Two police officers charged with criminal offences over the use of capsicum spray, Tasers and restraints on a “cognitively and emotionally vulnerable” First Nations man in police custody have had the case against them permanently stayed, after a court found “defects” in the subsequent investigation.
Andrew David Couchman, ۵۴, and Ulrich Weiss, ۴۵, both senior constables, were both charged over the incident at the Mareeba watch house in far north Queensland in January ۲۰۲۴.
A district court judgment found that while there was footage of the incident and that the course events inside the watch house “did not appear in dispute”, Couchman and Weiss could not be guaranteed a fair trial because a detective inserted a “false” account into the alleged victim’s statement.
Prosecutors argued the trial should still proceed – that it was in the public interest to protect vulnerable detainees and public confidence in the investigation of police.
District court judge Dean Morzone KC rejected that argument and ruled a fair trial could not proceed.
“Public confidence in this instance has two faces, and they do not both look the same way,” he said.
Morzone’s judgment details events of ۲۰ January ۲۰۲۴, inside the watch house at Mareeba. He said the parties disputed the characterisation of events, but not the sequence.
A First Nations man, who Guardian Australia has chosen not to name due to references to his mental health and cognitive abilities, requested paracetamol from his cell.
The man, who was ۲۳ at the time, was repeatedly described by the court as being vulnerable, and was diagnosed with schizophrenia.
During the course of the interaction, the man was sprayed with capsicum spray through an opening in the cell door; Tasered four separate times and left “in a restrained position” in a “violent detention cell” used for solitary confinement. The judgment says he was “aggressive and non-compliant” and attempted to tried to spit at the police.
The man was later interviewed twice by detectives from the police ethical standards command.
His statement, drafted by the investigating officer Det Sen Sgt Kim Cavell, included a paragraph that was not drawn from the content of those interviews: that he “did not consent” to being Tasered, sprayed, restrained or left in a cell for over two hours.
The man had not used those words during the interviews. During cross-examination during a committal hearing, it was established he “does not understand what consent means”.
At a pre-trial hearing, the complainant said the officers “just did what they had to do”, that the use of Tasers was “necessary ‘cause I was being a dick”.
He said that at the time of the incident “he was hearing voices and not taking his medication, and the voices were telling him to hurt the police, to punch them and to spit at them.”
Judge Morzone made no adverse findings in relation to the investigating detective, but described the statement related to not having given consent – a key element to substantiate a charge – as “false” and that it had produced “a fundamental defect” in the proceedings.
“These are serious charges,” Morzone said.
“They allege the unlawful application of force, and the unlawful deprivation of liberty, by police officers upon a mentally unwell First Nations man detained in a watch house. Vulnerable people in custody are entitled to the protection of the law. The community is entitled to expect that allegations of this kind will be tried and determined publicly by a jury, and not disposed of by a judge on a pre-trial application.
“A permanent stay is tantamount to a continuing immunity from prosecution, and I approach the application with that firmly in mind.”
Morzone said he had also weighed the fact that there was CCTV and body-worn camera footage of the incident, which he said was a “powerful record of what was done” and could be analysed against policies and procedures.
“But consent is a state of mind, and the footage cannot record what [the complainant] understood, believed or permitted.”
Morzone said a trial could not be conducted on a footing where an assertion about not having given consent – an element of the charge which the prosecution must prove – has been “supplied to a vulnerable witness by the officer investigating the charge”.
“The defect goes to the root of the trial. Nothing that a trial judge could do in the conduct of the trial could relieve against its unfair consequences.”
