Police used “unjustified and excessive” force when a man was elbowed and repeatedly punched while being unlawfully arrested in a Rotorua car park, the Independent Police Conduct Authority has found.

The authority’s report details how an officer grabbed him, pushed him against a wall, and delivered “a significant elbow strike, followed by several punches to the body and head”.

Police have acknowledged the report and accepted the authority’s finding the arrest for obstruction was unlawful, and say there are “learnings to reflect on”.

Both officers involved in the arrest were still in the police.

The arrest

About 2.45pm on September 13, 2021, two officers saw a Subaru being driven “erratically” and decided to stop it, the IPCA report stated.

The car pulled into in an empty motel car park on Malfroy Rd and parked.

Police followed and parked behind the vehicle. Soon after the driver walked up to the officers and, when asked, gave his name and said the vehicle was his, locked the car and walked away.

One of the officers – Officer A in the report – checked the police database and found the vehicle, which was registered to the driver, had been reported stolen, and the other officer found the driver’s licence was to be suspended because of demerit points.

Police issued the driver documentation relating to this. CCTV camera footage from the motel showed the driver talking openly with officers and holding the documentation.

The report said Officer A said he requested the keys to seize the car, but the driver refused to hand them over, reiterating it was not stolen. He later told the authority he did not have the keys on him at the time, and this was confirmed when he was later processed at the police station.

Officer A warned the driver he would be arrested but he still refused to comply and Officer A moved to arrest him for obstruction.

The ‘struggle’

The report stated that the driver tried to “move away” when the officers tried to take him into custody.

Officer A grabbed the driver, pushed him against a nearby wall then delivered “a significant elbow strike, followed by several punches to the body and head” of the driver, the report stated. At one point, the driver managed to partially move away but Officer B threw him back against the wall.

The officers got him to the ground and Officer B put him in a headlock. Officer A delivers a knee strike while trying to handcuff the man, who stopped resisting.

Officer B put the handcuffed driver, and into the patrol car.

Police would later claim the driver was abusive and aggressive and may have been under the influence of an illegal substance. The driver said he was sober and generally compliant and the authority found footage of the incident captured on CCTV appeared to support the driver’s story.

The report said the “struggle” lasted just over two minutes and at the police station, the driver reportedly had breathing difficulties, said he had a head injury and appeared in pain. An ambulance was called and no medical concerns were noted.

The driver was charged with obstruction and resisting arrest.

Both charges were withdrawn by a police prosecutor at the driver’s second court appearance.

Complaints laid

A friend witnessed the incident and complained to the authority officers had assaulted the driver, whose mother later also complained.

The report stated that police initially investigated the officers’ actions under the oversight of the authority, however, the authority found the legal analysis underlying the police conclusions in both the criminal and employment aspects of the case “fundamentally flawed”.

The authority conducted an independent investigation.

It found that the officer had no legal power to require the driver to hand over the keys, making the arrest for obstruction unlawful.

Because the arrest was unlawful, the force used to arrest the driver and to prevent him escaping was also unjustified, under the Crimes Act 1961.

The authority also found that, even if the arrest had been lawful, the level of force used by Officer A was “disproportionate and unreasonable”.

Police respond

Police acknowledged the report which found police using unjustified and excessive force while arresting the driver.

Bay of Plenty Police district commander Superintendent Tim Anderson said police investigated the incident, including a legal review.

Police must apply the Solicitor General guidelines when considering charges and, in this instance, the threshold for prosecution was not met, he said in the statement.

”We acknowledge [the authority’s] findings and accept the arrest for obstruction was unlawful,” Anderson said.

“Our officer had good cause to suspect that the man was either unlawfully in a vehicle or had unlawfully taken a vehicle and so should have arrested him for that offence rather than obstruction,” he said.

He said the police was an organisation “committed to continuous improvement and we always take lessons onboard following an investigation”.

He said staff were acting in “good faith” when attending the incident.

“We acknowledge that there are learnings to reflect on but confirm that both officers remain members of New Zealand Police.”

The authority recommended that police alter information on its database to reflect that the arrest and charge were unlawful and Anderson said this had been completed.

Cira Olivier is a social issues and breaking news reporter for NZME Bay of Plenty. She has been a journalist since 2019.