Annual Report 2017-2018 OmbudsmanNT
Tabled paper 934
Tabled Papers for 13th Assembly 2016 - 2020; Tabled Papers; ParliamentNT
Made available by the Legislative Assembly of the Northern Territory under Standing Order 240. Where copyright subsists with a third party it remains with the original owner and permission may be required to reuse the material.
74 The investigating officer did find that the bottle had been unlawfully seized and recommended that remedial advice be given to the officers in that regard and that consideration be given to compensating the complainant for loss of his property. Both recommendations were accepted. Case 9 - Discharge of pepper spray into a crowd The complainants were among a large number of people who emerged from a nightclub when it closed at around 4am. There was a large crowd bunched together in the fenced area of the footpath near the entrance to the nightclub and a number of police in the vicinity. There had been an earlier incident in the area which had heightened police awareness of the potential for violence. A number of officers were carrying OC Spray (pepper spray) containers. Officer A, who was one of several police walking down the middle of the street outside the nightclub, was carrying a large MK9 OC Spray canister. He saw an altercation involving two people in the middle of the crowd. He immediately approached the outside railings near the street and sprayed towards the individuals involved in the altercation. Inevitably, due to the concentration of people, a substantial number of others who were in no way involved in the altercation were hit by the spray or became contaminated as it spread. Several bystanders complained. The most prominent concerns involved the decision to use the spray and the quality of aftercare provided by officers. Officer A stated that he saw what he believed was a fight breaking out and acted quickly to stop the fight and to ensure that no-one was injured or joined into the fight. The NT Police investigating officer noted that fights involving patrons are common circumstances faced by police performing alcohol policing duties at nightclub venues. Officer A identified the area in question as one where police have previously been assaulted, as the fenced area makes it difficult for them to get away quickly when threatened or cornered. He also identified that he was concerned about one punch can kill issues and that some patrons were intoxicated and the situation had the potential to become volatile very quickly. In essence, he thought by using the spray he would stop the fight and avoid others getting hurt, including the police officers present. NT Police has detailed guidance on the use of force by officers. Use of force options are guided by the Tactical Options Model with a range of available options. Use of OC spray is allowed to resolve an incident where a person is acting in a manner to cause the officer to believe there is a physical threat to someone, and the member cannot reasonably protect themselves, or others, less forcefully. However, use of force must always be reasonable and must be the minimum force required in the circumstances. In considering the actions of Officer A, the investigating officer noted that he had been called on to make a decision in a very short time about the best way to deal with the situation. The investigating officer concluded there may have been justification if the spray had been used in isolation on those involved in the altercation but its use in the circumstances of a large crowd of innocent bystanders was not justified. The complaints were therefore sustained. Both the officer who discharged the spray and his supervisor were subject to disciplinary action in relation to the use of the spray. The investigating officer also advised that the policy, procedures and training for use of larger MK9 canisters were being revised in light of the incident to minimise the potential for an event like this to happen again. That is not to say that OC Spray should never be used in a crowd situation. Where there is widespread fighting within a crowd, where the crowd itself is threatening police or members of the public or if dangerous weapons are present, use of spray might well be justified even if it might impact on a number of innocent bystanders. However, those circumstances would be very different from the situation here.