BORA and international law.

Meanwhile, I'm left with a pressing question: is Sean Matthew Doak still a police officer?