Many have welcomed the upgrading of charges against the New South Wales police officer the man whose tasering of a great grandmother at a nursing home resulted in her death.
An internal police investigation initially led to 33-year old senior constable Kristian White being charged with three offences, recklessly causing grievous bodily harm, assault occasioning actual bodily harm and common assault.
Those charges were upgraded this week to the offence of manslaughter, which carries a maximum penalty of 25 years in prison, after advice from the Office of the Director of Public Prosecutions that the evidence supports the assertion that officer White is criminally responsible for unlawfully killing the elderly woman.
The incident
Officer White tasered 95-year old Clare Nowland, who suffered dementia, in May this year during an incident at an aged facility after she refused to drop a steak knife white in her walker.
The great grandmother fell, hit her head and succumbed to her injuries a week later in Cooma Hospital.
While further details of the incident have been kept under wraps by the New South Wales Police Force, the incident sparked national outrage and made media headlines around the world, with many wondering how the officer came to fear so badly for his safety in the face of a frail old woman yielding a steak knife, that he resorted to using a weapon.
Taser footage was available, but the NSWPF refused to release publicly, although at the time the New South Wales Commissioner of Police Karen Webb said she was unlikely to watch it, her Deputy, Assistant Commissioner Cotter Peter Cotter described it as "confronting".
New South Wales police also fought a bid by Ms Nowland's family members to view the footage, and although they were eventually given permission by the court, they have not been able to view the footage, and won't be, until statements can be taken by police that may be part of the criminal proceedings.
Excessive force
Prosecutors alleged that the officer's actions were "grossly disproportionate" and "excessive" given the great-grandmother's age and ability.
Court documents detail that in the leadup to the incident, when Mrs Nowland kept trying to move forward, Mr White allegedly activated a visual and audio warning on the taser.
"See, you are going to get tasered ... Clare stop," Constable White allegedly stated.
But Mrs Nowland raised the knife again and pointed it at the other officer, standing about two metres away from her.
According to a police statement, Mr White apparently then said: "Stop, just ... nah, bugger it," before deploying the taser.
New South Wales Police guidelines stipulate that a taser is not to be used on an elderly or disabled person unless in 'exceptional circumstances.'
Mr White is suspended, with pay, until the case is finalised before the courts. The next hearing is due before the Cooma Local Court in the coming weeks.
Clare Nowland's family have also filed a civil case against the state of New South Wales over the incident. It is likely not to proceed until the criminal case has concluded.
What is the charge of Manslaughter?
Manslaughter is a offence contained in section 18(1)(b) of the Crimes Act 1900 (NSW).
To establish the offence, the prosecution must prove beyond reasonable doubt that an accused person committed an unlawful killing other than murder.
Such offences fall into two broad categories – which are voluntary manslaughter and involuntary manslaughter.
The key difference between the two is that voluntary manslaughter refers to circumstances where a death is caused by extreme provocation, substantial impairment by abnormality of mind, or uncontrolled, unmoderated self-defence.
Involuntary manslaughter is where death is caused by an act caused by an unlawful and dangerous act, or by criminal negligence.
Self defence is the most common defence to manslaughter
Self defence is the most frequently used legal defence against charges of manslaughter.
Self defence is a complete legal defence, which means a person must be found not guilty if evidence of self defence is raised at trial and the prosecution is unable to disprove beyond a reasonable doubt that it applies in the circumstances.
It is anticipated that if the case proceeds to a jury trial, officer White will seek to rely on the assertion that he was acting to defend himself and/or another person or persons from the 95-year old grandmother when he tasered her.
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