Mentally ill and shot in the back: The police killing of Jerrim Toms

Jerrim Toms' mum asked police to help her mentally ill son. They ended up shooting him as he ran away. Guyon Espiner reveals what happened that night and details the unanswered questions that remain four years on.

Jerrim Toms turned and ran for his life.

Two police officers had fired four shots as Toms walked towards them and they would fire eight more as he ran away.

It was 4am on a deserted highway near Puhoi, north of Auckland.

Just over an hour earlier, his mum, Joan, had called police asking for a welfare check on her 29-year-old son, who was mentally unwell with bipolar disorder.

Joan was scared. Her son, who was days away from becoming a father for the first time, had only recently been discharged from mental health care.

He was either having another episode or hadn't recovered from the last one.

"He's kicked me out of the house. He's threatening to burn it down," she told Sharyn, the 111 operator.

"You've done the right thing, Joan," Sharyn assured her. "Any weapons on him?"

"I think so," Joan replied. "He had a knife strapped to his hip."

Sharyn had been a 111 operator for nearly 16 years and knew immediately what she was dealing with. She entered it into the dispatch system as a priority one job, tagging it "1M", police code for a mental health emergency.

"We're on the way as quickly as we can."

But when police arrived at the Toms' family home on Paihia Road, in Auckland's Onehunga, Jerrim wasn't there and neither was his white Subaru Legacy.

A mentally unwell man with a knife was on the move. But police weren't overly concerned. An officer phoned Joan, who had gone to her daughter Natasha's house, to tell her his plan. She was to stay at Natasha's, come back home to Paihia Road the next morning and ring the police if she saw her son.

Job done, the officer thought. He entered the code "K1" on his mobility device, which removed the event from the police alert system.

So when two officers, later codenamed Constable A and Constable B, confronted Toms on State Highway 1, they didn't know about his mum's emergency call or his mental health history.

They just knew he was a man on the run. Officers had pursued him for 40 minutes. Toms' car had been hit by police road spikes three times and had lost three tyres. It slowed and finally graunched to a halt.

Toms got out and walked directly towards Constable A and B carrying a black, curled knife with a 26cm blade.

"I don't think he was doing any sort of swinging with it," Constable B would later say. "If you had your arm in a sling - it's that kind of position."

Toms was silent, controlled and focused.

"Stop! Drop the weapon and get on the ground," Constable A screamed.

But Toms did not respond.

He took 16 steps forward in 12 seconds and was less than 2 metres from police when they opened fire.

Constable A and B fired four shots from their Glock pistols, hitting Toms twice in the chest.

It was as though a trance had been broken.

"I saw the male react by suddenly, flailing his arms into the air and spinning his body in a twisting, writhing motion," another officer at the scene would later say.

"The male made the only sound through the whole incident and that was a loud and high pitched scream of physical pain. I watched the male begin to run away from police."

But as he ran away, the bullets kept coming - eight more, one piercing his right lower back.

The shots continued even after he dropped his knife on the double yellow lines of State Highway 1, under the full moon of Easter Saturday, 31 March, 2018.

The final shot was fired when Toms was unarmed and 14 metres away from police.

Later, at a homicide inquiry into the shooting, Constables A and B would say they fired thinking they were the only police at the scene. In fact there were six other patrol cars and seven other officers there, plus a police helicopter above.

One of the nine officers handcuffed the dying man.

"I realised there was probably not a lot we could do for him," he would later say. "I couldn't put him into a proper recovery position because we had put handcuffs on him and his hands were behind his back."

He could feel a fading pulse.

"We talked amongst ourselves, me and Senior Sergeant, and we were like 'oh well, okay the guy's not a threat. We can take the handcuffs off and put him in a proper recovery position and try and do some CPR on him or whatever.' So I uncuffed him and put him in the regular recovery position."

But it was too late. Phil, a paramedic from Silverdale, pronounced Toms dead at 4.14am. "We all looked at the monitor and Phil said: 'That's a dying heart. There's no sign of life'," an ambulance staffer later recalled.

Nearly four years later, the Toms family are still waiting for a coroner's inquest.

"It's torn the family to shreds," Jerrim's brother-in-law Scott Harman says. "Not one of Jerrim's family can get on with their life. There are just so many unanswered questions."

Why was Toms killed by police after his mum had asked for their help?

Why did Constable B, a probationary officer only months out of Police College, tell the homicide investigation he'd fired all his shots as Toms advanced, when the truth was he'd fired five shots as Toms ran away?

How did a convoy of seven police cars, including a dog handler, not have a plan for what to do when the Subaru, crawling along on its rims after the road spikings, finally stopped?

Was the Incident Controller, marshalling the police response from a control centre known as North Comms, telling the truth when he said he didn't know about Toms' mental health issues until after the shooting?

But above all, did it have to end this way? And when it did, were police too soft on their own, when they conducted a homicide investigation into Toms' death?

"No family ever should have to deal with what we've had to deal with," Harman says. "We sit there and wait for answers. Four years on."

***

On Thursday 29 March, 2018, two days before his mum made that 111 call, Jerrim Toms left work at 5pm on the dot.

That was fine with his boss Richard, who understood the apprentice mechanic was keen to get away for the long Easter weekend.

Richard was happy with the young man he'd hired three months back. He was a good worker and a fast learner.

Toms loved motorbikes - he had a Ducati Monster, a GasGas 250 and a Honda CBR 600 - so fixing them was a natural fit. There were Thai meals and beers after work and weekend trips to Waiouru for motocross.

"We were mates, not just work mates," his colleague Courtney would later tell detectives, describing Toms as a popular guy. "He was pretty active on the girlfriend side of things. He wasn't struggling for female companionship."

Natasha, Jerrim's eldest sister, says he blagged his way into that job. "He went riding with the people at Moto 1 and he convinced them to give him a job," she says, recalling her little brother's cheeky humour and his laugh, which still rings in her ears now and then.

Daniel, an old high school school friend and later a work colleague, says Jerrim was "quite spiritual" and would often talk about reincarnation. "He was quite determined that things would be made right in the next life."

He was also a homebody. He lived with his mum at Paihia Road his whole life.

"At Mum's place, her garden is pretty much planted by him," Natasha says.

Toms was open about his mental illness and his workmates knew he'd taken a week off in February to get treatment. What they didn't know was that he'd suffered a serious episode and hadn't fully recovered.

Toms was first diagnosed with bipolar disorder in 2016. That first time he spent six weeks at Te Whetu Tawera, Auckland's acute mental health unit.

But in February 2018, due to a lack of beds, he was released after just three days, well before he had fully recovered.

"We arrived and they were saying, 'Okay, we're discharging him today'," Natasha recalls. "And we were like, 'Hang on a sec. Why are you discharging him?'"

At lunch on the day of his discharge, the family found him delusional and anxious. He thought the FBI wanted to lock him up for 20 years. "He kept saying, 'I'm ready to go back to the hospital now. Let's go. Let's go'," Natasha says. "It's where he felt safe."

After he was shot dead, Auckland DHB's mental health unit reviewed his care.

"Clinicians told the review team that increasing pressure for beds has meant that discharges occur when patients are settled enough for intensive community follow up rather than when they are completely settled," the review said.

For Toms, the lack of bed space meant he was released before "full resolution of his mood and psychotic symptoms".

His illness exacerbated his risk-taking behaviour, his mental health records say. On 11 March, two weeks after he was discharged and three weeks before he was shot, Toms was arrested for driving his motorbike dangerously.

Here was another chance for police to recognise his mental illness. And they nearly took it. Toms was upfront with the officer who took him into custody for the night, saying he'd drunk three beers and smoked cannabis and that he had bipolar disorder.

"At first I evaluated him as being in need of care and frequent monitoring. I changed it straight away to 'not in need of specific care'," the officer later explained, saying Toms seemed fine and was taking his medication.

"We did not enter an alert on Toms' dossier in NIA [National Intelligence Application, a police records system] in regards to him having mental health issues. It is not something we always do as a matter of routine."

Toms' mental health records say marijuana use "destabilised his mental state typically by increasing his paranoia" and that "he also used methamphetamine on occasion".

Toxicology tests found small traces of meth, cannabis and alcohol in Toms' blood after he was shot. Police asked a forensic pathologist what effect the meth had but he said it was "not possible to correlate a post-mortem blood level of methamphetamine with a specific behaviour".

Toms' work colleagues didn't think he had a drug problem. "I have never seen Jerrim in a state where I thought he was whacked out or anything like that," Courtney told detectives. "In the hours that we saw him, he was a perfectly regular guy."

That was the man they said goodbye to for the last time when he left work on the Thursday before Easter. But by the early hours of Easter Saturday, Toms was losing touch with reality.

He deleted his Facebook friends and posted a series of strange messages.

"Divine love, I'm home. We are all one or we are not one."

He told his mum, Joan, the house now belonged to him and she should leave. Joan went to Natasha's house and at 2.25am phoned the mental health Urgent Response Service.

She was put through to a Duly Authorised Officer (DAO), a statutory position under the Mental Health Act and the first point of contact for mentally ill people living in the community.

The DAO told Joan to call police for a welfare check but, according to the Auckland DHB review of his case, these checks are poorly understood.

"Some DAOs believe these welfare checks will lead ultimately to a mental health review at some place of safety but there is no policy to guide this practice nor any agreed response with the police."

Joan called police for the welfare check at 2.51am but by 3.22am they had closed the job, leaving only summary comments in the event log. "Male not at address, presumably left in white Legacy," the notes read. "Event closed."

About one minute after the job was deleted, an off-duty officer on his way home from a shift pulled up alongside a white Subaru on the side of State Highway 1. The headlights were off but the hazard lights were flashing.

"I said to him 'you okay mate'," the officer later recalled. Toms looked startled and wild-eyed. "He started yelling 'state your name and your number'." Toms got out of his car and started banging his machete on the road, then walked around to the driver's side of the police car and tried to grab the top of the open door.

The officer slammed the car into reverse, backed off a safe distance and called for help. Five officers responded. The Eagle helicopter was scrambled. The chase was on.

***

The pursuit was less like a high-speed car chase and more like a game of cat and mouse.

Police followed Toms for 17km over 40 minutes and he was all over the place. Sometimes he was driving 30 km/h. Sometimes he was doing 150 km/h. At one point it was Toms who was following police. He stopped and smashed his tail lights with the machete, leaving police searching for his brake lights on the corners.

The moon was full. The night was clear. The Eagle helicopter was overhead providing commentary to the officers below. The crew saw and filmed everything. Except the most critical part of the chase.

At 3.52am, about half an hour into the pursuit and about 10 minutes before it ended, there was a dramatic and life-threatening event. At least according to Constable A and B.

Toms stopped the Subaru near Warkworth, and Constable A, who was driving, says he pulled up 10 metres behind him.

Constable B says he didn't see Toms get out of his car but suddenly Toms was at the passenger window of the patrol car smashing his machete against the glass.

"I feared for my life and seriously thought I was going to die," the officer later told detectives, saying his mind raced to his family and friends. "I just thought, if this was my last day, I hope they know I love them."

The encounter was later used to bolster the police case for using lethal force, but there are several problems with the account.

None of the officers in the convoy's other six patrol cars saw or spoke about the incident and a detailed "narrative of events" put together by police half an hour after the shooting didn't mention it either.

The police helicopter crew couldn't help. The crew said this was the only bit of the chase they didn't capture on film because it was obscured by trees.

Constable A watched the Eagle helicopter footage before he was interviewed for the homicide investigation on 5 April, 2018. He would have known the Eagle didn't capture the moment he says Toms appeared at the police car window with a machete.

What did the two officers do at the time? Did they radio the Shift Commander at North Comms, and the other officers in the convoy, and tell them Constable B had nearly been killed? Not according to the Independent Police Conduct Authority's investigation.

"Neither of them advised North Comms that Mr Toms had hit the patrol car with the machete," the IPCA report says. The transcript of police radio communications backs this up. There is no mention of the event at all.

But in his interview for the homicide investigation, Constable A says he told North Comms about the incident 30 seconds after it happened but didn't get a response.

Constable B, who said he feared for his life, can't remember his partner calling the incident in.

"I'm sure [Constable A] would have told them that he'd attacked the vehicle with a machete but I just can't recall [him] saying it."

When detectives examined the patrol car on 1 April, a day after the shooting, they maintained Toms had not even got close to the car.

Two detectives discussed whether to take swabs from the window of the squad car for a DNA test. "It was decided that this would not be done since the offender had not touched the vehicle or came near it. The swabs would then be irrelevant."

Detectives later asked an ESR scientist to examine whether some marks found on the patrol car were made by the machete, but his report, dated September 2018, was inconclusive. "These marks could have been made by different areas of the same tool or by different tools."

***

The homicide investigation into the death of Jerrim Toms was named Operation Hamlet.

Maybe detectives were simply acknowledging a tragedy. Perhaps Shakespeare's play, with its themes of melancholy, suicide and star-crossed lovers, seemed to them an apt choice.

In the glovebox of the Subaru, police found a handwritten letter from Jenny, Toms' German girlfriend. "The nature of the letter appears to be that they have separated, although still love each other, and she is pregnant with his child," an officer wrote.

Detectives chose to run the investigation out of the North Shore Policing Centre, less than 30km from where the shooting occurred.

Conflict of interest forms show at least five investigating officers had work or social links to the officers under investigation. Some of them worked at the same police station and one had played sports with Constable A during the Police Winter Games.

By the time Constable A and B were interviewed for the homicide investigation on 5 April, it was clear Toms had been shot while he was running away.

The autopsy, conducted on 1 April, showed a bullet had entered Toms' lower right back.

Still, the legal defence the officers relied on was that they had shot Toms because they were acting in self-defence or the defence of others.

Copies of the Eagle helicopter footage had been made within 90 minutes of the shooting. "We were burning it off for staff," one of the crew said.

The helicopter footage showed Constable B fired five of his seven shots while Toms was running away.

But in his interview, Constable B told the detective he fired all his shots and then Toms turned and ran away. He was never asked how Toms got a bullet in his back.

At the end of the two-hour interview, the detective reminded Constable B that the IPCA may have more questions. "It's just the different perspective," the detective reassured him. "Hopefully you've gone into so much detail, you know, hopefully, what possibly could they ask you?"

Seven months later, on 12 November, 2018, Constable B was called back for a follow-up interview and questioned about the shots fired from behind.

"So now that you have viewed the Eagle footage and there were shots fired as Mr Toms ran away, please explain that," the interviewing detective said.

"I don't actually recall shooting him as he was running away but obviously on the footage I was," Constable B explained. "I thought I had stopped shooting him as he turned and ran. I didn't think I was still shooting him as he was running away."

The whole follow-up interview, including a break, was only 11 minutes long.

"I'll just go check with [the detective senior sergeant] to see if that is sufficient questioning," the interviewing detective said. A couple of minutes later she reported back to Constable B. "He is happy with what you've said."

What does police firearms policy say about continuing to fire at a person who is no longer a threat? The IPCA asked police firearms instructors that question and they said officers are trained to fire until "the threat is neutralised or incapacitated".

Police are supposed to be alert to "an identifiable change in the circumstances" of the threat.

The experts presented scenarios where an armed offender stops, turns or drops their weapon. "To continue to pull the trigger in that situation without reassessing the risk would likely lead to the conclusion that the officer was no longer acting in self-defence or the use of lethal force was disproportionate".

Despite that assessment, the IPCA ruled the two officers were justified in firing eight shots as Toms ran away. The IPCA said what mattered was how the officers perceived the situation rather than what the facts actually were.

So while Constable A and B were standing just 3 metres apart as they fired their shots, they relied on different perceptions of what was happening to justify shooting as Toms ran away.

Constable A, the experienced officer, fired three shots after Toms turned and ran. He told the IPCA he believed Toms was no longer a threat to him and Constable B but was "still a threat to everyone that was around".

That's despite the fact that it was 4am on a deserted highway and Toms was on foot, wounded and staggering towards the side of the road, where there was only bush.

Constable B, the probationary officer, fired five shots as Toms ran away, two of these after he had dropped the machete.

His justification was that he didn't realise Toms was running away, even though the helicopter footage shows him adjusting his aim to account for Toms' movement and his last shot was fired at a distance of 14 metres.

The IPCA says Constable B thought the threat remained unchanged and so "it follows that his actions in continuing to fire were reasonable in the circumstances as he believed them to be".

But why did Constable B tell the homicide inquiry detectives and the IPCA that he hadn't shot Toms from behind? That was simply an honest mistake, according to the IPCA.

"It was an extremely high stress situation and [he] was an inexperienced officer who at the time of this incident was a probationary constable and had only very recently graduated from Police College," its report says.

"The authority does not consider that [he] was dishonest in his account when he told the authority he did not fire again after Mr Toms had turned and started running."

***

Maybe Toms would have died even if the officers had stopped firing when he turned and ran.

The autopsy shows the two chest wounds were both fatal shots in their own right. The back wound was serious but classed as "potentially non-fatal"- although potentially fatal is another way of looking at that.

But how did it even get to this point?

One of the most extraordinary aspects of the shooting is that the two officers say they opened fire thinking they were the only police at the scene.

"I didn't even realise that other police were right there watching it all," Constable B told detectives.

That is a striking claim when there were seven patrol cars in the convoy, nine officers at the scene and that a helicopter had been providing commentary during the pursuit.

Constable B said he knew there were cars behind him but didn't know whether they were police or civilian cars, even though one of his colleagues parked up "almost level" with the back of his patrol car.

Crucially, one of those cars was a dog unit, which the IPCA says could have been used as a first option for disabling Toms.

The dog handler said he was getting his dog out of the wagon when he heard the shots. He was so close he was the first officer to get to Toms after he collapsed.

Why did Constable A and B think they were alone? The IPCA says this was simply their perception in the heat of the moment.

"They were so focused on the actions of Mr Toms after their earlier life-threatening encounter with him that they probably did not register the significance of the radio traffic."

The person with ultimate control over police resources and tactics that night was the shift commander at North Comms, an inspector with 24 years' experience, codenamed North Comms Alpha.

It was his job to hatch a plan. The problem was he didn't have one, or at least not one he told the convoy of police cars about.

"No tactics or plan regarding what to do once Mr Toms stopped was articulated by the Shift Commander," according to the IPCA, which said "active control" would likely have produced a very different outcome.

"Police could have contained Mr Toms in a more controlled manner, limiting any risk to the public and averting the circumstances that led to his death."

The incident was so poorly controlled that Constable A, a vastly more experienced officer than his partner, believed the Eagle crew were in control as the incident escalated.

He appears to have made up his own plan regardless - and it involved using firearms. "During this time, I told [Constable B] about our tactical options and what we were going to do if the vehicle stopped," he told detectives in the homicide inquiry.

"It was clear to me that spray and taser would be inappropriate if the male again charged us because such options are ineffective against a goal driven individual."

***

A mentally ill man was shot in the back as he ran away.

For Jerrim's brother-in-law Scott Harman it's still hard to accept.

"Eight shots after he had turned around and was going in the opposite direction, in the early hours of the morning on an empty State Highway 1 with no houses within a kilometre. Who is he a threat to? That's pretty brutal, man."

Harman is angry no one has been held to account and he's frustrated at the police attitude to Toms' mental health.

"There are millions of people all around the world with mental health problems. Being diagnosed with a mental health problem shouldn't be a death sentence."

The IPCA report says police accept it was "inappropriate" for the officer who did the welfare check on Toms to delete the job from the alert system after finding he wasn't home.

But it turns out the situation still could have been rescued.

The shift commander, the man in control of the incident, actually knew about Joan's emergency mental health call as the pursuit unfolded, but he didn't reveal this in his first two statements to the homicide investigation.

In his third statement, nearly three weeks after the shooting, he admitted he did know about the call out to Paihia Road. "I have stated earlier that I did not know about the job until the end. Having done more work on this matter, I can [confirm] I spoke to the Auckland city dispatcher during this event and post shooting."

"Having this information did not alter the way I managed this incident," he said. "I was aware of the mental health issues ... and deemed this not a factor in the way I would manage this incident. If anything it meant more urgency was required [in] executing my tactics."

The IPCA disagreed, saying if the officers on the ground had known Toms was mentally unwell they may have acted differently. "It may also have led them to consider that, given Mr Toms had exclusively targeted police, he might goad them into a response that left no alternative but to use lethal force against him."

In late 2018, as the Toms family faced their first Christmas without Jerrim, the state agencies turned in their verdicts. On 28 November the IPCA found that the police shooting was justified. On 19 December, the Auckland DHB team reviewing Toms' mental health care found he was discharged while still unwell and didn't receive adequate follow-up support, but said none of this would have changed the outcome.

Three days before Christmas, police told the Toms family they would not lay charges against the officers involved in the homicide.

Natasha says at that point they expected to wait another year for the inquest. "We're still waiting nearly four years later to have our say in court to challenge what we think are the lies and the BS stories that they created to justify what they did to Jerrim," she says. "It's just not right."

In the years since police were absolved of his shooting, the garden Jerrim planted for his mum at Paihia Road has flourished. Jerrim's daughter has too. Juna was born 12 days after police killed her father. She'll be four years old soon. Juna and her mum Jenny visited from Germany after the shooting and stayed with the Toms for three months, getting to know the family of the dad Juna will never meet.

"She is beautiful," Natasha says. "She is absolutely beautiful and she is so like Jerrim."