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'I can't see': Prison officer acquitted of assaulting prisoner who later died after being pepper sprayed

Author
George Block,
Publish Date
Thu, 25 Jan 2024, 8:48pm
The Corrections officer accused of assaulting the inmate with pepper spray had suppression through his trial in the Auckland District Court.
The Corrections officer accused of assaulting the inmate with pepper spray had suppression through his trial in the Auckland District Court.

'I can't see': Prison officer acquitted of assaulting prisoner who later died after being pepper sprayed

Author
George Block,
Publish Date
Thu, 25 Jan 2024, 8:48pm

A prison officer charged with assault after pepper spraying a distressed inmate in a mental health unit of Mt Eden prison has been found not guilty.

It can now be reported the prisoner died 20 minutes after he was pepper sprayed while he was under restraint, a fact that was not made available to the jury during the trial due to concerns it would be prejudicial.

The officer was on trial this week in the Auckland District Court and denied one charge of assault arising from the April 2022 incident at Mt Eden prison, captured on his body camera in confronting footage played to the jury.

They returned a unanimous verdict of not guilty on Thursday evening,

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Both he and the prisoner were granted interim name suppression through trial.

The jurors retired on Thursday afternoon after three days of evidence, announcing they had reached their verdict shortly before 6pm.

Before the trial, the fact the prisoner died was deemed too prejudicial to be put before the jury as part of the evidence against the officer.

The officer was charged with assault with a weapon but was not charged in relation to the death.

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It is understood the inmate died about 20 minutes after he was pepper sprayed.

The inmate was being restrained on the ground by other Corrections officers when they noticed he was not responsive. He could not be revived and was pronounced dead at the scene.

An attempt was made to decontaminate the prisoner after he was pepper sprayed.

His death is set to be the subject of a coronial inquest. No one has been charged in relation to the death, which became the subject of a major police inquiry.

During the trial, a large contingent of the prisoner’s family packed the public gallery, alongside family of the accused.

Juries are able to submit questions to the judge during the course of the trial and their deliberations.

They asked one question of the judge, requesting information about whether another officer on CCTV might have been reaching for something on his hip, but were told the only evidence they are given is that presented during the course of the trial.

Police charged the officer with assault with a weapon about a month after the incident.

The Herald reported the fact the prisoner died after he was pepper sprayed at the time, but was unable to publish the fact of the death during the trial for legal reasons.

Both the prisoner who died and the inmate have name suppression. The officer was granted name suppression when he was charged. The prisoner’s uncle made an application with the coroner for name suppression, which was granted, but an application for suppression of the circumstances of the man’s death was declined.

The Crimes Act charge of assault with a weapon carries a maximum term of imprisonment of five years.

Crown prosecutor Kristy Li, in her closing address, told the jury the trial came down to one question: was the officer legally justified when he pepper sprayed the prisoner because he was acting in self-defence?

Li said he was not. He made no attempt to de-escalate the situation after confronting the prisoner over his refusal to hand over a towel.

The prisoner displayed no signs of aggression and was backing away as the officer advanced on him, yelling at him to drop to his knees, Li said. She said the officer could not have honestly believed the prisoner posed a threat.

“He simply was not acting in self-defence when he deployed pepper spray,” she said.

His lawyer Petrina Stokes said he was justified in deploying the pepper spray and was only acting in accordance with his training amid difficult circumstances.

Officers are taught pepper spray is the safest option when they have to resort to physical force, she said.

“He is the type of person that follows procedures, he is the type of person that sticks to the rules,” she said.

“De-escalation was not working. It was time to consider other options.”

During his evidence, the officer said the prisoner was posing a threat “by being non-compliant and just not responding to my instructions.

“The fact that he had a towel in his hand that’s what I considered … could be used as a weapon against myself or my staff around me,” he said.

Under cross-examination from Crown prosecutor Li, the officer said he believed the immediate risk from the towel was that the prisoner could hurt himself.

“Did you see any movements indicating that he would self-harm when he was out of the cell?” Li asked

“I saw that he was doing something that he shouldn’t be doing,” the officer replied.

“But he hadn’t made any moves to self-harm?

“No.”

Mt Eden prison houses mostly prisoners on remand.
Mt Eden prison houses mostly prisoners on remand.

The alleged assault happened in the Intervention and Support Unit (ISU) on the morning of April 5, 2022, following a dispute over the use of a towel.

Many prisoners in the ISU, including the complainant, have mental health issues and there are strict rules in place to reduce the risk of inmates harming themselves.

He was having a shower in the ISU supervised by two Corrections officers before he was handed two towels.

As the inmate left the shower, he handed one towel to an officer while the other was around his waist. He then walked to a trolley and picked up another towel to wipe his face and hair.

At this point, the man on trial, who was on his second shift as a senior Corrections officer overseeing other guards, approached the prisoner and asked him to hand back the towels.

ISU prisoners are not allowed to take towels to their cells because of the risk they could use them to harm themselves.

Footage from the incident shows the officers converging on the man, who is backing away and does not make any moves towards the staff.

They repeatedly yell at him “Drop on your knees”. The officer on trial yells “If you don’t drop on your knees I’ll spray you” in an increasingly loud voice as he advances on the prisoner.

“Drop on your knees, drop on your knees, otherwise I’ll spray,” the officer said.

The prisoner at no point makes a move towards the officers and does not appear to be doing anything to indicate he will harm himself, the footage shows.

He replies in a quiet tone: “I can’t do that, brother.”

The officer, now appearing to speak almost at the top of his lungs, says: “Down now, get on your knees!”

He then pepper sprays the prisoner, who says: “Why did you do this to me?” and later: “I can’t see, brother, please.”

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