How Much Force Can Police Use in NSW?

Poppy Morandin.


Indigenous activists hope that the murder conviction of Derek Chauvin in America may help bring change to Australia’s legal system and its treatment of Indigenous deaths in custody.

The conviction of the former police officer has been dubbed a ‘historic’ moment for America.

Chauvin was found guilty of second-degree unintentional murder, third-degree murder, and manslaughter for the death of George Floyd on May 25, 2020.

The incident sparked worldwide protests, including those within Australia which prompted an examination of racism and policing.

Chauvin will remain in solitary until his sentencing on June 16.

The verdict is rare for America.

The Guardian has reported that over 1,134 deaths at the hands of law enforcement officers occurred in 2015 alone.

Since 2005, 140 law enforcement officers have been arrested on murder or manslaughter charges related to on-duty shootings in the US.

Out of 140, about one third were convicted on any charges, with only 5% actually being convicted of murder.

In Australia, from 1989 – 2011, there have been 105 people fatally shot by police, with studies revealing that in 42% of incidents “the deceased had been identified as having some form of mental illness”.

Convictions of police officers are also rare, and Indigenous activists are hoping this news from the US may prompt a change in thinking.

“There are two police officers in Australia awaiting trial for murder for the deaths of JC [Joyce Clark] and Kumanjayi Walker…As you look to the US, remember to keep an eye on our own courts.” commented Calla Wahlquist.

“If you are willing to look at George Floyd’s death as an injustice and be outraged, then you need to do the same in Australia,”said Samara Fernandez-Brown, cousin of Kumanjayi Walker.

In the Northern Territory, police officer Zachary Rolfe has been committed to stand trial for murder in the state’s Supreme Court after 19-year-old Kumanjayi Walker was shot dead in his bedroom in 2019.

Rolfe was charged days after the shooting, which sparked protests in Alice Springs, Perth, and Sydney.

It is alleged that Rolfe shot Walker three times, after the teenager stabbed the officer and his partner with a pair of metal scissors.

The officers had attended the residence of Walker to arrest him on charges including breaching the terms of a previous suspended sentence.

The prosecution will contend that while Rolfe’s first shot may have been justified, his second and third were not.

However, his defence lawyer says that his actions were: “justifiable defensive conduct”.

The trial will be heard in Darwin and will run for five weeks from July 2021.

Rolfe is the first police officer in the Northern Territory to stand trial for murder over an Indigenous death in custody.

Furthermore, in September 2019, 29-year-old Yamatji woman Joyce Clarke was shot and killed by a police officer responding to a disturbance.

Ms Clarke had a history of mental health issues and her sister had called triple-0 asking for help when she began acting erratically.

It is alleged that she lunged at the constable who shot her once in the stomach.

The officer, who’s identity has been supressed by the court, has pleaded not guilty and no trial date has been set yet.

If convicted, he will be the first Western Australian police officer to ever be held criminally responsible for an Indigenous death in custody.

The last time a Western Australian police officer was charged with murder was in 1983 when five officers were ultimately acquitted over the death of 16-year-old boy John Pat in Roebourne.

The case of John Pat is widely regard as the catalyst for the Royal Commission into Aboriginal Deaths in Custody.

How Much Force Can Police Use in NSW?

In NSW, police must exercise force pursuant to Part 18 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW).

Police officers may exercise force ‘as is reasonably necessary’ to exercise their lawful powers, as outlined in section 230. The test here is whether the police officer(s) believed based on reasonable grounds that the force used was necessary. It is partly a subjective test, which required the application of an objective part to it, to the extent that the belief must be based on reasonable grounds (State of NSW v McMaster; NSW v Karakizos; NSW v McMaster [2015] NSWCA 228).

Furthermore, when exercising the power of arrest a police officer may use such force as is reasonably necessary to make the arrest or to prevent the escape of the person after arrest, pursuant to section 231.

This entails that if an accused person strongly resists, police will be able to use a higher level of force than if an accused person cooperates or is mildly resistant.

Factors that shape what is considered ‘reasonable’ includes considerations of a suspect’s age, gender, size, fitness, and skill level compared to that of the officers present, as outlined by NSW Police’s Tactical Options Model.

Other considerations include nature and seriousness of any offence that is alleged, and whether the suspect is armed and, if so, the nature of the weapon.

If a police officer is found to have used excessive force, the action can be deemed unlawful, leaving that officer open to criminal charges similar to any other citizen.

Questions? Get in touch with our criminal lawyers Newcastle based today.

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