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Inquest Findings Approve Use of Tasers by AFP (ACT)

The ACT Coroners Court recently examined in detail the Australian Federal Police’s use of a taser – and found overwhelmingly that the police got it right. The findings related to the death of a troubled man who was self-harming when police intervened. They provide a massive contrast with prominent matters involving deaths in police custody in the US and other jurisdictions in the past year.

Coroner James Stewart had much to consider, chiefly making findings about the death of the man but looking also at the broad events of the day of his death, at the deployment of the taser, at the care provided to the individual after tasering and at the training of AFP officers regarding tasers. He also recommended the AFP’s training and governance in respect of tasers be reviewed.

Inquest findings: Anthony Caristo

The case was the Inquest into the death of Anthony Romanas Caristo [2020] ACTCD 9 and it turned on section 74 of the Coroners Act 1997 (ACT), which provides:

“The coroner holding an inquest into a death in custody must include in a record of the proceedings of the inquest findings about the quality of care, treatment and supervision of the deceased that, in the opinion of the coroner, contributed to the cause of death.”

Coroner Stewart found that the section conveyed a narrow power to make findings in relation to a death in custody.

“To make such a finding here, I would have to find that there was something blameworthy or negligent or which involved a departure from an established norm in the care that was provided to Mr Caristo and that departure or negligence, in a causative sense, contributed to the cause of death,” he said. “It is not sufficient that the findings about the quality of care, treatment and supervision of Mr Caristo are merely connected with the inquest – there must be an actual and direct connection with the death before the finding may be made.

“The question of causation in this inquest is complex. I find that it is not possible to find to the requisite standard that the use of the taser caused Mr Caristo’s death on its own.

“Further, I find that there was nothing negligent or blameworthy in the conduct of the police in using the taser (which could be said to be part of the treatment or care of Mr Caristo) that could be said to have contributed to his death.”

The use of tasers by AFP on Mr Caristo

The police task was serious and difficult. The Coroner noted that the situation confronting the attending police was “horrific”. One “very experienced paramedic” regarded the distribution of blood (smeared rather than pooled) to be unusual. He felt the amount of blood lost was substantial.

Clinical Professor of Medicine at Sydney University Johan Duflou gave evidence that the injuries were not immediately life-threatening and the amount of blood actually lost may in fact not have been substantial. However, the Coroner found it was reasonable for the officers on the scene to conclude that Mr Caristo had lost blood (and perhaps a significant amount of blood); was at times barely conscious; was clearly psychotic; and was (given his altered consciousness) significantly affected by the drugs they correctly assumed he had ingested.

The attending police also reasonably concluded that Mr Caristo was a potential threat to himself and to others (given his psychotic state and his possession of knives and having demonstrated he was prepared to use them).

“I find that it was reasonable for the attending police to decide that medical treatment had to be administered as soon as possible and that Mr Caristo had to be contained inside the room,” the Coroner said.

A police sergeant gave evidence that he decided to deploy the taser because he saw Mr Caristo start to stab or strike himself with a knife. The Coroner accepted this, finding that Mr Caristo did strike himself with the knife just before the taser was deployed.  He found it was reasonable for the taser to be deployed.

Reasonable force?

The Coroner looked also at any application of force by police, perhaps mindful of the US cases in which pressure to citizen’s necks by police has resulted in their deaths.

The Coroner found that after discharging the taser, a police sergeant yelled at Mr Caristo to drop the knife with which he had severed his own little finger and caused himself other injuries, resulting in extensive bleeding.

The officers who went into the room found Mr Caristo on his stomach. They met no resistance and handcuffs were quickly applied.

Coroner Stewart ruled, “There was no evidence, and I find that, no significant or inappropriate force was applied to Mr Caristo’s body in this process …  There was no evidence suggesting force was applied to Mr Caristo’s neck as the handcuffs were applied.”

Furthermore, the deceased was moved into the “recovery position” in less than five seconds.

Professor Duflou said there were no injuries that could be associated with the arrest. He found also very high methamphetamine levels in the blood and the presence of its likely breakdown product, amphetamine. In the absence of other factors, Dr Duflou indicated he would have attributed death to that cause alone.

Overall, the features strongly suggested to Dr Duflou that the deceased was suffering from Excited Delirium Syndrome.

Excited Delirium Syndrome

Professor Duflou noted that the existence of Excited Delirium Syndrome is the subject of expert controversy, but confirmed his belief that it exists, and that it was present in this case.

Use of conducted energy weapons [CEWs] immediately preceding death in cases involving this syndrome is not uncommon. Neither is sudden cardiac arrest, usually in the form of asystole (the most serious and usually fatal form).

In this case, the close timing of the discharge of the taser and the death raised the possibility of some level of contribution from the electrical discharge. “However, the nature and quantum of such contribution cannot be determined,” Professor Duflou found.

The family’s concerns

The Coroner was particularly mindful of the position of the deceased’s family and devoted a considerable part of his written findings to them. “The submissions of the Caristo family raise justifiable concerns about the governance surrounding the use of tasers in the AFP,” he wrote. “Whilst this shortfall in governance did not influence the outcomes in respect of Mr Caristo’s case, his death does provide a catalyst for considering whether the AFP has appropriate governance in place for taser use – particularly on vulnerable persons.”

The use of tasers by AFP moving forward

The Police Commissioner’s Order on Operational Safety was found to be silent on tasers and the AFP at the time had no dedicated manual or guidance document dealing specifically with tasers. But police have acted since Mr Caristo’s death.

The Coroner said, “I acknowledge the production of a CEW [conducted electrical weapon] Handbook post-hearing and the AFP’s expressed commitment to reviewing CEW governance and training after this decision is received.”

Further, he commented: “The AFP governance and training in relation to tasers should be reviewed with a view to enhance identifying and understanding:

  • The inherent risk involved in taser use in respect of vulnerable groups such as those psychotic, those intoxicated, those suffering mental ill-health, pregnant women and children;
  • The criterion for taser use;
  • The use of negotiators;
  • Taser use restrictions;
  • Post-use medical care on a tasered person;
  • Post-use observation of a tasered person;
  • Positional asphyxia risk;
  • Post-use rough handing of tasered person …”

His Honour recommended that the AFP report back to him within 12 months as to what changes have been made.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.

Andrew Fraser - Managing Associate - Canberra

This article was written by Andrew Fraser - Managing Associate - Canberra

Andrew works in the areas of criminal law and traffic law, providing practical advice in all of his clients’ matters. Andrew has, over many years, developed positive working relationships with prosecutors, magistrates and judges. His no-nonsense approach means he has a reputation for putting forward the best case possible for clients. Andrew has won many matters for his clients, including...

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