Shooting to wound 'something from the movies' - Coster

After revelations that New Zealand police kill at 11 times the rate of officers in England and Wales, RNZ has obtained a secret IPCA report that sheds light on the way the Armed Offenders Squad operates and the questionable state of police firearms training.

This is the third story in an investigative series on police shootings. You can read the previous two stories here: Licence to Kill; Police who killed were given evidence in advance.

The official report into why Iriheke Pere, a 33-year-old Māori man with mental health issues, was shot in the back by police was never publicly released.

Pere was lying on the ground in handcuffs when he was accidentally shot by a member of the Armed Offenders Squad (AOS) in Hastings on 16 August, 2013.

He was admitted to hospital in a serious condition but he lived, partly due to one of many mistakes made by the police that day.

The AOS had mistakenly loaded their rifles with training ammunition, which turns to dust on impact. Pere's single bullet wound to the back was serious but it could have been fatal.

The Independent Police Conduct Authority (IPCA) investigated the shooting but, contrary to its usual practice of publishing decisions on its website, didn't release the findings.

Initially, the IPCA said legal action had delayed the investigation. The AOS officer who shot Pere had been charged with careless use of a firearm. The case went to trial in early 2016 and the officer was acquitted, but still the report was withheld.

In early 2022 RNZ asked why, nearly 10 years after Pere was shot, the report was never released. The IPCA responded: "This case was reported by way of letter to (the) Commissioner of Police and was not a public report".

RNZ has now obtained the secret IPCA report into the Pere shooting. Its contents shed rare and valuable light on how the AOS operates and the questionable state of firearms training in the New Zealand police.

***

The AOS is better known by its acronym than its full name and many more people will know what its members look like than what they actually do.

Kitted up in black overalls, black balaclavas and goggles and brandishing semi-automatic rifles, the AOS look like an elite squad of highly trained sharpshooters.

The AOS plays a vital role in New Zealand, which prides itself on being one of fewer than 20 countries where police don't routinely carry guns.

The AOS was formed in 1964 after a series of police shootings the previous year.

In January 1963, Victor Wasmuth shot dead a kennel owner and two police officers, Wallace Chalmers and Neville Power, who attempted to arrest him in Waitakere. The following month, Bruce McPhee killed police officers James Richardson and Bryan Schultz, after they responded to a domestic violence incident at his home in Lower Hutt.

There are now 17 AOS units across the country, made up of about 300 officers.

But the AOS remains a part-time force made up entirely of police officer volunteers. So how professional is this squad and how robust is the training?

This is where the IPCA report on the Pere shooting is valuable.

Contrary to the jury verdict, the IPCA found that the officer who shot Pere had carelessly used his firearm.

Pere was mentally unwell and his mother had called for help from mental health experts, who rang the police. The AOS went to his mother's house and arrested Pere for unlawfully possessing a pistol.

While attempting to change his handcuffs - from plastic to metal ones - an officer "bent down slightly and his rifle fired".

According to the IPCA report, the AOS officer was not holding the rifle when it fired, rather it was attached to a sling around his neck.

The report says the safety lever was accidentally turned to the fire position when it "brushed against the stiff fabric of his vest". Then, when the officer leaned forward to change Pere's handcuffs, a buckle on his vest "connected with the trigger causing the rifle to fire".

The IPCA found that, because the officer did not know where his gun was pointing, he broke one of the four basic rules of firearms training, the so-called 'laser rule': where you point the firearm it will fire.

While the jury in the Napier District Court trial found the AOS officer not guilty on the charge of careless use of a firearm, it was guided by the criminal threshold of "beyond reasonable doubt". The IPCA found that on "the 'balance of probabilities" the officer had "carelessly used his firearm".

Before an AOS officer can be deployed they must complete the National AOS qualification course. But the officer who shot Pere had not done this. Because of a shortage of AOS in Hawke's Bay the shooter, and two other AOS officers, had been given permission to deploy without obtaining the qualification.

This was despite the fact that at his initial assessment, called the National AOS Selection Course, the shooter had only received a "conditional pass".

"His superiors recommended he receive one on one tutoring due to some concerns about his performance," the IPCA report says. But it never happened and prior to the shooting "no formal mentoring or development plan had been created" to address the performance issues.

But it wasn't just him. "As a result of this investigation," the IPCA said, "police identified that there was no formal induction or mentoring programme available for AOS officers".

In 2015, more than 50 years after the squad was established, the police finally accepted a recommendation from the IPCA saying they needed a national programme for induction and mentoring of AOS officers.

Police Commissioner Andrew Coster told RNZ he didn't know whether a national induction and mentoring programme had yet been implemented.

But Coster, whose 25 year career includes a stint as AOS commander in Auckland, says AOS training is excellent.

"Our AOS staff are highly trained and highly competent, and I've never felt safer in my career than when I was working alongside those people, even though we were going to some of the most dangerous situations."

***

RNZ's investigative series Licence to Kill has found that New Zealand police have shot dead 39 people since 1990. Pere could easily have been number 40.

Nicholas Taylor, a specialist firearms lawyer who had some early involvement in Pere's case, says there are two main reasons for New Zealand's high rate of fatal police shootings (11 times higher than England and Wales per capita).

"Firstly, the lack of training and lack of mentoring and lack of internal support and secondly the policy of shoot to kill."

We'll come back to the shoot to kill policy but it's the lack of firearms training which deeply concerns Taylor because he'd seen it before in another accidental shooting - this one with deadly consequences.

In 2009, the AOS, while firing at fleeing offender Stephen McDonald on Auckland's North Western motorway, missed its target and hit and killed 17-year-old courier driver Halatau Naitoko.

Taylor represented another innocent bystander who was hit that day. Richard Neville survived the bullet fragments that entered his torso, arm and hand.

"It was a spray and pray situation where a flurry of bullets was fired and the tragedy resulted from that," Taylor says.

The officers, codenamed A81 and A84 to protect their identities, were the two least experienced members of the AOS to deploy that day but were paired together and they were found wanting.

"The inaccurate marksmanship occurred because the officers were operating in a highly stressful and challenging shooting environment for which their level of training and experience had not equipped them," the IPCA said.

The standard of shooting "raised concerns about the depth and degree of AOS weapons training" the authority found.

Coroner Matenga, who presided over the inquest into Naitoko's death, also weighed in on the woeful marksmanship.

"Officers A81 and A84 essentially missed their intended target with four shots from a reasonably close range of between seven and nine metres. When this is combined with the failure of A84 to appreciate what was within the line of fire indicates to me a need for further training and an acknowledgement by AOS that experience matters."

Not only were they inexperienced and poor shots, they were returned to duty 11 days after the shooting - before any of this could be properly examined, before psychological testing and before it was decided whether criminal charges would be laid.

One of the officers was returned to duty more than a week before he sat another "qualification shoot".

The IPCA was not impressed: "The failure of the officers to hit their target and the tragic outcome of that failure, should have resulted in a more rigorous assessment of whether they should return to AOS duties and, as a minimum, weapons re-training rather than re-qualification."

***

New Zealand Police College training is just 16 weeks long - one of the shortest police training courses in the world.

According to a report by the Institute for Criminal Justice Training Reform, New Zealand's 16 weeks aligns it with the US near the bottom of its league table.

On average an American police officer gets about 650 hours of training before qualifying - similar to the 16 weeks in New Zealand. But police in Portugal receive 10,400 hours, in Finland 5400, in Germany 4050 and Australia 3500.

Police Association president Chris Cahill says out of the 16 weeks at New Zealand Police College just one week is spent on firearms training. After they qualify, police receive seven and a half days a year in weapons training but until recently it was just four days.

"I don't believe the training is sufficient," Cahill says. "It's something our members have raised for many years. The quality of the training they believe is good. The quantity of the training, they believe, really needs to increase."

But Tayor says another issue is what they are learning.

Police policy is to aim for the centre body mass which Taylor describes as shoot to kill. "Shoot to kill is literally aiming at the centre body mass which is the heart and lungs."

He says highly trained officers could shoot to incapacitate rather than kill.

"An AR-15 rifle that the police are using, is quite capable of hitting, after a significant piece of training, a 50 cent piece at 100 metres."

But Coster says when police are under pressure "your ability to execute a very precise movement is compromised" which is why police aim for the centre body mass, as the largest target.

"Even the best equipped people in terms of shooting skills, would struggle with a pistol to shoot an object other than at very close range," he said. "So this idea of shoot to wound is really something from the movies, it is not appropriate for the vast majority of situations our people find themselves in."

Taylor says the ammunition police use is also a factor in the number of deaths.

Police use hollow point bullets which are banned for military use under the Geneva convention.

"They're banned because of the dreadful wounds they create. But the Geneva Convention doesn't apply to the police," Taylor says.

"If the bullet hits basically any part of the torso, it will fragment and will expand to sometimes ten times the size of the original bullet and blow a large piece out of the back of the person."

One of the reasons police use hollow point bullets goes back to one of New Zealand's worst mass shootings. In November 1990, 33-year-old David Gray killed 13 people in Aramoana, northeast of Dunedin, including local sergeant Stewart Guthrie, who was one of the first responders.

Nowadays the police have the Special Tactics Group (STG) to respond to sieges and provide specialist intelligence, negotiation and command support.

Back in 1990 that squad was called the Anti-Terrorist Squad or ATS. It was mainly made up of military personnel and they used full metal jacket bullets, as most armies do.

The IPCA report into the shooting said the use of full metal jacket bullets was one reason Gray wasn't stopped earlier.

"The effect of the use of full metal jacket ammunition is demonstrated by the fact that, notwithstanding Gray received a bullet to the head and another to the chest which touched his heart he was not immediately incapacitated."

The ATS had used full metal jacket ammunition since it was set up in 1973 but following the report they switched to hollow point bullets.

Coster says full metal jacket bullets can also pass through a person or object and hit something else whereas hollow point bullets won't do that.

"The reason we use that kind of ammunition is because of the risk to others from a round passing through someone who's been shot," he says.

"When you're fearing for your life, you will be focused on the threat in front of you, you're not going to have the attention capacity to say, 'there's someone over there there's someone over there, there's a house behind them'."

Taylor accepts hollow point bullets are widely used in other countries for law enforcement, but says this massively raises the stakes on pulling the trigger because a bullet wound is highly likely to be fatal.

"The decision has to be, 'I'm going to kill this person,' when they pull the trigger, because that's realistically the end result."

But firing the gun all comes down to the "final frame" of the incident, Taylor says. Wind the video back. Would a different strategy have reduced the tension before it reached a point of no return?

Taylor says the attitude of the officer with the gun is a major factor in the number of fatal police shootings in New Zealand.

"It's tied in with a problematic culture and recruitment in the police," he says. "There is a fundamental problem with that internal culture in the police, there is an expectation of excitement and challenge."

***

At 2am on Thursday, 27 September, 2007 a police officer knocked on the door of Maria and Ray Bellingham's Napier home.

"She said that she had some bad news," Maria recalls. "Our son had been shot by the police in Christchurch."

Maria said a prayer and then came the tears. "Ray and I did an awful lot of crying," she says. "I can actually feel it welling up inside me now and so can Ray, he's standing beside me," she says on the phone from Napier. "You just lose the plot."

Maria believes that Stephen would be with her now if a different officer had responded to the incident with her son that night.

Bellingham had no criminal history and was popular with friends and work colleagues, according to the IPCA report into his death

But a few days prior to the shooting he appeared highly agitated, was not sleeping or eating and was taking party pills, which were legal at the time.

One night he began smashing up a van outside his central Christchurch flat and then walked a few streets over, smashed a car window with a hammer, unlocked the door and sat in the driver's seat.

Two police officers responded to emergency calls reporting the incident. They did not arm themselves with guns.

But when Officer A, a senior sergeant, heard that Bellingham had a weapon, he decided to deploy himself. He didn't tell the communication desk, SouthComms, he was arming up and he didn't sign out his gun - both were breaches of police protocol.

In fact it's questionable whether Officer A should have attended the incident at all. He was the senior field supervisor that night, responsible for supervising the greater Christchurch area. Any serious incident that night would require him to take control and manage the resources.

Officer A drove to within 5 metres of Bellingham, reaching him about 30 seconds before his two, unarmed, colleagues arrived. According to the officer's account, Bellingham ran at him with a hammer and, fearing for his life, he shot him in self-defence.

RNZ obtained a transcript of Officer A's interview with detectives conducting the homicide inquiry, in which he claimed Bellingham charged at him.

"He had the appearance of one of the characters that you see in a film like the 'Last of the Mohicans', one of those Indians in a war battle attacking another person."

But the IPCA report says that of 20 civilian witnesses only eight "described Mr Bellingham holding the hammer in an aggressive manner".

Five independent witnesses saw Bellingham approaching Officer A "rapidly" while six said he was walking towards Officer A.

Officer A himself initially claimed Bellingham had thrown the hammer at him, hitting him in the buttocks, but then changed his mind.

"I now think the hammer did not hit me at all but that it was a slight muscle twinge. I had remained front on to him, and he to me, the whole time so it wouldn't be possible to be hit in the buttock by the hammer."

Asked what Bellingham was doing that led him to draw his gun in the first place, Officer A told detectives: "It was his straightening up after having been in the car and that aggressive forward projecting of his body, that slightly raised hammer with body language that said 'what are you doing here, I've got this'."

The officer who killed Bellingham had previously shot at a man brandishing a sawn-off shotgun in 1999 (another officer shot and wounded the person) and received a Commissioner's Gold Merit Award for bravery.

But the IPCA report says he had also been the subject of multiple complaints. "The number of complaints against Officer A may reflect both his long service in front line duties and be an indicator of a somewhat uncompromising style of policing."

The IPCA said his actions on that night included "a number of breaches of best practice" although this did not amount to misconduct.

"They nonetheless do raise questions about Officer A's approach to frontline policing and support the view that he will benefit from mentoring and training in command and control before any return to front line duties."

Ultimately the IPCA, as with all 35 of its completed investigations into police shootings, ruled the killing of Bellingham was justified. "In the circumstances as he believed them to be, Officer A could not feasibly have used any other defensive means in such a close encounter and in such a short timeframe."

But to return to lawyer Nicholas Taylor's analogy, this is only in the "final frame" of the incident, and doesn't reflect how the incident was managed as a whole.

The IPCA report itself concedes this, saying "a best practice approach would have been to contain and stay back from Mr Bellingham" while extra resources were marshalled.

"Officer A made a decision that placed him in a confrontational position with a man who was on a violent rampage and had damaged property with a weapon," the IPCA said. "In doing so he reduced the options available to him and found himself in a position of having to immediately protect himself."

Criminologists call this "officer-created jeopardy". Maria Bellingham has a different phrase. "We consider him a bit of a Rambo. That's what we've called Officer A within the family here. He was a baton instructor, he was a martial arts expert, and all he could do was use the gun," Maria says.

"We think he had hyped himself up on the night and got too close to the scene and Stephen, within 30 seconds, was dead."