SA Police launch legal challenge over inquest findings in 2015 Alexander Kuskoff shooting
Police Commissioner Grant Stevens and an unnamed STAR Group officer have launched Supreme Court action to have findings in a police shooting inquest quashed.
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In an unprecedented move, South Australian Police have launched Supreme Court action challenging the findings and a recommendation in a coronial inquest into a fatal police shooting.
Police Commissioner Grant Stevens has launched two separate actions.
The first appeals against Deputy State Coroner Anthony Schapel’s findings and a second seeks to have critical “discussion’’ over SA Police’s body-mass shooting policy quashed.
The first action has been launched by Mr Stevens and the STAR Group operative – known only as DA – who fatally shot gunman Alexander Peter Kuskoff in September 2015.
It seeks to have overturned certain findings it describes as “erroneous’’ and “unsupported by the evidence’’ concerning DA’s actions in shooting Mr Kuskoff.
It wants this replaced with alternative findings.
The second, seeking a judicial review of the body-mass policy discussion, was launched solely by Mr Stevens and seeks to have a recommendation concerning the policy quashed because it was beyond Mr Schapel’s jurisdiction.
Mr Kuskoff, 50, was shot twice by DA during a siege at a property near Tailem Bend after firing his high-powered rifle in the direction of DA and another officer, known as AM, who were observing him from 141m away.
Prior to the shooting, Mr Kuskoff had been firing shots indiscriminately and attempted to shoot down a police helicopter observing him at the remote property.
In his evidence at the inquest, DA said he had heard a “crack’’ as a projectile from Mr Kuskoff’s rifle passed close to their concealed location. He said he had said to AM “f..k that’s close, that’s coming right next to us’’ and AM replied “yep that’s f...king close.’’
He said Mr Kuskoff started firing again so he fired three shots at him from his .308 calibre semiautomatic rifle.
The first struck Mr Kuskoff’s left forearm – while his rifle was levelled at the two officers – and fragmented in his body.
The second struck him in the lower back as he spun around after being struck by the first shot. The third shot struck a gate behind him.
The notice of appeal states the findings in question include Mr Schapel’s finding “that it was the case, or alternatively that it was possible’’ that “DA ought not to have fired the second and third shots’’ that “DA ought to have, and did not, more carefully reflect on what the result of the first shot was before firing another’’ or ought to have, but did not “give himself a sufficient opportunity to reflect’’ before firing the second and third shots.
The notice of appeal states those findings were “erroneous’’ and “not reasonably open on the evidence’’.
It states they were also inconsistent with the finding that DA was “a most impressive’’ witness who “answered questions in an apparently open and forthright manner’’ and whose answers were “consistent, persuasive, had the ring of truth’’ and were “supported by the objective evidence’’.
The appeal requests the impugned findings be set aside and substituted with findings that include “DA was justified in firing each of the first, second and third shots …’’ and that DA “did not perceive ... that the deceased had gone down, or no longer posed a threat, after the first shot was fired, or that he had been incapacitated by the first shot …”
The findings were handed down on August 14, prompting outrage from both rank-and-file and senior police who were concerned at the questioning of the body mass shooting policy.
In the findings, Mr Schapel questions the police policy of “avoidance of extremity shooting’’ in armed confrontations with offenders.
The policy, under which police are trained to aim at the largest body mass, is standard policy for law enforcement worldwide.
The findings state the SA Police policy is that if it is necessary to use a firearm “to disable a human threat, the centre mass of the individual is the appropriate target’’.
“Clearly this is more likely to result in death or very serious injury as distinct from a situation where a limb is the target,’’ he states.
“The policy might well give rise to an appropriate and lawful defensive response in many cases.
“However, there may be occasions in which shooting of a person with the torso as a target, with an accompanying intention to kill, will not be regarded as necessary and reasonable or be seen as a proportionate response to the threat posed by that person.
“Whether it is so will naturally depend on all of the circumstances confronting the particular officer. This should be borne in mind by police in the field.’’
Police want that recommendation quashed, with the Supreme Court application stating the recommendation and discussion of the “use of firearms and the targeting of the centre of a seen body mass and extremity shooting” was beyond the Coroner’s Court’s jurisdiction.
The application states Mr Schapel exceeded his jurisdiction in that the “discussion’’ was not a finding in relation to Mr Kuskoff’s death and was not a recommendation of the kind referred to in the Coroners Act 2003.
A date has not yet been set for the application to be heard.
A world-renowned expert on police shootings, executive director of the US Force Science Institute Bill Lewinski, has debunked suggestions police can shoot the arms and legs of offenders to disable them in an encounter.
Mr Lewinski, who is a consultant to US state police departments on police shootings, says extremity shooting is “a Hollywood myth’’.
“An officer is unable to do that, either whether it is shooting a gun or a knife out of a hand, shooting them in the hand or shooting them in the leg,’’ he states in an interview on the topic. “It is an unimaginable challenge we are facing officers with if we make them shoot the gun or the knife out of the hand or shoot to wound.
“It just can’t happen, it is one of those Hollywood myths that looks good on film, it doesn’t work in the real world. Even if we aim for centre mass, we tend not to be as accurate as we might on the range because the dynamics of an encounter, the dynamics by which people move in the real-world encounters are such that centre mass is a constantly changing target.
“It is the best place an officer can aim for, the best chance they can hit someone is if they aim centre mass, but even then it is not guaranteed, but it is a lot better than trying to aim for an arm or a hand.’’