An Aboriginal man who was found guilty of resisting police has had his conviction overturned, in an incident now the subject of an internal New South Wales Police review.
First reported in the Daily Telegraph on Saturday, police officers found Joshua Flynn in distress inside a supermarket in December 2022. He was pepper sprayed whilst an officer had a knee on his head, and was called a "f**king idiot."
His conviction for resisting police in the NSW Local Court was overturned, with the Telegraph reporting a NSW District Court Judge believed the actions by the officers were "inconsistent with any intention to secure his welfare".
Not suspected of any crime, footage shows officers repeatedly using "defensive strikes" on Mr Flynn, who is reported to be considering his legal options.
NSW law allows police to make arrests - even without having been suspected of any crime - under the Mental Health Act.
However, Judge Timothy Gartelmann said the use of force was not consistent with the act, arguing, "In essence the appellant was posing no harm or threat of it to staff or patrons."
"[The officer] did not purport to have formed any reasonable suspicion that the appellant had committed any offence in order to justify this use of power," Judge Gartelmann said, as reported by the Daily Telegraph.
The words used by the officers during the arrest, which included one officer saying, "just drag him, bro", reinforced in Judge Gartelmann's mind that "their [the officers] intention was anything but to ensure his welfare,"
Video footage reportedly showed Mr Flynn telling officers through tears, "you've f**ked me up enough," as they grabbed him by his hair.
An officer places his knee on Mr Flynn's neck, whilst a colleague sprays him with capsicum spray at the same time.
"Even if it were open to conclude officers had purported to exercise such a power, their conduct in doing so, on no sensible view, is said to comprise reasonable force or force reasonably necessary," Judge Gartelmann said in overturning the conviction.
A NSW Police spokesperson told National Indigenous Times: "The matter is subject to an internal review."
"The NSW Police Force is continuously reviewing the most contemporary and appropriate mental health training requirements to ensure officers are equipped to appropriately respond to mental health incidents," the spokesperson said.
It's the latest in a series of notable incidents involving First Nations people and NSW police.
This week, a report highlighted the discrepancy in policing during the Covid-19 pandemic, which argued disadvantaged and First Nations children in New South Wales were targeted by police with fines of up to $5000.
Last year, Senior Constable Ryan Joseph Barlow was found guilty of assaulting an Indigenous teenager in 2020 after being filmed holding the teen's arms behind his back and using a 'leg sweep' motion to slam him to the ground.
He is still employed by NSW police as he appeals his sentence and conviction.
A recent Law Enforcement Conduct Commission (LECC) report found NSW police had compromised a number Indigenous youths right to silence when questioning them, whilst earlier this month National Indigenous Times reported a Supreme Court date had been set for a class action against the NSW police for allegedly strip-searching hundreds of children, some as young as 11.
It also comes after Police Commissioner Karen Webb last year argued Closing the Gap targets would lead to "competing duties" for NSW Police officers - a statement labelled "outrageous" by human rights lawyers - and Premier Chris Minns argued police were not responsible for Indigenous incarceration numbers reaching record levels.
