A Bay of Plenty man tasered twice by a police officer after failing to stop his car wants to take the officer involved and the police to court.
Mark Smillie at his home in Whakatane. Photo: RNZ
The Independent Police Conduct Authority (IPCA) this month found the officer who tasered Mark Smillie in Whakatane on Christmas Day 2011 used excessive and unlawful force.
The officer was given extra taser training before the IPCA report was issued, and the police decided he would not face further disciplinary action, or be prosecuted.
But from his home in Whakatane, Mr Smillie, said he was in the process of finding a civil lawyer so he could take a private prosecution against the officer and a civil case against the police.
He said he needed legal help to get the case going and was waiting for a list of lawyers to be sent to him. It is likely the lawyer will have to do the work for free.
Mr Smillie said he was still unable to watch the footage from the taser, which he was hit with twice.
He had suffered mentally and physically, and would like some money from the police to help with his social situation, he said.
Smillie has 'strong case'
Lawyer Peter Johnson, who took a successful private prosecution against two constables last year, said the IPCA finding would assist in convincing a district court judge that Mr Smillie had a prima facie case.
He said Mr Smillie would be best to take a private prosecution against the officer and he could also look at taking a civil case against the police.
Former MP Keith Locke, who campaigned against tasers, said Mr Smillie had a strong case because the authority partly found in his favour.
He said Mr would be performing a public service if he was able to take the police to court.
Mr Locke said he hoped the case would change the way the police used tasers.
Police are declining to comment while there is the possibility of legal action.
The report
Mr Smillie was driving home on Christmas Day 2011 when the officer tried to pull him over because he was thought to be speeding.
He claimed to have not seen the officer or the unmarked police car before turning into his driveway.
The property where Mark Smillie was tasered in Cutler Crescent, Whakatane. Photo: RNZ
The officer said Mr Smillie was resisting arrest and pepper sprayed him, which the report found to be justified.
He was also hit with a baton but the IPCA was unable to determine if this was in defence and therefore justified.
The officer then returned to his car to get a taser before tasering Mr Smillie twice, once for 13 seconds.
The taser camera footage shows Mr Smillie lying on the ground saying "help help" when it was discharged a second time.
The IPCA found the use of the taser was excessive and contrary to the law. It also said it was aggravated by the prolonged use of the taser.
Mr Smillie said the pain he experienced from the taser was hideous, and the worst pain he had ever experienced.
He said he was not surprised the IPCA found the use of pepper spray was justified because it had to rely on the information given to them.
However, its findings over the taser use had knocked his socks off, he said.
Mr Smillie maintains what he was doing that day wasn't wrong. However, he was convicted of failing to stop his car and of resisting arrest.
The police refused to comment, saying it was inappropriate to comment because of the possibility of legal action.
