The whānau of Shargin Stephens, shot dead by police in 2016, has won a victory in their fight for justice, with the police watchdog admitting that "oppressive" bail checks may have been a factor in his killing.
Shargin Stephens was fatally shot by police in 2016 Photo: RNZ/Vinay Ranchhod
The Independent Police Conduct Authority (IPCA) has done a major u-turn in its investigation into the shooting, saying constant, late-night bail checks on Stephens were unreasonable and may have contributed to him lashing out.
Stephens, a 35-year-old Māori man, was shot dead by police in Rotorua after smashing up an empty patrol car with a weed slasher.
He was on electronically monitored bail at the time so police knew where he was but they still bail checked him 70 times in the 38 days leading up to the shooting, including visits at 1.45am, 2.15am and 3.49am.
The original IPCA report, published in 2017, said the police bail checks were "reasonable" and did not play a role in Stephens lashing out that day.
But in 2021, RNZ revealed that multiple aspects of the IPCA report were contradicted by the police homicide investigation into the shooting, and the IPCA then reopened its file.
The revised IPCA report says the police visits to Stephens' home were excessive and, in a wider move, it recommends the Commissioner of Police conduct a major review of police policy on bail checks.
"Given Mr Stephens was being electronically monitored, this frequency of bail checking was excessive and unreasonable," the report says.
"The unreasonable and oppressive frequency of bail checking may have contributed to Mr Stephens' views of police and the actions he took on 14 July 2016."
The revised IPCA investigation also shows it initially undercounted the number of bail checks the police did on Stephens.
The 2017 IPCA report counted 64 bail checks in the five weeks leading up to the shooting but the new report says police knocked on his door 70 times - 18 of those between 11pm and 6am.
The bail conditions for Stephens stipulated he was not to use alcohol or drugs and police were entitled to monitor that, the IPCA said.
"But to check him 70 times over 38 days, sometimes multiple times at night, was oppressive," the authority has now found. "This is especially as police found no evidence of Mr Stephens not complying with these conditions."
Stephens' frustrations and anger over the police bail checks was "understandable and justified" the IPCA now says.
"We find that it is probable that the unreasonable frequency of the bail checks did contribute towards Mr Stephens' views of police and the actions that he took."
At the time of the shooting there were no guidelines in police policy about how often bail checks could be done.
"Crucially, there was, and still is, no oversight or supervision of the frequency or reasonableness of conducting bail checks," the IPCA says.
The IPCA chair Judge Colin Doherty is now recommending Police Commissioner Andrew Coster conduct a "fundamental review of all aspects of bail checking" at both the national and district level.
Following his death the Stephens whānau had complained about the number of bail checks and told police he found them very disruptive, the IPCA report says.
The whānau have now been waiting nearly six years for a coronial inquest.
Hamilton Coroner J P Ryan had ruled only a narrow inquest was needed because the 2017 IPCA report had already established much of what happened that day. He had also accepted the IPCA's initial ruling that the bail checks were "reasonable".
After RNZ's 2021 story pointing out inconsistencies in the original IPCA report, Coroner Ryan issued an interim non-publication order, under section 74 of the Coroners Act, prohibiting anyone making public evidence given at - or for the purpose of - the inquiry in to Stephens' death.
RNZ is challenging Coroner Ryan's ruling in a court case expected to be heard in the middle of the year.
The IPCA has also had to admit its initial report was wrong to say that none of the 13 officers involved in the shooting knew Stephens.
The new IPCA report says one of the officers did recognise Stephens but "did not share this information over the radio or directly with any colleagues due to the fast-paced nature of the incident".
The new report also confirms that the officer who shot Stephens had bailed checked him in the past - something missing from the original IPCA report but revealed by RNZ in 2021.
RNZ also revealed in 2021 that a report from a digital imaging expert, hired by lawyers acting for the Stephens whānau, identified that seven seconds of footage was missing from one of the police taser cameras.
The new IPCA report addresses that issue but says that police "did not deliberately remove a vital section of footage" from the officer's taser.
"There is no missing footage. There are seven seconds which are not captured by (the officer's) taser camera, likely due to a technical fault," the IPCA says.
"We accept that we cannot establish the exact fault that occurred. The authority has established there is no missing footage, rather that seven seconds were not captured in a period where the device powered off and then back on."
The new report also admits to inaccuracies about the degree of violence exhibited by Stephens during the incident.
In the original report an officer says Stephens "took a "big swing" at him with his slasher and that "Mr Stephen's actions were captured on the taser camera footage".
But the new report admits this is not what the footage showed.
"Mr Stephens' actions were captured on the taser camera footage, which does not show a big swinging motion; rather Mr Stephens had the slasher out in front of him at head height, circling it around in front of him."
Despite the inaccuracies in the original report, the IPCA stands by its finding that the shooting was justified.
The IPCA says from the start of the incident Stephens "behaved in an extremely aggressive and irrational manner towards police" and did not respond to calls for him to drop his weapon.
Police made several attempts to disarm Stephens using tasers and pepper spray but he continued to evade and threaten them.
The IPCA found that the officer who fired the two fatal bullets was justified on the grounds of self defence because Stephens "posed an immediate threat of grievous bodily harm or death".
The authority said it was a fast moving incident - just six minutes elapsed between Stephens smashing up the patrol car and being shot - and the police exercised good command and control.
The Institute of Environmental Science and Research (ESR) analysed samples of Mr Stephens' blood and urine, and found evidence of alcohol, and methamphetamine.
Responding to the new IPCA report, Bay of Plenty District Commander Superintendent Andy McGregor said a review of bail check processes had begun.
McGregor noted that the IPCA remained of the view the officer involved was legally justified in shooting Stephens to protect both himself and the public.
"No officer ever wants to shoot someone, this is the last outcome anyone wanted," he said.
McGregor said police recognised that use of force was "a significant power granted to us" and must be used carefully.
"Our staff are deeply affected by these incidents, and I want to commend the professionalism of staff who responded to this incident which, as the authority notes was fast paced and took place in a busy urban environment."