Shargin Stephens was fatally shot by police in 2016. Photo: RNZ/Vinay Ranchhod
The police officer who fatally shot Shargin Stephens had already decided to pull the trigger before Stephens moved toward him with a slasher.
The factual finding of Coroner Michael Robb is based on evidence from a part-heard inquest into Stephens' death in November last year, and can only be reported because it was raised at a resumption of the inquest in Hamilton on Monday.
Stephens died in Waikato Hospital 13 days after he was shot twice by a police officer in Rotorua in July 2016.
Coroner Robb said officer L05, who has name suppression, had pre-determined he would shoot Stephens if he did not drop the slasher.
Stephens had minutes earlier used a gym weight to damage an empty patrol car before being chased to Te Ngae Road.
The coroner said it was "abundantly clear" that L05 made a decision as he was running across a road toward Stephens that he was going to shoot the 35-year-old if he did not drop the weapon.
L05's evidence last year was that he was planning to shoot Stephens in the back as police tried to contain him near a mall in the school holidays.
"He then says that he deliberately positions himself so that he doesn't hit anybody," the coroner said. "The purpose of positioning himself and getting closer was to shoot Mr Stephens."
The 148-page factual finding cannot be reported in full until after the coroner has heard from experts in the case and makes a final finding.
Counsel for officer L05, Susan Hughes KC, said the fatal shots came only when Stephens raised the slasher and took two steps toward L05.
"I cannot accept that the officer went there with the intention of shooting him."
Stephens had been bail checked by police 70 times in 38 days leading up to his attack on the police patrol car.
Police superintendent Dion Bennett, an expert in tactical policing, said Stephens was acting in a "violent and unpredictable" manner leading up to the shooting.
Bennett said he did not agree the officer had formed an "early and rigid decision" on the need to shoot Stephens.
He also did not agree with the coroner that Stephens' behaviour that day was simply unusual.
"I would describe him as acting in a violent and unpredictable way... the swinging of the slasher at police, that this was in a public place was a key factor..."
But counsel assisting the whānau, Charl Hirschfeld, said Bennett did not take into account the background of events, the bail checks, and that Stephens may have been traumatised.
"I guess my answer to that is what was Mr Stephens' plan, beyond his attack on the police car, as he moved down the road with the slasher, a spanner and a knife in his pocket," Bennett said.
He accepted there was a complexity to the case including that Stephens was likely sleep deprived, had smoked methamphetamine the night before, was frustrated with the police, had fought with his friend earlier that morning and took an opportunity to damage a police car.
The officer whose patrol car Stephens attacked outside his home on Vaughan Road, sent a 10-10 coded message for help, which Bennett said was an emergency call "reserved for situations requiring the most urgent response by police".
"It's kōrero tapu... it's not something a person should undertake lightly."
The urgency of the response would have been reduced or cancelled if it was known the officer who made the call was safe, Bennett said.
But L07 never communicated that.
Stephens, who had 72 convictions and was on electronically-monitored bail, was followed and surrounded by eight officers and three dog handlers in a mechanics workshop on Marino Road.
Counsel assisting the coroner, Chris Gudsell KC, said there was no presence of mind to guard the doors to keep Stephens contained.
"If he had been kept contained there would have been no immediate need to shoot him," Gudsell read from the factual finding.
The actions of the police "added to the impression of panicked officers unsure what to do in a high stress situation".
However, lawyer for the police Amanda Gordon said Stephens was only in the building for 40 seconds and was moving the whole time.
She pointed out there were multiple entries and exits.
Stephens then went to Te Ngae Road where probationary officer L05 got his M4 Bushmaster rifle and followed him.
Hirschfeld put to Bennett that L05, who was relatively junior, fired two shots when one shot could have been non-fatal.
He said L05 could have kept his distance because a rifle was still accurate from further away.
"But in actual fact he moved toward Mr Stephens in the middle of the road. That doesn't seem to reflect good training does it?"
By the time he shot Stephens, L05 was only seven metres away.
Coroner Robb said the concern was that L05 was advancing on Stephens, positioning himself unnecessarily close, with an unarmed Armed Offenders Squad [AOS] officer behind him.
"The concern is that you have a probationary officer (who) through his actions has taken effective control."
Police College tactical trainer Senior Sergeant Graeme Sydney was cautioned by Coroner Robb for providing opinion in parts of his evidence, and which differed to the factual finding.
Sydney said the police response was correct and lethal force was necessary that day.
Gudsell asked whether police would have done anything differently and Sydney said if such a situation unfolded again today there was the potential for the same outcome.
Stephens' whānau, some of whom were in court, are due to given evidence later in the week.
