An ACT Magistrate has issued a stern rebuke to a New South Wales police officer who pulled his gun on a motorist who he claimed was trying to avoid a random breath test.
Video footage from the police dash cam was tendered as evidence in court when the motorist chose to defend the charge of drink driving brought against him.
The video shows the officer running towards the driver with his pistol drawn, and leveling it at the driver’s head.
The video shows the officer tapping his gun twice on the driver’s car window, before the driver gets out of the car with his hands raised. The officer then directs the driver to lie face down in the centre of the lane.
Once the driver is on the ground, the officer holsters his gun and knees the man in the back before handcuffing him, then punching him in the upper-back.
The arresting officer told the court he noticed the motorist slow his vehicle down as he approached a breath test station on Canberra Avenue, Queanbeyan in January last year.
The officer claimed that after slowing down momentarily, the driver then swerved and turned down a side road.
The driver was stopped in Woods Lane in the ACT.
ACT police arrived a short time later, and the arresting officer told them that the driver returned a positive breath test. The driver was then taken to Woden police station and charged with drink driving.
The driver’s defence lawyer argued the arrest was unlawful because of the officer used excessive force. The lawyer also pointed-out that the officer had failed to advise the driver of the reason for the arrest.
The court also heard that the officer neglected to record information about the nature of the arrest in his incident report, which is a requirement under police guidelines.
ACT Magistrate Margaret Hunter found that the officer’s conduct was uncalled for – particularly his act of pointing the gun at the driver’s face.
The officer said he felt his actions were reasonable. He also claimed to be unaware of the requirement to record information about pulling the gun.
He said he felt scared and threatened because the area was dark, and was concerned there may have been several people in the car.
But the Magistrate noted the road is well-lit, and there had clearly only been one person in the car – as evidenced by the dash cam footage. She said the officer could have handled the situation in several other ways if he was indeed frightened – including remaining in his car, calling for back-up and waiting for other police to arrive.
Her Honour also found that while the Senior Constable claimed he had informed attending police of what had occurred, it was clear from their evidence that he had not mentioned pointing his gun at the driver’s head or kneeing him in the back.
Not Guilty of Drink Driving
The Magistrate ultimately found the driver not guilty of drink driving because the NSW officer’s breathalyser was not an approved device under ACT law, and Canberra police failed to conduct their own breath test at the scene. She ordered that police pay the driver’s legal costs.
NSW Police say they intend to investigate the officer’s conduct.
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